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Martin 'Ch. J.:
Our view of the question remains unchanged. It is_clearly a case where we have no jurisdiction.
Campbell J.:
This is a mere attempt .to induce us to review the action of the Auditors upon the facts. That could be nothing but an appeal. The case is very different from those in 3d and 8th Mich., where the amounts were liquidated. Here it was a question of fact whether the services were rendered or not. If the Auditors should wilfully or maliciously refuse to act upon the facts jiresented to them, there might be a remedy; but this is not that case.
Hand. But here the Auditors disregarded the evidence furnished.
The Cheep Justice:'
These papers present simply the question whether the decision of the Auditors was correct upon the facts.
Motion denied, with costs. | [
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] |
Martin Ch. J.:
We think the objection that Joseph W. Hewitt was not made a party to the bill in such manner as to put his rights in issue, by the general averment under rule 91 of his being a subsequent purchaser, is well taken. This averment is only to be made where the fact of being a subsequent purchaser or incumbrancer appears by the record. In this case, the record gives the title of Joseph W. Hewitt priority to the mortgage, he having recorded his deed first. In such a case, the rule is that the complainant must file his bill specially — if he seeks to avoid the title thus acquired — with distinct averments of the facts and allegations of the fraud which he claims invalidates such title.
The decree must be affirmed.
The other Justices concurred. | [
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Campbell J.:
The first question presented is whether under rule 79 the Court below was at liberty to receive evidence to disprove the execution of the undertaking of bail sued upon, without an affidavit filed with the plea.
We are of opinion that this rule is not applicable. It was designed to cover cases of private instruments, and not such undertakings in the course of justice as are at least prima facie evidence of themselves when produced. The instrument sued upon is called by the statute a recognizance, and a scire facias is one of the means of enforcing it. Although it is in one sense a written instrument, yet we do not think -the rule referred to' reaches it.
It was objected however, that, being a matter of record, it can not be assailed in any way. How far a record is conclusive evidence, and how far only prima facie evidence, depends very much on the nature 'of the record, and very much also on the tribunal from whose action it derives its validity. The ease before us, had it shown what evidence was offered to assail the recognizance, and upon what specific points, might possibly have called for an investigation of these questions. But it appears that the genuineness of the document was the only question in controversy, and inasmuch as the particular evidence offered does not appear, we can not presume it improper if any at all was receivable. There is no record which can not be assailed as not genuine. And where any portion of a pretended record has been forged or altered, it would be absurd to hold that a party who would be bound by the record if genuine can not dispute it. This would make the act of a private forger, and not the act of a court of justice, import absolute verity.
We think the genuineness of the recognizance was fairly in issue, and that there was no error in permitting proof upon it.
The judgment below must be affirmed with costs.
Martin Cii. J. concurred.
Manning J.:
The recognizance is not taken in open Court, but is signed by the bail and acknowledged before an officer out of court. It is then filed in the cause, and becomes a record. The signatures of the bail and the officers taking the acknowledgment, as I understand the statute, are a necessary part of the recognizance; so much so that it would be worthless without them. If I am correct in this, in an action against the bail the genuineness of the signatures may be controverted, not to contradict the record, but to show that what on its face purports to be a record is not a record. The '¡'9th rule of the Circuit Court is inapplicable to the case.
Christiancy J. concurred in these opinions.
Judgment affirmed. | [
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] |
Christiancy J.:
The same objections are urged to the information and' its verification in this case as in the case of Washburn v. The People argued and submitted with this. The opinion in that case- decides the present,, so far as these questions are involved.
The information is for incest, and charges that the defendant “did commit the crime of fornication with one Harriet A. Hicks, by having carnal knowledge- of the body of her, the said Harriet A. Hicks, she the said Harriet A. Hicks being then and there the daughter of the said William Hicks.”
It is assigned as error that the information does not allege, in the language of the statute creating the offense {Comp. L. §5870), that the defendant and the said Harriet A. Hicks were “ within the degrees of consanguinity within which marriages are prohibited, or declared by law to be incestuous and void.” This was clearly unnecessary. It being charged that the offense was committed with a daughter of the defendant, it is but a conclusion of law that the parties were within the prohibited degrees of relationship. By reference to Compiled Laws §.3206, it will be seen that no man is allowed to marry his daughter; and by the next section, that no woman is permitted to marry her father. This is a public law of which courts are bound to take notice. The statute creating the offense here charged uses-the words “ within the degrees of consanguinity within which marriages are prohibited,” &c., as descriptive of the class of persons to whom it applies,-, and- merely for the sake of brevity, to avoid the necessity of' enumerating specifically all the different degrees of relationship to- which the provision is intended to apply.
There is no error in the judgment or proceedings of the Circuit Court, and the judgment must be affirmed.
Martin Ch. J. and Mannn<j J. concurred. | [
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Campbell J.:
This was an action upon a recognizance of special bail, alleged to have been given in a case wherein Robert-Henry was plaintiff and Alexander Montgomery was de-„ fendant.
Upon the trial the original recognizance was not introduced, but only a substituted copy of a recognizance ordered to stand in lieu of the original which was said to be lost. The order of substitution was made upon the application of the plaintiff Henry, upon notice to Alexander Montgomery, No notice was given to the sureties, and they did not appear on the motion. An objection made on this account in the Court below to the introduction of the substituted copy of the recognizance was overruled.
We think the Court below erred in receiving the proofs. The action of the Circuit Court in allowing an alleged copy to be substituted in lieu of the original directly affected the sureties by establishing against them a liability to respond for the debt of another person, without giving them any opportunity to be heard. There was nothing then standing •of record to charge them; and the fact of their liability, which was sought to be fixed by the proceeding, was made out on what was; as to them, an ex, parte proceeding, on affidavits. This is against every principle of judicial action. No court can lawfully adjudge any person to be responsible in any shape, without giving him a proper opportunity to be- heard in his own behalf. This notice is necessary to give the court jurisdiction. The so - called amendment relied on was in effect an adjudication that the plaintiffs in error had agreed in due form of law to pay any judgment rendered against Alexander Montgomery upon Ms default. They cer-. tainly had a legal right upon such a motion to controvert the allegations of the plaintiff by showing that no lawful recognizance made by them had ever' been on the files of’ the Court.
It is unnecessary to consider any of the other points raised in the case, and we therefore omit any discussion of the ■ questions open on suits of this nature.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Martin Ch. J.:
Technicality and form are neither required or expected in the proceedings of justices’ courts. [If the action and judgment of the court can be clearly ascertained from inspection of the files, and the docket entries required by-statute to be made, no technicalities, imperfections or omissions in the entry of the proceedings and judgment will avail to reverse or avoid the judgment. All that is requisite is that the language used- shall be such as will inform a person of ordinary intelligence and mental capacity of the action of the court. To this extent the language must be certain; to require any thing further would prescribe a rule for the guidance of Justices which would render the correct performance of their duties, in very many instances, impossible, by reason of their want of legal knowledge, and which would almost entirely deprive parties compelled to litigate before them of their legal rights.
In the present case there was, therefore, no error in the ruling of the Circuit Judge admitting the justice’s docket to prove the confession of judgment in the case of Ostrander v. Kinyon and Cummin.
By § 3655 of Compiled Laws, a justice of the peace is authorized to enter judgment upon confession, with the consent of the creditor, if the debtor shall appear before such justice without iDrocess, and confess in writing, signed by him in the presence of such justice, that he is indebted to such creditor upon contract in a certain sum. All this was done in the case of the judgment offered in evidence in this cause. It is true that Ilinyon and Cummin did not, in their written confession before the justice, use the words of the statute, and confess that they “ were indebted; ” but they did substantially the same thing, when they confessed a “judgment” on a demand arising upon contract, in favor of their creditor. Their intention could not be misunderstood.
Now the phrase “confession of judgment” has a popular, as well as a technical signification. As popularly understood, it signifies an acknowledgment of indebtedness, upon ■which it is contemplated that a judgment may and will be rendered. So it was understood by Kinyon and Cum-min, and by their creditor and the justice; and when the former in writing declared that they “confessed judgment” in favor of Ostrander upon “ a demand arising upon contract,” they confessed that they were indebted to him upon such a demand. They used the language most usually • employed in these instruments.
Nor is there any question but that Ostrander was present when the confession was made and the judgment rendered, and consented thereto. The entry in the justice’s docket is that “the parties appeared.” This imports that the creditor was present as well as the debtors; and that he participated in the proceeding. The word parties imports-both plaintiff and defendant; and this is too well understood to permit the presumption that the justice, in his docket-entry, intended only to refer to the individuals of the party defendant. The presumption in this case is in accordance with both the legal and' popular understanding» If the creditor was present and participating, we cannot presume that he did not assent to the action of the justice in rendering judgment upon the confession; and we certainly know that he has not since repudiated it, for he sued out the execution upon which the property replevied was seized.
The judgment of the Court below is affirmed, with costs.
The other Justices concurred. | [
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] |
Christiancy J.:
Was the deed from Thomas Emerson and Frederick Pettis, purporting to be executed by their attorneys R. H. Waller and Curtis Emerson, to said Frederick Pettis, properly excluded by the Court below?
This is the only question necessary to the decision of this cause.
The deed was objected to on four distinct grounds; but from the view we have taken of the case, we do not deem it necessary to allude to the second and fourth grounds, of objection, relating to the anomalous character of the deed growing out of the fact that one of the grantors is. also the grantee.
Nor is it necessary to pass definitely upon the form of the acknowledgment, though upon principle, and from the authorities cited, we are inclined to think the acknowledgment would have been sufficient had the deed been other- • wise properly executed.
But the fourth ground of objection to the deed is,, that it was manifest from the terms of the deed offered in evidence, that the same was not made under the power of attorney given in evidence, but purported to be made under a joint power given by Thomas Emerson and said Pettis, and no testimony was given to establish such joint power.
We think this ground of objection unanswerable. The deed did not purport to be executed by the grantors in person, the owners of the land; its validity must therefore depend entirely upon the power vested in the attorneys by whom it was executed. But to make a valid deed under a power of attorney,'it was essential that there should have been an intention on the part of the attorney or attorneys to execute the deed under and by virtue of the power, or at least that the contrary intention should not appear.
Now whatever might be the effect of such a deed as this, if executed by the grantors in person, or whatever may have been their object or that of the attorneys in making Pettis, the grantee, also one of the grantors, the fact that they did intend thus to join them, and that they intended to execute the deed in the name and on behalf of both, is, we think, extremely probable, if not clearly manifest from the face of the instrument and the form of the execution. It would seem therefore to follow that the attorneys must have intended to act either under a joint. power from the two grantors, or a several power from each; though, as we shall presently see, it is not necessary here to determine whether the several power from Thomas Emerson, which was given in evidence, would have authorized the deed had it appeared to have been executed under that power. But the power or powers which would authorize the deed must be given in evidence, or the deed could not be that of either grantor, or in any manner affect the title.
The most natural inference to be drawn from the mode of execution and reference to the power, is that the attorneys intended to act under and refer to a joint power-from both the grantors, in whose behalf the deed purports to be executed, and not a separate power from each or either of them; for after affixing the several signatures and seals of each of the grantors named, they add “By their attorneys who sign in virtue of a power of attorney.”
It is true this may not be a necessary inference, which would admit no proof to the contrary; and if two separ-. ate powers had been proved, one from each of the grantors named, it is possible this mode of execution and reference might be construed as intended to refer to the two. But the only power introduced in evidence to sustain this deed was that from Thomas Emerson and wife, to which Pettis was not a party.
It would, we think, be going a great ways to hold that this could be the power referred to by the attorneys in executing the deed, had no intimation appeared of the-existence of another power which might have been intended by the reference.
But the case is not even so strong as this for the plaintiff in error. It appears from the testimony of his own witness, one of the attorneys named in this power, that when he had this instrument in his possession, he had also another power of attorney, executed to the same attorneys, by both of the grantors and Richard H. Morris. (the latter of whom was dead and Ms interest vested in the other grantees before this deed was executed). It is true it does not appear what were the contents of this latter or joint power; but from the manner in which it is spoken of by the witness, there would seem to be some probability that it had, or was supposed to have, reference to this land; and this inference is strengthened by the fact that, by a stipulation between the attorneys of the respective parties in the cause, it was admitted “that the signatures to a certain paper purporting- to be a power of attorney from Thomas Emerson, Richard H. Morris and Frederick Pettis” to the same attorneys “are genuine.” From the nature of the case we should naturally infer that this fact in the stipulation was inserted at the instance and for the benefit of the defendant below (plaintiff in érror), as the case of the plaintiff below did not involve the necessity of any power. The inference is very strong, if not conclusive, that this was the same power of attorney spoken of by the witness' Curtis Emerson as. being in his possession at the same time with that from Thomas Emerson.
We have already remarked that the form of execution of the deed, and mode of reference to the power, would naturally suggest the idea of a single or joint power of attorney, executed by both grantors, under which the attorneys undertook and intended to act in executmg the deed, though no such instrument had been alluded to or shown to exist. But with the additional, fact that such an instrument, was ¡.in existence, and in possession of the same attorney, at the same time he held possession of the several power from Thomas Emerson, the mference of an intention to act under and refer to the joint, instead of the several power, becomes very strong. This inference it is true might have been weakened, possibly overcome, by the introduction in evidence of the joint power, if it had appeared to have no reference to the land, or to be so entirely different in purpose that the attorneys could not probably have intended to refer to it in the execution of' the deed, though the mere fact of its invalidity as an authority to convey the land, would not, of itself, take away the inference; because it might have been supposed sufficient, whether it were so pr not. But the omission to offer it in evidence when its execution had been admitted, and the deed had been objected to for want of a joint power, is a very significant fact, and warranted the-inference that, if produced, it would have increased the probability that this was the instrument under which the deed was intended to be executed.
Should it therefore be admitted that the several power-introduced in evidence would have authorized the execution of this deed had the attorneys purported or intended to. act under it, still that power could not render this deed valid; as they did not purport, and do not appear to have intended, to act under it in' the execution of the-deed; but it is, to say the least, much more probable that they intended to act, and understood themselves to. be acting, under another power not given in evidence, and therefore of no avail in supporting the deed.
"We think the deed was properly excluded, and the judgment of the Court below should be affirmed, with -costs.
Martin Ch. J. and Manning J. concurred.
Campbell J. did not sit in this case. | [
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Manning J.:
The ease states the land was taken of the Government by Richard M. Gugins in the name of Orrilla Gugins his wife, and that the patent was issued in her name. That in 1838 or 1839 Gugins and wife sold the land to Harrison P. Goodrich, and executed and delivered to him a deed therefor; that in three or four days thereafter Goodrich delivered hack the deed to them, and received from them the consideration he had paid for the land, and that the deed was then destroyed by agreement of all the parties. The other facts in the case, except the death of Richard and Orrilla, that the plaintiff is one of four children left by them, and that defendant claims title through Goodrich, it is unnecessary to notice, as the only questions in the case are, First, whether the destruction of the deed re-vested the title in Orrilla? and if not, then Secondly, whether under the circumstances stated in the case, Goodrich and those claiming under him are estopped from giving parol evidence of the contents of the destroyed deed?
On the first point, there is no doubt that the destruction of the deed did not re-vest the title in Orrilla. On the execution and delivery of the deed to Goodrich the title vested in him. It was not registered, but registry was not necessary to give it effect. And the destruction of the deed, which is evidence of title, and not the title itself, could only affect the proof of the title in a court of justice. To regain the title in such a case where a conveyance is refused, recourse must be had to a court of equity. The language of the statute, which is essentially the same now that it was when the deed was destroyed, is, No estate or interest in lands, other than leases for a term not exceeding' one year, nor any trust or power over or concerning or in any manner relating thereto, shall hereafter be created, granted, or assigned, surrendered or declared, unless by act or operation of law, or by a deed of conveyance in writing: Comp. L. § 3177; or by last will and testament: § 3178.
Is defendant estopped from introducing parol evidence of title in Goodrich? We think he is, under the circumstances stated in the case. Secondary evidence cannot be received to prove a fact without first laying a foundation for it in accounting for the absence of that which is primary. The deed to Goodrich is the best evidence of title. That is not produced, and its destruction is accounted for in a way that shows it would - be dishonest in him to claim anything under it. It was destroyed in pursuance of an agreement between him and his grantors after the purchase money had been returned to him, with a view of re-vesting the title. It was done with his consent, and for a valuable consideration. The law will not recognize such a state of facts as an excuse for the non-production of the deed. Its language to Goodrich would be, if he was defending, Sir, you are estopped by your own acts from proving the contents of the deed by parol evidence— and the defendant who claims through him has no greater rights than he.
The judgment of the Circuit Court must be reversed, and judgment be entered for the plaintiff for the land described in his declaration, with costs.
Martin Ch. J. and Campbell J. concurred.
Christiancy J. was absent. | [
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Martin Ch. J.:
The judgment upon the justice’s docket in the case of Derbyshire against Church, was properly admitted and read in evidence. In cases,, regularly commenced by process, the parties may appear and plead cither orally or in writing; and the defendant may as ell admit as deny the action. The Legislature never contemplated so great an absurdity as to require proof by the sworn statements of a bystander, that the defendant had confessed the action in the presence of the justice and in open court, in order to authorize the rendition of a judgment upon such admission. When the action is commenced by process, as in the case before the justice, and the parties appear, and the plaintiff declares and the defendant pleads, either by denial or confession of the action, there is technically an issue joined; and the jurisdiction of the justice to render a judgment is coextensive under either plea. In the one case he hears the proof from the mouths of witnesses; in the other, from the defendant. What the Legislature meant by authorizing a justice of the peace to render judgment upon an issue joined between the parties, was simply that it should be upon pleadings; and any pleading known to the law which authorizes a finding and conclusion by the court, whether upon or without evidence, is within the • spirit and the letter of the statute ; and he hears the proofs and' allegations of the parties as much upon a declaration and cognovit, as though he received the sworn testimony of witnesses upon a declaration and plea denying the action. And there is no reason for any other construction of the statute; for no benefit can result from a departure from this common'law method, and requiring a denial of that which the party is willing to acknowledge, in order to confer the authority to render a judgment.
As the law now stands, parties may be witnesses in their own behalf, as well as for their adversary. How absurd would it be to refuse the confession of a defendant made in the progress of a trial, unless he should make it upon oath. If the admission of a party or his attorney made in the progress of a trial is binding, why should it not be equally so when made in open court, at the forming of the issue, to prevent expense and litigation. In my opinion, an oral admission or cognovit is within the statute, and confers upon the justice as ample jurisdiction to enter judgment as would the sworn statements of witnesses.
But when a judgment is rendered without process, or the publicity and formality of a trial, the statute requires that the confession of the debtor shall be in writing, signed by himself in presence of the justice. In this case the jurisdiction is acquired from the written confession, as in others it is from process and appearance. And it is to cases of voluntary appearance of the debtor only, without process, that the requirement of a confession in writing is limited.
We discover no error in the charge of the Court, when viewed in the. light of the facts of this case. Whether the plaintiff by replevying the one hundred bushels of wheat abandoned all claim to the remainder or not, was immaterial; and so it was immaterial whether his title and claim should be limited to that quantity or not. For the purposes of this case such only was his claim; and with any claim to or title in any other wheat the jury had no concern, unless to inquire whether the whole bulk was held in common by these parties. It is not claimed by the defendant’s counsel that the defendant had any title to the wheat in common with the plaintiff before the writ was served, but that by replevying only one hundred bushels from the mass he abandoned the remainder, and that therefore he thereby became thenceforward a tenant in common of the whole bulk, and cannot maintain the action. The fallacy of this argument is made apparent by its statement. The right of the plaintiff depends upon the condition of the title at the commencement of the action, and the replevy of but one hundred bushels cannot affect his right to recover if the wheat was his, however it may be should any future action be brought for the residue.
We think therefore that the refusal of the Court to charge as requested, and the charge as given, were correct;, and the judgment is affirmed, with costs.
Manning and Campbell JJ. concurred.
Christiancy J. concurred in the result. | [
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Campbell J.:
This was an action of trover for the wrongful conversion of a promissory note given by one McCabe to the plaintiff, and pledged to defendant for a debt paid before action brought. The Court below gave judgment for its full amount, and the case comes up for review on the law and the facts.
It was objected to the proof by parol of the existence and contents of the note, that no notice had been given to produce it. There is no foundation for such an objection. Where the defendant is notified by the pleadings that the plaintiff intends to charge him with the possession of the1 instrument, no further notice to produce it is required. — 1 Greenl. Ev. § 561.
Objection was also made to the reception of evidence of the opinions of some of the witnesses concerning the value of the note in question at a period anterior to the conversion, and also of opinions concerning its present value not founded on any facts disclosed. As, however, the case was not tried by jury, and we are called upon to review it on the whole facts, as it was presented to the' Court below, and not merely on legal questions, we can not properly reverse the judgment for such a reason, if there is enough evidence of an unexceptionable character to sustain it. Had proper evidence been excluded, a new trial would be necessary; but any improper evidence may, as in Chancery causes, be disregarded, if not controlling or necessary to the conclusions arrived, at.
Considering, then, only such evidence of the value of the note as has a basis in facts, it becomes necessary to decide whether it presents a case which can, in accordance with the rules of law, sustain the judgment below.
It was proved by several witnesses that the maker of the note was in debt, and had not property to pay his debts. The plaintiff was, however, permitted to show that the maker of the note was honest, was working for plaintiff, and expected to pay it, and was good to pay his debts when able. It is claimed by defendant that the want of property to pay his debts showed conclusively the insolvency of the debtor, and that the note was worthless. It is further claimed that _ plaintiff could not properly be allowed to show that the note was worth more to him than to others.
It is undoubtedly true that damages for the conversion of articles having a regular market value are measured generally by that value. But that is only because such a measure furnishes the precise redress which the law always aim’s at giving, by making good as near as may be the injury which the aggrieved party has sustained. Where articles have not a standard or market value, then their value to the owner, so far as they are susceptible of pecuniary -measurement which is not fanciful or merely speculative, furnishes the true test.
The value of negociable paper is well understood not to be absolutely dependent on the amount of property liable to execution which may be possessed by its maker. A very large portion of current securities of undoubted goodness would, under such a test, be’worthless. And, in cases where a holder of such paper is indebted to the maker, it may be as valuable to him, by way of set off, as if the maker were wealthy and in sound credit. The value of. commercial paper must always depend very much upon the integrity and business habits of those who issue it. And we cannot perceive the justice or good sense of any rule which should disregard the results of common experience. We think the Court below was entirely authorized from the evidence to conclude that the note in question would have been available to plaintiff at its face. f\The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Campbell J.:
The only question of importance in this case is, whether under the guaranty of collection the guarantor could be held until resort had been made to the mortgage which was given as collateral to the note and referred to in it.
By this mortgage a special fund was set apart, out of which, so far as it went, the holder of the note had secured to him the means of collecting it. We do not think it reasonable to assume that, in any such case, a guaranty of collection refers merely to the personal responsibility of the debtor. When with the guaranty itself the guarantor furnished the means of obtaining payment, in whole or in part, and those means have been attached to the debt itself, and cannot be severed from it, the parties must be held to look to the entire transaction, and to contemplate a resort ito those means. Any other rule would be at variance with the object of such securities. Although a mortgage is in a strict sense merely collateral to a debt, yet it is generally regarded as forming its chief value, and persons usually contract with that idea. A person guaranteeing the collection of siich a debt, and assigning the mortgage with it, must, we think, be held to contemplate a collection by means of the mortgage, and not to anticipate that he will be looked to until the creditor has resorted to that.
The sheriff’s deed is no evidence of a regular or legal foreclosure. The guarantor has a right to have the proper steps taken in due form of law, in order that bidders may be safe in purchasing, and that the property may not be sacrificed. The regularity of the proceedings becomes important', therefore, in determining the responsibility of the guarantor; and the sheriff1’s deed is no more evidence of it than an execution is of the proceedings to obtain judgment. The statute requisites must be shown to have been complied with so as to make the sale lawful.
The judgment below must be reversed, with costs in both Courts.
Manning and Cheistianoy JJ. concurred.
Martin Ch. J. was absent.
Mr. Walker asked that the Court remand the cause for a new trial, that the plaintiff may have an opportunity to prove the correctness of the foreclosure proceedings.
But the Court held that, on the decision of a case made after judgment for review upon the facts, a new trial could not be awarded. The position of the case in this Court is similar to that of a case heard in Chancery on pleadings and proofs, and appealed to this Court. The facts are supposed to be all before the Court, and the decision upon them disposes of the case.
In this case an order will be entered simply reversing the judgment below, so as not to preclude the question of the right of plaintiff to bring a new suit. | [
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Manning J.:
The bill is to restrain the foreclosure of a mortgage at law, and to have the mortgage cancelled and discharged of record.
The mortgage was given by Mrs. Brown to Stockwell, assigned by Stockwell to Dillingham after it fell dne; by Dillingham to Roberts, and by him to the defendant Lee.
The bill states the'mortgage was paid by John Brown, the husband of Mrs. Brown, with means furnished him for that purpose by Mrs. Brown, on his undertaking to pay the mortgage and have it discharged of record. This we think is clearly proved by the testimony in the case. It further states that Brown, on paying Stockwell, instead of having the mortgage discharged procured an assignment of it to Dillingham, to defraud the heirs- — -children by a former husband of Mrs. Brown, who had in the mean time died. The answer states that the mortgage was purchased by BroAvn of Stockwell, and assigned by him at Brown’s request to Dillingham to secure a debt Brown was owing him. Dillingham in his testimony says it was assigned to him at Brown’s request, to secure a debt of between $25 and $30 Brown was owing him, and to secure him for any further indebtedness that might accrue to him if he foreclosed the mortgage. There is no pretence he paid Stockwell anything, or that he furnished Brown with any jaart of what he paid Stockwell. We know of no principle in equity giving him, in such circumstances, rights superior to what he would have had had Stockwell assigned to Brown, and then Brown to him. As against Brown himself, the heirs of Mrs. Brown would have a clear right to have the mortgage cancelled; and what they would be entitled to against him, they would be entitled to against his assignee, or the assignee of such assignee. The assignee of a mortgage takes it subject to all equities existing between the parties to it. Not between the mortgagor and mortgagee only, but between the mortgagor and assignee of the mortgagee who has assigned it to another-When a mortgage is assigned, the assignee, for all beneficial purposes claimed under it by him, becomes a party to the mortgage, and stands in the place of the mortgagee; and any equities between such assignee and tbe mortgagor affect the mortgage in the hands of his assignee.
As to complainant’s interest in the mortgaged premises, and consequently his right to file the bill, it was argued that the guardian’s deed of the three undivided fourths belonging to the minor heirs was void for want of jurisdiction in the Probate Court granting the license to sell, as the petition for the license did not comply with the statute.
The statute provides that, in order to obtain a license to sell, the guardian shall present to the Probate Court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity, or expediency of a sale. Comp. L. § 3099. The petition describes the land; states that about thirty acres of it were under improvement, and that the balance of it was wild and uncultivated and yielded no income to the minors. That it was necessary a portion of the proceeds of the land should be used to pay certain debts incurred in behalf of the minors, and that in the opinion of the petitioner it would be for their interest to have the land sold, and the proceeds after paying the debts put out at interest.
We think the petition complies with the requirements of the statute.
The decree dismissing the bill must be reversed, and a decree be entered for complainant in accordance with the prayer of the bill, with costs.
The other Justices concurred. | [
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Campbell J.:
This case comes for up review upon the decision of the Circuit Court for the county of Saginaw, upon the issues of law and fact arising where a mandamus was applied for to compel the respondents to vote a township tax to pay-certain debts.
The relator is holder of a number, of orders issued by the highway commissioners of the township in 1854, upon the town treasurer, payable out of any moneys in the treasury belonging to road district No. 1.
As these funds were not the property of the township for general purposes, but were set apart by law to be expended in a single district, they consist only of such highway taxes as are raised in the same district. There is nothing in the case to show that the township at large has had the benefit of any of this fund, by misappropriation or otherwise. If any such fact appeared it would present a question in what way, if any, the law provides for its being restored to the use of the road district. In the absence of any such showing there can be no good reason for taxing the whole township for the benefit of a single district, and we have not been able to discover any statute either requiring or authorizing it. As the relator is not upon these facts entitled to any relief against the town, we deem it unnecessary to consider any of the other questions raised. The mandamus was properly denied, and the judgment must be affirmed, with costs.
Manning and Christiancy JJ. concurred.
Martin Ch. J.:
I doubt the jurisdiction of this Court to review proceedings of this nature by writ of error; and, as the question was not discussed, I reserve my opinion upon that subject. Upon the merits I concur with my brethren. | [
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] |
Martin Oh. J.:
Under the ruie laid down in Osborne v. Robbins — to which we adhere — the petition in this case is defective in not sufficiently describing the property which had been attached. In other respects we hold the petition to be sufficient. As this question of the sufficiency of the description goes to the jurisdiction, we hold that the application should have been dismissed. An order denying the motion to dissolve the attachment should have been granted for want of jurisdiction; and the subsequent proceedings of the Commissioner are therefore void, as he had no right to hear the case upon .its merits. The proceedings are therefore quashed, with costs to neither party.
IIanntng and Campbell JJ. concurred.
Christiancy J. did not sit in this case. | [
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] |
Manning J.:
The judgment I think should be affirmed. In trover the right of property is in issue, and to sustain the action plaintiff must prove property in himself, either general or special. Possession is not sufficient for that purpose, as in trespass. It is evidence of property, but.it does not, as in trespass, preelude defendant from showing property in a third person." The theory of the action is that the goods belong to the plaintiff, that he lost them, that they came to defendant^ possession by finding, and that he afterwards wrongfully converted them to his own use. As plaintiff never had any property in the logs cut by him on Government lands, it follows that the action can not be sustained as to them, whether defendants were authorized or not to take possession of them by Government. As to the logs cut on plaintiff’s ' own land, the case is different. They belong to the plaintiff unless he has lost his property in them by what the law terms a confusion of goods. It is for the Government to avail itself of this right, and not the defendants, unless they acted by authority of the Government, or the Government afterwards ratified their acts.
It is said there is no act of Congress authorizing defendants, or making it their duty, as Register and Receiver of the Land Office, to seize logs wrongfully cut on Government lands. This is the broad objection taken to the instructions from the General Land Office under which the defendants acted. It seems to me there can be no doubt that government has all the common law rights of an individual in respect to depredations committed on its property, and that where there is no statute making it the- duty of any particular officer to enforce those rights, it is ex necessitate rei made the duty of the executive department of the Government to enforce them. This being the case — and it seems to me too clear to admit of a doubt — the question is not whether the Register and Receiver of the Land Office were officially bound to do what they did, so long as they acted under instructions from the Commissioner of the ^General Land Office, the executive department of the Government having charge of the public domain. Nor was it necessary, to enable them to show they so acted, that they should have given notice thereof with their plea of the general issue. For the object of the evidence was not so much to show their authority for taking all of the logs, as the act of the Government claiming and insisting on its right to all, by reason of the confusion. In trespass the object of such evidence is not to prove property in a third person, but to show authority from the owner of the property for taking it; while here the sole object was to show property in the Government to that part of the logs which, before the confusion occasioned by the intermixture, belonged to plaintiff.
The party guilty of a fraudulent confusion of goods loses all interest therein, on the principle, I take it, that by the admixture he is unable any longer to identify his own, and is therefore remediless, unless on the equitable principle of giving him a part of the -common mass equal to what he originally possessed, where the goods are of equal value, and it can be done without injury to the other party, and fraud does not intervene to prevent its application. . Whether correct or not in what I suppose to be the reason of the rule, the rule itself is too clearly established to be called in question: — Ryder v. Hathaway, 21 Pick. 298; Willard v. Rice, 11 Metcc. 493; Hesseltine v. Stockwell, 30 Me. 237; Bryant v. Ware, 30 Me. 295.
The logs taken from the government land were so mixed with those taken from the plaintiff’s own land, that one could not be distinguished from the other; and from the evidence in the case, I think this was done designedly, and with a view of defrauding the Government.
The application to exchange the south fractional half of the north-west quarter of section thirty, for lot three of the same section, after the plaintiff had stripped it of the timber, without disclosing that fact in his petition, and the taking of the timber from lot three before he was notified that the Commissioner of the General Land Office had given his consent to the change, was an attempt to defraud the Government, which it was the duty of the Receiver of the Land Ofiice, on discovering the facts, to prevent, as he did. To my mind, the evidence shows a clear case of fraudulent intermixture, by which the plaintiff has lost all right to the logs taken from his own land and intermixed by him with the far greater number of logs taken from lot three, and other lands belonging to the Government.
I think the judgment should be affirmed,, with costs.
Christiancy J. concurred in this opinion.
Campbell J.:
It appears from the evidence in this case, that Stephenson was the owner of the north-east quarter of the northeast quarter of’ section twenty-five, in town fifteen north of range four east, and of the north half of the north-west quarter of section thirty, in town fifteen north of range-five east: that he had previously entered the south half of the north-west quarter of section thirty, and had obtained the authority of the department to change the entry for lot three, in section thirty, and had paid for the latter lot, of which the duplicate was withheld by one of the local land officers of his own motion, on an allegation of fraud.
The logs in controversy were cut in the winter of 1856-7; 211 trees on the land patented to plaintiff, 327 trees on lot three, and the balance on government lands,; 194 on the south half of the south-east quarter of section thirty, 9 on the south half of the south-west quarter, 132 on the north half of the south-west quarter of the same section, and 17 on the south-east quarter of section twenty-four in town fifteen north of range four east; making in all 352 trees cut on government lands, exclusive of lot three. The logs and timber from these trees were banked, a part on Potobaco lake, a part on a creek through which it empties into' Saginaw Bay, and a part on Saginaw Bay. The locality of these places becomes important in- the view I have taken of the facts, and I therefore proceed to describe it. Potobaco lake forms the easterly boundary of the lands' patented to plaintiff, and thence extends southeasterly, not touching any of the other lands on which trees were cut that winter, and its mouth and the creek are both entirely within lot two, and just north of lot three which lies upon the bay. Lot three is the north part of the south-east quarter of section thirty.
It appears that all of the logs from plaintiff’s patented lands were banked on the lake, amounting by the testimony of the witnesses on both sides to about 1000 logs. The remaining amount of nearly 1600 logs, cut from the various lots on the south half of section thirty, were banked on the creek, and scuth of it along Saginaw Bay. .The plaintiff’s witnesses show that the logs from lot three (which is the northerly part of the south-east quarter) were drawn first and taken to the creek, and banked along it near its mouth behind a small island, and on Saginaw Bay at the mouth. The defendants’ witnesses also show that the logs cut from the south half of the south-east quarter were banked on Saginaw Bay, and the same testimony shows" that there were several different roads to the water along which the logs were hauled out from the various localities. The logs cut from the south half of the section were, as before mentioned, all banked near the mouth of the creek and along the bay. The logs at and near the mouth of the creek when placed in it in the spring filled up all the space in it. At the time of the seizure the logs in the lake were near its fnouth, and some had been rafted into the creek. After the seizure and before the sale, a storm arose which scattered the logs at the entrance of the bay, leaving about half of the entire amount undispersed, and scattering the rest along the shore of the bay for some distance.
The logs were all seized by defendants, claiming them as cut from Government lands, and they were at once advertised for sale, and sold in about a fortnight.
Inasmuch as the plaintiff was the undisputed owner of all logs cut on his own land, and could not forfeit them by any fraud or misconduct in depredating elsewhere, he is certainly entitled to recover for the conversion of those, unless precluded by some other rule. No man, however criminal, can be' deprived of his property by the acts of others whom he may have defrauded. The remedies for such misconduct are to be sought otherwise; and, in case of trespasses on government lands, they are laid down by acts of Congress. I. make no inquiry into the authority of defendants to act for the Government, but assume that they were fully authorized as government agents. In an action like this, I think the plaintiff should only recover his own" damages, and therefore their authority is not important.
It is claimed that plaintiff forfeited his logs by so intermingling them with the logs of the Government that there became, a confusion of property so as to defeat its identification; and that the whole property thus became divested. Upon a careful consideration I have been unable to discover anything in the case justifying any such consequences. Before any one can forfeit his own property there must, be clear proof that by the fault of the party the px-operty of another with which it is blended can no longer be identified, even with the utmost care; and that the latter can not be made whole by taking his proportion out of the entire mass so as to obtain a share of the same kind and equal value.
In the firstj place I have searched vainly for any evidence which shows such a total confusion as is necessary under any rule of law to create an entire forfeiture of plaintiff’s logs. If property be in several parcels, and the property of another person is confused with one of these parcels, it can have no effect upon those kept distinct. This can not be pretended on any reasonable theory whatever. In the case before us the evidence is entirely clear that no portion of the logs in Potobaco Lake came from government lands. And it is equally clear that they were not before the seizure mixed with the logs below. Concerning- these, I see no shadow of a claim against the plaintiff.
It also appears that the logs from lot three were the first which were drawn to the creek behind the island near its mouth, and banked there. The defendants’ witness, Mr. Pettibone, upon whose examination the information for the seizure was obtained, ascertained and testified that the logs from the government lands south of lot three were banked not on the creek, but on the bay. Having, as he swears he did, ascertained the amount cut there, there could have been no serious difficulty in selecting those logs. He seems to have had no such difficulty. As the evidence is not clear upon the locality of the rest,-it may perhaps be assumed that the remaining logs from 141 trees from government lands were intermingled with those from the 827 trees from lot three. If lot three was government pi-operty, then no difficulty could arise, and Government would own all from the south half of the section. Being of opinion that the plaintiff’s title had become established in that fraction, and could not be divested except by legal proceedings in behalf of the Government, I think that as to those two lots of logs there was- an intermixture which would have rendered it impossible to identify one parcel from another. And, under all the circumstances, I think the plaintiff responsible for making it — so far as any responsibility or loss arises under such circumstances.
The question then arises, how far such liability goes. Where two kinds of articles are so mixed that they form a mass not like either, but differing in value or kind, the party not in fault, because he can not get back either his own property or that which will to all intents and purposes replace it, may, as has been held, retain the whole — although by the civil law there may be some doubt whether he was not obliged to account for the surplus value. But where a mass of articles of a certain kind and value, as grain or the like, is mixed with another mass of the same kind and value, there is neither reason nor justice in holding that any such forfeiture arises. A person is not damnified by mixing his property in a mass from which he can withdraw what will be substantially and to all intents and purposes identical with it, I do not think the decisions, when carefully weighed, maintain any such doctrine as would create a forfeiture in such a case. Where a man can obtain all that he is entitled to in order to put him in full enjoyment of his own, the law will not bestow on him the property of another.
That logs are to be governed by similar rules there can be no reason to doubt. We not only know as a matter of common information, but the evidence before us shows that logs situated as these were had a uniform value per thousand feet, taking them as they ran, and that one parcel was as good as another parcel. There may be differences between select and poor logs, but where it exists there is no great danger of such an intermixture as will prevent a party from reclaiming his own or its equivalent. In the case before us the testimony of value shows that no differ ence existed.
There was no reason therefore why the defendants should have seized more than what belonged to Government, the amount of which they had ascertained. They did not seize the logs for the purpose of selecting that amount. They seized the whole, claiming them as public property, and at once advertised them for sale, thus negativing any idea of holding them for the other purpose. Such a seizure amounts to a conversion, and I think they should have been held liable accordingly. I think judgment should go in favor of the plaintiff for the value of 538 trees at four dollars a thousand (each tree averaging by the testimony at least a thousand feet), which would make the amount of his damages $2,152, to which interest should be added from May 12, 1857.
Martin Ch. J.:
The fact that Stephenson cut a large portion' of the logs seized from lands belonging to the United States is not denied; and the right of the Government to reclaim such logs by seizure or by action is unquestionable. The defendants Little and Hess, as officers of Government, and acting under authority conferred by the proper department, made the seizure, and in so doing took logs cut from the plaintiff’s own land, with which he had admixed them. That there was an actual and intended admixture I can not doubt. After the seizure and before sale, and while the logs lay as they were when seized, a storm scattered a portion of them so that they were lost, and the interest of the Government in only 1273 logs was consequently sold. The number of trees cut and removed from Government lands was about 678, which, according to the estimate of witnesses furnished about 1860 logs. Here then was a loss to the Government of some 600 logs, ándito the plaintiff of all his thus intermixed and scattered.
Three questions are therefore raised. The first involves the right of the Government to make the seizure; the second, the consequences of such seizure, and the third the right of the defendants Little and Hess to make the same. It appears that the logs of both the plaintiff and the Government were commingled by the tortious act of the plaintiff The subject of the confusion of goods was elaborately discussed by counsel, in the presentation of this case, but it does not appear to me to be necessarily involved. Here was a clearly tortious taking, and an admixture, which, whether by accident or by design, was of such a nature that the particular logs of either party could not be distinguished and separated from the mass. Under such circumstances Government, like an individual, had a right to take all, if not as its property by reason of the confusion of goods, at least for the purpose of separating and securing, or of disposing of its aliquot proportion of the entire mass. Government had a clear and unquestionable property in at least, say 1850 or 1860 of the logs; and in taking the whole to secure that property, it committed no wrong upon the plaintiff, as it was by his own act that such taking became necessary. Such being the case, it follows that no accident to or destruction of the property while so held by the Government in the exercise of a legal right, if it occurred without its act or default, could subject the Government to liability for the loss, if the property actually sold did not exceed the amount tortiously taken.* But the evidence fails to show that any actual manual interference with Stephenson’s logs took place. Boutell’s remark to Stephenson’s agent that he was put in charge of the logs, and his forbidding him to have any thing further to do with them, proves nothing against Little and Hess, or even against himself. When and where it was made, under what circumstances, and upon what occasion or provocation, or whether he was really put in charge of the logs, is not shown by any testimony. His assertion, unless made upon the property, or so made as to Import dominion over it, and actual possession of it, or accompanied by some act showing a claim to its possession, was no conver - sion by him, and certainly can not be construed as evidence of conversion by Little and Hess. There is nothing to show but that this was mere idle talk, and it did not of itself make him a trespasser, and could not unless he was in a position to sustain his elaim, as by actual possession ; and then could not in any way affect his co-defendants, as torts are personal.
• If we take the notice of sale as evidence of conversion, we can not determine with any degree of certainty the number of logs taken, and it declares that all the logs which would be exposed for sale were cut upon government land, and were lying at the mouth of Potobaco Lake. This notice must be construed in the light of the sale made under it. Such sale was of the interest of the Government in the logs; and such interest was bid in by the plaintiff, through Hart his agent. The fact that Hart afterwards sold them to Frazer does not, in my opinion, affect the question under consideration, or the rights of the parties to this suit. The single fact of importance is that the offer was only of the interest or property of the Government in the logs, and that the purchase was made of that interest by the agent of the plaintiff. There was never any exclusion by Little and Hess of the plaintiff from the possession of his property, and by this purchase he appears to have recognized an interest in the Government in the logs.
That the owner of goods wrongfully commingled by another with his own has the right to take possession of all, if he can do so without violence, to repossess himself of his own,- as I have already said is unquestionable. It is a right founded in natural justice, and is a necessary and natural incident to property. If he has such right, it follows that he is not responsible to the party wrongfully intermingling, for any damage or loss of such property, unless wilfully done or occasioned by himself. It can scarcely be claimed that he stands in a less favorable position than that of a tenant in common towards his co-tenant, so far as this question of liability is concerned. From the very nature of things his liability should not be greater. Rather than establish a rule by which the party trespassed upon should suffer injury by peaceably reclaiming his property, because in thus reclaiming it some portion dr all of the property of the wrong doer was taken, and afterwards lost or destroyed by the act of God, I would hold to the severest rule of confusion of goods, and protect the innocent party at the expense of the wrong doer'. I can not question the right of the Government in this case to sell its interest in the mass; and as Hart for Stephenson bought such interest, Stephenson cannot insist upon a conversion of any logs held under such seizure, or the Government’s interest in which was thus exposed for sale; and as the quantity of logs sold was less than that wrongfully taken from government land, the whole loss must and should fall upon him. This is but simple justice, and would commend itself to any mind as a correct rule of property in such cases. Before a party who has thus admixed his goods with those wrongfully taken from another can maintain an action for his aliquot proportion, he must make a demand upon the party injured — and who has taken all to secure his own — for the portion belonging to himself, and he must distinguish his oavh property satisfactorily. This the plaintiff in this case did not do, but relied upon the seizure and sale as giving the right to this action.
Of the logs thus seized some 1,500 were taken from lot three; and these it is contended rightfully belonged to the plaintiff. In my view of the case this question is immaterial, as logs taken from other lands belonging to Government were admixed with them. But I am also clear that the plaintiff had no right to cut logs upon that lot; and consequently none to those cut thereon and mixed Avith others belonging to himself. The evidence shows that the title to such lot was then in the Government, and for aught that appears still is; and that no exchange of that lot for the south east quarter of the north west quarter of section thirty was ever made. The right of Stephenson to such exchange it is not necessary to discuss; but that his conduct was fraudulent, and the officers of the Government justifiable in refusing to make the exchange, I do not doubt. But he had no right to take the logs from the land before such exchange was made, whatever may have been his equitable rights to a specific performance of the contract.
The only remaining question is, whether the defendants Little and Hess had a right to seize the logs in question.
That Government, like an individual, has the right to seize and reclaim property tortiously taken, when such seizure can be peaceably made, will not be questioned. But Government can only act through its departments, and by its officers, agents and servants. The instructions to Little and Hess from the Commissioner of the General Land office were in my view instructions from the Government, and fully authorized them to act in its behalf in repossessing its property. Moreover, Stephenson, as a wrong doer— especially in this action of trover, where he must rely upon Ms own title — cannot question the right of the Government to protect itself, or that of the officers or agents of the Government peaceably to reclaim its property/
The judgment must be affirmed, with costs.
Judgment affirmed. | [
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Campbell J.:
This is a Bill filed to foreclose a mortgage, and the defense of usury is set up. The mortgage in controversy is for $549, and no usury is. alleged to have been exacted or agreed upon under it, but the transactions complained of were anterior. It appears that a loan of $500 was made in November, 1856, and another of $300 in April, 1857, on both of which unlawful interest was paid. That in July, 1857, all the back interest was paid up, and the principal reduced to $500, for which a new mortgage was given, the old securities being cancelled. Subsequently, $300 of this principal was paid up, and unlawful interest was also paid in money from time to time. Additional loans of $100 and $200 were afterwards made in 1858, on which excessive interest was in like manner paid. On the 18th of July, 1859, this entire principal of $500 remained unpaid. The mortgage in controversy was, on that occasion, given for $549, which was for the principal due, and for due bills held by complainant for back interest. The old mortgage was released, and the new one given on a part only of the premises covered by that. Defendant Stoddard is the only borrower throughout.
These are the facts as we deduce them from the pleadings and evidence, and are all that we deem material to dispose of the case. There are several matters in proof which we have not referred to, because we do not regard them as important.
The mortgage in suit is a new security, given with its accompanying note upon a complete settlement of all the former transactions. The sum of $500 embi’aced in it is money actually lent by complainant to defendant. It includes no direct usury, because the principal had never been reduced or intended to be reduced; all payments which had been made, having been expressly made upon interest. It appears that the ixsurious interest was always either paid in money or put in .the shape of separate due bills and amounts. We do not think, as to this sum of $500, that there can be any deduction allowed. When parties have actually .paid the usurious interest, and then come to a bona fide settlement, and make new securities which include nothing but an actual loan, and are not meant as mere evasions, we do not think the new contract can be regarded as either usurious in itself, or based on a usurious consideration. The statute does not contemplate the recovery back, or allowance of xxnlawful interest once paid, unless in a suit upon the contract under which it was exacted. A new security, between the same parties, embracing not only a valid debt, but also a claim for unpaid usurious interest, would undoubtedly be founded to that extent on a usurious consideration, and therefore liable to abatement. But the abatement cannot, we think, under our statute, go further. The law does not absolutely avoid contracts for usury, and if parties completely perform them they are remediless.
The only question, therefore, is, whether the sum of $49 included in the mortgage is a valid indebtedness. It appears to have been made up entirely from due bills for back interest. As the previous mortgage for $500 called for ten' per cent on its face, and as the parties seem to have considered — although erroneously— that the $300 last loaned were secured by it, there was no interest which could be embraced in these due bills except the excess beyond ten per cent. This excess was not lawfully recoverable, and did not, therefore, make a valid consideration for the new securities. It must therefore be deducted.
It is claimed by the defendants that, where usury is taken, the interest lawfully recoverable cannot exceed seven per cent, although ten per cent may be legally bargained for in other cases.
The statute allows only a deduction of that which exceeds what might be legally bargained for. Nothing is usury unless it exceeds ten per cent, and nothing but usury can be considered in reducing the judgment; — or, to speak more correctly, the plaintiff may always recover interest up to the highest legal rate not prohibited by the statute, if such are the express terms of the contract.
The decree must be so modified as to credit the defendants with $49 and interest at ten per cent from the date of the mortgage. They are also entitled to the costs, of this Court, but not of the^Court below.
The other Justices concurred. | [
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] |
Campbell J.:
A hill was filed in this cause setting up that an assessment has been made and is about being enforced against complainant, for paving in front of his property on Washington Avenue in the city of Detroit. The objections urged against the validity of the assessment are based upon certain provisions of the charter, whereby the powers of the city are limited, and certain rules are laid down for governing the management of public expenditures.
The principal objections urged were, that under the charter all work of the kind in question must be done by the lowest bidder, who puts in proposals after a previously determined period of advertising: that it must be done within the year when ordered: and that no extension of the time was legal on a contract made when the one in controversy was made; and also that no contract could be extended at all unless the work had been commenced under it.' All these provisions are claimed to have been violated.
It appears by the answer that, before this street was ordered to be paved, an ordinance was submitted to the property owners' on Washington Avenue, and accepted by them, whereby they were allowed to ornament and enclose a wide strip on each side of the street, and have the roadway paved or gravelled, within eighteen months, according to the adopted plans and. specifications for 1860, the year when the contract was let. In accepting this proposition, the lot owners assented that the paving and sidewalk expenses might be assessed and collected under the ordinances and charter in the usual manner.
As the time had been fixed so as to allow the work to be done within eighteen months, we can hardly presume that it was the design of the parties in accepting the proposition of the city to destroy this important provision. Taken together we think that the terms of the consent were merely designed to permit the city to get at the proper assessments, and to collect them, in the usual manner, but not to require contracts to be limited to the year 1860, or to make any new advertisement, inasmuch as the plans and specifications for paving had, as appears from the contract itself, been already adopted, and are expressly assented to. These appear from the answer to have been general, and designed to apply to all streets.
We do not think that a court of equity can properly interfere to relieve a party, on the ground that assessments are irregular and unauthorized by the strict provisions of law, where they are substantially authorized by and made in reliance upon his own express agreement. There is no charge or pretence that the work has been badly done, or at extravagant rates, nor is there any showing of bad faith. Whether therefore the agreement was void as set up on the argument, or whether the assessments can be lawfully collected, we do not feel authorized to inquire. Where an agreement has been substantially earned out, and the party at whose instance or by whose consent the work is done seeks to avoid paying for it without showing any want of equity in the other contracting party, he must seek his redress in some other tribunal. A court of equity ought not to relieve under such circumstances.
The bill was properly dismissed, and the decree below must be affirmed, with costs,
The other Justices concurred. | [
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Manning J.:
The assignment of errors is sufficient. It is “that the Circuit Judge erred in holding' that the justice’s judgment was erroneous in the several causes of error assigned in the affidavit for certiorari.” The statute requires the party applying for a certiorari to “make or cause to be made an affidavit, setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which <m allegation of error is founded — Comp. L. § 3869. And the case is to be brought to argument on the justice’s return, “without any assignment or joinder in error, unless there be an allegation of error in fact.” Comp. L. § 3880. The assignment in referring to the errors stated in the affidavit makes such errors a part of the assignment: — Niles v. Rhodes, 1 Mich. 374.
The cause was argued on all the errors stated -in the affidavit. This is the correct practice when the justice’s judgment is affirmed or reversed in toto, for the whole case is then open for review. But it is not the practice when the judgment is affirmed or reversed in part, unless both parties have brought error; as it is the province of a court of review, on a writ of error, to correct such errors only Ms have been committed adversely to the interest of the party suing out the writ. ,
In the present case, the Justice’s judgment was reversed in part and affirmed in part. The plaintiff in error was •plaintiff before the Justice, and the defendant in error was plaintiff in the Circuit Court. As defendant' in error, he stands in this, Court in the position his adversary stood in the Circuit; and as the latter could not have been heard in, that Court to complain of the justice’s judgment because it did not award to him all the property replevied by him, so neither can the -defendant in -error be heard in this Court to complain of the judgment of the Circuit Court for not. reversing the whole of the justice’s judgment, instead of a part only.
The next question is, What is the power of the Circuit Court on a certiorari to a justice’s court ? Is it confined, to correcting errors of law only, or may it also correct errors in the finding of facts by the justice ? The statute-to which we must look for the power of the Court, is not as clear as it might be, and the decisions under it. can not all be reconciled with each other. In Gains v. Betts, 2 Doug. Mich. 98, it was held that a judgment should not be reversed on the ground that the verdict of the jury was against evidence, unless it appeared that there was a total want of testimony to sustain the finding. While in Herring v. Hock, 1 Mich. 501, it was held that although the verdict of a jury should not be disturbed for slight causes, yet it was not conclusive as to the facts of the case. This decision was on a certiorari to the County Court, under §54, p. 397 of the fteAÜsed Statutes, of 1846, which section is in all respects bearing upon the present question like § 132 in the Justice’s Act of 1841, under which Gains v. Betts was decided: S. L. 1841, p. 114. These two cases therefore can not well be reconciled with each other.
If Herring v. Hock had been decided under § IQ of the Act to Consolidate the Laws in relation to County Courts, and for other purposes, approved April 2, 1840 (S. B. 1849, p. 290), which was in force when the case was finally disposed of, it would be altogether different, as this last section confers greater power on the Court than the section -in the Revised Statutes of 1846. It not only authorizes the Circuit Court to “ affirm or reverse the judgment of the County Court, in whole or in part,” but also to “ give such other judgment as justice shall require,” and in its discretion to remand the cause to the County Court for a new trial. The difference between the two. sections is referred to in the decision of the Court, so far •as it respects the power of the Circuit Court to order a new trial; but no farther. Whether the Court supposed the two sections were in other respects the same, and based their decision on the act of 1849, does not appear, •Such may have been the case. Perhaps it may fairly be inferred from the omission of the Court to notice any other difference between the sections than the one mentioned.
On this hypothesis, but no other, the cases may be reconciled. For it will hardly be contended, we think, that the additional power conferred on the Court to “give such judgment as justice shall require,’’ would not authorize the Circuit Court to' review the whole case — the facts, as well as the law — as on an appeal in Chancery.
In Elliott v. Whitmore, 5 Mich. 538, the Court say, “The Circuit Court, in virtue of its statutory jurisdiction, has power to inquire into the evidence exhibited in the justice’s court, and to give judgment as the right of the matter may appear.” This dictum — for it can not «be regarded as anything more, as the case was not decided on that point, nor its decision necessary to the decision of the case before the Court — was probably made in view of the decision in Herring v. Hock, as that case is mentioned in the opinion of the Court.
These two cases, we believe, are the only cases in which the broad doctrine is laid down that the Circuit Court may review the evidence, and correct the errors of the justice in the finding of fact.
It is not a little remarkable while the power of the Circuit Court is purely statutory — the writ being a statutory and not a common law certiorari — we find nothing said in any of the decisions in regard to the statute itself.
The section in the Justice’s Act of 1841, under which Gains v. Betts was decided, is in all respects essentially the same as the section in the act relative to justices of the peace now in' force, which is as follows:
“The Circuit Court shall proceed to give judgment is*, the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the. proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in-whole Or in-part, and execution shall issue thereon as upon other-judgments rendered in the Circuit or District Court.’Comp. L. §3881.
If the section stopped with the words “which did not affect the merits”; or like §76 of the act of 1849 relative, to County Courts, contained the words “ or give such other judgment as justice shall require,” after the words “ affirm or reverse the judgment, in whole or in part,” we think there would be no doubt of the intention of the Legislature to give the Circuit Court power to revise the whole case, and to make a final disposition of it on its merits. But we must construe the .section as we find it, and in doing so, it is impossible to give it so broad a meaning. If it is suscept-. ibl® of such a construction as it stands, why did the Legislature in the act of 1849 relative to County Courts, insert the words “or give such other judgment- as justice shall require.”
The words at the commencement of the section — “shall proceed to give judgment in the case as the right of the matter may appear ” — must be construed in connection with the words which immediately follow, viz: “without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits.” Taken together they are to be understood to, mean that the judgment should not be reversed for any of the causes stated; that is, for any technical omission, imperfection or defect that did not go to the merits: that the judgment should not be reversed for errors that-did not and could not have worked any injury to the party complaining. Had the Legislature intended to go further than-this, they would not have restricted the judgment of the- Circuit Court to a reversal or áffirmance of the judgment, but have authorized it to give such judgment as the justice should have given.
If the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the Court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it appears all the testimony before the justice has been returned, the judgment will be reversed on the ground that the Justice erred, in law, in rendering the judgment he did without such evidence.
Such we understand to be the true construction of the statute, and the purport of the decision in Gains v. Betts.
The case before us is replevin in a justice’s court for a trunk, and other articles, consisting in part of wearing apparel. The justice gave judgment for the plaintiff in error for a part of the articles replevied, with six cents damages and five dollars costs, and awarded a return of a part to the defendant in error. Thereupon the latter carried the case to the Circuit Court by certiorari. The Circuit Court reversed the justice’s judgment as to some of the articles that had been adjudged by the justice to belong to the plaintiff in error, and gave judgment for them to the defendant in error, with six cents damages and his costs by him sustained on the trial before the justice, and his costs in the Circuit Court. In all other respects the justice’s judgment was affirmed. The return to the certiorari shows there was evidence'before the justice tending to prove each one of these articles was the property of the plaintiff in error. The Circuit Court therefore erred in reversing so much of the justice’s judgment as related to them, if our exposition of the powers of that Court under the statute is correct. It also erred in giving the defendant in error judgment for costs before the justice. For such judgment is not an affirmance or reversal of the justice’s judgment or any part thereof, but a new and independent judgment that the Circuit Court had no power to give.
So much of the judgment of the Circuit Court as gives the defendant in error costs, and as reverses in part the justice’s judgment, is reversed. And the justice’s judgment, and so much of the judgment of the Circuit Court as affirms said judgment, is affirmed, with costs in both courts.
Christiancy and Campbell J. concurred.
Martin Ch. J. concurred in the result. | [
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Manning J.:
The statute requires the mortgage, or a true copy thereof, to be filed in the office of the township or city clerk of the township or city in which the mortgagor resides: Comp. B. § 3191. And it makes it the duty of the township or city clerk, on the payment of his fee, to indorse thereon the time of receiving the same, and to deposit such instrument or copy in his office, to be kept for the insj>ection of all persons interested: § 3192. He is also required to write in a book to be provided by him for that purpose, the names of all the parties to such instrument, arranging the names of the mortgagors alphabetically, and to note therein the time of filing each instrument or copy: § 3193. .The mortgage is to cease to be valid as against the creditors of the mortgagor, and subsequent purchasers and mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year, the mortgagee, his agent or attorney, shall make and annex to the instrument or copy on file an affidavit setting forth the interest the mortgagee continues to have by virtue of said mortgage in the property therein mentioned, <fcc.
The mortgage in question was duly filed on the first day of November 1860, at which time all of the requirements of the statute appear to have been complied with. On 15th December following, Harvey, the mortgagee, applied to the clerk for the mortgage, who handed it to him, and be took it away, and the clerk made the following entry opposite the names of the mortgagor and mortgagee and the entry of the filing of the mortgage in the book required to be kept by him for that purpose, viz: “-This mortgage delivered up to James B. Harvey.” The mortgage’ was afterwards returned. On the l’lth of the same month Harvey again applied for the mortgage. It was handed to him, and he again took it from the office, and in about twenty minutes returned it, after having released all the property mentioned in the mortgage except the wagon in question. On the 9th March 1861, some two or three days before Hess purchased the wagon of G. W. Phillips, the mortgagor, and sold it to A. J. Phillips, the defendant in error, he and A. J. Phillips called at the office of the clerk and inquired if there was a chattel mortgage on file from G. W. Phillips. The clerk informed them that there had been such a mortgage on file, but that it had been taken away by Harvey. Hess replied he was not satisfied with that, and that he wished to look at the record of chattel mortgages and see for himself. The clerk thereupon exhibited the book containing the names of the mortgagor and mortgagee, and the aforesaid entry made by him when the mortgage was first delivered to Harvey. No further search was made for the mortgage, which at the time was with other mortgages on file in the office. There is no evidence Harvey had any knowledge of the memorandum.
Hess and the defendant in error acted on a memorandum made by the clerk, without authority of law, or the knowledge or assent of Harvey. It may be hard the defendant in error, under such circumstances, should lose the wagon. But it would be equally hard to visit the accidental consequences of an unofficial act of the clerk on Harvey, who had done all the law required, and all an honest man could do, to secure his property. Why should he suffer for an unauthorized memorandum or entry of the clerk ? He had no knowledge of it, and the clerk was not' authorized by law to make it. A man cannot be deprived of his rights against law without his consent. All are chargeable with a knowledge of the law, and if the defendant acted in ignorance of it, the consequences must fall upon himself. The memorandum was no safer basis of action than the information previously given by the clerk. Having refused to rely on the latter, it is a little strange he should have given credence to the former when the file of mortgages was within his reach.
But it is objected that in taking the mortgage from the clerk’s office, and afterwards returning it without re-filing it — that is, without the clerk’s endorsing upon it the time of its return as an original filing, and entering anew the names of the parties and the time of re-filing in the book of mortgagors and mortgagees — the benefit of the statute was lost, for a want of compliance with its provisions.
The objection is more specious than sound. It assumes what is not true in fact, that the same mortgage may be filed more than once, and of course any number of times. The statute makes no provision for more than one filing, but in express terms provides that the mortgage shall cease to be valid as to creditors and subsequent purchasers and mortgagees in one year from the filing, unless an affidavit is made and annexed to the mortgage, stating the mortgagee’s interest in the property, within thirty days next preceding the expiration of the year. If the mortgage could be withdrawn and filed anew, there would be no occasion for the affidavit: and the law requiring it to be made and annexed to the mortgage, to continue the benefit of the statute beyond the year-, could be easily evaded.
The clerk had no business, after the mortgage had been properly filed, to re-deliver it to Harvey. The law provides for certified copies, but makes no provision whatever for the clerk to part with the instrument itself to any one. It is a public record, and belongs- to the office.
If defendant had called to see the mortgage while it was out of the office, or if Harvey had given his assent to the memorandum that misled defendant, the case would so far differ from the one before us as possibly to require a different decision. We however give no opinion on that point, as it is not before us.
The judgment must be reversed, and judgment on the facts found by the Court be entered for the plaintiff in error, with costs in both Courts.
Martin Ch. J. and Campbell J. concurred. | [
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Blair Moody, Jr., J.
I. The Question
The single question engendered by these consolidated cases is whether the two-year statute of limitations provided for in 1964 PA 170 violates equal protection mandates and is therefore unconstitutional. See MCLA 691.1411; MSA 3.996(111).
II. Facts
1. Forest and Mills
Plaintiffs Forest and Mills were injured when Forest drove his car into an excavation for a drainage construction project on August 10, 1970. The plaintiffs filed separate complaints against defendants Parmalee and Davis, private excavators and contractors, who were performing the drainage construction work pursuant to a contract with the county drain commission. An amended complaint adding the Gratiot County Board of Road Commissioners as parties defendant was filed on October 27, 1972. The trial judge granted defendant county road board’s motion for accelerated judgment, GCR 1963, 116.1(5), based on the two-year statute of limitations in MCLA 691.1411; MSA 3.996(111).
2. McGregor and Thomas
Plaintiffs McGregor and Thomas were driver and passenger in a car which fell into a depression on the edge of Eleven Mile Road in Warren on October 2, 1970. On October 22, 1970, the plaintiffs filed a notice of intent to file a claim with the Court of Claims. Settlement efforts were unsuccessful. On September 27, 1973, the plaintiffs sued defendant Macomb County Road Commission for injuries allegedly caused by negligent repair and maintenance of Eleven Mile Road. The trial judge granted the defendant’s motion for accelerated judgment, GCR 1963, 116.1(5), based on the two-year statute of limitations in MCLA 691.1411; MSA 3.996(111).
3. Burton
On July 3, 1972, plaintiff Burton tripped and fell on an exposed manhole cover while crossing the street at the corner of Grand River Avenue and Woodward Avenue in downtown Detroit. Suit was filed against defendant State Highway Department on July 17, 1974. The judge granted the defendant’s motion for accelerated judgment, GCR 1963, 116.1(5), on the grounds that the two-year statute of limitations had expired. MCLA 691.1411; MSA 3.996(111).
The plaintiffs in these cases appealed the dismissals. The Court of Appeals affirmed each dismissal. This Court granted leave to appeal in these cases on October 29, 1976, and November 1, 1976. 397 Mich 885, 887, 889. The cases were subsequently consolidated and heard together.
III. Equal Protection
The plaintiffs contend that the two-year statute of limitations applicable to suits brought against governmental tortfeasors for injuries resulting from negligently maintained highways is violative of equal protection because the comparable statute of limitations applicable to the same suits brought against private tortfeasors is three years.
The plaintiffs do not dispute that these cases arose under § 2 of the governmental liability act, MCLA 691.1401 et seq; MSA 3.996(101) et seq. Section 2, MCLA 691.1402; MSA 3.996(102), in its pertinent part, allows for recovery against a governmental unit for injuries resulting from a negligently maintained highway:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948.”
The statute of limitations under which the accelerated judgments in the instant cases were granted is MCLA 691.1411; MSA 3.996(111):
"(1) Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except as otherwise provided in this section.
"(2) The period of limitations for claims arising under section 2 of this act shall be 2 years.
"(3) The period of limitations for all claims against the state, except those arising under section 2 of this act, shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.” (Emphasis supplied.)
The thrust of plaintiffs’ attack on the two-year statute of limitations is that the Legislature has created an arbitrary and unreasonable classification scheme by permitting plaintiffs injured by private tortfeasors three years in which to assert their claims, MCLA 600.5805(7); MSA 27A.5805(7), while granting those plaintiffs injured by governmental tortfeasors a year less. Fox v Employment Security Commission, 379 Mich 579, 588; 153 NW2d 644 (1967).
Before examining the precise question before us, we should set forth the general principles for reviewing alleged equal protection violations.
A party attacking a statutory classification on equal protection grounds has the heavy burden of demonstrating that the classification lacks a reasonable basis. If a reasonable relationship exists between the governmental classification and a legitimate state interest, no denial of equal protection results.
"Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that '[a] statutory discrim ination will not be set aside if any state of facts reasonably may be conceived to justify it’. A classification will stand unless it is shown to be 'essentially arbitrary’. Few statutes have been found so wanting in 'rationality’- as to fail to satisfy the 'essentially arbitrary’ test.” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975).
State legislatures, therefore, have a broad range of discretion in establishing classifications in the exercise of their police powers. Fox v Employment Security Commission, supra.
In the instant cases, the statute in question does effectively separate the victims of highway tortfeasors into two classes. Those plaintiffs injured as a result of the negligent maintenance of a highway by a public tortfeasor have their rights of action cut off after two years. Their counterparts, who are injured under the same circumstances but through the negligence of private tortfeasors, have three years within which to press their causes of action.
Significantly, plaintiffs here presented us with no cogent showing that the statute of limitations has operated arbitrarily or capriciously in barring their causes of action. Instead, they rely almost entirely on Reich v State Highway Department, 386 Mich 617; 194 NW2d 700 (1972), for their legal analysis and conclusion.
Reich recognized that two classes of victims were established by requiring notice of suit be given to public tortfeasors within 60 days while only requiring that suits against similarly situated private tortfeasors be filed within the three-year statute of limitations. Reich held that a 60-day notice requirement found in MCLA 691.1404; MSA 3.996(104) arbitrarily barred actions by the victims of governmental highway negligence and thus violated equal protection strictures.
The Reich majority believed that the 60-day special notice limitation was unduly restrictive, as opposed to the three-year statute of limitations, in light of the "legislature’s intention to place victims of negligent conduct on equal footing”. Reich, supra, 623. The dissent in Reich theorized that the instant two-year statute of limitations could conceivably fall under the majority’s "equal footing” rationale. Reich, supra, 626.
While we accept the majority’s analysis in Reich that the 60-day notice requirement in that case was arbitrary and thus violative of equal protection, we do not agree that the two-year statute must fall under the same rationale.
The Reich Court was correct in reasoning that the Legislature, inter alia, intended to place victims of negligent highway maintenance on "equal footing” as to the substantive right to proceed against a governmental tortfeasor. However, we do not believe the Court intended that the same analysis should apply to all procedural requirements involved in bringing such suits. Justice T. M. Kavanagh recognized this same substantive-procedural distinction in Grubaugh v St Johns, 384 Mich 165, 173-174; 180 NW2d 778 (1970):
"The statute in question, by waiving immunity from liability, puts the state and its municipalities upon the same legal footing and subject to the same substantive rules which are applied to any controversy involving a negligent tortfeasor.
"The substantive right to proceed against the governmental tortfeasor, as distinguished from merely proce dural requirements, must arise under the same conditions and undiminished by any special exemption as any other comparable cause of action.” (Emphasis supplied.)
Statutes of limitation are generally considered to be procedural requirements. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). We submit that as procedural requirements these statutes of limitation are to be upheld by courts unless it can be demonstrated that they are so harsh and unreasonable in their consequences that they effectively divest plaintiffs of the access to the courts intended by the grant of the substantive right.
In Carver v McKernan, 390 Mich 96, 99; 211 NW2d 24 (1973), now Chief Justice T. G. Kavanagh, in the same vein, succinctly stated why this Court will void notice requirements such as the one considered in Reich while acquiescing in statutes of limitation such as the one at issue here:
"At the outset, we acknowledge frankly that statutes which limit access to the courts by people seeking redress for wrongs are not looked upon with favor by us. We acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict such access, but we look askance at devices such as notice requirements which have the effect of shortening the period of time set forth in such statutes.”
In the instant case, we are persuaded that there is a rational basis for enacting a shorter statute of limitations for victims of governmental tortfeasors than for victims of private tortfeasors. Reich can be distinguished on the quite reasonable grounds that a two-year statute of limitations places significantly less of a hardship upon plaintiffs than does the Reich 60-day notice requirement. The 60-day notice requirement was unreasonable because it unduly restricted the substantive right to proceed against the governmental tortfeasor. The two-year statute of limitations constitutes a reasonable procedural requirement which is not nearly as harsh or arbitrary in its consequences for plaintiffs.
Therefore, we determine that the decision in Reich as to the notice requirement does not dictate that we also must hold the instant statute of limitations unreasonable in these cases and thus violative of equal protection.
Furthermore, we would submit that a rational basis does exist for a two-year statute of limitations as to claims by victims of governmental tortfeasors as opposed to claims by victims of private tortfeasors. The statute unquestionably affords plaintiffs a reasonable time within which to commence suit. However, by setting a time limit of two years, the state is assured that plaintiffs will promptly conduct such investigations as necessary to determine the merits of their claims and will not be unduly dilatory in commencing their suits. This is especially important in times such as these when governments are continually launching highway improvement programs.
Moreover, the statute is essential to the organization of the finances of state and local government agencies in that it allows them to estimate with some degree of certainty the extent of their future financial obligations. It cannot be overlooked that no private party has a potential tort responsibility comparable to that of the government for injuries allegedly caused by defective or unsafe conditions of highways.
Finally, it should not go unnoticed that this Court has at least impliedly endorsed the Legislature’s prerogative to create a separate two-year statute of limitations in at least two cases involving the victims of governmental tortfeasors. Carver v McKernan, supra; Hobbs v Department of State Highways, 398 Mich 90; 247 NW2d 754 (1976).
In Carver, this Court did not find a six-month notice requirement in the Motor Vehicle Accident Claims Act, MCLA 257.1118; MSA 9.2818, constitutionally deficient. The Court only required the state to make a showing of prejudice by plaintiffs failure to give such notice before the plaintiffs claim could be dismissed.
In Hobbs, the Court reached the identical conclusion as in Carver regarding a 120-day notice provision in the governmental liability act in question here. Furthermore, the Court specifically held that the two-year statute of limitations at issue here was the statute of limitations to be applied:
"The Court of Appeals held that because this action was brought under § 2, and because the period of limitation for these actions is two years, this claim was timely filed as it was brought within two years after it arose.
"We agree with the Court of Appeals that the provisions of the governmental liability act, 1964 PA 170, MCLA 691.1402, MCLA 691.1411; MSA 3.996(102), MSA 3.996(111), control this case.” Hobbs, supra, 94-95.
IV. Conclusion
Plaintiffs have presented us with no cogent showing that the instant statute of limitations has operated arbitrarily or capriciously in barring their causes of action. The law has long held that, in creating a right, the Legislature may place reasonable restrictions on the exercise of that right. Bement v Grand Rapids & IR Co, 194 Mich 64; 160 NW 424 (1916). In giving plaintiffs the right to sue the state, Minty v Board of State Auditors, 336 Mich 370; 58 NW2d 106 (1953), the Legislature placed a specific time limit on plaintiffs’ exercise of that right. This time limit is neither arbitrary nor capricious. Therefore, it cannot be said that it violates equal protection of the law.
Affirmed. No costs, a public question.
Williams, J., concurred with Blair Moody, Jr., J.
US Const, Am XIV; Const 1963, art 1, § 2.
Plaintiffs Forest and Mills raise an additional issue: whether the two-year statute of limitations is applicable to a county road commission or whether it was repealed by implication. Plaintiffs submit that MCLA 691.1402; MSA 3.996(102), supra, states that liability as to county roads shall be as provided in 1909 PA 283, ch 4, § 21, as amended, being MCLA 224.21; MSA 9.121. However, examination of the latter statute discloses that "[t]he provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control” shall apply to counties adopting the county road system. The statute last referred to was found at MCLA 242.1 et seq.; MSA 9.591 et seq., which was repealed by MCLA 691.1414; MSA 3.996(114). Hence, the liability of defendant is to be found in MCLA 691.1402; MSA 3.996(102), supra, and the two-year limitation applies.
See also Yarger v City of Hastings, 375 Mich 413, 416; 134 NW2d 726 (1965), and the cases cited therein.
We reject outright the contention that we are dealing with a fundamental right and therefore should employ the "strict scrutiny” equal protection test. The Legislature permitted the instant right of action and therefore may place a reasonable time limit on plaintiffs’ exercise of that right. Bement v Grand Rapids & IR Co, 194 Mich 64; 160 NW 424 (1916), and Minty v Board of State Auditors, 336 Mich 370; 58 NW2d 106 (1953).
We do not agree with defendants’ contention that only one class of victims exist: victims of governmental tortfeasors. We agree with plaintiffs’ assertion that two classes are involved: the victims of governmental tortfeasors and the victims of nongovernmental (private) tortfeasors.
See also, Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 267-275 (1973).
Cooperrider opines, inter alia, that it was not the Legislature’s intent to place governmental units on an equal footing with private tortfeasors as to all procedural rights.
See also Gray v Nelson, 533 F2d 334 (CA 6, 1976). | [
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Per Curiam.
Plaintiff asks us to examine the Court of Appeals application of Fera v Village Plaza, Inc, 396 Mich 639; 242 NW2d 372 (1976), to plaintiff’s proof of lost profits based on its inability to open its women’s wear store in a shopping center on the date it expected to open. The Court of Appeals, in an unpublished per curiam opinion dated January 18, 1977, found the proof of lost profits insufficient to support the jury’s award of $27,000. We disagree.
I
Plaintiff operates five women’s wear stores in the Flint area, including one in the Genesee Valley Shopping Center. Genesee Valley is a 54-store shopping mall anchored on one end by Sears and on the other by J. L. Hudson Co. Defendant, substantially owned by the corporation that controls Hudson’s, developed Genesee Valley. Plaintiff leased a large store near the Hudson’s end before construction.
From the beginning, the parties contemplated an opening for the mall and Hudson’s in July of 1970. In early May, 1970, a public opening was set for July 16, 1970, to be preceded by a private sale on July 14 and 15 to 60,000 personally invited area residents. Defendant knew by late May that it was going to have serious labor problems that might delay the opening. On June 5, however, it was still telling the tenants:
"The grand opening of Genesee Valley is July 16, 1970. It is imperative that all of our tenants cash in, so to speak, on the large amount of customers that we are expecting at the center during the grand opening days. This means that your construction department should get their contractors moving in order to complete your store so that you will be opened and doing business with the public on these days.”
A strike extended through the month of June to June 29. On July 1, defendant notified plaintiff that it had rescheduled the grand opening for August 3, but it would allow Hudson’s to open on July 14, as originally scheduled.
Plaintiff sued defendant on a promissory estoppel theory and sought lost profits for the 17-day delay in opening. A jury awarded plaintiff damages of $27,000.
II
Plaintiff’s position at trial was that the tremendous promotional campaign associated with the Hudson’s opening would have generated substantial sales at its store. Plaintiff characterized as "anticlimatic” the subsequent opening of the remainder of the mall.
Plaintiff’s accountant testified that its Genesee Valley store generated in excess of $61,000 in sales during the 17 days following August 3. He computed a 27% profit factor based on plaintiff’s Gene-see Valley operations for the remainder of the fiscal year. Two of plaintiffs officers, qualified as experts by reason of their trade experience, estimated lost sales for the store of a minimum of $100,000 during the 17-day period of non-operation.
Also testifying for plaintiff was a New York-based management consultant who advised women’s wear retail stores in 30 states. He had been involved in opening stores in "several hundred” shopping centers. He testified that the sales during the second opening suffered because the momentum of the Hudson’s opening had been lost and customer enthusiasm generated by the initial opening could not be reinstituted. In measuring lost sales, he relied on both his trade experience and his experience with the insurance industry in establishing recoveries under business interruption policies. He explained the components of his analysis to the jury. As a result of his analysis, he pegged lost sales at approximately $104,000, calling this figure fair, conservative and realistic.
Defendant thoroughly cross-examined plaintiffs witnesses and itself introduced the deposition of a witness with four years experience as a ladies’ wear merchandise manager. The witness testified that in her opinion plaintiff’s sales at its Genesee Valley store during the 17-day period following Hudson’s opening would not have been as great as the nearly $62,000 in sales the store realized during the 17-day period following its own opening.
The trial judge considered the question of whether or not to submit the issue of lost profits to the jury. He expressed some difficulty with the testimony on this issue, but noted that it concerned an expansion of an existing business, rather than a new business. He decided to allow the issue to go to the jury and instructed them on the question of speculativeness. Subsequently, in denying a motion for judgment notwithstanding the verdict and new trial, he repeated his belief that the issue was properly one for the trier of fact.
Ill
In Fera, supra, we held that a new business may recover damages for lost profits through a breach of a lease. We found that the plaintiff’s proof of lost profits was reasonably certain and therefore sufficient to support the jury verdict. In so ruling we gave considerable weight to the opinion of the trial judge who, as here, found that the verdict was justified by the evidence.
Plaintiff’s experts computed their estimation of lost profits by using the history of sales in plaintiff’s Genesee Valley store during a period immediately following the complained-of delay. By contrast, the lost profits found to be established with reasonable certainty in Fera were computed on a history of sales in different types of stores, at more remote times, and in different locations.
Defendant does not dispute that during the second 17-day period plaintiff’s gross sales amounted to nearly $62,000. It argues, rather, that the issue should not have gone to the jury because there was no competent proof of lost sales as a multiple or fraction of this $62,000 figure. Defendant focuses on the admission of the management consul tant called by plaintiff that his figure was to a certain extent "speculative” despite his experience in the trade and his familiarity with the insurance industry formula used in establishing recoveries under business interruption policies. But, as the witness said, "It has to be, because the store was not open”.
Our review of the record convinces us that reasonable minds could disagree as to the adequacy of plaintiff’s proof of the store’s lost profits. The trial judge instructed the jury that they "may not guess, speculate or conjecture” and the jury found the proofs adequate. Accordingly, we hold that it was improper for the reviewing court to invade the jury’s determination of fact.
We reverse the decision of the Court of Appeals, reinstate the trial court’s judgment on the verdict and remand to the Court of Appeals for considera tion of issues not reached in its earlier decisions. Costs to plaintiff.
Kavanagh, C.J., and Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
The judge told the jury:
“In arriving at a dollar amount of damages, you may not guess, speculate or conjecture. This is really not a guessing game. It is intended to be established within the burden that I have earlier described. Loss of profits must be shown with a reasonable degree of certainty. The showing of loss of profits by the plaintiff must have a reliable basis for a determination. You must find in the evidence a reasonable basis for computing it.”
The trial judge also explained to the jury the calculations involved in measuring loss of profits:
"The plaintiff must, as a part of its proving loss of profits, show in the same manner and to the same extent the expenses it saved by not operating between July the 14th and August the 3rd of 1970 at the Genesee Valley Shopping Center, and the additional costs that would have been required, if any, to generate the sales that it claims it would have made during the 17-day period.
"Plaintiff is not entitled to recover any of the expenses it saved by not operating or any of the costs which would have been required to generate the projected sales.
"It was the duty of the plaintiff to use reasonable care to reduce as much as possible the damages sustained or alleged to have been sustained by it. If you find that the plaintiff by reasonable care could have reduced any expenses, thereby lessening its loss, the defendant cannot be charged with the responsibility for any expense resulting from the plaintiff’s failure to use such care.
"In computing loss of profits, you must begin by determining the gross sales that the plaintiff lost by not being open at the Genesee Valley Shopping Center for the 17-day period in question. You must then proceed to determine the net sales lost by plaintiff; that is, the sales lost at the Genesee Valley Shopping Center because the plaintiff was not open there, and there was a reduction of sales made at the other Vogue stores of plaintiff which would not have been made had the plaintiff been operating at the Genesee Valley Shopping Center during the period in question.
"Please bear in mind, this cause of action which the plaintiff claims is not brought as a claim by a division in the Genesee Valley. It is brought by the entire corporation, the Vogue Corporation.
"Once you have determined the net sales loss, you must then deduct the cost of such sales, otherwise described as the cost of merchandise.
"From that figure so obtained, you must further deduct the ex penses saved by plaintiff by not operating between July the 14th and August the 3rd of 1970, as well as any additional costs which would have been required to generate such sales.
"In considering the expenses saved by not operating you must take into consideration the difference between the direct expense, being one which relates to the operation of the Genesee Valley Shopping Center, and so-called indirect or overhead expenses, which relate to all operations of the plaintiff. To the extent that any item of direct expense was not incurred because the store at Genesee Valley Shopping Center was not open, it should be deducted. To the extent that any direct expense was incurred, if the plaintiff received a benefit from it or it could have been avoided, it should be deducted. Indirect expenses which continued and which would have been covered by the net sales lost are not to be deducted. I mention, also, the general concept that damages are not intended to punish anyone and they are not intended to reward anyone. They are intended to put a party who claims to have been aggrieved at the hands and by the responsibility of another in substantially the same position as it was prior to the claimed injury.”
The judge concluded his instructions in this area by giving the jury a formula for computing loss of profits:
"Now, we have set up what is described as a formula which might guide you in going down the line, if you get to the issue of damages at all, and it is this:
"First of all, find the amount of gross sales which would have been made at the Genesee Valley Shopping Center during the period July 14th, 1970 to August the 3rd of 1970;
"Next, deduct the gross sales at other locations which would not have been made had the store at Genesee Valley Shopping Center been open during the period July 14, 1970 to August the 3rd of 1970;
"Then, we have the net sales for the period of July the 14th, 1970 to August the 3rd of 1970;
"At this point, you deduct the costs of such sales;
"You deduct the expenses not incurred because the store at the Genesee Valley Shopping Center was not open from July the 14th, 1970 to August the 3rd of 1970. Include in this deduction direct expenses * * * incurred for which the plaintiff received a benefit and direct expenses which could have been avoided.
"Deduct the additional costs which would have been required to generate the gross sales from the period July 14, 1970 to August the 3rd, 1970 at the Genesee Valley Shopping Center;
"And then, you arrive at what is known as the net profit lost.” | [
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Rehearing denied. Plaintiff-appellant’s motion to expand record to include exhibits pertaining to the application for rehearing is also considered and is hereby denied for the reason that no adequate cause has been shown for the granting of such relief.
Reported at 401 Mich 252. | [
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] |
AFTER REMAND
Before: Danhof, C.J., and Hood and R. L. Olzark, JJ.
Per Curiam.
Petitioner, Meadowlanes Limited Dividend Housing Association, and respondent, City of Holland, Michigan, both appeal as of right from the Michigan Tax Tribunal’s supplementary judgment rendered on remand from this Court. The Michigan Tax Tribunal denied the parties’ motions to vacate the supplementary judgment and also denied motions for rehearing on remand. We affirm.
The instant case arose from petitioner’s dispute over its real property tax assessments for the tax years 1981, 1982 and 1983 on a 118-unit apartment project owned by petitioner. Petitioner petitioned the Michigan Tax Tribunal to review and reduce the assessments on the apartment project. The Michigan Tax Tribunal decided in favor of petitioner’s proposed assessments, and respondent appealed to this Court. Meadowlanes Limited Dividend Housing Ass’n v Holland, 156 Mich App 238; 401 NW2d 620 (1986). The basic facts of this case were stated by the Meadowlanes Court:
Petitioner purchased the apartment project in March, 1973, by paying the original developer, the Holland Zeeland Area Nonprofit Housing Association, $31,532 in cash, assuming the housing authority’s $2,232,000 mortgage and placing about $400,000 into reserve accounts in escrow.
The mortgage was obtained through the Michigan State Housing Development Authority (mshda). It was subject to federal regulation as part of a § 236 program under the National Housing Act, 12 USC 1715z-l, and a § 8 program under the United States Housing Act of 1937, 42 USC 1437f. Those programs are designed to assist developers in constructing housing for low income families. Under the programs, the Department of Housing and Urban Development (hud) subsidizes the mortgage by paying interest over one percent. In this case, although the interest rate was 6.35 percent, petitioner paid only one percent, hud subsidizing 5.35 percent as an interest reduction payment under 12 USC 1715z-l(c). In return for the subsidy, federal regulations limit the maximum return on plaintiff’s investment to not more than six percent. Moreover, rents charged by petitioner are regulated by a prescribed formula. Other restrictions also apply. [Meadowlanes, supra, pp 239-240.]
The Meadowlanes Court held that the Michigan Tax Tribunal followed a satisfactory methodology in determining the true cash value of the apartment unit for each of the years in question, but erred by not taking into account the federal subsidy of the mortgage of the apartment unit. As the Meadowlanes Court stated:
Viewing the above formula in light of the requirement that valuation methods be reasonable and accurate, the Court is satisfied that the method meets those requirements at least to the extent that it contains a precise and verifiable formula which can be utilized to establish each component figure. The only flaw we perceive in the methodology is that a component of the mortgage factor was left out, causing the method to be in violation of the requirement that the formula be reasonably related to fair market value of the property. The methodology does not take into consideration the total value of the mortgage.
According to petitioner, the total monthly mortgage payments are $15,181.64. But, petitioner’s share of the payment is only $6,660.90 per month since the government pays the other $8,520.74. However, in establishing the present value of the mortgage, petitioner’s appraiser considered only the $6,660.90 monthly payments in the formula, excluding the $8,520.74 monthly payments. Hence, there was over $1,500,000 of mortgage value not included in petitioner’s calculations.
Based upon this fact, although the methodology is accurate and precise, it may not reflect the true cash value of the property since, as we discuss in Issue iv, the government subsidized mortgage interest payments are to be considered in setting the value of this subsidized property. [Meadowlanes, supra, pp 247-248.]
The Meadowlanes Court held:
The decision of the tribunal is reversed and the case is remanded for reconsideration to take into account the value, if any, of the 5.35 percent mortgage interest subsidy. We express no opinion as to the effect of that subsidy in this case because that decision is to be made initially by the tribunal. [Meadowlanes, supra, p 252.]
After the remand from this Court, petitioner moved in the Michigan Supreme Court for leave to appeal this Court’s decision. While that motion was pending, the Michigan Tax Tribunal issued its supplementary judgment on the remand order. Thereafter, our Supreme Court denied leave to appeal. 428 Mich 866 (1987).
The Michigan Tax Tribunal’s original holding in this case set the true cash value of the subject property as: $1,000,000 in 1981; $800,000 in 1982; and $1,100,000 in 1983. After the remand from this Court, the Michigan Tax Tribunal recomputed the value of the subject property for the tax years in question as: $1,600,000 in 1981; $1,800,000 in 1982; and $1,900,000 in 1983. The Michigan Tax Tribunal used the same methodology to achieve both results, but after remand the tribunal took into account the value of the mortgage interest subsidy.
It is argued on appeal that the Michigan Tax Tribunal did not follow the proper methodology on remand when determining the true case value of the subject property. However, this Court approved the methodology used. As this Court has stated:
A question of law decided by an appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain materially the same. The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on rehearing. Johnson v White, 430 Mich 47; 420 NW2d 87 (1988). Our Supreme Court has also held that this rule applies without regard to the correctness of the prior determination. Gourlay v Ins Co of North America, 189 Mich 384, 386; 155 NW 483 (1915); Damon v DeBar, 94 Mich 594; 54 NW 300 (1893). A party seeking relief from an incorrect appellate decision may either request a rehearing or appeal to the Supreme Court. Damon, supra. [Muilenberg v Upjohn Co, 169 Mich App 636, 640-641; 426 NW2d 767 (1988).]
In the instant case, the facts have remained materially the same. Leave to appeal to the Supreme Court was denied. Accordingly, we will not readdress issues previously decided by this Court.
The issues in the instant appeal are whether the Michigan Tax Tribunal properly followed the remand order from this Court and whether the factual findings of the tribunal are supported by competent and substantial evidence.
This Court’s review of decisions of the Tax Tribunal, in the absence of fraud, is limited to determining whether the tribunal made an error of law or adopted a wrong principle; the factual findings of the tribunal are final, provided they are supported by competent and substantial evidence. Antisdale v City of Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1984). [Meadowlanes, supra, p 245.]
On remand, the Michigan Tax Tribunal was to reconsider the instant case to take into account the value, if any, of the 5.35 percent mortgage interest subsidy. Meadowlanes, supra, p 252. The order remanding this case back to the tribunal did not mandate that the tribunal rehear the case or consider other evidence. It was apparently the decision of the tribunal that enough facts were available to it on the record to comply with the order of remand. We have no reason to disagree with this assessment. We find that the remand order of this Court has been complied with. See Kern v Pontiac Twp, 93 Mich App 612, 625; 287 NW2d 603 (1979).
On remand, the Michigan Tax Tribunal applied the mortgage equity component formula described in detail and approved of by this Court in Meadow-lanes. The tribunal found that, when the mortgage interest subsidy was taken into account, the true cash value of the apartment unit had changed from the tribunal’s original figures. This decision of the Michigan Tax Tribunal is supported by competent and substantial evidence. The rule of the law of the case prevents us from finding that the Michigan Tax Tribunal made an error of law or adopted a wrong principle. The Michigan Tax Tribunal applied the methodology that this Court had found to be accurate and precise in this same case and reached a final decision which is supported by competent and substantial evidence.
Affirmed. | [
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] |
Rehearing denied.
Reported at 402 Mich ante, p 381. | [
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] |
On order of the Court, the request for investigation having been referred to Wayne County Hearing Panel No. 18, the hearing panel having transmitted its findings and recommendations to this Court and the record having been considered, it is hereby ordered that the complaint dated October 25, 1976 by the State Bar Grievance Administrator against Daniel C. Devine be dismissed with prejudice. | [
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Per Curiam.
Leave to appeal was granted to consider a question under the governmental liability act., However, when the case was presented to the Court, the central issue concerned a procedural matter.
We therefore believe leave to appeal was improvidently granted. The order of February 14, 1977 reported at 399 Mich 836 is vacated and leave to appeal is denied.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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] |
Williams, J.
This case comes to us on appeal from a declaratory judgment. There are two issues: (1) whether the Legislature, in conferring authority upon the Department of Conservation and the Commission of Conservation to promulgate rules and regulations pursuant to §§ 3 and 3a of 1921 PA 17, as amended; MCLA 299.3, 299.3a; MSA 13.3, 13.4, unconstitutionally delegated its legislative power; and (2) whether the "river use rules” promulgated by the successor Department of Natural Resources are invalid because the agency exceeded the scope of authority granted to it by the Legislature under §§ 3 and 3a of 1921 PA 17, as amended; MCLA 299.3, 299.3a; MSA 13.3, 13.4.
With respect to issue (1), we hold that §§ 3 and 3a of 1921 PA 17, as amended; MCLA 299.3, 299.3a; MSA 13.3, 13.4, do not unconstitutionally delegate legislative power to the agency. Accordingly, we reverse the Court of Appeals and the trial court as to this issue. With respect to issue (2) , we remand to the trial court for proceedings not inconsistent with this opinion. We also remand to the trial court, without prejudice, with respect to the other issues to which the parties stipulated but which were not considered at trial.
I — Facts
In 1971 and 1972 the Department of Natural Resources (the DNR) conducted a series of extensive meetings and hearings, the result being, in March, 1972, the promulgation of a set of rules (the "river use rules”) designed to regulate the use of certain portions of the Au Sable, Manistee, Pine, and Pere Marquette Rivers. 1972 A ACS, R 299.2701 et seq. The authoritative source for these rules, according to the DNR, was §§ 3 and 3a of 1921 PA 17, as amended; MCLA 299.3, 299.3a; MSA 13.3, 13.4.
The Joint Rules Committee of the Legislature entered actively into the formulation of the "river use” rules. A special hearing of the Joint Rules Committee was held April 18, 1972, to hear the DNR "River Rules” Committee and other DNR staff concerning the rules. On April 27, 1972, the Joint Rules Committee held another meeting to question the DNR. Apparently, as a result of these meetings, the Joint Rules Committee suggested changes in the rules, which, after DNR discussion, were discussed with legislators and the Legislative Service Bureau. After revision pursuant to these contacts, further minor revisions were made at the suggestion of the Joint Rules Committee on June 1, 1972. The Joint Rules Committee adopted the rules on June 6, 1972.
The "river use” rules, in general, divide portions of the rivers into sections and designate the uses to which these sections of the rivers may be put. On certain sections of the rivers, the rules prohibit the use of any type of watercraft, while on other sections, non-motor watercraft or motor watercraft operating at slow, non-wake speeds are the only types of watercraft permitted to be operated. The rules provide that they are to be in effect from the last Saturday in April through Labor Day; they do not apply during the remainder of the year. The rules also specify certain responsibilities of river users and impose certain duties on livery operators or other persons who have watercraft for rent. These rules, however, apply only to those persons who have watercraft for rent "in a stretch of a river designated for non-motor watercraft use” or those persons who use a "stretch of a river designated for non-motor watercraft use”. 1972 AACS, R 299.2709, 299.2710. Finally, the rules provide release and pickup points for watercraft and establish a scheme whereby a permit is required to be carried in all watercraft using these portions of the rivers designated for non-motor watercraft use. Such permits are available on a limited basis only, and the number of available permits is scheduled to decrease over a period of years. Violation of any of these rules is stated to be a misdemeanor under the provisions of MCLA 299.3a; MSA 13.4.
On April 27, 1972, plaintiffs, who are boat and canoe livery operators, brought this action against defendants Natural Resources Commission and Ralph A. MacMullan, Director of the DNR, seeking (1) a temporary injunction against enforcement of the proposed rules, and (2) a declaratory judgment as to the validity of the proposed rules. In a rather elaborate complaint, plaintiffs essentially alleged that (1) the rules "if finally 'promulgated’ and* carried into effect and enforced by the department, would be unconstitutional and would represent an unconstitutional assumption of authority by the department” because the Legislature had not delegated to the DNR the authority to promulgate such rules, that the rules, if carried into effect, would result in a taking of business opportunities and properties which amounts to a taking of property without due process of law, and that the rules were discriminatory and in violation of the equal protection of the laws; (2) the rules are invalid and unenforceable because the DNR failed "substantially to comply with the requirements of the Administrative Procedures Act of 1969” (the APA).
On April 28, 1972, the circuit court entered a temporary order restraining the DNR from effectuating or attempting to enforce the rules, ordering the DNR to show cause why the temporary order should not be made a temporary injunction pending determination of the cause. On May 10, 1972, the date scheduled for the show-cause hearing, the circuit court issued an order, stipulated to by all parties, that the temporary restraining order be modified to permit administrative procedural matters to continue with respect to the rules, but the court continued the restraining order against enforcement of the rules. Defendants thereafter answered plaintiff’s complaint, and filed a motion for summary judgment under GCR 1963, 117.2(1) (this motion was subsequently withdrawn in the "stipulation” discussed infra).
On September 11, 1972, it was "stipulated and agreed between counsel for the respective parties” that the case would be submitted to the court "for a declaratory ruling” on nine stipulated legal issues. Trial was held on November 23, 1973, on the basis of the pleadings, stipulated issues and exhibits, written briefs and oral argument. The stipulation, in addition to the agreed-upon issues, contained the following extremely meager facts and the unfortunate record-limiting stipulation "to insure the non-introduction of factual matter in a case where, by stipulation, the legal issues only are to be argued”. This record limitation is coun terproductive because some of the legal issues raised can only be resolved in the context of the surrounding and, because of the stipulation and trial method, missing facts. The applicable excerpt from the stipulation is:
"It is further stipulated and agreed that for the purpose and only for the purpose, of the declaratory consideration, it is specified that there was and is conduct, conflict of use, pollution and other injury to the natural resources on the streams in question sufficient to justify concern by the Department of Natural Resources and some form of regulation of river use.
"That as to those plaintiffs doing business in the controlled river stretches, it is agreed for the purposes of this case that there would be a diminution of profit if the permit system of use is instituted.
"This stipulation is to insure the non-introduction of factual matter in a case where, by stipulation, the legal issues only are to be argued.
"It is also further stipulated and agreed:
"1. That the various drafts of the proposed 'River Use Rules’ with dates of publication, the transcript of testimony taken at the three public hearings, the transcript of commission meetings when rules were considered, the chronological schedule of events, the technical reports and the report to the joint committee all be submitted and that these documents be used by the court in its deliberation and judgment.”
The issue at trial was framed as "the legality of the final draft of 'The Department of Natural Resources Use of River Rules’ ”. After hearing arguments on both sides as to the legal issues involved, the court, by opinion dated January 2, 1974, found "the authority lacking in the Department of Natural Resources by legislative grant to promulgate the rules in question as they are finally drafted”. As to the other allegations complained of by plaintiffs, the court stated that "[o]n these matters, the court passes no opinion as to the validity of the rules”. Subsequently, defendants filed a motion for the amendment of findings and for additional findings, and a hearing was held pursuant to this motion. The trial court replied pertinently to this motion as follows:
"In this particular case, there was no testimony taken and all of the facts presented were presented by a stipulated set of facts and the court made no finding of facts. The facts were all agreed to by the attorneys in the case. Therefore, to make an additional finding of fact would be a relief not provided for by legal procedure and would, in fact, corrupt the record and make the case readily defective and appealable, because the judge would be interjecting into the stipulated facts something not in the stipulated facts. Therefore, that portion of the motion which asks for an additional finding of fact should be and is hereby denied as not being proper in this case. There was one fact inserted in the record not in the finding of fact agreed upon. This was the fact in the opinion as to the number of river users on the rivers in question on a weekend and the amount of money involved in these activities. This fact was interjected into the record as an admission of fact at the time oral arguments were made and it becomes part of the record like the stipulated set of facts, because an admission of attorneys is to be used by the trier of the facts in determining the facts, the same as any other evidence.”
On April 1, 1974, judgment in favor of plaintiffs was entered. The court emphasized that "the sole issue upon which the court decided this case was whether or not the Natural Resources Commission had authority under 1921 PA 17 to promulgate the rules in question”. Defendants appealed this judgment to the Court of Appeals.
The Court of Appeals phrased the "sole issue” for its consideration "the question of whether the defendants exceeded their authority in promulgating the complained of rules”. 62 Mich App 539, 542; 233 NW2d 640 (1975). However, in its analysis of this issue, the Court stated that the argument that the Legislature granted the DNR authority to pass the rules complained of, "if it is to succeed at all, must have as its basic premise the proposition that the rule-making power conferred by MCLA 299.2; MSA 13.2 confers on the Department of Natural Resources the power to pass such rules in order to effectuate the duties imposed by MCLA 299.3; MSA 13.311. 62 Mich App 539, 543. Looking to this "premise”, the Court stated that "[t]he act * * * provides no specific method by which the department is to effectuate” the purpose of the act (stated, in part, in MCLA 299.3; MSA 13.3).
"[N]or does it even indicate what types of procedures are contemplated. The Act attempts to delegate complete control of this area of state concern to the Department of Natural Resources without providing the agency with any workable standards by which it is to be guided in the performance of its task, as is required by present Michigan law. Saginaw v Budd, 381 Mich 173; 160 NW2d 906 (1968), O’Brien v State Highway Commissioner, 375 Mich 545; 134 NW2d 700 (1965); Osius v St Clair Shores, 344 Mich 693; 75 NW2d 25 (1956).
"The present statutes * * * attempt to give the Department of Natural Resources the authority to do so in an impermissible manner. The present statutes sweep too broadly and are not amenable to any saving construction. Such statutes must designate in greater detail the types of programs and remedies the department has the authority to implement and establish standards to guide the department in the exercise of their discretion.” 62 Mich App 539, 544-545.
For this reason, the Court held the complained-of rules "void and of no force or effect since they were promulgated pursuant to a statute which delegates rule-making power to the Department of Natural Resources in an impermissible manner”. 62 Mich App 539, 545.
Defendants appealed to this Court, stating that the case
"has narrowed down to the issue of whether or not there has been delegated to the Department of Natural Resources authority to promulgate these rules under 1921 PA 17 as amended. The Lake County Circuit Court said no and this was affirmed by the Court of Appeals, Division 3. In affirming the lower court the Court of Appeals said that 1921 PA 17, as amended, lacked standards to guide the department — that the delegation of authority was too broad and that the delegation was not helped by any other act.”
We granted leave October 1, 1975.
II — Introduction
We perceive two issues in this case: (1) whether the Legislature, in conferring authority upon the Department of Conservation and the Commission of Conservation to promulgate rules and regulations pursuant to §§ 3 and 3a of 1921 PA 17, as amended; MCLA 299.3, 299.3a; MSA 13.3, 13.4, unconstitutionally delegated its legislative power; (2) whether the "river use rules” promulgated by the successor Department of Natural Resources are invalid because the agency exceeded the scope of authority granted to it by the Legislature under §§ 3 and 3a of 1921 PA 17, as amended; MCLA 299.3, 299.3a.
As is apparent, the second issue is, legally, interrelated to resolution of the first. The thresh old, and crucial, issue in this case is the "delegation” issue.
We note, at the outset, that the important and ever-occurring legal question of whether particular legislation constitutes an unconstitutional "delegation of power” to administrative agencies is, and has been, the subject of extensive critical debate among some of our most eminent scholars. We also note that this area of the law is, and has been, relatively speaking, in a state of flux in both state and Federal courts for over a hundred years.
Also, we must emphasize that the interests affected by the rules and regulations promulgated by the DNR in issue before us touch societal interests of great magnitude. On the one hand, there exists the public interest in protecting and preserving some of the most precious waterways in the world. On the other hand, there exist the private interests of persons who make their livelihood from these waterways and the interests of persons who use these waterways for their recreational pleasure.
Accordingly, because of the difficult and relatively controversial nature of the legal question of the "delegation of legislative power to administrative agencies” and because of the important socie tal interests affected by the "delegation of legislative power” in issue, we believe it is appropriate, as an initial measure, to discuss in historical depth the constitutional underpinnings of the "delegation doctrine”.
Ill — Discussion of the Constitutional Question of the Delegation of Legislative Power to Administrative Agencies as It Has Developed in Our Jurisprudence
The constitutional question of whether the Legislature can delegate its power to an administrative agency, as it developed in our jurisprudence during the nineteenth century and into the twentieth century, was fully discussed for the first time by our Court in King v Concordia Fire Insurance Co, 140 Mich 258; 103 NW 616 (1905). See also Michigan CR Co v Michigan Railroad Commission, 160 Mich 355; 125 NW 549 (1910). In King, this Court grounded the "delegation” question in the principle of the separation of powers as expressed in art 4, § 1 of our Constitution of that time which provided that "the legislative power is vested in the senate and house of representatives”. 140 Mich 258, 267. This Court began its analysis of the doctrine by quoting, with approval, from Justice Cooley’s Constitutional Limitations, in support of the "well-settled” principle "that such power cannot be delegated”:
"One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom, and partriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” Cooley, Constitutional Limitations (6th ed), p 137.
This Court, however, then enunciated two conceptually related "tests” to distinguish analytically between "truly legislative” powers, which could not be delegated, and those which are merely "administrative” and could be delegated. First, this Court declared,
"The proper distinction between such delegated power [power of 'an administrative character’] and legislative power is stated in Locke’s Appeal, 72 Pa 491, 498 [1873], as follows:
" 'The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.’ ”
Second, this Court articulated another "true distinction”, quoting with approval from the opinion of Justice Ranney in Cincinnati, W & ZR Co v Clinton County Commissioners, 1 Ohio St 77, 88 (1852), that
"[t]he true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”
This Court then, applying both the "proper distinction” from Locke’s Appeal and the "true distinction” from Cincinnati, W & ZR Co v Clinton County Commissioners as the "tests” for determining whether there had been an unconstitutional delegation of "legislative” power in the case before it, held the statute in issue "was not administrative, but was legislative”. This Court reasoned:
"It cannot be said that the legislature merely delegated to the commission power to determine 'a fact or state of things upon which the law makes, or intends to make, its own action to depend;’ nor that it merely delegated to the commission 'discretion as to its execution to be exercised under and in pursuance of the law.’ ” 140 Mich 258, 269.
As the twentieth century progressed, our Court abandoned the specific analytical approach of the two "tests” advanced in King Instead, this Court chose to formulate in an evolutionary and unordered manner a new "test” for determining the validity of a delegation of "legislative” power. Essentially, this Court began to require that the delegation of "legislative” power to administrative agencies be limited by the imposition of "defined legislative limits” or legislatively prescribed standards. Importantly, the earliest cases articulating the so-called "standards test” reveal two distinct constitutional foundations.
First, the "standards test” appears to have "replaced” the earlier two tests regarding delegation enunciated in King as the basis for the "true” or "proper” distinction between the delegation of truly "legislative” power, which could not be constitutionally delegated, and those "administrative” powers which could be delegated to agencies. This Court, in People v Soule, 238 Mich 130, 139; 213 NW 195 (1927), reasserted the general constitutional dictum, rooted in the separation of powers, that "[t]he Legislature cannot delegate its power to make a law” (quoting Locke’s Appeal, supra). However, this Court reasoned that
"[t]he commission in promulgating administrative orders within defined legislative limits to carry out the expressed will of the legislature makes no new law. It but exercises a discretion on ascertained conditions under and in pursuance of the law.” (Emphasis added.) 238 Mich 130, 139.
Thus, this Court implicitly stated, when legislation contains "defined legislative limits” and "ascertained conditions” (i.e., "standards”), agency rule-making within these "limits” and in accord with these "conditions” is not, in fact, "law-making” and is therefore not an unconstitutional violation of the separation of powers.
The second constitutional foundation for the "standards test” which evolved was due process. This constitutional foundation of the test was fully expressed by the Court in Hoyt Bros, Inc v Grand Rapids, 260 Mich 447; 245 NW 509 (1932) (although earlier cases had hinted at its "due process” basis). At issue in Hoyt Bros was a city ordinance which vested in the city manager the power to grant licenses for activities such as solic iting funds or selling goods "for charitable purposes * * * whenever it shall appear to the city manager * * * that the charity is a worthy one and that the person or persons making the application are fit and responsible parties”. 260 Mich 447, 449-450. This Court agreed with appellant’s contention that the ordinance, as written, violated the then art 2, § 16 of our Constitution, which declared, "[n]o person shall be * * * deprived of life, liberty or property, without due process of law”. This Court cited with approval language from a headnote of an earlier case, Hughes v Detroit, 217 Mich 567; 187 NW 530 (1922), which ruled:
"Where an ordinance states a standard for the guidance of the mayor in granting licenses thereunder, and his official discretion to grant or refuse a license upon investigating the facts is limited to determining whether the requirements prescribed by the ordinance have been met, and an abuse of discretion would be subject to review, it cannot be said that the ordinance is invalid because it delegates uncontrolled licensing power to him, with authority to arbitrarily grant or refuse,” Hughes v Detroit, 217 Mich 567, headnote 2.
This Court then held:
"In the instant case the power to issue a permit is vested in the city manager who grants such permit 'whenever it shall appear * * * from such investigation and report (made by a police officer) that the charity is a worthy one, and that the person or persons making the application are ñt and responsibleThe ordinance contains no rule or provision by which the city manager is to determine whether the charity is 'worthy’ or the applicant is 'fit and responsible.’ In making his determination he may apply one or more of a great variety of qualifications which to the city manager may seem proper, or he may grant or refuse the permit solely on captious grounds. And he may apply one test to one applicant and another to another. The ordinance does not contain the slightest indication of the kind or character of charity that is a 'worthy one;’ and likewise it is wholly silent as to what type of qualification would constitute an applicant for a permit 'fit and responsible.’ We see no escape from the conclusion that the ordinance attempts to vest the city manager with an arbitrary power in the exercise of which he will say to one applicant 'yes,’ and to another 'no.’ ” 260 Mich 447, 451-452.
This Court declared that its decision was
"controlled by the legal proposition that it is requisite to the validity of the ordinance that it should state 'a standard for the guidance’ of the official who passes upon the application for the permit. Hughes v Detroit, supra. The general and indefinite terms used in this ordinance wholly fail to comply with this requisite.” 260 Mich 447, 452.
By the mid-1930’s, the "standards” test was firmly rooted in Michigan jurisprudence as the proper test for determining the validity of legislative delegation of power. The next significant development of the "standards test” was in the landmark case, Osius v St Clair Shores, 344 Mich 693; 75 NW2d 25 (1956).
At issue in Osius were §§ 6-B and 10 of a St. Clair Shores zoning ordinance, which was described by the Court as follows:
"[Plaintiffs] point to section 6-B of the zoning ordinance (which allows service stations in a business B district 'only when permitted by the board of appeals as specified in section 10, paragraph 10 hereof) and, in turn, to section 10 thereof. The latter section, entitled 'Board of Appeals,’ permits the board to vary or modify the application of the regulations, 'in harmony with their general purpose or intent,’ following which it is provided that no service stations may be permitted in business B districts 'except after an advertised public hearing.’ ” 344 Mich 693, 697-698.
The plaintiffs in Osius, in the words of the Court, "complain primarily that the zoning board of appeals is exercising, by delegation, a legislative function, which they condemn as unconstitutional, and that this delegated legislative function is exercised without guide or standard” (emphasis added), 344 Mich 693, 697.
The Court’s analysis of this issue in Osius is significant for essentially two reasons. First, Osius is significant because the Court, in its analysis, affirmed both "separation of powers” and "due process” constitutional foundations of the "standards test”. With respect to the "separation of powers” foundation, the Court ruled:
"There is no doubt that a legislative body may not delegate to another its lawmaking powers. It must promulgate, not abdicate. This is not to say, however, that a subordinate body or official may not be clothed with the authority to say when the law shall operate, or as to whom, or upon what occasion, provided, however, that the standards prescribed for guidance are as reasonably precise as the subject matter requires or permits.” (Emphasis added.) 344 Mich 693, 698.
And, with respect to the "due process” foundation, the Court ruled "[w]ithout definite standards an ordinance becomes an open door to favoritism and discrimination, a ready tool for the suppression of competition through granting of authority to one and the withholding from another”, 344 Mich 693, 700, citing with approval the reasoning and analysis of Devereaux v Township Board (see fn 10, supra) and Hoyt Bros, Inc v Grand Rapids (see discussion supra) as authority for its conclusion.
Finding that there were no standards whatsoever in the ordinance in issue, the Court held the ordinance unconstitutional, its implicit rationale being that the ordinance violated due process in permitting "administrative officers or boards to pick and choose the recipients of their favors”. 344 Mich 693, 700-701.
Second, and more importantly, Osius is significant because it expressed unequivocal judicial recognition by this Court of the fact that "standards prescribed for guidance” need only be "as reasonably precise as the subject matter requires or permits”. 344 Mich 693, 698.
Although this Court did not cite any authority in support of this dimension of the "standards test”, it is clear from judicial decisions in other states and from our own decisions subsequent to Osius that this Court implicitly recognized the fact that a flexible, adaptable rule regarding "standards” is necessitated by the exigencies of modern day legislative and administrative government.
For example, as we declared in our recent opinion, Department of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976):
"[T]he standard should be 'as reasonably precise as the subject matter requires or permits’. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).
"The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.”
This statement echoed the attitude of this Court in Ray v Mason County Drain Commissioner, 393 Mich 294; 224 NW2d 883 (1975), where we noted with respect to the Michigan Environmental Protection Act:
"The Legislature in establishing environmental rights set the parameters for the standard of environmental quality but did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of environmental pollution or impairment. Rather the Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality.” 393 Mich 294, 306.
And the extent to which this Court has recognized that the "standards test” must be flexible and adaptable to the exigencies of modern-day legislative and administrative government is evidenced in Pleasant Ridge v Governor, 382 Mich 225; 169 NW2d 625 (1969), where the Court, although admitting that the challenged legislation "contains no standards within our constitutional rule” (citing Osius), upheld the delegation in question on the grounds that the legislation incorporated by reference a Federal statute which did contain constitutionally sufficient "standards”. 382 Mich 225, 243-248.
IV — Summary of the Present Status of the Law Pertaining to the Question of the Delegation of Legislative Power to Administrative Agencies
As our discussion and analysis in Part III, supra, indicates, at present in Michigan the applicable test for determining whether legislation constitutes an unconstitutional delegation of legislative power is the "standards test”. The "standards test”, as it has come to be recognized in our jurisprudence, includes two essential facets:
(1) legislation which contains a delegation of power to an administrative agency must contain, either explicitly or by reference (see Pleasant Ridge v Governor, supra) "standards prescribed for guidance * * * as reasonably precise as the subject matter requires or permits”, Osius v St Clair Shores, supra, 698, and
(2) the "standards test” is rooted in two constitutional principles, the constitutional doctrine of "separation of powers” and the due process clause of our Constitution. With respect to the separation of powers, the Legislature does not "delegate” or "abdicate” its power to an administrative agency if the challenged legislation contains "standards * * * as reasonably precise as the subject matter requires or permits”. See People v Soule, supra; Osius v St Clair Shores, supra; see also Department of Natural Resources v Seaman, supra. With respect to due process, the Legislature does not delegate power to an administrative agency in such a manner that the legislation "becomes an open door” to favoritism, discrimination, and arbitrary, uncontrolled discretion on the part of administrative agencies if the challenged legislation contains "standards * * * as reasonably precise as the subject matter requires or permits”. Osius v St Clair Shores, supra, see discussion, part III, supra.
V — The Rule for Whether Challenged Legislation Constitutes a Constitutional Delegation of Power to an Administrative Agency
From our analysis and summary of the question of whether legislation constitutes a constitutional delegation of power to an administrative agency and its present judicial expression in the so-called "standards test”, we make the following observations.
A. The "Delegation Doctrine” and the Constitutional "Separation of Powers”
First, we believe the constitutional "separation of powers” foundation of the "delegation doctrine” is essentially valid. At a minimum, in order to preserve the constitutional "separation of powers”, legislation in which power is delegated to an administrative agency must contain language, expressive of the legislative will, that defines the area within which an agency is to exercise its power and authority. Without such language, there would be no "constitutional accountability”, i.e., there would not exist an effective measure by which agency compatability with the legislative will might be ascertained. Or, to phrase this argument in different constitutional language, without such language, there would not exist an effective measure by which the Legislature, the courts, and the public might "check” agency action.
We believe the "standards test”, as it has come to be expressed in our jurisprudence, satisfies the constitutional principle of the "separation of powers”. If legislation contains, either expressly or by incorporation, standards "reasonably as precise as the subject matter requires or permits”, the Legislature, the courts, and the public may, if necessary, constitutionally "check” the use of delegated power by an agency. Therefore, we affirm the present expression of the "standards test” as a means of preserving the constitutional principle of the "separation of powers”. Accordingly, in the face of a challenge to whether legislation constitutes a constitutional delegation of power to an administrative agency, a court is to determine whether the legislation expressly contains or contains by reference "standards * * * as reasonably precise as the subject matter requires or permits”.
We also observe, as a matter of analysis, that when "standards * * * as reasonably precise as the subject matter requires or permits” exist, the principle that the Legislature may not delegate or abdicate "law-making” or "legislative” power but only "administrative” power becomes merely a principle of description or convenience, not substance.
No one would argue the obvious fact that the legislative delegation of rule-making power to administrative agencies is a crucial dimension of our system of government. In terms of constitutional principle, the relevant questions become: does an administrative agency, in promulgating rules pursuant to delegated rule-making power, an action which, effectively, has every character of law, act unconstitutionally? Does an agency in such an instance usurp the "legislative” law-making function? Does the agency in such an instance "legislate”?
We believe not.
We recognize that agency "rule-making” certainly resembles "legislating” in the sense that "rule-making” creates new rules of conduct. Considered from this point of view, "rule-making” could be referred to as a "legislative-like” function, a "quasi-legislative” function, or, in a loose sense, "legislation”. However, the making of rules by an administrative agency pursuant to legislatively delegated rule-making power differs from "legislation” or "law-making” in two essential aspects. First, the source of the power to make the rule is in the Legislature. Second, the concept of "legislation”, in its essential sense, is the power to speak on any subject without any specified limitations.
However, constitutionally, "standards * * * as reasonably precise as the subject matter requires or permits” do specify limitations on agency rule-making. Thus, when such standards exist, agency rule-making is not an unconstitutional action because the Legislature has (1) authorized and (2) limited such action. Also, agency rule-making is not a usurpation of the "legislative” law-making function because the Legislature has (1) directed the agency to so act and (2) limited the scope within which it may act. Finally, agency rule-making is not "legislating” in the essential sense of the word, because the agency is acting within specified limitations ("standards”) established by the Legislature and is not acting in accordance with its own will.
In sum, when properly prescribed "standards” exist, the Legislature has not abdicated its lawmaking or "legislative” power because the agency to which the power is delegated is limited in its action by the Legislature’s prescribed will; it cannot follow its own uncircumscribed will. Thus, if the word "legislating” or "law-making” is used with respect to administrative rule-making (as it has been by some commentators), it must be understood that in terms of the constitutional separation of powers, such a word is being used in a general, descriptive sense and not in a constitutionally usurpative sense.
B. The "Delegation Doctrine” and Due Process
Second, we also believe the "due process” constitutional foundation of the "delegation doctrine” is essentially valid.
However, we do not believe the "standards test” as it has come to be expressed in our jurisprudence by itself satisñes the constitutional principle of due process. This conclusion is based on the fact that the "standards test” as presently expressed, i.e., "standards” need be only "as reasonable as the subject matter requires or permits”, implies the judicial recognition that in some instances it is not possible, nor even desirable, to require legislative standards of a carefully detailed nature. See discussion, part III and part IV, supra.
This judicial recognition, inherent in the present "standards test”, exposes a profound legal paradox: the broader, the more "flexible” the legislative "standards” permitted in given legislation (for valid reasons), the less the people are protected from potential discretionary abuse at the hands of administrative officials. See 1 Cooper, State Administrative Law, supra, p 61.
Thus, the "standards test”, in its present form, is not in every case an effective means of assuring "due process” protection.
Accordingly, in order to best effectuate constitutional due process with respect to the delegation of legislative power to administrative agencies, we choose to focus not on legislative "standards” (in the sense developed by our Court) but rather we choose to focus on the safeguards, including "standards”, which are afforded. We add, as a corollary to this rule, that when the "standards” afforded provide little or no actual due process protection, a court should, in balance, require that a sufficient totality of safeguards exists, thereby assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials.
In summary, we rule that a delegation of legislative power to an administrative agency is constitutionally valid when:
(1) for purposes of satisfying the constitutional principle of the "separation of powers,” the legislation in which power is delegated to an administrative agency expressly or by reference includes "standards * * * as reasonably precise as the subject matter” of the legislation "requires or permits”; and
(2) for purposes of satisfying the Due Process Clause of our Constitution, safeguards, including "standards”, exist, thereby assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials; and, if the "standards” afforded provide little or no actual due process protection, a court should, in balance, determine whether a sufficient totality of safeguards exists.
VI — Whether the Challenged Delegation of "Legislative” Power in This Case is Constitutional
We now address the issues before us.
The first and threshold issue is whether the Legislature, in conferring authority upon the DNR and the Natural Resources Commission to promulgate rules and regulations pursuant to §§ 3 and 3a of 1921 PA 17; MCLA 299.3, 299.3a; MSA 13.3, 13.4, unconstitutionally delegated its legislative power.
As we ruled supra, a delegation of legislative power to an administrative agency is constitutionally valid when:
(1) for purposes of satisfying the constitutional principle of the "separation of powers”, the legislation in which power is delegated to an administrative agency expressly or by reference includes "standards * * * as reasonably precise as the subject matter” of the legislation "requires or permits”; and
(2) for purposes of satisfying the Due Process Clause of our Constitution, safeguards, including "standards,” exist, thereby assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials; and, if the "standards” afforded provide little or no actual due process protection, a court should, in balance, determine whether a sufficient totality of safeguards exists.
Accordingly, in terms of this case, we first ask, for purposes of satisfying the constitutional principle of the "separation of powers”, whether the challenged delegation, as contained in §§ 3 and 3a of the act, expressly or by reference, includes standards as reasonably precise as the subject matter of the legislation, agency protection and conservation of natural resources, requires or permits.
Our answer to this question is yes.
Section 3 of the act provides:
"The department of conservation shall protect and conserve the natural resources of the state of Michigan; provide and develop facilities for outdoor recreation; prevent the destruction of timber and other forest growth by fire or otherwise; promote the reforesting of forest lands belonging to the state; prevent and guard against the pollution of lakes and streams within the state, and enforce all laws provided for that purpose with all authority granted by law, and foster and encourage the protecting and propagation of game and fish.” MCLA 299.3; MSA 13.3.
Section 3a provides:
"The commission of conservation shall make such rules for protection of the lands and property under its control against wrongful use or occupancy as will insure the carrying out of the intent of this act to protect the same from depredations and to preserve such lands and property from molestation, spoilation [sic], destruction or any other improper use or occupancy.” MCLA 299.3a; MSA 13.4.
As is apparent, § 3 defines the authority of the DNR in its most general sense: The Department of Conservation (now the DNR) "shall protect and conserve the natural resources of the State of Michigan”. The Legislature then specifies those "natural resources” it desires the agency to "protect and conserve”:
"[P]rovide and develop facilities for outdoor recreation; prevent the destruction of timber and other forest growth by fire or otherwise; promote the reforesting of forest lands belonging to the state; prevent and guard against the pollution of lakes and streams within the state, and enforce all laws provided for that purpose with all authority granted by law, and foster and encourage the protecting and propagation of game and fish.” MCLA 299.3; MSA 13.3.
Do these sections, read together, provide standards as reasonably precise as the subject matter of the legislation, the protection and conservation of our natural resources, requires or permits? We believe they do. In reaching this conclusion, we are mindful of the fact that 1921 PA 17, as amended, is an act which deals with the preservation and regulation of the quality of our natural resources. As we declared in DNR v Seaman, supra:
"The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The ’various’ and ’varying’ detail associated with managing the natural resources has led to recognition by the courts that it is impractical for the Legislature to provide speciñc regulations and that this function must be performed by the designated administrative officials. People v Soule, 238 Mich 130, 140; 213 NW 195 (1927). See United States v Grimaud, 220 US 506; 31 S Ct 480; 55 L Ed 563 (1910).” (Footnote omitted, emphasis added.) 396 Mich 299, 309.
And, although in the words of this Court in Ray v Mason County Drain Commissioner, supra, "the language of the statute paints the standard for environmental quality with a rather broad stroke of the brush, the language used is neither illusive nor vague”. 393 Mich 294, 307, fn 10. As with the language in our Environmental Protection Act, "pollution”, "impairment”, and "destruction”, the language in 1921 PA 17, as amended, §§ 3 and 3a, "prevent and guard against the pollution of lakes and streams” and "molestation”, "spoliation”, "destruction”, and "improper use or occupancy” acquires its meaning from our state’s developing and evolving common law of environmental quality, 393 Mich 294, fn 10, 307.
For these reasons, §§ 3 and 3a of the act, read together, satisfy the constitutional principle of the "separation of powers” in providing standards as reasonably precise as the subject matter of the legislation requires or permits.
Next, in accord with our rule enunciated supra, we ask, in terms of this case, whether safeguards, including "standards”, exist, thereby assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials. Additionally, we must consider whether the "standards” afforded provide actual due process protection in themselves. If not, we must determine, in balance, whether a sufficient totality of safeguards exists.
As we have discussed, the "standards” afforded by the challenged legislation, contained in §§ 3 and 3a of the act, are, necessarily and properly, painted "with a rather broad stroke of the brush”. However, the clear result of this is that these "standards” provide, in themselves, insufficient due process protection. Therefore, we must ask whether, in balance, a sufficient totality of safeguards exists.
Our answer to this question is yes.
First, we note the fact that the Administrative Procedures Act (the APA) is, by legislative fiat, in full effect with respect to any rule-making in which the DNR engages. The APA requires that an agency adhere to detailed, extensive procedural requirements when engaged in rule-making pursuant to statutory delegation. Without doubt, these procedural requirements provide extensive due process safeguards to those persons affected by the agency’s rule-making.
Second, we note that 1921 PA 17 includes language reflecting the agency’s high degree of statutorily-based political accountability. 1921 PA 17, MCLA 299.1; MSA 13.1, as amended, provides in pertinent part:
"The general administration of said powers and duties shall be vested in a commission of conservation which shall be composed of 7 members appointed by the governor, subject to confirmation by the senate. The members of said commission shall be selected with special reference to their training and experience along the line of 1 or more of the principal lines of activities vested in the department of conservation and their ability and fitness to deal therewith: Provided, That 2 of these members shall reside in the upper peninsula. The term of office of each member of the commission shall be six years: Provided, That of those first appointed 3 shall be appointed for 2 years, 2 for 4 years and 2 for 6 years.”
The agency’s high degree of proximity to the elective process (appointment by the Governor and confirmation by the Senate) is, in our opinion, an additional, substantial factor assuring that the public is not left unprotected from uncontrolled, arbitrary power in the hands of remote administrative officials. We believe this factor, plus the safeguards inherent in the APA, provide constitutionally sufficient protection to the people as required by due process.
Therefore, §§ 3 and 3a of 1921 PA 17, MCLA 299.3, 299.3a; MSA 13.3, 13.4, satisfy both constitutional requisites essential to a "delegation of legislative power to an administrative agency”. Accordingly, we hold that the delegation of rule-making power to the DNR and the Natural Resources Commission pursuant to this statute is a constitutionally valid delegation of "legislative” power.
VII — Whether the "River Use Rules” Promulgated by the DNR Are Invalid Because They Exceed the Scope of Authority Delegated Under the Act
The second issue before us is whether the "river use rules” promulgated by the DNR are invalid because the agency exceeded the scope of its delegated authority under 1921 PA 17; MCLA 299.1 et seq.; MSA 13.1 et seq., as amended.
In order to resolve this question, we must, of course, look to the "standards” found in §§ 3 and 3a of the act, read together, i.e., the language of the act, expressive of the legislative will, that defines the area within which an agency is to exercise its power and authority. See discussion, part V-A, supra.
As discussed, §§ 3 and 3a of the act authorize the Natural Resources Commission, through the DNR, to "make rules” which "prevent and guard against pollution of lakes and streams” and which preserve these "lakes and streams” from "molestation, spoilation, destruction, or any other improper use or occupancy”. The issue can, therefore, be rephrased as follows: do the "river use rules” prevent and guard against pollution of lakes and streams and preserve them from "molestation, spoilation, destruction, or any other improper use or occupancy”?
In order to properly resolve this issue, this Court must be certain that on the record, (1) a state of facts exists that justifies regulation of the use of the rivers in question; and (2) that the regulations adopted are reasonably calculated to "prevent and guard against pollution of lakes and streams” and preserve them from "molestation, spoilation, destruction, or any improper use or occupancy”.
However, the present state of the record does not allow us, with fairness to the trial judge and the parties, to adequately answer these questions. This is because the parties and trial judge in this case believed that the determinant issues could be decided without reference to the surrounding facts. The stipulation on which the case was tried read pertinently as follows:
"It is further stipulated and agreed that for the purpose, and only for the purpose, of the declaratory consideration, it is specified that there was and is conduct, conflict of use, pollution and other injury to the natural resources on the streams in question sufficient to justify concern by the Department of Natural Resources and some form of regulation of river use.
"That as to those plaintiffs doing business in the controlled river stretches, it is agreed for the purposes of this case that there would be a diminution of profit if the permit system of use is instituted.
"This stipulation is to insure the non-introduction of factual matter in a case where, by stipulation, the legal issues only are to be argued.
"It is also further stipulated and agreed:
"1. That the various drafts of the proposed 'River Use Rules’ with dates of publication, the transcript of testimony taken at the three public hearings, the transcript of commission meetings when rules were considered, the chronological schedule of events, the technical reports and the report to the joint committee all be submitted and that these documents be used by the court in its deliberation and judgment.”
The trial court on "motion to amend findings of fact and to make additional findings” made it clear in its subsequent order that "all of the facts presented were presented by a stipulated set of facts and the court made no finding of facts”. See, also, part I, supra.
It is noted that the stipulation stated that "the transcript of testimony taken at the three public hearings, the transcript of commission meetings when rules were considered, the chronological schedule of events, the technical reports and the report to the joint committee all be submitted and that those documents be used by the court in its deliberation and judgment”. However, it does not appear that the trial judge considered these materials and no real presentation of these materials, other than the chronological schedule of events, has been made in brief or argument before this Court nor included in the record. As a conse quence, it is not possible for this Court to examine these materials on its own and make a proper determination of the issue before us.
One final observation related to the stipulation; the stipulation "that there was and is conduct, conflict of use, pollution and other injury to the natural resources on the streams in question sufficient to justify concern by the Department of Natural Resources and some form of regulation of river use” (emphasis added) certainly is not determinative one way or the other as to the validity of the particular form of regulation adopted by the DNR.
We therefore remand to the trial court to consider the issue of whether the "river use rules” are invalid because the DNR exceeded the scope of its statutory authority. In resolving this issue, the trial court should make the following preliminary findings:
1) Whether there is in fact and to what extent there is existent or threatened "pollution”, "molestation”, "spoilation”, or "destruction” with respect to each of the rivers sought to be regulated by the proposed rules;
2) assuming there is existent or threatened "pollution”, "molestation”, "spoilation”, or "destruction” with respect to each river, whether the "river use rules” are, in fact, related to the prevention of these conditions. With respect to this finding, the court should question:
a) whether the passage of watercraft relates to the "pollution”, "molestation”, "spoilation”, or "destruction” of each of the rivers sought to be regulated by the proposed rules;
b) whether the numbers of and kind of watercraft allowed under the "river use rules” relates to the prevention of "pollution”, "molestation”, "spoliation”, or "destruction” of each of the rivers sought to be regulated by the rules;
c) whether the two "seasonal time zones”, one which restricts watercraft use, the other permitting it, are related to the density of watercraft use during these prescribed times.
We add that the above referred-to "transcript of testimony taken at the three public hearings, the transcript of the commission meetings when rules were considered, the chronological schedule of events, the technical reports and the report to the joint committee” should be entered into the record to aid the trial court in making the above findings.
VIII — Conclusion
We hold that the challenged delegation of legislative power in this case is constitutional and therefore reverse the Court of Appeals with respect to this first issue.
As to the second issue, whether the "river use rules” promulgated by the DNR are invalid because they exceed the scope of authority delegated, we remand to the trial court for proceedings not inconsistent with this opinion. We also remand, without prejudice, with respect to the other issues to which the parties stipulated, but which were not considered at trial.
No costs; a public question.
Levin and Fitzgerald, JJ., concurred with Williams, J.
See Executive Orders 1973-2 and 1973-2a, MCLA 299.11; MSA 13.20(1) in which, effectively, the powers of the Department of Conservation and the Commission of Conservation are transferred, respectively, to the Department of Natural Resources and the Natural Resources Commission. See also 1975 PA 128, MCLA 299.2; MSA 13.2.
See, especially, 1 Cooper, State Administrative Law, ch 3, "Delegation of Powers”; 1 Davis, Administrative Law Treatise and Administrative Law of the Seventies supplementing Administrative Law Treatise, ch 2, "Delegation of Power”; Jaffe, Judicial Control of Administrative Action, ch 2, "Delegation of Legislative Power”, pp 28-86; Merrill, Standards — A Safeguard for the Exercise of Delegated Power, 47 Neb L Rev 469 (1968); Leventhal, Principled Fairness and Regulatory Urgency, 25 Case Western Reserve L Rev 66 (1974).
With respect to the development of the "delegation doctrine” in the Federal courts, see Jaffe, Judicial Control of Administrative Action, supra, pp 51-73. With respect to the development of the "delegation doctrine” in state courts, see the excellent and comprehensive discussion of Professor Cooper, 1 Cooper, State Administrative Law, supra. See also Jaffe, Judicial Control of Administrative Action, supra, pp 73-85.
Our present Constitution includes precisely this same language in art 4, § 1. See also art 3, § 2 of our Constitution entitled "Separation of powers of government”, which states:
"The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
See People v Collins, 3 Mich 343, 415-416 (1854), where Justice Douglass elaborated on this distinction (agreed with by a unanimous Court):
"That the legislature may confer upon others, in their discretion, administrative powers necessary or proper for carrying on the government, not otherwise vested by the Constitution, and in some cases involving the exercise of discretion which the legislature itself might, but could not conveniently have exercised, no one will question. These, however, are not the law-making powers.” (Emphasis in original.)
The Pennsylvania court added that "[t]o deny this would be to stop the wheels of government”. 72 Pa 491, 499.
Professor Frank Cooper, in his treatise State Administrative Law, notes that this "true test” "has been reverently repeated thousands of times” by state courts. 1 Cooper, State Administrative Law, supra, p 49.
At issue in King was the constitutional validity of the Michigan standard policy law of 1881 (1881 PA 149) which, in the Court’s words, empowered a newly created insurance commission "which was a body having continuous existence, to alter or amend the form so adopted by them 'whenever they shall deem it necessary.’ ” It also empowered the commissioner of insurance "to fix the time when the use of the form of policy so adopted or amended 'shall become obligatory,’ and prohibited thereafter, under penalty, the making of contracts of fire insurance, except in accordance with said form as so altered or amended.” 140 Mich 258, 267.
It is difficult to ascertain exactly why this Court chose to abandon, as specific analytical "tests”, the two "tests” enunciated in King. Perhaps the essential reason is the fact that the "standards test” "early gained * * * widespread popularity * * * as the real 'true test’ by which validity of delegations must be judged”. 1 Cooper, State Administrative Law, p 54.
Professor Cooper also observed that the language of these "true tests” continued to be repeated in court opinions, see, e.g,, People v Saule, 238 Mich 130; 213 NW 195 (1927), although the specific analytical method of the tests was no longer employed. 1 Cooper, State Administrative Law, supra, pp 51-52.
See, e.g., Devereaux v Genesee Twp Board, 211 Mich 38; 177 NW 967 (1920). At issue in Devereaux was a statute which conferred upon township boards the power to grant or refuse licenses to conduct pool rooms, dance halls, and the like. 211 Mich 38, 39-40. This Court held, although it did not articulate the precise constitutional basis for its decision, that:
"The statute in question provides no method for the application for licenses, contains no qualifications which the applicant must possess, provides no standard of fitness, makes no provisions as to the character of the structure or equipment to be used in the business regulated. It, in fact, attempts to confer upon the township board the arbitrary power to grant or refuse a license, according to its whim or caprice. Under all the authorities, we think this cannot be done. Robison v Miner, 68 Mich 549 [37 NW 21 (1888)]; Yick Wo v Hopkins, 118 US 356; 6 S Ct 1064 [30 L Ed 220 (1886)]; Mayor of Baltimore v Radecke, 49 Md 217 [1878]; Gundling v Chicago, 177 US 183; 20 S Ct 633 [44 L Ed 725 (1900)]; Darling v St Paul, 19 Minn 389 [1872].” 211 Mich 38, 43.
See also, Harrigan & Reid Co v Burton, 224 Mich 564; 195 NW 60 (1923), GF Redmond & Co v Michigan Securities Commission, 222 Mich 1; 192 NW 688 (1923), Postal v Village of Grosse Pointe, 239 Mich 286; 214 NW 148 (1927), Samuels v Couzens, 222 Mich 604; 193 NW 212 (1923).
The due process clause in our present Constitution is found in art 1, § 17. The language is identical to the constitutional language quoted in Hoyt Bros, Inc, supra.
These two "constitutional foundations” of the "standards test” developed by our Court echo what Professor Merrill refers to as the doctrine’s "twofold ancestry” in state courts. Merrill, Standards — A Safeguard for the Exercise of Delegated Power, supra, pp 469-471.
See, e.g., Argo Oil Corp v Atwood, 274 Mich 47; 264 NW 285 (1935), Milk Marketing Board v Johnson, 295 Mich 644; 295 NW 346 (1940).
This Court did not explicitly ground its rationale in the due process clause of our Constitution, although such constitutional basis can be implied from the fact that the Court cited Hoyt Bros, Inc v Grand Rapids with approval.
The "due process” foundation implicit in the Osius rule was articulated by this Court 13 years subsequent to Osius in Milford v People’s Community Hospital Authority, 380 Mich 49, 59; 155 NW2d 835 (1968), where this Court stated:
"In the case of Osius v St Clair Shores (1956), 344 Mich 693, the Court struck down as unconstitutional an ordinance of the city of St. Clair Shores as a deprivation of substantive due process of law.”
See also, G F Redmond & Co v Michigan Securities Commission, 222 Mich 1, 5; 192 NW 688 (1923). In that case this Court stated that legislation delegating power to "a commission or administrative board * * * define its purpose and the means of attainment thereof, and do this in language leaving no wide administrative discretion, and no discretion at all of a legislative nature”. This Court added with respect to this "standards” requirement that:
"The power to carry out a legislative policy enacted into law under the police power may be delegated to an administrative board under quite general language, so long as the exact policy is clearly made apparent, and the administrative board may carry out in its action the policy declared and delegated, but it cannot assume it has been vested with power beyond expressed legislative delegation, and must ever seek its way in the light shed by the legislative mandate. This marks the line between arbitrary officiousness and the exercise of delegated power to carry out a designated policy under the police power.” (Emphasis added.)
See, e.g., 1 Cooper, State Administrative Law, supra, pp 62-67 and cases discussed and cited therein.
See, also, O’Brien v State Highway Commissioner, 375 Mich 545; 134 NW2d 700 (1965), Saginaw v Budd, 381 Mich 173; 160 NW2d 906 (1968), Highway Commission v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974).
Const 1963, art 1, § 17.
See, e.g., 1 Cooper, State Administrative Law, supra, p 47; Davis, Administrative Law Treatise, 1970 Supplement, supra, p 40; see also, Justice Levin’s dissent in People v Fields, 391 Mich 206, 227; 216 NW2d 51 (1974).
This emphasis on the "safeguards, including 'standards’ which the legislation affords” in order to best effectuate the due process foundation of the "delegation doctrine” echoes the judicial approach argued by Professor Davis:
"The non-delegation doctrine can and should be altered to turn it into an effective and useful judicial tool. Its purpose should no longer be either to prevent delegation of legislative power or to require meaningful statutory standards; its purpose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power. The focus should no longer be exclusively on standards; it should be on the totality of protections against arbitrariness, including both safeguards and standards. The key should no longer be statutory words; it should be the protections the administrators in fact provide, irrespective of what the statutes say or fail to say.’’ Davis, Administrative Law Treatise, 1970 Supplement, pp 40-41.
See also Justice Levin’s dissenting opinion in People v Fields, supra, 231-232.
We wish to emphasize that this approach best effectuates the due process foundation of the delegation doctrine, i.e., the "standards test” as it has evolved in our jurisprudence no longer in itself assures due process protection. However, Professor Davis, in his commentary, does not consider the "standards test” in terms of the "separation of powers” constitutional foundation of the "delegation doctrine”. As we have carefully ruled, the "standards test” is an effective means for assuring that the constitutional "separation of powers” is maintained vis-á-vis a particular delegation of power to an administrative agency.
We note that our discussion has been limited to the "delegation doctrine” as it pertains to legislative delegation of its lawmaking power to an administrative agency. This, of course, is not the only dimension of the "delegation doctrine”. The constitutionality of legislative "delegation” has also risen in the context of legislative delegation of "judicial” power to administrative agencies; legislative delegation of lawmaking and/or judicial power to private groups or persons, see, e.g., Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229; 231 NW2d 226 (1975); and legislative delegation of "non-judicial” power to the judiciary, see, e.g., Local 170, Transport Workers Union of America v Genesee Circuit Judge, 322 Mich 332; 34 NW2d 71 (1948). For the most part, the "delegation doctrine” as it pertains to these kinds of delegations, has developed along similar analytical lines to the "delegation of legislative power to administrative agencies”. In this case, however, we are not deciding the constitutional stance we wish to take toward these delegations. However, if the constitutionality of these "delegations” were to be challenged, it is suggested that a court adopt the general method of analysis we have adopted in this case, i.e., a court should analyze the constitutional foundations involved in the particular delegation and seek the best, most realistic means of effectuating them.
See MCLA 691.1202(1); MSA 14.528(202)(1). See, also, 393 Mich 294, 305.
See, 1969 PA 306; Administrative Procedures Act of 1969; MCLA 24.201 et seq.; MSA 3.560(101) et seq.
See, especially, Chapter 3 of the APA, "Procedures for Processing and Publishing Rules”, §§ 31 to 64 of the act; MCLA 24.231-24.264; MSA 3.560(131)-3.560(164). See also Cramton & Holmes, eds, The New Michigan Administrative Procedures Course Handbook (Ann Arbor, Institute of Continuing Legal Education, 1970), pp 63-93.
We order this remand mindful of the fact that the only two issues before us on appeal are (1) whether §§ 3 and 3a of 1921 PA 17, as amended, constitute a constitutional delegation of power to the Natural Resources Commission and the Department of Natural Resources; and (2) whether the "river use rules” promulgated by the Department of Natural Resources are within the scope of authority or power constitutionally delegated to the agency.
As we discussed in part I, supra, although a number of issues were raised in plaintiffs’ complaint, the trial court only decided the question of whether the "river use rules” were within the scope of authority granted the Natural Resources Commission and Department of Natural Resources pursuant to 1921 PA 17. Then, on appeal, the Court of Appeals recognized that resolution of this issue is premised on the resolution of a more basic issue, namely, whether 1921 PA 17 constitutes a constitutional delegation of power. Accordingly, on appeal to this Court, we have before us only these two issues.
We note, in remanding, that one of the issues raised below, the substantive due process question of an unconstitutional "taking of business opportunities and properties” may require the parties to establish with respect to the particularities of the "river use rules” as detailed a record as, or perhaps a more detailed record than, the record we have deemed necessary for the resolution of the second issue before us on this appeal. | [
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Per Curiam.
A hearing referee found that plaintiff had been disabled by a work-related injury sustained on May 31, 1968. Benefits were limited to the period before January 19, 1971. Plaintiff filed a timely application for review of claim on November 28, 1975. The Worker’s Compensation Appeal Board dismissed the appeal on January 21, 1976 because plaintiff had not filed a transcript of the proceedings before the hearing referee.
Plaintiff claims on appeal that the WCAB does not have the power to dismiss a case for failure to provide a transcript. We disagree. Under MCLA 418.261; MSA 17.237(261), the board has the authority to make rules on appellate procedure. The board adopted Worker’s Compensation Appeal Board Rule 19, 1959 AACS, R 408.49, which requires that the appealing party file a transcript within 30 days of the filing of the claim for review. The power to dismiss appeals for failing to comply with Rule 19 is necessarily implied from the statute granting the board the authority to make rules on appellate procedure. The power to dismiss is essential, to the enforcement of these procedural rules. See McAvoy v HB Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), in which it was held that the WCAB’s power to dismiss appeals for noncompliance with 1975 PA 34 is necessarily implied in that statute.
The remaining claims made by plaintiff are that he substantially complied with Rule 19 and that dismissal of his appeal violates due process. The WCAB gave plaintiff notice that his appeal would be dismissed unless the transcript or a letter from the court reporter showing it had been ordered was received within 30 days of the notice. We are not persuaded that the procedure used here violates the appealing party’s due process rights.
Plaintiffs claim that he substantially complied with Rule 19 is a factual matter which has not yet been heard by the board. The case is remanded for a hearing before the WCAB on the question whether plaintiff substantially complied with Rule 19. At the conclusion of the hearing, the board shall make findings of fact concerning plaintiffs attempts to obtain a transcript and determine whether or not he substantially' complied with Rule 19. We do not retain jurisdiction.
Kavanagh, C. J., and Williams, Levin, Cole man, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
Plaintiff and her attorney, Mark M. Bello, appeal as of right from an order granting defendant Sears, Roebuck and Company’s motion for an award of sanctions against them, jointly and severally, pursuant to MCR 2.114(E). Plaintiff and her attorney were ordered to pay $2,400 to defendant. We affirm.
In the complaint filed in this case against United Shirt Distributors, Inc., plaintiff alleged that she sustained an injury in a "slip-and-fall accident” in front of a United Shirt store. Later, plaintiff filed an amended complaint adding defendant Sears, alleging that Sears was the owner of the shopping center where United Shirt was located. Defendant Sears’ answer to the complaint denied ownership of the shopping center.
Thereafter, defendant filed a motion for summary disposition pursuant to MCR 2.116(0(10) and for an award of costs, including attorney fees, pursuant to MCR 2.114(E). Plaintiff did not oppose Sears’ motion at the time on either ground. The trial court granted defendant’s motion for summary disposition and found that plaintiffs counsel had violated MCR 2.114(D)(2), but left the determination of an appropriate sanction to be made at a later hearing. Following a subsequent hearing, the trial court determined the appropriate sanction under MCR 2.114(E) to be an award of $2,400 as reasonable expenses and attorney fees against plaintiff and her attorney for defendant Sears’ unnecessarily incurred costs in this matter.
Plaintiff and her attorney argue that they did not violate MCR 2.114(D) and that the instant sanctions were not appropriate pursuant to MCR 2.114(E). We disagree.
The trial court found that plaintiff and her attorney had violated MCR 2.114(D)(2) because they failed to make a reasonable inquiry which would have shown that defendant Sears was not the owner of the property where plaintiff fell and that Sears should not have been made a defendant in this case. The trial court also considered it significant that plaintiff’s counsel would not stipulate to dismissal of Sears as a defendant when, after plaintiff’s deposition, it was clear that Sears had absolutely no connection with plaintiff’s injury. Thus, failing to stipulate resulted in needless litigation costs to defendant Sears.
At the hearing held for the purpose of determining an appropriate sanction, defendant requested the trial court to award $4,200 as reasonable expenses, including attorney fees, from the time that defendant answered plaintiff’s first amended complaint. In the alternative, defendant requested attorney fees from the time of plaintiff’s deposition when it was established that there was no liability on the part of Sears. That amount was determined to be $2,479.96. The trial judge, pursuant to MCR 2.114(E), ordered plaintiff and her attorney to pay $2,400 as reasonable expenses and attorney fees to defendant.
To impose a sanction under MCR 2.114(E), the trial court must first find that an attorney or party has signed a pleading in violation of MCR 2.114(A)-(D). The determination of whether an attorney or party has violated the "reasonable inquiry” standard of MCR 2.114(D)(2) depends largely on the facts and circumstances of the claim. Lloyd v Avadenka, 158 Mich App 623, 630; 405 NW2d 141 (1987), lv den 428 Mich 905 (1987).
The instant trial court made a finding of fact that plaintiff and her attorney failed to make a reasonable inquiry into the facts before amending the complaint to add Sears as a defendant. This Court reviews the findings of fact of a trial court to determine if the findings are clearly erroneous. MCR 2.613(C). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
In this case, plaintiff added Sears as a defendant based on plaintiff’s counsel’s belief that Sears owned the shopping center where plaintiff fell. Plaintiff’s counsel’s belief that Sears owned the shopping center was based on a letter which he received from counsel for defendant United Shirt. The letter alleged, based upon a lease which was enclosed with the letter, that Sears owned the shopping center and was liable for injuries occurring in the "common areas.” However, nowhere in the lease does it indicate that defendant Sears is the owner of the shopping center or that Sears is responsible for the common areas of the shopping center.
Plaintiff’s deposition was taken after Sears was added as a defendant. The United Shirt store is located 129 feet east of Sears. Plaintiff admitted that she had absolutely no contact with Sears or any of its employees on the day she fell. She stated that she fell directly in front of the United Shirt store.
After plaintiff’s deposition, counsel for Sears advised plaintiff’s counsel by letter that Sears did not own, possess, or control the property where plaintiff fell and requested that plaintiff voluntarily dismiss Sears as a defendant in the action. Sears advised plaintiff’s counsel that, if plaintiff did not agree to dismiss Sears as a defendant, Sears would file a motion for summary disposition and would seek costs and attorney fees. Plaintiff refused to stipulate to the dismissal of defendant Sears. Thereafter, defendant Sears filed its motion for summary disposition and requested sanctions under MCR 2.114(E).
Based upon our review of the record, we find that the trial court’s finding of fact that plaintiff failed to make a "reasonable inquiry” as required by MCR 2.114(D)(2) was not clearly erroneous. MCR 2.114(D)(2) does not require an errorless pleading, but just a reasonable inquiry under the facts and circumstances. Lloyd, supra. In this case, plaintiff’s counsel’s reliance on a self-serving letter without making a reasonable inquiry to corroborate the allegations therein fell short of the reasonable inquiry standard. Had reasonable inquiry been made, it could have prevented the waste of time, effort, and expense on the part of defendant Sears and the trial court.
The trial court determined "an appropriate sanction” to be $2,400 as the amount of reasonable expenses, including attorney fees, from the time of plaintiffs deposition to the hearing on the motion for summary disposition. The awarding of attorney fees is within the discretion of the trial judge and it will be upheld absent an abuse of discretion. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982); Superior Products Co v Merucci Bros, Inc, 107 Mich App 153, 159; 309 NW2d 188 (1981), lv den 415 Mich 851 (1982). We find that the trial court’s award of reasonable expenses, including attorney fees, was not an abuse of discretion under the facts and circumstances of this case.
Affirmed. | [
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Per Curiam.
The prosecutor has applied for leave to appeal the Court of Appeals decision holding unconstitutional the provision of MCLA 750.230; MSA 28.427, which makes the possession of a firearm on which identifying numbers have been altered or obliterated presumptive evidence that the possessor has altered or obliterated the identifying numbers. 78 Mich App 565; 261 NW2d 3 (1977).
The prosecution produced evidence that the defendant was in possession of a handgun on which the identifying numbers had been obliterated. There was no evidence that defendant did the obliterating, and the prosecution relied on the statutory presumption. The defendant was found guilty by the jury. The Court of Appeals held that use of the statutory presumption denied the defendant due process of law.
We have reviewed the issues raised in the prosecutor’s application and conclude that the Court of Appeals correctly found the statutory presumption unconstitutional.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we affirm the decision of the Court of Appeals.
Kavanagh, C.J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
At the time of the charged offense, the statute provided:
"Any person who shall wilfully alter, remove or obliterate the name of the maker, model, manufacturer’s number or other mark of identity of any pistol, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 2 years or fine of not more than 1,000 dollars. Possession of any such firearm upon which the number shall have been altered, removed or obliterated, shall be presumptive evidence that such possessor has altered, removed or obliterated the same.”
The statute was amended by 1976 PA 32; however, the amendments do not affect the issues raised in this case. | [
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] |
On order of the Court, it appearing that a question exists as to whether the cross-appeal of Joseph, Yvonne and Vincent Alfono was effectively decided by this Court’s opinion and judgment order, both dated June 15, 1976, this supplemental order is issued.
It is hereby ordered that the part of the judgment of the Circuit Court for the County of Wayne, dated April 25, 1972, which determined there was no cause of action on the part of any cross-plaintiff against cross-defendants Joseph, Yvonne and Vincent Alfono is reversed and the cause is remanded to the Circuit Court for the County of Wayne for a new trial in conformity with the opinion filed herein, for the following reason.
It is clear upon the record, trial transcript pages 11-13, vol III, that there was an agreement and understanding among all of the attorneys for the parties to this cause and the trial judge that the trial court would issued one judgment order of no cause of action against the plaintiffs and against each and every defendant and cross-plaintiff. One explicitly stated purpose of this understanding and agreement was to avoid the result that any cross-claim could be, after and on account of appellate court action, in any different status than the other cross claims. This Court’s judgment order, inter alia, reversed and thus set aside the trial court judgment of no cause of action against "each and every defendant and cross-plaintiff.” On cross-appeal the Alfonos would have this Court, in effect, affirm the part of the trial court judgment which ordered that there was no cause of action,against the Alfonos, leaving them protected against potential liability as cross-defendants on the new trial of this cause while other cross-defendants remain exposed to such liability. For the reason stated that relief is denied.
Reported at 400 Mich 425. | [
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Per Curiam:.
Respondent, Harold J. Macomber, appeals as of right from Kent County Probate Court child protective proceedings concerning his daughter, who was born December 8, 1970. We reverse.
We first address the issue of whether the juvenile division of the probate court had jurisdiction over the Macomber child. A petition must be filed before the juvenile division of the probate court can assume jurisdiction. MCL 712A.11; MSA 27.3178(598.11); MCR 5.904(A)(1) (this and all other references to court rules in this opinion refer to the rules which were in effect during the relevant time period); In re Youmans, 156 Mich App 679, 686; 401 NW2d 905 (1986), lv den 428 Mich 871 (1987). At the adjudicative phase, a determination must be made whether the child comes within the court’s jurisdiction under the juvenile code as alleged in the petition. MCR 5.908(A)(1)(a). The probate court cannot assume jurisdiction over children in the absence of formal allegations that they are within the provisions of the juvenile chapter of the probate code. Youmans, supra, p 686.
The Youmans Court held that the probate court, by proceeding to the adjudicative phase without a petition containing allegations that the children fell within the jurisdiction of the court, lacked subject-matter jurisdiction over the children. Therefore, the proceedings were void ab initio. 156 Mich App 687. See also In re Ferris, 151 Mich App 736; 391 NW2d 468 (1986), lv den 426 Mich 856 (1986). Respondent relies on Youmans in support of his contention that the juvenile court proceedings were void ab initio because the probate court assumed jurisdiction over his child before a petition was filed. The record contains some support for respondent’s contention. However, we decline to reverse on this issue because the facts are unclear.
The record contains a handwritten, unsigned sheet of paper, dated and filed January 26, 1987, stating that the child came within MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2). The paper stated that her home or environment was an unfit place for her to live because she allegedly had been subjected to improper sexual conduct by respondent. A form entitled "Record of Preliminary Hearing,” filed January 26, 1987, indicates that a petition was read. See MCR 5.904(B). However, on February 13, 1987, respondent filed a "demand for copy of petition” which indicates that a petition did not exist at that time. A petition was filed on April 23, 1987, the same date on which the adjudicative hearing was held.
The above-described facts indicate that respondent’s jurisdictional contention is correct. However, on February 26, 1987, respondent moved to strike or quash the petition, arguing that it was unreasonably vague. Respondent’s motion stated that, in response to his demand for a copy of petition, he received a petition dated January 23, 1987. In a March 19, 1987, motion hearing, the probate court found that the petition was sufficiently specific except for the last sentence. The court ordered the prosecutor to provide respondent’s attorney with information regarding that sentence. The probate court read the petition to the jury at the beginning and end of the adjudicative hearing and stated that the petition had been filed. Because the record is unclear with regard to the petition, and there are other reasons for reversal, we decline to reverse on the jurisdictional issue.
Respondent claims that the referee and judge committed errors requiring reversal by exceeding their authority. We agree.
"The jurisdiction, powers and duties of the probate court and the judges thereof shall be provided by law.” Const 1963, art 6, § 15. The probate court has no inherent powers. Its right to take jurisdiction of children and to govern their lives is based entirely on constitution and statute. Fritts v Krugh, 354 Mich 97, 112; 92 NW2d 604 (1958). A probate court’s power may not exceed that which is conferred by statute. In re Kasuba Estate, 65 Mich App 25, 28; 236 NW2d 751 (1975), aff'd 401 Mich 560; 258 NW2d 731 (1977).
Here, on a form entitled "Order of Disposition— Following Preliminary Hearing” filed on January 23, 1987, the referee ordered that the child be placed in the care of her mother, Lucille Macomber, pending a hearing before a probate judge. The referee further ordered that respondent not reside in the family home. Respondent moved to set aside this order claiming, among other things, that the referee did not have the power to issue it. In a March 19, 1987, motion hearing, the probate judge found that the order was reasonable and reentered it as an order of the probate court.
At the April 23, 1987, adjudicative hearing, after a jury found that the court had jurisdiction over the child, the judge ordered, among other things, that respondent not reside in the family home and that he pay Lucille Macomber $180 per week for the support of his family.
At the June 30, 1987, dispositional hearing, respondent argued that the referee and judge did not have the power to issue the above-described orders. The judge disagreed and essentially continued his prior order. The judge continued the order again after a December 22, 1987, review hearing.
Petitioner argues that the referee’s and judge’s orders were authorized by MCL 712A.6; MSA 27.3178(598.6), which provides:
The juvenile division of the probate court shall have jurisdiction over adults as hereinafter provided and may make such orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular child or children under its jurisdiction: Provided, That such orders shall be incidental to the jurisdiction of the court over such child or children.
This statute could be interpreted to grant the probate court broad powers, such as the power to order adults to attend parenting classes and counseling sessions. See In re Draper, 150 Mich App 789, 801; 389 NW2d 179 (1986), vacated in part 428 Mich 851 (1987). However, when MCL 712A.6; MSA 27.3178(598.6) is read in light of the other sections of the juvenile chapter of the probate code, particularly MCL 712A.18; MSA 27.3178(598.18), it becomes clear that the referee and probate judge exceeded their authority by ordering respondent not to reside in the family home and to pay Lucille Macomber $180 per week to support his family. We reject petitioner’s argument that the probate court needs the power to do whatever it considers to be necessary for the well-being of children under its jurisdiction. The probate court’s power is limited by statute. The referee’s and judge’s actions cannot be upheld based on their apparent good intentions in responding to allegations of misconduct. We note that defendant was charged with second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), based on the same allegations that gave rise to this case. Respondent was acquitted. We note further, but decline to elaborate upon, the due process concerns raised by the referee’s and lower court’s orders. See In re Dittrick Infant, 80 Mich App 219, 224, n 2; 263 NW2d 37 (1977).
Respondent raises an issue regarding the referee’s and judge’s failure to use State Court Administrative Office forms. There were, of course, no scao forms providing for the unauthorized actions of the referee and judge. We need not decide whether the failure to use scao forms is, by itself, an error requiring reversal. However, we direct the probate court to use those forms in compliance with MCL 600.855; MSA 27A.855, which provides:
For the purposes of achieving uniformity of forms throughout this state in the probate court, effective July 1, 1979, only forms approved by the supreme court or the the [sic] state court administrator shall be used.
Respondent argues that the probate court erred in denying his motion to compel discovery. He wanted to depose the child and respondent’s son. The probate court found that it had discretion to grant the motion, but that the proposed depositions were unwarranted.
MCR 5.901(A) provided:
The procedure in the juvenile division of the probate court is governed by this subchapter, unless the rules otherwise provide.
MCR 5.907(B)(5) provided:
If at any phase of a proceeding the court believes that the evidence has not been fully developed, it may inquire by direct or cross-examination; further question a previous witness; or, if cause is shown for granting an adjournment, subpoena additional witnesses, or order the discovery of any other evidence.
The probate court had discretion to grant or deny respondent’s discovery request. We find no abuse of discretion.
We find that none of the other issues raised by respondent merit further discussion.
Reversed. | [
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] |
G. R. Deneweth, J.
Plaintiffs appeal as of right from an order of the Michigan Public Service Commission denying Dome Pipeline’s application for authorization to construct a lateral pipeline to connect Dome’s existing pipelines to Guardian Industries Corporation for the purpose of making deliveries of liquid ethane.
Plaintiff Dome Pipeline Corporation is a Delaware corporation, authorized to transact business in Michigan, which is a wholly owned subsidiary of Dome Petroleum Corporation, a North Dakota corporation, which is in turn wholly owned by Dome Petroleum, Ltd., a Canadian corporation. Dome Pipeline owns and operates the Eastern Delivery System (eds), a liquid hydrocarbon pipeline system, in the United States, and is part owner, and sole operator, of those portions of the Cochin Pipeline System located within the geographical boundaries of the United States.
The Dome Pipeline system, or those portions here in question, consists of two 12%-inch liquid hydrocarbon pipelines. The eds runs from Marysville, Michigan, to Port Huron, across the international border to Sarnia, Ontario, then to Windsor, and then to Green Springs, Ohio. The Cochin Pipeline extends from Fort Saskatchewan, Alberta, to Sarnia, traversing North Dakota, Minnesota, Iowa, Illinois, Indiana, Ohio, Michigan, and Ontario. Through the majority of the Michigan routes, the two lines are parallel and occupy the same right of way. The two pipelines join at the Riga pump station in Lenawee County, proceed northeast to Detroit, then cross into Canada under the Detroit River.
From their inception, the Cochin and eds systems have been used only for the transportation of material in liquid state, such as ethane, ethylene, propane and butane. Under Dome’s Federal Energy Regulatory Commission tariffs, materials in other than liquid state may not be transported in this pipeline.
Plaintiff Guardian Industries is a Michigan corporation which operates a large glass manufacturing plant in Carlton, Michigan. The. glass-making process requires large quantities of clean burning fuel. Guardian agreed to purchase liquid ethane from Dome Petroleum, as this represented a significant savings over the price charged by the local gas company, Michigan Gas Utilities Company, operating under psc approved tariffs. Subsequently, Guardian arranged to purchase liquid ethane from other out-of-state producers.
Plaintiff Dome Pipeline was to transport the liquid ethane purchased by Guardian. Dome Petroleum would be acting as the agent for the five out- of-state suppliers. Dome petitioned the psc for permission to construct the necessary lateral pipeline to Guardian Industries to allow for delivery of ethane in its liquid state. Special facilities are needed for receiving the gas and converting it to burnable form, since it arrives under extreme pressure, far different from ethane in the gaseous state in which this commodity is typically delivered to retail customers by utility companies. Dome contended that it was merely transporting gas already purchased by Guardian Industries from Guardian’s own out-of-state suppliers, and that this transportation service was not subject to regulation by the psc. The psc, however, held that transportation of natural gas, whether in liquid or gaseous form, is subject to commission jurisdiction. The psc determined that Dome Pipeline must first obtain a certificate of public convenience and necessity to transport the ethane.
The issue presented is whether an interstate common carrier of liquid hydrocarbons is a gas public utility under the public utility act, 1929 PA 69, MCL 460.501 et seq.; MSA 22.141 et seq., which must first obtain a certificate of public convenience and necessity before transporting liquid ethane to an industrial customer in Michigan. Plaintiffs maintain that the psc has jurisdiction only if Dome Pipeline is a utility transporting gas for public use.
Plaintiffs first argue that liquid ethane is not a "gas” for purposes of the public utility act. Plaintiffs base this argument on definitions of "gas” found in the petroleum act, 1929 PA 16, MCL 483.1 et seq.; MSA 22.1341 et seq., the natural gas act, 1929 PA 9, MCL 483.101 et seq.; MSA 22.1311 et seq., and the public utility commission act, 1919 PA 419, MCL 460.51 et seq.; MSA 22.1 et seq. We find it unnecessary to review the definitions of "gas” found in these acts because we agree with defendants that the public utility act is not in pari materia with the other acts. Statutes are not in pari materia if their scope and aim are distinct and unconnected. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943). We find that the psc’s decision that ethane is a gas, in this statutory context, is correct.
Plaintiffs also argue that ethane in its liquefied form and as handled, transported, and sold commercially is not within the common understanding of the term "gas.” Physically and thermodynamically, ethane under pipeline conditions behaves as a liquid.
The psc argues that the more salient question is the physical characteristics and use of the product being supplied. Ethane is a gas when taken from the ground and when used.
We find no merit to plaintiffs’ argument that the common meaning of the term "gas” in its commercial sense excludes ethane. In Public Service Comm of the State of New York v FPC, 177 US App DC 245; 543 F2d 392 (1976), the gas in question was methane, but it had been manufactured from naphtha, a liquid. The court held that it was not natural gas. The psc distinguished this case since the question presented was an interpretation of provisions of the Federal Natural Gas Act, which has no counterpart in Michigan law. The psc felt that the case therefore had no bearing on the Michigan Legislature’s understanding of the term "gas” as used in the public utility act. Also, the case is distinguishable because the commodity in question was the result of a chemical transformation rather than a simple change of physical state (as from gas to liquid).
Plaintiffs also cite Summers Appliance Co v George’s Gas Co, Inc, 244 Ark 113; 424 SW2d 171 (1968) (gas subject to regulation by the Arkansas Public Service Commission did not encompass liquid petroleum gas; thus, liquid petroleum distributors were not public utilities), and Allied New Hampshire Gas Co v Tri-State Gas & Supply Co, Inc, 107 NH 306; 221 A2d 251 (1966) (liquid petroleum gas company not subject to regulation as a utility by the New Hampshire Public Utilities Commission). However, in the Summers Appliance case, the court was not dealing with liquefied natural gases (lng) such as ethane, but with liquefied petroleum gases (lpg), butane and propane, which are distributed by truck, not by pipeline. In the Allied New Hampshire Gas Co case, the court was also dealing with an lpg, namely propane. The court there noted that historically its public service commission had never regulated businesses distributing propane by truck. Thus, both of these cases are clearly distinguishable. We find that the ethane at issue here constitutes a "gas” for purposes of the public utility act.
We next address plaintiffs’ argument that Dome Pipeline cannot be considered a public utility because it does not and will not provide a service to the public. Plaintiffs cite Michigan Consolidated Gas Co v Sohio Petroleum Co, 321 Mich 102; 32 NW2d 353 (1948). We find the case distinguishable on two grounds. First, the Court there held that, in order to be a carrier for hire, a person must be equipped for carrying the property of othér persons for compensation in some form. In that case, Sohio Petroleum Company was merely gathering and transmitting gas owned by it from its own wells. In the instant case, however, Dome Pipeline proposes to transport gas purchased by Guardian Industries, to which it will, on paper, have title, and which previously belonged to five major multinational gas companies. Thus, Dome Pipeline pur ports to be transporting the property of other persons, and is thus a carrier for hire.
Second, in the Sohio case, the Court held that a corporation which merely produced natural gas from its own wells, and piped and sold it to a single contract purchaser, was not engaged in the business of "buying and selling” natural gas, since it merely sold but did not buy. Again, in the instant case, Dome Pipeline is not piping and selling, to a single contract purchaser, gas produced from its own wells which it merely sells but does not buy. Dome Pipeline has to receive the gas from a separate source. Whether Dome Pipeline takes title to the gas or not, the transportation is the functional equivalent of purchases by Dome Pipeline, followed by resale, with the profit margin based on handling charges for transportation. The substance, not the form, of the transaction controls.
Plaintiffs rely on several out-of-state cases supporting the idea that delivery of gas, whether in liquid form or otherwise, to selected large customers does not constitute supplying the commodity for "public use.” Public Utilities Comm v Colorado Interstate Gas Co, 142 Colo 361; 351 P2d 241 (1960); Mississippi River Fuel Corp v Illinois Commerce Comm, 1 Ill 2d 509; 116 NE2d 394 (1953); Wilhite v Public Service Comm, 150 W Va 747; 149 SE2d 273 (1966); Llano, Inc v Southern Union Gas Co, 75 NM 7; 399 P2d 646 (1964); Coastal States Gas Transmission Co, Inc v Public Service Comm, 524 So 2d 357 (Ala, 1988). We note that the cases cited by plaintiffs represent the minority viewpoint.
The majority of courts which have addressed the question have held that sales to even a very few selected customers constitutes "service to the public” and renders the company a gas utility subject to regulation. See State Commerce Comm v Northern Natural Gas Co, 161 NW2d 111 (Iowa, 1968) (93 nondomestic retail customers and 500 farm taps); Cities Service Gas Co v State Corporation Comm, 222 Kan 598; 567 P2d 1343 (1977) (5 municipal customers); Public Service Comm v Panhandle Eastern Pipeline Co, 224 Ind 662; 71 NE2d 117 (1947), aff'd 332 US 507; 68 S Ct 190; 92 L Ed 128 (1947) (one industrial customer); Northern Natural Gas Co v Public Service Comm, 292 NW2d 759 (Minn, 1980) (34 Industries and 2,100 farmers); Dairyland Power Cooperative v Brennan, 248 Minn 556; 82 NW2d 56 (1957) (service to members only); Industrial Gas Co v Public Utilities Comm, 135 Ohio St 408; 21 NE2d 166 (1939) (19 industrial and 12 private customers); Trico Electric Cooperative, Inc v Corporation Comm, 86 Ariz 27; 339 P2d 1046 (1959) (smaller number of customers); Griffith v Public Service Comm, 86 NM 113; 520 P2d 269 (1974) (one residential subdivision); Lewandowski v Brockwood Musconetcong River Property Owners Ass’n, 37 NJ 433; 181 A2d 506 (1962) (one residential subdivision); Oklahoma ex rel Cartwright v Ordinance Works Authority, 613 P2d 476 (Okla, 1980) (small number of customers); In re Petition of South Jersey Gas Co, 226 NJ Super; 544 A2d 402 (1988), (one customer).
In none of the cases, whether the majority or minority, was the number of customers directly served deemed controlling. However, all the courts in the majority explicitly rejected the Colorado and Illinois decisions on which plaintiffs rely, which are considered the leading cases for that viewpoint. The Colorado and Illinois cases limit the concept of "public utility” to a company which has a legal obligation to serve any member of the public. In rejecting that approach, other courts have noted that is merely one way of defining a public utility, but that a public utility also embraces any business which is affected with a public interest. As noted by the United States Supreme Court in Munn v Illinois, 94 US 113, 126; 24 L Ed 77 (1876):
Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.
In Munn, the Court held that grain elevators can be regarded as public utilities, subject to regulation, because they are serving a public interest. The decision was based upon the necessity of the service to the community, together with the existence of a virtual monopoly.
In this case, Dome Pipeline is a virtual monopoly. Dome Pipeline’s competitors, Michigan Gas Utilities Company and Michigan Consolidated Gas Company, are also regulated monopolies. Dome Pipeline seeks to take advantage of its monopoly position without the bother of laboring under certain restrictions to which its competitors are subjected.
The psc correctly relied on the decision in Panhandle Eastern Pipe Line Co v Public Service Comm, 328 Mich 650; 44 NW2d 324 (1950), aff'd 341 US 329; 71 S Ct 777; 95 L Ed 993 (1951). In that case too, a pipeline company was seeking to avoid regulation with respect to certain select customers and the Michigan Supreme Court held it to be a utility.
Moreover, as Dome Pipeline acknowledges, in 1972 it was granted permission to construct its pipelines under the power of eminent domain. See MCL 483.2; MSA 22.1342 and MCL 483.102; MSA 22.1312. The exercise of the right of eminent do main may be enough to constitute a distributor of either gas or electricity a public utility, even though it engages strictly in wholesale and not in retail distribution. Salisbury & Spencer R Co v Southern Power Co, 179 NC 18; 101 SE 593; 12 ALR 304 (1919); People's Natural Gas Co v Public Service Comm, 279 Pa 252; 123 A 799 (1924); North Carolina Public Service Comm v Southern Power Co, 282 F 837; 33 ALR 626 (CA 4, 1922), cert dis 263 US 508; 44 S Ct 164; 68 L Ed 413 (1924). The theory behind these decisions is that the state cannot confer the power of eminent domain to seize private property for private use. The force of that reasoning is fully accepted in Michigan. See Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981); City of Center Line v Chmelko, 164 Mich App 251; 416 NW2d 401 (1987).
Thus, we hold that Dome Pipeline is a utility and is transporting gas for public use. Accordingly, Dome Pipeline is not exempt from regulation by the psc.
Plaintiffs second issue on appeal is that the assertion of jurisdiction by the psc pursuant to the public utility act is an unlawful interference with interstate commerce. The seminal case in this area is Arkansas Electric Cooperative Corp v Arkansas Public Service Comm, 461 US 375; 103 S Ct 1905; 76 L Ed 2d 1 (1983). The Arkansas Electric case involved an assertion of jurisdiction by the Arkansas Public Service Commission over the wholesale rates charged by a rural power cooperative to its member retail distributors. The cooperative purchased a significant portion of its power from out-of-state suppliers. Finding no commerce clause impediment to this assertion of state regulation, the Court held:
Applying the Bruce Church test [Pike v Bruce Church, Inc, 397 US 137; 90 S Ct 844; 25 L Ed 2d 174 (1970)] to this case is relatively simple. The most serious concern identified in Bruce Church— economic protectionism — is not implicated here. Compare Philadelphia v New Jersey, 437 US 617 [98 S Ct 2531; 57 L Ed 2d 475] (1978), with Minnesota v Cloverleaf Creamery Co, 449 US, at 471-472 [101 S Ct 715; 66 L Ed 2d 659]. Moreover, state regulation of the wholesale rates charged by aecc to its members is well within the scope of "legitimate local public interests,” particularly considering that although aecc is tied into an interstate grid, its basic operation consists of supplying power from generating facilities located within the State to member cooperatives, all of which are located within the state. Cf. id., at 473, n 17.
Finally, although we recognize that the psc’s regulation of the rates aecc charges to its members will have an incidental effect on interstate commerce, we are convinced "that the burden imposed on such commerce is not clearly excessive in relation to the putative local benefits.” Part of the power aecc sells is from out of state. But the same is true of most retail utilities, and the national fabric does not seem to have been seriously disturbed by leaving regulation of retail utility rates largely to the States. Similarly, it is true that regulation of the prices that aecc charges to its members may have some effect on the price structure of the interstate grid of which aecc is a part. But, again, we find it difficult to distinguish aecc in this respect from most relatively large utilities which sell power both directly to the public and to other utilities. It is not inconceivable that a particular rate structure required by the Arkansas psc would be so unreasonable as to disturb appreciably the interstate market for electric power. But, as we said in our discussion of the pre-emption issue ... we are not willing to allow such a hypothetical possibility to control this facial challenge to the psc’s mere assertion of regulatory jurisdiction. [461 US 394-395.]
We find this language controlling in the present case. Here, the psc has not flatly prohibited Dome Pipeline from constructing the lateral pipeline to directly serve Guardian Industries. Instead, the psc has held that Dome Pipeline must first obtain a certificate of public convenience and necessity allowing for public service commission regulation. At this point, this Court is presented with merely a facial challenge to the assertion of regulatory jurisdiction. It is premature to determine the constitutional and interstate commerce implications of the manner in which that authority will be exercised until Dome Pipeline seeks the certificate and, if granted, when Dome Pipeline proposes a rate structure for its service to Guardian.
The last issue on appeal is whether the assertion of jurisdiction by the psc over an interstate common carrier of liquid hydrocarbons is preempted by the interstate commerce act which vests jurisdiction over that common carrier in the Federal Energy Regulatory Commission. Plaintiffs contend that Michigan lacks the authority to regulate the interstate transportation of ethane because the transportation of ethane through the Cochin and eds systems is subject to ferc regulation. However, the actual interstate transportation of liquefied ethane by Dome Pipeline is entirely unregulated by the psc in this case. It is only when that commodity has "landed” in Michigan, and is proposed to be distributed intrastate, that the psc purports to exercise its regulatory authority. This is no infringement whatsoever of the commerce power. Panhandle Eastern Pipe Line Co, supra.
Affirmed.
Plaintiffs rely in part on National Steel Corp v Long, 689 F Supp (WD Mich, 1988). It was held in National Steel that fekc’s exercise of authority to regulate interstate commerce delegated to it by Congress under the Natural Gas Act, 15 USC 717 et aeq., preempts psc regulation under 1929 PA 69, MCL 460.501 et aeq.; MSA 22.141 et aeq.; of bypass transportation of natural gas in interstate commerce to an industrial end user. We note that tins case has been appealed to the United States Court of Appeals, 6th Circuit, where a decision is pending. | [
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Doctoroff, P.J.
Plaintiff appeals as of right from the circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) and dismissing plaintiff’s employment discrimination case filed under the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. On appeal, plaintiff raises three issues which he states require reversal of the trial court. Finding no issue of merit, we affirm.
Plaintiff began working at defendant Jefferson Screw Products, Inc., on March 3, 1977. On March 23, 1983, plaintiff was laid off from employment. On November 17, 1984, plaintiff was involved in an automobile accident and sustained a severe head injury, a fractured leg and ligament damage to the right knee. Surgery to repair the damage to plaintiff’s leg was performed on August 12, 1985. His doctor estimated that plaintiff would be unable to work for three months from the date of surgery.
On September 3, 1985, defendant recalled plaintiff and other high seniority employees from layoff status. Plaintiff responded in person the day fol lowing his receipt of notification. Plaintiff arrived in defendant’s office with one leg in a cast. He stated that he was unable to return to work at that time because he had to undergo long-term therapy, but he estimated that he expected to return to work on November 1, 1985. Plaintiff’s job as a grinder operator cannot be performed while the operator is sitting down.
On September 17, 1985, plaintiff was terminated from employment pursuant to article 7, § 4(D), of the collective bargaining agreement applicable to his employment, which provides:
An employee shall lose his seniority for the following reasons only
Failing to report for work after a layoff within three working days when called by the company by registered mail or telegram unless an employee presents a reason acceptable to the management.
The termination report stated that plaintiff was terminated for failure to return to work from layoff due to injuries from an accident. Donald Pinkerton, president of defendant company, advised plaintiff that his injuries were not an acceptable reason to the management and that the company needed to fill the position immediately.
Plaintiff filed a grievance through his union. The union’s position was that plaintiff should be returned to layoff status until he was released to return to work by his physician. Defendants denied the grievance, stating that the employee’s reason was not acceptable to management "for obvious reason.” By its vote not to strike, the union membership declined to pursue plaintiffs grievance further.
On March 17, 1986, plaintiff initiated this em ployment discrimination suit alleging (1) that he was discharged in violation of the hcra, and that the discharge was a pretext for discrimination, (2) that defendants violated the hcra by failing to make "reasonable accommodation” to plaintiff by granting him a medical leave until he was able to return to work, (3) that defendants discharged plaintiff or discriminated against him for fear he would in the future file a workers’ compensation claim against defendant company, and (4) that defendants’ actions violate the public policy of the State of Michigan.
Defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) was granted and an order entered on May 5, 1987.
A motion for summary disposition pursuant to MCR 2.116(C)(8), failure to state a claim upon which relief can be granted, is tested by the pleadings alone. Only the legal basis of the complaint is examined. The factual allegations of the complaint are accepted as true, along with any inferences which may fairly be drawn therefrom. Unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should be denied. Mills v White Castle System, Inc, 167 Mich App 202, 205; 421 NW2d 631 (1988).
A motion for summary disposition brought under MCR 2.116(0(10), no genuine issue as to any material fact, tests whether there is factual support for the claim. In so ruling, the trial court must consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted by the parties. MCR 2.116(G)(5). The opposing party must show that a genuine issue of fact exists. Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be devel oped would leave open an issue upon which reasonable minds could differ. Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988). A reviewing court should be liberal in finding that a genuine issue of material fact exists. A 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. Rizzo v Kretschmer; 389 Mich 363, 371-372; 207 NW2d 316 (1973).
The party opposing an MCR 2.116(0(10) motion for summary disposition bears the burden of showing that a genuine issue of material fact exists. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987). The opposing party may not rest upon mere allegations or denials of the pleadings but must, by other affidavits or documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). If the opposing party fails to make such a showing, summary disposition is appropriate. Rizzo, p 372.
i
Plaintiff claims that the trial court improperly granted defendants’ motion for summary disposition because defendants’ stated reason for the discharge, failure to return to work from layoff, was a pretext for discriminating against him because of a perceived handicap in violation of MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), which provides:
An employer shall not:
Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position. [Emphasis added.]
The hcra covers only those whose disability is unrelated to the ability to perform the job. The handicapped person seeking employment must be capable of performing the duties of the position. Carr v General Motors Corp, 425 Mich 313, 321-322; 389 NW2d 686 (1986), reh den 426 Mich 1231 (1986). A disability that is related to one’s ability to perform the duties of a particular position is not a "handicap” within the meaning of the hcra. Id., pp 315-316.
By his own admissions, plaintiff was unable to perform the duties of his position as a grinder operator. He documented this with a doctor’s note which stated that he could not return to work until November 1, 1985, two months after the recall. Plaintiff’s disability prevented him from fulfilling the requirements of the job at the time of discharge. Plaintiff’s handicap was directly related to his ability to perform the job. Thus, plaintiff was not "handicapped” within the meaning of the HCRA.
To recover under the hcra, a plaintiff must allege and prove that (1) he or she is "handicapped” as defined in the hcra, (2) the handicap is unrelated to his or her ability to perform the duties of a particular job, and (3) he or she has been discriminated against in one of the ways set forth in the statute. Doman v Grosse Pointe Farms, 170 Mich App 536, 541; 428 NW2d 708 (1988).
We hold that the trial court’s grant of summary disposition for defendants on the ground that plaintiff failed to state a cause of action under the hcra was correct. Therefore, we need not address the question of defendants’ pretext or motivation.
II
Plaintiff claims that he would have been able to perform the requirements of his job within two months after the recall and that defendants had a statutory duty to make a reasonable accommodation to his handicap by granting him a medical leave. We disagree.
MCL 37.1202(l)(g); MSA 3.550(2Q2)(l)(g) provides:
An employer shall not:
Discharge or take other discriminatory action against an individual when adaptive devices or aids may be utilized thereby enabling that individual to perform the specific requirements of the job.
The duty of an employer to accommodate handicapped employees under the handicappers’ act is limited to (1) the alteration of physical structures to allow access to the place of employment and (2) the modification of peripheral duties to allow job performance. The duty to accommodate imposed under the handicappers’ act does not extend to new job placement or vocational rehabilitation efforts. Rancour v The Detroit Edison Co, 150 Mich App 276, 279; 388 NW2d 336 (1986), lv den 428 Mich 860 (1987).
In Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 643-644; 413 NW2d 79 (1987), this Court held:
[PjlaintifFs disability prevented him from fulfilling the requirements of his job at the time of his discharge. Hence, it cannot be said that the handicap was unrelated to employment. Plaintiff’s alleged subsequent recovery from his medical disability and regained ability to perform the job does not alter this conclusion. Even if this allegation is true, defendant’s reliance on plaintiff’s medical condition to justify the discharge shows a sufficient relationship to employment. Whether a particular medical condition is related to employment should not depend on the correctness of the employer’s evaluation of the prospects of the employee’s eventual recovery.
Nowhere in the handicappers’ act do we find a requirement that an employer leave a job open until a plaintiff’s handicap is removed. In accordance with Carr and Wilson, we hold that defendants’ duty to make a "reasonable accommodation” did not extend to granting plaintiff a medical leave until such time as he would be able to perform the requirements of his job.
hi
Plaintiff contends that he was discharged because defendants anticipated that he would file a workers’ compensation claim against them. Attached to plaintiff’s brief in response to defendants’ motion for summary disposition was the affidavit of Robert Reidt, president of the UAW Local 189. Reidt stated that the only reason Pinkerton gave as to why he would not grant plaintiff a medical leave was "he was too great of a workmens [sic] comp risk and my rates are high enough now.”
In Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), it was held that a discharge of an employee in retaliation for the employee’s filing of a lawful workers’ compensation claim against an employer is not consistent with the public policy of this state. Plaintiff argues that this Court should extend the holding in Sventko and hold that it is also contrary to public policy to discharge an employee in anticipation that the employee will file a claim in the future.
This argument was specifically rejected in Wilson, supra, pp 645-646, where this Court held:
The statutory provision prohibiting retaliatory discharge in MCL 418.301(11); MSA 17.237(301X11) does not help plaintiff because it prohibits discharge or discrimination only in retaliation for prior claims for workers’ compensation benefits. Here plaintiff premises his right of recovery on defendant’s anticipation of future claims. Prior to the enactment of 1981 PA 200, MCL 418.301; MSA 17.237(301) did not explicitly prohibit retaliatory discharge of a workers’ compensation claimant. However, this Court in cases arising prior to that time applied the public policy exception noted above to hold that retaliatory discharge was actionable for claims filed prior to discharge. Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).
We hold that retaliatory discharge premised upon the employer’s anticipation of a future claim does not state a legally cognizable cause of action. [Emphasis in original.]
Affirmed.
R. R. Lamb, J., concurred. | [
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T. M. Kavanagh, J.
Defendant, George Herbert Vail, was charged with first-degree murder for his participation in a shooting incident which caused the death of David Rivas. Tried in Oakland County Circuit Court, defendant was found guilty of voluntary manslaughter by a jury on June 16, 1970 and he was later sentenced to a prison term of 7-1/2 to 15 years. His appeal to the Court of Appeals resulted in affirmance on September 25, 1973. This Court granted the defendant’s application for leave to appeal on March 21, 1974.
As we are convinced that the trial court was in error for instructing the jury to consider the charge of first-degree murder, we must reverse the defendant’s conviction and remand the case to the circuit court for retrial.
Issue:
The issue we find decisive was raised on several occasions during the course of the trial by means of a motion to dismiss the first-degree murder charge. Each time the defense offered such a motion it was denied. Stated succinctly the issue reads:
Taking the evidence in the light most favorable to the prosecution was there any evidence upon which a jury could predicate a fínding of guilty of murder in the £rst degree?
The parties are in conflict on the facts only; there is no dispute about the law in this case. Both the prosecution and the defense agree that if the evidence is found to be lacking, reversal is required. This Court has so held on numerous occasions. People v Stahl, 234 Mich 569; 208 NW 685 (1926); People v Marshall, 366 Mich 498; 115 NW2d 309 (1962); People v Hansen, 368 Mich 344; 118 NW2d 422 (1962).
Perhaps the best explanation for the logic of this rule is found in People v Gessinger, 238 Mich 625, 628; 214 NW 184 (1927), where Justice Bird, writing for the majority, stated:
"I think it is evident to most practitioners of experience that it would be much easier to secure an acquittal if the defendant were only charged with the lesser offense than it would be were he charged with all three offenses. The tendency of jurors is to compromise their differences. Where there is only one charge they are obliged to meet the question squarely by yes or no, or disagree, but where the charges are three, the juror who thinks there should be no conviction, and the juror who thinks that a conviction should be had of the greater offense are quite liable to agree upon a conviction of the lesser offense.”
Thus, where a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant’s chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.
Facts:
While the facts are complex and the testimony, at times, conflicting, the entire transaction which preceded the slaying can be split into three separate and distinct incidents. These incidents: The Robbery, The Firebombing, and The Shooting Incident, all occurred between the hours of 10 p.m. on August 26, 1969 to 1 p.m. on August 27, 1969 at the home of the defendant in the City of Hazel Park.
The Robbery
During the evening of August 26, 1969 between 10 and 11 p.m., three men, Martin Ray, William Powley and Mike "Indian Joe” Lichtenberg, arrived at defendant’s home. As the three men entered the darkened house they were confronted by two nien with pistols and ordered to lie face down on the floor. While in this position each victim had a large amount of cash removed from his person by one of the two armed assailants. The victims were then instructed to crawl from the house and not to return.
One of the victims of the robbery, Martin Ray, testified that the defendant, during the course of the robbery, had threatened him with a pistol and had warned him "not to try anything funny because he had the right to shoot us because we were trespassing in his home”.
Ray further testified that after the victims left the defendant’s house they went to a telephone booth and called the defendant to demand the return of their money. During this conversation the defendant disclaimed any knowledge of the victims or the robbery.
The Firebombing
After the unsuccessful phone call, Ray visited a friend, Robert Lockhart, and persuaded him to return with Ray to the scene of the robbery. The two men arrived outside defendant’s house at approximately 2 a.m. on August 27, 1969 (about three-four hours after the robbery). They were armed with at least two gasoline-filled soft-drink bottles. After igniting the fuses, both Ray and Lockhart threw their flaming bottles onto the roof and quickly departed.
Just before the bombing, the activity inside defendant’s house had all but ceased for the eve ning. Defendant, Stevens and William Brown, a friend of the defendant, were watching television in the living room while the remaining occupants, defendant’s wife, his two children, and another friend identified only as "Myra” were in the bedrooms.
Suddenly Stevens saw a figure holding a fiery object emerge from the darkness on the front lawn. As the attacker began to throw the bombs, Stevens alerted the others of the danger.
When the firebombs struck the roof and the resultant flames started to engulf the front of the home, defendant hurried to the front bedroom to rescue his family. Defendant first roused his wife and then he removed his ten-day-old son from the endangered room.
In the confusion that followed, defendant reentered the bedroom, grabbed his hunting rifle from the closet, loaded it and began to run from the room. However, he stumbled on the carpet and fell to the floor. The impact with the floor caused the rifle to discharge accidentally. Defendant then telephoned the Hazel Park Police Department and waited inside the house until police officers arrived at the scene. He then exited the house to extinguish the remaining flames, and to speak to the police. After their investigation was completed the officers departed and the defendant returned to his home.
The Shooting Incident
During the morning after the firebombing, August 27, 1969, defendant decided to move himself and his family to his mother-in-law’s house to protect them from any further assaults. His wife and children left the house around 7:30 a.m., but he and the others present remained to pack the items that would be needed during their absence.
At approximately 1:30 p.m., defendant Brown and Stevens were packing items in the living room when a car containing four men stopped in front of defendant’s house. Robert Lockhart was driving the car. Also seated in the front of the car was Martin Ray who was armed with a .22 pistol. In the back seat, behind the driver, was Ray’s brother-in-law, David Rivas. Rivas was armed with a sawed-off shotgun. William Powley, the fourth man in the car, was seated next to Rivas. The car was parked on the lefthand side of the street facing oncoming traffic. From inside the car, Ray and Rivas shouted demands for the return of the stolen money.
When the car first arrived the defendant observed the sawed-off shotgun protruding from the left rear window. Stevens and Brown sought cover in the living room. As the defendant went into the bedroom to get his rifle, a telephone call was made to the Hazel Park Police Department to advise them of the incident. With the police on the line, the defendant cautiously approached the doorway in order to get a better description of the automobile and its occupants. At this point shots were exchanged. While there is some conflict concerning certain facts, all witnesses agreed that (1) Rivas fired the first shot, and (2) defendant fired the second shot. It is also agreed that Rivas’ shotgun blast struck the front of defendant’s home while defendant’s bullet penetrated the left side of the car and struck Rivas, inflicting the fatal injury. After the shots, the car departed and defendant went to the telephone to report the shooting to the police.
The First-Degree Murder Charge
The Legislature has defined the crime of first-degree murder as:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCLA 750.316; MSA 28.548.
In the context of this prosecution, the Legislature intended the elements of premeditation and deliberation to distinguish the offense of first-degree murder. In People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), then Judge, now Justice Levin considered the importance of the distinction and the nature of these elements:
"First-degree and second-degree murder are separate offenses, carrying vastly different penalties, distinguished only by the requirement that a homicide punishable as first-degree murder be committed with premeditation and deliberation. If premeditation and deliberation are ill-defined, the jury is left with no objective standards upon which to base its verdict.
"Accordingly, it underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” (pp 328-330.)
The prosecution contends that the record clearly reflects sufficient evidence for the jury to have inferred the presence of premeditation and deliberation.
The facts the prosecution relies on to prove these elements are:
1. Defendant’s threat to shoot the robbery victims.
2. Ray’s telephone conversation with defendant.
3. The gunshot that occurred during the firebombing.
4. Defendant’s failure to report that gunshot to responding officers.
5. Defendant’s wife and children left the home before the shooting incident which caused Rivas’ death.
6. That two or three minutes could have elapsed between Rivas’ shot and defendant’s shot.
7. The fact that the car was accelerating away at the time defendant shot.
It is urged that these facts, together with all reasonable inferences, could have supported a jury finding of first-degree murder. We disagree. These facts are insufficient to establish that the defendant had engaged in the required mental thought process necessary to classify the homicide as a premeditated and deliberate murder.
The facts listed above must be considered in the context in which they occurred. Defendant’s threat to shoot the robbery victims occurred during an armed robbery. When viewed in this context, the threat was not evidence of a premeditated and deliberate intent to kill, but rather a variation of the classic highwayman’s demand, "Your money or your life!”
The prosecution urges that items 1-5, when considered together, support a finding that defendant expected a future encounter and that he prepared a "cold-blooded plan” to do battle with his adversaries upon their return. However, while we agree that defendant may have reasonably anticipated future difficulties with Ray and his companions, the record indicates that defendant sought to avoid doing battle with them. On two occasions defendant called upon the Hazel Park police for aid, and after the firebombing defendant decided to move himself and his family to safer quarters. Defendant sent his wife and children away at dawn while he and the other occupants of the house remained to pack the necessary items for their absence. It was during the packing that Ray and his cohorts returned and the shooting incident occurred.
The evidence concerning the possible two- to three-minute lapse between shots comes from the testimony of William Brown. On direct examination by the prosecutor, Brown testified:
”Q. How much time lapsed between the shots?
"A. I couldn’t say.
”Q. Well, was it a half an hour?
'A. No, maybe two to three minutes.”
Apparently Brown had some difficulty in recalling the exact details of the shooting incident. In order to assist Brown’s memory, the prosecution produced a statement Brown had given to the police on the day of the shooting. Brown admitted making the statement, that the statement was true and that his memory at the time of the statement was better than his present recollection of the incident. The prosecution then endeavored to refresh Brown’s recollection of the shooting incident.
"Q. I direct your attention to six lines up from the bottom on page 2, and ask if you recall—
"Q. (By Mr. Murphy): Do you remember that?
"A. Yes.
”Q. Is it true?
'A. Yeah.
”Q. You then heard the car accelerate after the shotgun blast, you heard the car accelerate?
"A Yes.”
Clearly, Brown’s refreshed testimony is in conflict with his prior estimate of a two- to three-minute lapse between the shots. If the car sped away defendant could not possibly have waited so long to fire his rifle. However, the prosecution had good reasons to establish that the car departed after the shotgun blast: (1) there was little hope that the jury would believe the two- to three-minute lapse existed because every other witness testified that the shots were almost simultaneously fired, and (2) evidence that the car was departing could be used by the prosecution to refute defendant’s self-defense arguments.
Brown’s statement about a two- to three-minute lapse stands in irreconcilable conflict with his later testimony that the automobile departed rapidly after the first shot. While logic alone dictates a conclusion that a rapidly departing automobile would have sped out of range within a matter of seconds, the testimony of the surviving occupants of the car and the evidence of the bullet hole in the side of the car support a sole conclusion that defendant did not delay his shot.
Although the facts surrounding the shooting incident, and Brown’s testimony in particular, might not convince a jury that the death was justified as self-defense, these facts present no evidence to support a finding of premeditation and deliberation on the part of the defendant. Most damaging to the prosecution is the fact that the defendant was required to formulate the decision to shoot as the car sped away. Even assuming some time gap between the shots, the testimony that the car was rapidly departing, rather than establishing premeditation and deliberation, negates such a finding. Under the circumstances the defendant was forced to make an impulsive, sudden, and hasty decision to shoot before the car could speed out of range.
Long ago this Court decided that this type of quick decision does not support a charge of first-degree murder. In Nye v People, 35 Mich 16, 18 (1876), this Court said:
"There is much learning and some subtlety in the older books upon the question whether a sudden homicide could be properly classed as murder, because that requires malice aforethought. The courts decided that the real test of malice in such cases was to be found in the presence or absence of adequate cause or provocation to account for the violence, and that an unprovoked homicide, however suddenly conceived, might be malicious. In other words, malice aforethought did not mean deliberate and calculating malice, but only malice existing at any time before the act so as to be its moving cause or concomitant.
"In dividing murder into degrees, its common-law qualities are not changed, but (except in special cases) the division is chiefly between cases where the malice aforethought is deliberate and where it is not. It was rightly considered that what is done against life deliberately indicates a much more depraved character and purpose than what is done hastily or without contrivance. But it is a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse. ” (Emphasis supplied.)
We conclude that the charge of first-degree murder was unsupported by the evidence and for that reason defendant’s conviction of manslaughter must be reversed and the case is remanded to the circuit court for retrial.
T. G. Kavanagh, C. J., and Swainson, Williams, and Levin, JJ., concurred with T. M. Kavanagh, J.
M. S. Coleman, J.
(to affirm). The defendant was charged with first-degree murder. The jury was instructed on the elements required in each of the three degrees of homicide as well as accident and self-defense (which defendant maintained). Defendant was found guilty of voluntary manslaughter. The issue is whether there was any evidence introduced at trial from which the jury could have concluded that the defendant was guilty of first-degree murder.
This fact situation is complicated by conflicting testimony, so I could not state the situation so surely as was done in the majority opinion. Not mentioned was the fact that defendant’s bullet hit the left rear quarter panel portion, the entry being oval in shape. The shot was therefore from an angle. Also not mentioned was the testimony of Dr. Olson, a pathologist, that the bullet entered the back of the deceased. Further, one witness testified that there were two or three minutes between the shot from the car and defendant’s shot. The driver of the car testified that he was driving away from the house and had accelerated when defendant’s shot was fired.
There has been expressed a belief that prosecutors sometimes charge more than they can prove, possibly as pressure for a guilty plea or as a ploy to influence the jury to convict. In any event, that is not true in this case. Defendant did not plead guilty. The jurors could have found premeditation had they believed some of the witnesses.
Will we order reversal in all cases where the prosecutor fails to convince a unanimous jury that a defendant is guilty of the higher charge; or where the jurors believe some witnesses and not others giving conflicting testimony (as here); or where jurors consider the equities and inject the "quality of mercy”?
The majority of my colleagues analyzed and weighed the evidence of premeditation. They concluded that there was no evidence of premeditation but they arrived at that conclusion only by showing why the evidence of premeditation should not have been believed. They agree that there is a conflict of facts. ("The parties are in conflict on the facts only; there is no dispute about the law * * *
It is not our function to assess the credibility of witnesses nor to determine if witnesses have been successfully impeached. That is the jury’s function. Our function is to determine whether there is any evidence produced at trial which would support a charge of first-degree murder. This division of functions was, before today, cemented in our jurisprudential system.
Justice Campbell in Sheahan v Barry, 27 Mich 217, 226 (1873), was unequivocal:
"The division of functions between court and jury is one which is essential to the safe administration of justice, and a new trial will always be granted when the judge interferes with the lawful province of the jury. He has no right to take away from them the decision of any question of fact, and he cannot deprive them of the right to settle for themselves what witnesses or what testimony they will credit or discredit. This would be clearly error.”
It is within the province of the jury to determine the quantity of proof necessary to reduce a crime of murder to manslaughter. The Court in People v Toner, 217 Mich 640; 187 NW 386 (1922), established that
"it was the province of the jury and not of the court to decide whether there was much or little testimony which would reduce the crime from murder to manslaughter. [While] there [may be] little testimony to reduce the crime to manslaughter, * * * [i]t was for the jury to measure the quantity of proof.”
This view was reinforced in People v Vanderhoof 234 Mich 419; 208 NW 458 (1926):
"It will suffice to say that the testimony justified submitting the case to the jury on the charge of murder, and whether the testimony bearing on that charge was much or little was for the jury and not for the court.”
In the instant case the trial judge and a unanimous Court of Appeals agreed that the jury reasonably could have concluded that the defendant was guilty of first-degree murder.
My colleagues find that the seven enumerated facts (plus Others) which were the basis of the prosecution’s charge of first-degree murder were "insufficient to establish that the defendant had engaged in the required mental thought process necessary to classify the homicide as a premeditated and deliberate murder”. But that was the precise question for the jury to decide, not the court. The prevailing opinion discusses at length the believability of the testimony. We now become the jury as well as the judge.
Among the questions which flow from the opinion are: (1) Because the jury did not find second-degree murder, was that charge also erroneous? (2) Should the prosecutor be precluded from the right to charge first-degree murder because he may have presented evidence and information which for some reason did not "come through” at trial?
Although I do not wish to belabor the point, some passages from the prevailing opinion are significant. One which seeks to analyze the question for the jury is:
"Most damaging to the prosecution is the fact that the defendant was required to formulate the decision to shoot as the car sped away. [I cannot explain how this was damaging to the prosecution.] Even assuming some time gap between the shots, the testimony that the car was rapidly departing, rather than establishing premeditation and deliberation, negates such a finding. Under the circumstances, the defendant was forced to make an impulsive, sudden, and hasty decision to shoot before the car could speed out of range.” (They might have escaped!)
The totality of the evidence suggests to me that the jury could have found first-degree murder if it believed some witnesses, or voluntary manslaughter if it believed others. It chose the latter and our Court does not dispute the appropriateness of the decision. Nevertheless, the Court reverses a proper verdict for the very reason that it agrees with the jurors.
I would affirm defendant’s manslaughter conviction and abstain from the emasculation of what was before today the exclusive function of the jury —to evaluate the evidence placed before it. I agree with Justice Campbell that "[t]he division of functions between court and jury is one which is essential to the safe administration of justice”.
MCLA 750.316; MSA 28.548.
People v Vail, 49 Mich App 578; 212 NW2d 268 (1973).
People v Vail, 391 Mich 789 (1974).
Defendant raised five issues in this appeal. Because we reverse on this issue we do not consider any of the other issues.
For simplicity we summarize the testimony into its separate parts. For a more detailed report of the individual witnesses’ testimony, see People v Vail, supra, footnote 2, pp 583-588.
MCLA 750.317; MSA 28.549.
To the same effect, see People v Collins, 303 Mich 34; 5 NW2d 556 (1942), and People v Burkard, 374 Mich 430; 132 NW2d 106 (1965).
The Court of Appeals analysis is presented at 49 Mich App 578, 590; 212 NW2d 268 (1973), as follows:
"The testimony adduced at trial pertaining to the defendant’s deliberation and premeditation may be capsulized as follows: The defendant during the course of the armed robbery at his home told the victims he could kill them for trespassing. On the afternoon following the robbery a vehicle containing four men drove up in front of the defendant’s home. Someone in the defendant’s house stated that one of the individuals in the auto had a shotgun. The defendant procured a rifle. A passenger in the vehicle shouted instructions to the defendant to return the money taken on the previous evening. Defendant appeared in the doorway. A shotgun blast from the vehicle was directed at the defendant’s residence. One witness who was in the defendant’s home at the time testified that there was a lapse of from two to three minutes before the defendant returned fire. The vehicle was accelerating away from the defendant’s home at the time he fired the fatal shot. From this evidence it is our opinion that it would have been possible for a jury to reasonably conclude that since there was a two or three minute interval between the shots and inasmuch as the vehicle from which the shotgun blast was fired was driving away from the defendant’s residence, there was sufficient time for the defendant to form the intent to kill and an opportunity for the defendant to reconsider the matter and not fire the rifle. Therefore sufficient evidence was presented from which a jury could reasonably have inferred that the defendant acted willfully, deliberately and with premeditation.” | [
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] |
Rehearing denied January 6, 1975.
Reported at 393 Mich 1. | [
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] |
ORDER
Entered December 23, 1974; as amended February 27, 1975. — Reporter.
On order of the Court, the motion for immediate consideration is considered and hereby is granted.
The application by defendant-appellant for leave to appeal is considered, and the same hereby is granted. This Court, sua sponte, under GCR 1963, 865.1(7), peremptorily reverses the Court of Appeals and remands the case from that Court to the trial court for the making of an evidentiary record.
It appears from the record now made that the cause should be remanded to allow the defendant to make an evidentiary record in support of his claim that he was denied the effective assistance of counsel. See People v Ginther, 390 Mich 436 (1973); People v Williams, 391 Mich 832 (1974). | [
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Per Curiam.
Plaintiffs seek a declaratory judgment of their rights under the juvenile court records statute. As subrogees of persons injured by the vandalism of juveniles, they sought and were denied access to police records, police department officials believing themselves bound by the juvenile court records statute. Plaintiffs now claim to be "persons having a legitimate interest” in the court records. We hold that police records are not encompassed within the meaning of the given statute and that plaintiffs have not demonstrated their inability to pursue their legal remedies. There is no need to decide whether plaintiffs are "persons having a legitimate interest” in the court files.
The decisions of the courts below are vacated.
The pertinent facts of the case are not in dispute.
Plaintiff insurance companies are subrogees of policyholders who suffered property losses allegedly caused by juveniles. In each case, juveniles were apprehended by municipal police departments in Oakland County. While attempting to discover the names of the juveniles and their parents, plaintiffs were denied access to the police records. They then requested access to the juvenile court files of those children (unknown to them) who had committed certain described offenses, claiming to be "persons having a legitimate interest” in the children’s records. The court denied plaintiffs access to its records. The circuit court affirmed that decision.
The Court of Appeals reversed but limited plaintiffs’ access to the court files. Plaintiffs were to see only the identities of the children and their parents.
There is no dispute concerning the statutory right of plaintiffs to sue the parents of children who indulged in vandalism which caused extensive damage. Plaintiffs contend that they will be unable to pursue their legal remedies under the "parental responsibility” act and that public policy as enunciated by the Legislature will be abused if they are not allowed access to the juvenile court records. However, the original police records are not in the juvenile court files and defendants correctly make no claim under MCLA 712A.28 that the juvenile court has control over access to those original records in the police department.
Police records do not come within the meaning of the statute cited. Plaintiffs have not demonstrated an inability to pursue their legal remedy. Therefore, we perceive no need to address the question of whether plaintiffs are "persons having a legitimate interest” in juvenile court records.
The decisions of the probate court, circuit court and Court of Appeals are hereby vacated.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred.
MCLA 712A.28; MSA 27.3178(598.28):
"The court shall maintain records of all cases brought before it. Such records shall be open only by order of the court to persons having a legitimate interest. * * * ”
Southfield Municipal Police Department pled in "Answer to Application and Motion for Mandamus” (later dismissed by stipulation) as follows:
"That Section 27.3178(598.28) of the Michigan Statutes Annotated quoted in plaintiffs application gives the power of disclosure of such records to the Probate Court and not to the defendant herein. That the determination as to whether plaintiff has a legitimate interest in such records and what portion of the records should be revealed is within the discretion of said Probate Court, and not within the discretion of the defendant.”
50 Mich App 31; 212 NW2d 794 (1973).
MCLA 600.2913; MSA 27A.2913 provides:
"A municipal corporation, county, township, village, school district, department of the state, person, partnership, corporation, association, or an incorporated or unincorporated religious organization may recover damages in an amount not to exceed $1,500.00 in a civil action in a court of competent jurisdiction against the parents or parent of an unemancipated minor, living with his parents or parent, who has maliciously or wilfully destroyed real, personal or mixed property which belongs to the municipal corporation, county, township, village, school district, department of the state, person, partnership, corporation, association, or religious organization incorporated or unincorporated or who has maliciously or wilfully caused bodily harm or injury to a person.” | [
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Swainson, J.
On September 7, 1962, plaintiff-appellant, Edward J. Hakala, received an injury which arose out of and in the course of his employment with Burroughs Corporation. As a result of this injury Mr. Hakala suffered the amputation of his right hand and portions of the first and second fingers of his left hand. The Burroughs Corporation paid workmen’s compensation benefits on a voluntary basis for these losses.
On June 17, 1968, appellant filed a petition for a hearing with the Bureau of Workmen’s Compensation claiming eligibility for total and permanent disability benefits from defendant-appellee Second Injury Fund. Appellant offered uncontroverted evidence that prior to his injury at Burroughs Corpo ration, he was afflicted with a vision impairment in his left eye. After the matter was heard, the referee rendered a decision on June 13, 1969, stating in relevant part:
"It is further ordered that as a result of said injury employee’s right hand was amputated at the wrist and the first and second fingers of the left hand were amputated beyond the first joint and that compensation for such amputations was properly paid to 2/27/68 inclusive. It is further held that, prior to 9/7/62, for non-occupational reasons, said employee had lost the industrial vision in his left eye, his uncorrected vision being determined to be 20/300, being less than 20% vision in the eye [corrected — said vision is better than 20%, but we consider only uncorrected vision — see Lindsay v Glennie Industries, 379 Mich 573 [153 NW2d 642 (1967)]]:”
Plaintiff was accordingly awarded total and permanent disability benefits from the Second Injury Fund based on the prior loss of an eye and the loss of his right hand at Burroughs Corporation. MCLA 412.8a; MSA 17.158(1).
The Second Injury Fund appealed the decision of the referee to the Workmen’s Compensation Appeal Board. On February 24, 1972, the Appeal Board reversed the referee. It held that appellant’s claim was properly controlled by Hirschkorn v Fiege Desk Co, 184 Mich 239; 150 NW 851 (1915); Cline v Studebaker Corp, 189 Mich 514; 155 NW 519; 1916C LRA 1139 (1915), and must be judged with reference to a corrected vision standard. Since appellant retained more than 20% of normal vision in his left eye with the use of glasses, the Appeal Board concluded that there was no prior loss of the eye and denied appellant Second Injury Fund benefits.
Appellant appealed to the Court of Appeals. The Court of Appeals affirmed the result of the Appeal Board but did so under a completely different legal theory. The Court of Appeals assumed that uncorrected vision was the proper standard, but then held that MCLA 412.8a; MSA 17.158(1) awards Second Injury Fund benefits only if the prior loss was the result of an injury. Since appellant’s loss of vision was due to nontraumatic causes, the Court of Appeals deemed him ineligible for benefits. Hakala v Burroughs Corp, 48 Mich App 639; 211 NW2d 60 (1973).
Plaintiff filed an application for leave to appeal in the Supreme Court, which we granted. 391 Mich 756 (1974).
The parties present two issues:
1. Must an injured worker’s prior loss be due to an injury in order to qualify for permanent and total disability benefits from the Second Injury Fund?
2. When a claim is made for Second Injury Fund benefits based on a prior loss of 80% vision in one eye, should the degree of vision loss be measured in terms of corrected or uncorrected vision?
I
This first issue represents a somewhat unique situation in that appellee specifically agrees with appellant’s position that the prior loss need not be due to an injury in order to qualify for Second Injury Fund benefits. In fact, after the opinion of the Court of Appeals was handed down, all three parties to that appeal joined in seeking a hearing in order to urge the Court of Appeals to reverse the position that it had adopted.
In our opinion, the position adopted by the Court of Appeals on this issue is in error. The legislative purpose behind the creation of the Second Injury Fund "was to enhance the prospects for employment of certain handicapped persons who had previously sustained specific losses, so that they and their families would have a means of livelihood. The statute made it certain, as an inducement to an employer to employ such persons, that in employing a handicapped person he would be required to pay no more if such handicapped person should suffer further injury than he would have been required to pay for such further injury had the person not been handicapped in the first place.” Verberg v Simplicity Pattern Co, 357 Mich 636, 643; 99 NW2d 508 (1959). It would make little sense, and it would be contrary to this Court’s prior interpretation of legislative intent, to distinguish between handicapped persons on the basis of the origin of their handicap. The Act’s purpose certainly would not be furthered by such a distinction, and we have not been able to hypoth esize any reasonable rationale on which this distinction could be founded. We therefore reverse the Court of Appeals on this first issue.
II
The controversy between the parties in the present case is limited to the second stated issue. Under the provisions of MCLA 418.361(1) (1); MSA 17.237(361) (1) (1), the loss of an eye for the purposes of the Workmen’s Compensation Act is defined as an "[e]ighty percent loss of vision”. The question before us is whether a claimant’s vision should be assessed with or without the use of corrective lenses. In the present case it is agreed between the parties that if an uncorrected vision standard is proper, appellant has less than 80% vision and meets the statutory definition for the loss of an eye. Conversely, it is agreed that if a corrected vision test is adopted, appellant does not meet the definition for the loss of an eye and was correctly denied benefits from the Second Injury Fund.
In its opinion, the Workmen’s Compensation Appeal Board held that the present issue was controlled by Hirschkorn v Fiege Desk Co, 184 Mich 239; 150 NW 851 (1915); Cline v Studebaker Corp, 189 Mich 514; 155 NW 519 (1915), and, accordingly, applied a corrected vision test. In ■arriving at this decision, the Appeal Board factually distinguished the more recent case of Lindsay v Glennie Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967) from the Hakala claim. Its analysis of Lindsay concentrated on the fact that claimant Lindsay sustained the surgical removal of his natural lens necessitated by a cataract condition. The Appeal Board interpreted Lindsay to hold that the fact of the removal of a natural lens alone consti tuted the loss of the eye for statutory purposes. It then read any reference to an uncorrected vision standard contained in Lindsay as irrelevant to the decision.
In contrast to the analysis of the Workmen’s Compensation Appeal Board, we believe that appellant Hakala’s claim is factually and legally controlled by Lindsay and the subsequent case of Hilton v Oldsmobile Division of General Motors Corp, 390 Mich 43; 210 NW2d 316 (1973). Although both Lindsay and Hilton did concern the removal of a natural lens, this fact cannot be used to distinguish them from the present appeal. The Court in Lindsay did not base its decision on the loss of a lens per se. Rather, the Court founded its decision on the changes brought about by the 1943 amendment to the Workmen’s Compensation Act. 1943 PA 245. In 1943, the Legislature replaced the strict "loss of an eye” wording on which Cline and Hirschkorn were based with new language that defined the loss of an eye as an "80 per cent loss of vision”. Lindsay held that the plain meaning of this amended language required the eye to be tested without the benefit of any artificial device. We repeat below language from Lindsay that was quoted with approval in Hilton:
"We recognize that substituting an artificial lens has 'restored’ vision to the otherwise sightless eye. We point out that a specific loss award is not made as compensation for diminution of use of the involved organ or member. It is not awarded to compensate for loss of earnings or earning capacity. It is awarded irrespective of either fact or both. If ophthalmological advances and refinements in the use of contact lens has in fact rendered the amended statute inconsonant with its original legislative intent, it is the province of the legislature to say so. We construe the statute in the plain meaning of its wording.” 379 Mich 573, 578.
Appellee has cited several examples of employment requirements and cases from other jurisdictions which adopt the corrected vision standard. Such material would be more persuasive to us if we were addressing this problem for the first time. Lindsay and Hilton have interpreted the language of the act to require an uncorrected vision standard and the Legislature has not since modified the language of the controlling sections. We therefore continue to follow these cases.
We do note that the Lindsay-Hilton position is not without some contradiction even in the post-1943 case law. Appellee relies strongly on the case of Marrs v Ford Motor Co, 315 Mich 211; 23 NW2d 638 (1946). In Marrs, the claimant, due to a prior cataract removal, possessed only 20/200 uncorrected vision in his right eye and could not coordinate it with his good left eye. With the use of glasses, claimant’s vision was restored to 20/40 in the right eye. An industrial accident at Ford Motor Company resulted in the total loss of vision in claimant’s eye. The Department of Labor and Industry denied compensation. It ruled that since claimant’s pre-injury uncorrected vision was less than 20%, he had no eye to lose under the terms of the 1943 amendment. This Court reversed the Department and awarded benefits, apparently deciding the case on the basis of a corrected vision standard.
Marrs, while never overruled, was not extended beyond its unique facts. Three years later in the case of Edwards v United States Rubber Co, 325 Mich 203; 38 NW2d 319 (1949), the Court adopted the uncorrected vision standard subsequently employed in Lindsay and Hilton. Claimant Edwards was injured at work when a loose wire from a revolving wire brush struck his left eye and pene trated the cornea. As a result of this injury, a cataract developed which necessitated surgical removal. The vision loss in claimant’s left eye was 98% uncorrected, and 25% when corrected; although, even with the use of corrective lenses, the left eye could not be coordinated with the uninjured right eye.
Justice Boyles, writing for the Court in Edwards, initially assumed for the purposes of argument the continuing validity of Cline and the corrected vision standard. He then distinguished the Edwards case from Cline stating, "Cline had co-ordinated vision between the injured eye and his remaining good eye after the injury had been corrected by the use of glasses; which the plaintiff in the instant case would not have.” 325 Mich 203, 207. See, Lindhout v Brochu & Hass, 255 Mich 234; 238 NW 231 (1931). The actual decision in Edwards, however, was based on an uncorrected vision standard. The language of Justice Boyles’ opinion warrants no other conclusion. The Court, mindful that Edwards had an 80% loss of vision under only the uncorrected standard, awarded compensation stating in part:
"In the case at bar, the employee has not yet had compensation for the specific loss of his left eye. In the final analysis, an employee who has suffered 80 per cent, loss of vision of one eye, since the 1943 amendment, has suffered the total loss of that eye and is entitled to compensation. It is the injury to an eye, resulting in 80 per cent, loss of vision in the eye itself, for which the statute now allows compensation for the specific loss of an eye.” 325 Mich 203, 210.
Ill
To summarize, we believe that our case law, with minor exception, upholds the arguments ad vanced by appellant Hakala. Appellant’s prior loss of vision should have been determined under an uncorrected vision standard. Under this standard the vision in his left eye is less than 20% (or conversely, appellant has suffered more than an 80% loss of vision in that eye). Appellant thereby has statutorily lost his left eye and under the facts of this case is eligible for Second Injury Fund benefits. See Kunde v Teesdale Lumber Co, 52 Mich App 360, 365-367; 217 NW2d 429 (1974).
The Court of Appeals is reversed and this case remanded to the Workmen’s Compensation Appeal Board for the entry of an order in conformity with today’s opinion.
Costs to appellant.
T. M. Kavanagh, C. J., and Williams, J., concurred with Swainson, J.
Appellant’s proof of the loss of vision in his left eye consisted of a letter from ophthalmologist, Sheldon D. Stern, M.D. The parties stipulated to allow the letter to be introduced into evidence. It read:
"Edward Hakala was examined by me on 6/29/68 with a history that his vision in the left eye has always been bad. He had received no treatment for it but he states, however, that his eyes were checked 35 years ago when he first started to work at Burroughs and he was told that his vision could not be brought up to normal, that it was out of focus. He states that he lost an arm in a punch-press in 1962. Vision in the right eye, without correction, was 20/100 plus or minus one. In the left eye it was 20/300. With correction, his vision in the right eye was 20/15 and in the left eye 20/50 minus one. He required a prescription of +200=.50x150 O.D. and a +4.50= — .50x15 with an add of +.200 in each eye. His extra ocular muscles were normal. External examination was normal. Pupils were equal and reacted to light. There was no evidence of any cataract formation. Intraocular pressures revealed no evidence of any glaucoma. Examination of the retina revealed no retinal abnormalities or abnormalities of his optic nerve. This diagnosis was a left amblyopia, secondary to anisometropia. In other words, he has a reduction of vision which will not respond to treatment in the left eye, secondary to a marked difference in his refractive error. The left eye is much more farsighted than the right eye and he has always preferred the right eye. There is no further treatment which will improve the vision in this eye.”
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Per Curiam.
The issues in this case having been thoroughly examined, and briefs and arguments thereon considered, it is the opinion of the Court that this appeal does not warrant further review. The order reported at 392 Mich 777 dated July 24, 1974 is vacated and leave to appeal is denied.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred. | [
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T. M. Kavanagh, J.
Plaintiff Columbus Jack Corporation was the owner of certain metal patterns having a value of $14,678. These patterns were being utilized by defendant, the Swedish Crucible Steel Corporation, in its manufacturing business and were stored by the defendant at its factory in Hamtramck, Michigan. The metal patterns were destroyed by a fire of undetermined origin which ravaged the defendant’s factory on May 5,1970.
Plaintiffs filed their two-count complaint on April 15, 1971, and amended it on September 27, 1972. Count I of the complaint alleged that defendant’s negligence had caused the damage to the metal patterns while Count II alleged the existence of a mutual benefit bailment where by agreement defendant was liable for any loss or damage to the patterns.
On March 6, 1973, the trial judge granted defendant’s motion for summary judgment. In doing so, the judge ruled that: (1) there was no evidence of an agreement by defendant to be absolutely liable for damage to the patterns, and (2) as a matter of law, where the undisputed facts establish that a fire of undetermined origin caused the damage to the bailed property, the plaintiff is not entitled to the benefit of a presumption of negligence which arises from a showing of (a) delivery of the property to the bailee, (b) a demand for the return of the property, and (c) bailee’s failure to return the property in an undamaged condition.
The Court of Appeals affirmed on March 6, 1974, and this Court granted plaintiffs’ application for leave to appeal on June 27, 1974, in order to review the continuing viability of the rule set forth in Pennsylvania R Co v Dennis’ Estate, 231 Mich 367; 204 NW 89 (1925). We did so because both the trial judge and the Court of Appeals panel suggested that the rationale behind the Dennis, supra, decision is no longer sound.
The trial judge voiced his dissatisfaction with the rule during argument on the motion for summary judgment by saying:
"As an original proposition, I would be very frank to say that I would have trouble with the rule, particularity [sic] in the context of this case where a [sic] patterns are delivered over. The industrial establishment has exclusive control and management of the enterprise, exclusive control and management of the patterns and it seems a little unrealistic to me that the bailor has to prove negligence. That’s the rule of Michigan. There isn’t any doubt that certain jurisdictions have gone the other way. Maybe Michigan will now recognize it is slowly being whittled away.”
Likewise, the Court of Appeals expressed its desire to have a new rule adopted, 52 Mich App 62, 64-65.
"This Court is inclined to adopt that which 8 Am Jur 2d, Bailments, § 316, p 1204, has called the modern view. It is there stated that the bailor’s prima facie case is not destroyed by proof of fire:
" '[T]his is on the theory that such occurrence, while possibly consistent with freedom from negligence on the bailee’s part, does not excuse the bailee’s failure to perform his contract unless in fact he exercised due care, a fact which, if explainable at all, is ordinarily explainable by facts peculiarly within the knowledge of the bailee; hence the bailor’s proof of the cause of loss by fire or theft where unexplained is sufficient to carry the case to the jury on the issue of negligence even where the bailor has the ultimate burden of proof on that issue.’
"The rationale of the rule urged by the plaintiffs is sound and is favored by this panel. Although Dennis, supra, was decided in 1925 and the passage of time warrants a review of the correctness of its holding today, we are without authority to discard it. Aside from the question of the power of this Court to change a clearly stated rule of law and the principle of stare decisis, the unanimous opinion of our own Supreme Court in Dennis, supra, still commands the 'weight of authority’. 8 Am Jur 2d, Bailments, § 315, p 1202.”
The Dennis decision involved a mutual benefit bailment between a potato shipper and a railroad company. Plaintiff railroad company was suing defendant potato shipper for damage to its refrigerator car caused by a fire. At the time of the fire the car was parked at defendant’s warehouse for the purpose of loading potatoes for shipment.
Plaintiff sought to make use of a presumption of negligence which arises when the bailor proves the bailment and a failure to return the goods or their return in a damaged condition. The trial judge, however, instructed the jury that the plaintiff had the burden of establishing want of care on the part of the defendant, and the defendant was not required to exonerate himself from blame for the fire, by showing due care.
In affirming the trial judge this Court said (pp 370-371):
"Plaintiff made a prima facie case in showing delivery of the car in good order to defendant and its return in a damaged condition, but, in showing the damaged condition was occasioned by fire, it destroyed its prima facie case and the duty of showing negligence remained. When a bailor shows the damage was by fire there is no prima facie case of negligence made and the bailee is not called upon to go forward with proof in exoneration, for fire does not necessarily speak of negligence in its origin. The circumstances disclosed relative to the fire, its place of origin in the car and its inferred cause, from known facts, were for the jury and constituted a part of plaintiff’s case under its charge of negligence, but did not shift the burden to defendant to exonerate himself by a showing of due care.”
The key to this ruling was the rationale behind the Court’s decision. The Court distinguished this case, involving destruction of the bailed property by fire, from other types of destruction.
"We get no help from the cases of bailment where the damage could only happen by reason of want of care; such cases stand apart from damage occasioned by fire, for fire is a risk incident to property and not always occasioned by negligence.” (p 370.)
"The so-called 'modern rule’ is applicable to cases where loss of or damage to the subject of bailment necessarily speaks of negligence. See Thomas Canning Co. v Railway Co., 211 Mich 326 [178 NW 851 (1920)], and cases there cited. But, as we have pointed out, loss by or damage to property by fire carries no such message.” (p 373.)
Clearly the Court grounded its decision on the fact that not all damages done by fires may be attributed to negligence. It is this rationale, and the rule supported by it, that the appellants, the trial judge and the Court of Appeals have questioned. After careful consideration of this rationale, this Court is convinced that the rule stated in Pennsylvania R Co v Dennis’ Estate, 231 Mich 367; 204 NW 89 (1925), must be set aside.
The issue this Court has been asked to decide is:
"Where bailed property is destroyed by fire on the bailee’s premises, is proof of damage or destruction by fire in itself sufficient in rebuttal of the bailor’s prima facie case, based on return of the bailed property in a damaged condition or no return at all, or must the bailee go further and show the absence of negligence on his behalf?”
Analysis of the above issue and an understanding of our decision is aided by a brief history of the development of the presumption of negligence in bailment cases.
In the older cases it was often held that the loss or injury to property in the hands of a bailee raised no presumption of negligence. It was said that the law would attribute such unexplained losses to excusable causes rather than presume negligence of the bailee.
However, the courts were soon to recognize a serious problem. If the property was in the exclusive possession of the bailee, the plaintiff-bailor would have an extremely difficult task of establishing the facts necessary to prove a breach of the bailee’s duty of due care. To remedy this situation and to assist the bailor in establishing a prima facie case of negligence, the law was changed and bailors were thereafter entitled to a presumption of negligence if they could establish the bailment and the bailee’s subsequent failure to return the goods in an undamaged condition.
This Court has recognized the difficulties that a plaintiff-bailor would have to face if it were not for the presumption of negligence. Thomas Canning Co v Pere Marquette R Co, 211 Mich 326; 178 NW 851 (1920), accurately described the rationale behind this rule:
"The bailee having the exclusive possession of the property has the exclusive means of showing what was done and what came of it.”
We find this rationale to be of primary importance in all bailments where the bailee has exclusive control of the bailed property, regardless of the manner in which the loss was occasioned.
Other jurisdictions have recognized the importance of this rationale in cases where the bailed property is destroyed by fire while it is in the bailee’s possession.
In Frissell v John W Rogers, Inc, 141 Conn 308, 311-312; 106 A2d 162, 164 (1954), that Court said:
"Fires which occasion damage to the subjects of bailment may and often do result from negligence, just as losses from theft may be made possible through the negligent conduct of a bailee. In logic and on authority, a bailee ought to be required to submit evidence of the circumstances surrounding the fire or the theft if he hopes to rebut the presumption upon which the law permits a prima facie case of liability to rest. He should not be legally able to escape the effect of a prima facie case through the mere fact of the fire or the theft. [Citing cases.] The isolated fact of destruction by fire or loss by theft rebuts nothing. The bailee must prove something more if he is to overcome the presumption. He must prove the actual circumstances connected with the origin of the fire or the theft, and these include the precautions taken to prevent the loss.”
Likewise, the Supreme Court of Utah in Wyatt v Baughman, 121 Utah 98, 104-105; 239 P2d 193, 196 (1951), said of the split of authorities on this issue:
"One of those schools of thought, which we acknowledged, represented the majority view, is to the effect that to meet the prima facie case of the plaintiff, made by showing (a) and (b), the bailee needs only to prove that the loss, damage or destruction resulted from fire, theft, or other cause 'which on its face does not disclose negligence by bailee and is not inconsistent with due care on his part’.
"We there termed the assumption of bailee’s negligence upon the prima facie showing, a 'presumption’, but pointed out that the presumption disappears from the cause upon proof by the bailee that the cause of the loss, or destruction of, or damage to the res, was fire or some other cause which does not disclose negligence upon its face. With such disappearance of the presumption, under this doctrine, the burden shifts back to the plaintiff bailor to prove specific acts of negligence on the part of the bailee. We rejected that principle.
"But we did accept, in face of the admission that it represented a minority rule, the principle that when (a) [the bailment] and (b) [the failure to return, or damage to the bailed property] are shown by plaintiff, the burden then rests upon the 'bailee to show that the damage or loss was not due to his negligence, and he stands the risk of non-persuasion on this point’, (italics added in the quotation) even though the loss is shown to have resulted from fire or theft, etc. We accepted the latter standard because we conceived that fire or theft do not ordinarily occur where the owner or holder of property exercises reasonable care and diligence to protect it against those contingencies.”
We agree. The mere fact that fires are sometimes spawned by other than negligent conduct is, in our opinion, no reason to eviscerate the general rule. Such is the result if the presumption of negligence is rebuttable by the sole fact that the damage was occasioned by fire.
Certainly some losses caused by fire or theft may be totally excusable. However, it is equally true that these losses may result from a lack of due care. Because either one of these alternatives is possible we believe that where the bailed property is lost, damaged or stolen, while it was in the exclusive control of the bailee, he should be charged with the burden of going forward to rebut the presumption with evidence to establish that the loss, damage or theft was occasioned without his fault. This may require a defendant-bailee to produce evidence of the actual circumstances surrounding the origins of the fire or the theft, including the precautions taken to prevent the loss.
For the reasons above stated, Pennsylvania R Co v Dennis’ Estate, supra, is overruled, and the judgment of the trial court and the decision of the Court of Appeals are reversed, and the case is remanded to the circuit court for trial.
T. G. Kavanagh, C. J., and Swainson, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with T. M. Kavanagh, J.
Columbus Jack Corp v Swedish Crucible Steel Corp, 52 Mich App 62; 216 NW2d 446 (1974).
Columbus Jack Corp v Swedish Crucible Steel Corp, 392 Mich 768 (1974).
For the purpose of illustration only we suggest a hypothetical case where the owner of a television set leaves it at a repair shop. While at the shop, in the exclusive control of the bailee, the television set is stolen. If the bailee, in an effort to rebut the presumption of negligence, was to show: (1) the shop is located in a low crime area, (2) the shop is equipped with a burgular alarm system, (3) the breaking and entering was apparently the work of well organized professional thieves; this evidence would tend to establish that the loss was occasioned by an unexpected theft in spite of adequate precautions and the bailee could be found free from fault. However, it is possible that different proofs, such as, (1) the shop being located in a high crime area, or (2) no precautions against theft, could justify a finding that the bailee failed to rebut the presumption. Likewise, if the bailed television set was destroyed by fire, proof that the bailee had (1) stored cans of gasoline in the warehouse in case of a gasoline shortage or (2) overloaded the electrical circuitry in the repair department would do little to rebut a presumption of negligence, while proof that (1) the bailee had maintained the repair shop in good order, (2) took precautions or that (3) the fire appeared to be the work of an arsonist, would create a fact question for the jury as to whether the presumption had been refuted. | [
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T. G. Kavanagh, C. J.
Allen Bennett was convicted by a jury of the first-degree murder of Jerry Jimerson and the Court of Appeals affirmed his conviction.
On appeal he makes five assertions of error, only one of which is necessary to decision.
I
The defendant asserts that he was denied a fair trial because the prosecutor was permitted, over objection, to allow Mathew Williams, as a rebuttal witness, to testify regarding the defendant who had been arrested and charged with this crime, "I heard him saying that he had another fellow to kill when he get out”.
To gain perspective on this incident it is appropriate to consider the following facts.
One prosecution witness had testified that he saw defendant hold a shotgun on the victim, was jumped by an unknown third party, heard a shot, saw the victim fall, and watched the defendant flee. Other witnesses testified the defendant and victim had fought on a previous occasion.
The police arrested the defendant, searched his attic, and found sawed-off parts of a shotgun.
After the people rested, the defense produced alibi witnesses who testified that the defendant was at home at the time of the shooting. The defendant took the stand and denied the shooting.
On cross-examination the defendant was asked if he had ever made a statement in jail to another person, "That when you got out there was going to be some more murders?”. He replied, "No”.
After the defense rested, the people offered one rebuttal witness to contradict the alibi testimony and then presented witness Williams to rebut the defendant’s denial that he had even said to anyone that when he got out there would be more killings or murders.
After considerable delay the trial court allowed the testimony saying: "I am going to submit it to the jury for what it is worth, and if the jury believes it, it is an admission against intérest and it might be part of a scheme.”
We are persuaded that this was error.
The court’s reference to "part of a scheme” was undoubtedly an oblique reference to MCLA 768.27; MSA 28.1050. But the testimony was not offered under that statute and it was never claimed that there was a "scheme”.
That it is "an admission against interest” of course does not turn on whether the jury believes it, but it does suggest the only proper basis upon which the evidence could be admitted.
However, under either of these descriptions— that it was an admission or part of a scheme — it would be admissible only in the people’s case in chief.
This rule and the reason for it were set forth by Justice Campbell in People v Quick, 58 Mich 321, 322-323; 25 NW 302 (1885), and quoted in People v McGillen #1, 392 Mich 251, 265-266; 220 NW2d 677 (1974).
The people did not respond to defendant’s claim that the testimony of Williams was only admissible as part of the case in chief. Instead they contend that "[a]s Mathew Williams’ testimony was admitted to rebut the prior testimony of the defendant, the trial magistrate did not abuse [his] discretion in permitting it to stand”.
This argument misconceives the office of rebuttal. Rebuttal is limited to the refutation of relevant and material evidence — hence evidence bearing on an issue properly raised in a case.
Such issue of course could be one raised in the prosecutor’s case in chief or one raised by way of defense, and evidence on either would be subject to rebuttal.
But here, where the prosecutor did not offer this evidence in his case in chief, which he would have had to do if this were to be regarded as an admission or part of a scheme, it did not bear on an issue raised by the people.
Neither does it bear on an issue raised by the defense.
The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue.
Both the statement and the veracity of the witness are then collateral matters and the cross-examiner is bound by the response. People v Hillhouse, 80 Mich 580; 45 NW 484 (1890). We hold that Williams’ testimony was not proper rebuttal.
While we hold that the testimony of Williams was not proper rebuttal, we do not wish to be understood as holding that such testimony would properly be admissible in the case in chief as an admission. We have doubts that such an equivocal statement as "I have another fellow to kill when I get out” may be treated as an admission to the charge that he killed Jimerson.
We hold, therefore, that it was reversible error to admit the testimony of Mathew Williams as rebuttal evidence.
Inasmuch as we find reversible error on the first issue we address the other issues only as they appear likely to recur at retrial.
II
We do not consider the allegation of error asserting defense counsel’s performance deprived defendant of the effective assistance of counsel, for the conduct complained of, even if erroneous, is unlikely to recur at retrial.
III
The asserted error of admitting the parts of the shotgun given into evidence likewise can be avoided by a hearing prior to retrial. If it be established that the defendant consented to the search, the evidence is admissible. If such consent cannot be established, the shotgun parts should not be admitted, for it does not appear that they were seized incident to arrest or under other exigent circumstances justifying a warrantless search.
IV
We find no merit in defendant’s assertion that the prosecutor’s statements during closing argument constituted reversible error, although at retrial we suggest that the prosecutor take pains to avoid even the appearance of improper argument.
V
The contention that the trial judge’s summary of the theories of the case was unfair to defendant is also without merit. While the judge’s charge might be clearer and more thorough, its deficiencies do not constitute prejudicial error.
Reversed and remanded.
T. M. Kavanagh, Swainson, Williams, and Levin, JJ., concurred with T. G. Kavanagh, C. J.
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Per Curiam.
This is an appeal from affirmance by the Court of Appeals of defendant’s conviction by a jury of first-degree murder committed in the perpetration of a robbery. MCLA 750.316; MSA 28.548. Prior to a decision of this Court, defendant died.
The judgments of the courts below are hereby ordered vacated. It is further ordered that the matter be remanded to the circuit court and that the indictment be dismissed.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred.
Levin, J., took no part in the decision of this case._
See Durham v United States, 401 US 481; 91 S Ct 858; 28 L Ed 2d 200 (1971), and Hartwell v Alaska, 423 P2d 282 (Alas, 1967). | [
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J. W. Fitzgerald, J.
Defendant was charged with selling marijuana on January 19, 1971 to a police undercover agent, Pamela Dinsmore, in violation of MCLA 335.152; MSA 18.1122. He was convicted by jury verdict. The Court of Appeals affirmed defendant’s conviction in a brief per curiam opinion but remanded for resentencing under § 41 of the new Controlled Substances Act, MCLA 335.341; MSA 18.1070(41) pursuant to People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). We granted leave to appeal. Defendant raises 11 allegations of error. We affirm.
Facts
Prior to the commencement of trial defense counsel made a motion to amend the information before the trial court to have a count of possession of marijuana added in order that defendant might plead guilty to the added count. The prosecutor informed the court and defense counsel that the people would not be satisfied with a plea to possession and wanted to go to trial on the charge of sale of marijuana. The court at this point informed defendant and his counsel that if they tendered a plea of guilty to possession of marijuana the prosecutor would still retain the right to go to trial on the charge of sale of marijuana. Prior to the acceptance of his plea, defendant was again informed that a plea of guilty to possession of marijuana would not dispose of the principle charge of sale of marijuana and that trial on that charge would proceed. Defendant’s plea of guilty to pos session of marijuana was then accepted by the trial court.
At trial, Pamela Dinsmore, a police undercover agent, testified that she purchased two lids of marijuana from defendant on January 19, 1971, stating that she had made arrangements to purchase marijuana from him on the previous day. Prior to the transaction she had known defendant casually. She testified that defendant, on January 18, 1971, had indicated that he did not have any marijuana but stated that he would have some the next day. He told her to call him on the 19th regarding the purchase of marijuana. She called defendant and prearranged the purchase. Then, cooperating with the police, Dinsmore went to defendant’s residence with the intention of purchasing one lid of marijuana. She spent approximately 45 minutes at defendant’s residence, during which defendant persuaded her to purchase a second lid of marijuana and completed the sale of the marijuana.
Linda Taylor, a friend of defendant who was at defendant’s residence at the time of the sale, testified that Mrs. Dinsmore asked defendant if she could purchase marijuana and defendant said he could get her some. She indicated Mrs. Dinsmore initiated the purchase of a second lid of marijuana.
Defendant testified that in response to Mrs. Dinsmore’s request for marijuana on January 18, 1971 he responded that he was not interested in selling marijuana to her. By his account he went out to purchase marijuana for his own use on the evening of the 18th and only sold to Mrs. Dins-more on the 19th because she "begged” him and he wanted to "get her out of [his] hair”. Defendant stated that he charged Pamela Dinsmore the same price which he had paid for the marijuana.
I
Defendant first contends that the trial court erred when it refused to allow the testimony of an excused juror, Lois Vertako, to be presented to the jury. Juror Lois Vertako was excused when she recollected that she had had previous contact with key prosecution witness Pamela Dinsmore. Defendant contended at trial that the testimony of ex-juror Vertako should have been permitted into evidence for purposes of impeaching Pamela Dins-more. In order to evaluate defendant’s contention a separate record was made at trial. In this record witness Vertako testified that approximately a year earlier and for several years prior to that she had had occasional contact with witness Dinsmore on Saturday mornings at the Overpass Bar, a place where she had been employed. On one occasion certain members of the company witness Dinsmore kept created a disturbance and caused Lois Vertako difficulty. She further indicated that there was an unfavorable attitude toward witness Dinsmore by some of the patrons at the bar, although she acknowledged that Pamela Dinsmore stayed more or less with her own companions while at the bar.
Defense counsel asked witness Dinsmore during cross-examination whether she had been a party to creating a disturbance at the Overpass Bar some five years earlier. Mrs. Dinsmore denied that she had been a party to the creation of a disturbance. While she denied participation on this occasion, witness Dinsmore acknowledged that she had been to the Overpass Bar "once or twice”. Defense counsel subsequently sought to place ex-juror Vertako on the witness stand to impeach witness Dinsmore in two respects:
(1) to contradict the testimony of witness Dins-more that she had not been in the Overpass Bar on the occasion five years previously when the disturbance had been created; and
(2) to establish the witness’s poor reputation in the community.
The trial court refused to permit the ex-juror’s testimony because the event which occurred some five years ago was not sufficiently relevant to witness Dinsmore’s present credibility to gain admission. Inquiry with respect to reputation was refused when the court ascertained from witness Vertako that she merely overheard "gossip and rumors” at the bar where she worked and was only generally aware of an "unfavorable” attitude of some patrons of the bar toward witness Dins-more. We cannot say that the trial court, aware of the collateral nature of defendant’s inquiry, abused its discretion in refusing to permit the testimony of this witness.
II
Defendant’s second contention is that the trial court erred in failing to grant a mistrial due to prejudicial answers given by key witness Pamela Dinsmore. Witness Dinsmore was an experienced witness who at certain times anticipated the reach of defense questioning, giving nonresponsive and no doubt unwanted answers. With respect to most such answers given by the witness, no objection was raised by defense counsel, although on one occasion with respect to an answer given, defense counsel did move for mistrial "on that answer”. In this instance the trial judge denied the defense motion. The cross-examination of witness Dins-more covers some 65 pages of the trial court record. Review of this cross-examination confirms the trial court determination that the nature of the witness’s testimony did not unduly prejudice defendant and warrant declaration of mistrial.
III
Defendant next claims that certain statements made in final argument by the prosecuting attorney constituted reversible error. The statements complained of were not specifically objected to by defense counsel. Moreover, certain of the complained-of statements were invited by defendant’s closing argument. The trial court meticulously instructed the jury that it was the court’s role to instruct on the law and further indicated:
"Now, as I told you before, in making a decision you make it on the basis of the evidence in the case. Now, the evidence is the testimony as given by the witnesses. It is not the statements or arguments of the attorneys and that isn’t evidence, but what the attorneys say and what they argue to you may be very helpful for your purposes in deciding what that evidence was, but their statements aren’t evidence.”
We conclude that prosecutorial argument did not here give rise to a miscarriage of justice within the meaning of that phrase as defined in People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). MCLA 769.26; MSA 28.1096.
IV
Four allegations of error raised by defendant concern certain instructions given by the trial court. It is defendant’s contention that these instructions require reversal. One of the allegations made by defendant pertains to the trial court’s reading of the language of the sale of marijuana statute, MCLA 335.152; MSA 18.1122. At trial the people alone objected to the reading of this statute on the ground that it incorrectly placed the issue of penalty before the jury. No objections were in other respects made by defendant. The other supposed instances of error for the most part strike us as picayune and certainly cannot be said to contaminate the instructions. It is apparent there was no miscarriage of justice. MCLA 769.26; MSA 28.1096.
V
Defendant argues that the evidence in this case indicates the existence of entrapment as a matter of law, citing People v Turner, 390 Mich 7; 210 NW2d 336 (1973). The people counter that the test for entrapment set forth in Turner should be applied prospectively to police conduct arising after the date of the decision, thereby denying defendant the benefit, if any, from application of the "objective” test for entrapment set forth in Turner.
The test for determining whether a rule is to be applied retrospectively or prospectively is set forth in People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971), as follows:
"The United States Supreme Court has discussed various factors to be used in determining whether a law should be applied retroactively or prospectively. There are three key factors which the Court has taken into account; (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. See, e.g., Linkletter v Walker (1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601); Tehan v United States ex rel Shott (1966), 382 US 406 (86 S Ct 459, 15 L Ed 2d 453).”
The purpose of the "objective” test for entrapment adopted in Turner is to focus upon and discourage as a matter of policy "actions of the police [which are] reprehensible under the circumstances”, Turner, supra, 22. It is at once apparent that retrospective application of the rule of Turner would not serve to implement the purpose of the rule because the rule can only have a prospective effect upon police conduct. The justifiable reliance of law enforcement officials argues for prospective application. The ends of the administration of justice as well are best served by prospective application, for retrospective application would require in many cases new trials with the tremendous obstacle of reassembling now stale evidence. The salutary effects of the new rule in Turner are not of such nature as to require retrospective application. We conclude that the rule of Turner shall apply prospectively.
The existence of entrapment was submitted to the jury under instructions. The people’s principle witness, Pamela Dinsmore, gave testimony, the thrust of which was to indicate that the criminal intent to sell marijuana originated in the mind of the defendant. While defendant and his witnesses contradicted this account, the question was jury-decided adversely to defendant. There was no entrapment as a matter of law, the question properly being for the jury under applicable pre-Turner law.
Defendant also argues that his theory that he was a procuring agent was not given to the jury in the instructions. Defendant’s own testimony, however, indicated that he obtained the marijuana for his own personal use. By his own admission he was not a mere conduit. Cognizant of such testimony and aware that defendant neither requested an instruction on the procuring agent theory nor objected to the omission of such an instruction, we find no error.
VI
Defendant claims that the representation by counsel he enjoyed at trial was constitutionally inadequate. It is true that defense counsel had little time to prepare for trial. He conducted the defense, however, in a thorough and controlled manner, extensively cross-examining prosecution witnesses and effectively presenting and arguing defendant’s case to the jury. No instance of serious error of counsel is noted by defendant. We find no violation of a constitutional right.
VII
Defendant complains that the Court of Appeals erred in ordering defendant resentenced under § 41 of the Controlled Substances Act of 1971, MCLA 335.341; MSA 18.1070(41), pursuant to People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). Defendant’s principal complaint is that the Court of Appeals by its action convicted defendant on a charge not made, thus violating due process. Defendant’s contention is answered in § 61 of the Controlled Substances Act, MCLA 335.361; MSA 18.1070(61), where it is stated:
"(1) * * * If, before the effective date of this act, a person has committed an offense similar to an offense set out in chapter 4 but has not been sentenced as of that date, the sentencing judge shall not impose a sentence in excess of the penalty prescribed in chapter 4 [including MCLA 335.341; MSA 18.1070(41)] for the similar offense.”
Defendant was convicted of sale of marijuana, a violation of MCLA 335.152; MSA 18.1122, and pursuant to People v Lorentzen and legislative mandate (see above) was resentenced in accordance with MCLA 335.341; MSA 18.1070(41), the pertinent section óf the new act describing a "similar” offense. He was never convicted under that statute. It is within the legislative power to prescribe, as in this instance, penalties for statutory offenses. We find no violation of due process.
VIII
Defendant complains that the trial court committed reversible error in failing to instruct the jury on the lesser included offense of possession of marijuana. Defense counsel did point out to the trial court its failure to instruct. The trial court, however, refused to instruct on possession because defendant had already pled guilty to this offense prior to trial.
In Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974), the authority of the trial judge to accept defendant’s plea over the objection of the prosecuting attorney was discussed. Defendant’s (there, Hoskins) plea of guilty in that case to manslaughter was accepted by the trial judge over the objection of the prosecution. An information charging murder was involved. The facts in Genesee Prosecutor involved, among others, the situation where a plea of guilty to a lesser included offense is accepted by the court. The Court commented as follows:
"Implicit in this controversy is Hoskins’ expectation that if his plea of guilty to manslaughter is accepted he would not stand trial for murder. Hoskins would, upon compliance with the guilty plea procedures, have the right, without the consent of the prosecutor, to plead guilty to the charge of manslaughter as long as it was clear that, nevertheless, he must stand trial for murder.” Genesee Prosecutor, supra, 119.
Defendant’s plea to possession of marijuana was taken in accord with our prescription in Genesee Prosecutor. The applicability of the lesser included offense of possession was foreclosed by virtue of the plea. Defense counsel argued to the jury defendant’s contention that he had pled guilty to possession and was in fact guilty of only possession and not sale. The jury clearly rejected defendant’s contention. Absent the plea, the trial court would have been obligated, upon proper request, or objec tion, to instruct on lesser included offenses. Given the plea, no instruction on possession was required.
Affirmed.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, Levin, and M. S. Coleman, JJ., concurred with J. W. Fitzgerald, J.
The Court of Appeals in its opinion only discusses one of the many issues raised by defendant and discussed in this opinion. Brief but dispositive discussion of the undiscussed issues would not only have been enlightening to this Court and the parties but might have rendered unnecessary our grant of leave to appeal.
A "lid” of marijuana in street parlance describes the amount of marijuana which would fit, levelled, in a recessed can lid. It consists of approximately one ounce of marijuana. Pamela Dinsmore paid defendant $10 for each lid of marijuana.
See with respect to the pre- Turner "subjective” test for entrapment, People v Smith, 296 Mich 176; 295 NW 605 (1941). Under this test entrapment existed only if the trier of fact determined that criminal intent did not originate in the mind of defendant but was rather the product of active measures on the part of the authorities "inspiring” criminal conduct. The authorities could furnish the opportunity to commit crime. They could not, however, be the prime motivating force respecting participation in criminal activity without "entrapping” the defendant. Pamela Dinsmore’s testimony was such as to negate the existence of entrapment under the then-existing test.
The “procuring agent” defense was first acknowledged by Michigan courts as a valid defense in People v Turner, 38 Mich App 479; 196 NW2d 799 (1972), reversed on other grounds in People v Turner, 390 Mich 7, supra. This Court has not passed on the validity of the "procuring agent” defense. In view of our resolution of the issue under discussion we do not treat the validity of the defense herein.
Possession of marijuana was a lesser included offense of sale of marijuana by legislative definition in the now-superseded Uniform Narcotic Drug Act, 1937 PA 343 as amended. See, specifically, MCLA 335.153; MSA 18.1123.
These circumstances are detailed more fully in the above recitation of facts. | [
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Per Curiam.
On March 19, 1971, plaintiff pled guilty to an offense and was sentenced to serve two years’ probation. On June 20, 1973, he was found guilty of violating a condition of his probation and was sentenced to serve a term of imprisonment. He timely petitioned for the appointment of appellate counsel and his request was granted on December 5, 1973. Counsel for plaintiff filed a claim of appeal with the Court of Appeals on January 31, 1974. On February 1, 1974, the Court of Appeals returned the claim of appeal stating that counsel should file an application for leave to appeal.
On March 19, 1974, this Court decided People v Pickett, 391 Mich 305; 215 NW2d 695 (1974), holding that an appeal as of right is available after determination of probation violation and prison sentence, limited to those matters related to thé probation violation and the hearing thereon. Subsequently, counsel again submitted his claim of appeal. On May 29, 1974, the Court of Appeals again returned the claim, stating that it considered Pickett not to be retroactive.
Plaintiff filed this complaint for an order of superintending control directing the Court of Appeals to accept his claim of appeal.
The Court has concluded that People v Pickett is applicable to all cases where an application for leave to appeal or claim of appeal was filed in the Court of Appeals subsequent to March 19, 1974, the date of decision in People v Pickett, and to all cases where an application or claim theretofore filed was pending in the Court of Appeals on that date and to all cases disposed of by the Court of Appeals where a timely application for leave to appeal is now pending in this Court or shall hereafter be filed in this Court.
The order of superintending control shall issue directing the Court of Appeals to accept for filing plaintiffs claim of appeal. | [
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ORDER
Entered December 26, 1974; as amended March 26, 1975. — Reporter.
On order of the Court, the application by plaintiff-appellant for leave to appeal is considered, and the same is hereby granted.
The Court, sua sponte, pursuant to GCR 1963, 865.1(7), reverses the Court of Appeals’ decision.
The Court of Appeals reversed because the trial court had failed to declare a mistrial on its own motion when the defendants RingstafF and Cooper sought to have read to the jury the testimony of a deceased witness who had testified at their earlier trial and defendant Logan objected because he had not had an opportunity to cross-examine the witness at that trial. The witness had testified at an earlier separate trial of Logan but Cooper and RingstafF objected when Logan proposed to submit the witness’s testimony from his former trial.
The trial court refused to admit either version of the deceased witness’s testimony.
The failure to read the transcripts of the deceased witness’s testimony does not require still another trial. At both trials, the witness testified that she could not recognize any of the boys who were in her home. Her testimony had no exculpatory tendency and did not assist in deciding the critical issues.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Robert C Williams, Chief Appellate Counsel, for the people.
Joseph L. Hardig, Jr., for defendant Ringstaff.
Thomas Raguso, for defendant Cooper.
Albert C. Leader, for defendant Logan.
(Docket No. 56052.)
Reported below: 53 Mich App 223.
Inasmuch as the witness was deceased, the prosecutor had no duty to produce her. Since the witness’s testimony had no exculpatory tendency and did not assist in deciding the critical issue, the failure to admit the transcripts or to declare a mistrial is not reversible error.
The cause is remanded to the Court of Appeals for consideration of remaining issues raised in the defendants’ briefs previously filed with that Court. | [
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ORDER
Entered December 23, 1974. — Reporter.
On order of the Court, the application by defendant and appellant for leave to appeal is considered and the same is hereby granted.
Pursuant to GCR 1963, 865.1(7) the Court peremptorily affirms the determination of the Court of Appeals that the Civil Rights Commission has jurisdiction over the subject matter of the instant litigation. The order of the Court of Appeals remanding the matter to the trial court for entry of judgment granting superintending control over the Civil Rights Commission is hereby reversed, for the reasons set forth in the dissenting opinion of Judge Danhof in City of Ypsilanti v Civil Rights Commission, 55 Mich App 103, 110 (1974). The matter is hereby remanded to the Civil Rights Commission for further proceedings consistent with this order. | [
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Swainson, J.
Appellant David Cahill was ticketed by two Ann Arbor police officers for making an illegal left turn. Intent on contesting the ticket, Cahill appeared at the 15th District Court Traffic Violation Bureau to post bond and request a jury trial. The deputy clerk advised Cahill that the appearance bond would be $35 and denied Cahill’s demand to post a $10 cash bond pursuant to MCLA 780.66(1); MSA 28.872(56)(1). The clerk also informed Cahill that the permission of the district judge would be necessary to secure a jury trial and referred Cahill directly to Judge Thomassen. Later that day Cahill appeared before Judge Thomassen and renewed his request for a jury trial and the right to post a $10 bond. The district judge released Cahill on his own recognizance in the penal amount of $100 and scheduled a nonjury trial.
Two days later, Cahill filed a Complaint for Superintending Control in the Washtenaw County Circuit Court. The two-count complaint recited the facts of Cahill’s individual case, and then went on to charge that the district court followed general policies of refusing a 10% bond and jury trials in traffic cases. Alleging that he properly represented a class of similarly situated persons, appellant prayed for the following relief:
"[Count I]
"WHEREFORE, Plaintiff prays on behalf of himself and the members of his class that:
"A. This honorable Court issue an Order of Superintending Control commanding Defendant judge to issue orders to the District Court Clerk that she shall:
"1. Inform each defendant accused of a traffic offense or misdemeanor that said defendant is entitled as of right to post a deposit pursuant to MCLA 780.66(1), without being requested to do so by such defendant, and to furnish to each defendant the appropriate form, and
"2. Accept the deposit set by MCLA 780.66(1) without requiring that such defendant gain permission from a District Judge to post such deposit; * * *
"[Count II]
"WHEREFORE, Plaintiff prays on behalf of himself and the members of his class that:
"A. This honorable Court issue an Order of Superintending Control commanding Defendant judge to issue orders to the District Court Clerk that she shall grant each defendant in a traffic offense case a jury trial on the demand of such defendant and enter such case on the jury trial docket; * * * .”
Pursuant to the order of the circuit court, four other persons, the remaining appellants herein, were allowed to intervene as plaintiffs in Cahill’s Complaint for Superintending Control. Each intervenor stated that he or she was a member of the class described in Cahill’s complaint and had been denied the right to post a $10 bond and/or secure a jury trial by defendant district judge.
On May 17, 1973, the circuit court issued its "Opinion and Order denying Writ of Superintending Control”. From this order the plaintiffs appealed to the Court of Appeals. On June 5, 1973, they submitted papers claiming an appeal of right. The papers were initially returned to plaintiffs’ attorney by the clerk of the Court of Appeals who indicated that the circuit court order was not reviewable as a matter of right. On June 6, plaintiffs’ attorney resubmitted the papers to the Court of Appeals with a request that the case be docketed and plaintiffs allowed an opportunity to argue the jurisdictional issue before a panel of the Court of Appeals. The clerk’s office accepted the pleadings, but on August 3, 1973, a panel of the Court dismissed the appeal after apparently concluding that Cahill’s class action Complaint for Superintending Control in the circuit court was, in reality, merely an interlocutory appeal from the adverse decision of the district court in Cahill’s individual case. The Court of Appeals accordingly held that a claim of appeal was not in order:
"In this cause, a claim of appeal is filed by plaintiff and it appearing to this Court from the record before it that the circuit court order appealed from was entered on review of a decision of the district court, and due consideration thereof having been had by the Court,
"IT IS ORDERED on the Court’s own motion that this appeal be, and it is hereby DISMISSED for lack of jurisdiction without prejudice to the filing of an applica tion for leave to appeal in accordance with GCR 1963, 806.2 and 806.3. 1968 PA 116.”
Appellants then filed an application for leave to appeal in this Court which we granted. 391 Mich 768 (1974). This matter presents two issues for our determination:
1. Did plaintiff Cahill’s actions in the Washtenaw County Circuit Court constitute a proper complaint for an order of superintending control?
2. Is the dismissal of a valid complaint for an order of superintending control filed in the circuit court appealable as a matter of right to the Court of Appeals? '
I
This first issue presents a question that requires us to examine the nature of plaintiff Cahill’s complaint in light of the normal remedy of appeal to the circuit court generally available in traffic violation cases. Under our Court Rules:
"The order of superintending control does not supersede the use of normal appellate procedures as the method of superintending control when appeal would be available and adequate for that purpose.” 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 57.
See also, GCR 1963, 711.2.
If, as appellee contends, Cahill’s complaint was in fact an application for interlocutory appeal to the circuit court from the adverse decisions of the district court, then the Court of Appeals correctly dismissed appellants’ claim of appeal. GCR 1963, 806.1 and 806.2. Conversely, if the circuit court action was a properly filed complaint for superintending control, the Court of Appeals erred when it refused to review the circuit court’s dismissal of this "original civil action”. See, Part II, infra.
Assuming the availability of the procedure of appeal to the circuit court, our controlling question in this case becomes whether an appeal could have provided an adequate remedy to achieve the relief requested in plaintiff Cahill’s complaint. After reviewing the papers filed in the circuit court, we do not believe that the procedure of appeal was adequate under the present facts.
A similar legal problem was confronted by the Court of Appeals in Pressley v Wayne County Sheriff, 30 Mich App 300; 186 NW2d 412 (1971). Therein plaintiff Kenneth Pressley filed a class action challenging the claim of the judges of the Traffic and Ordinance Division of Recorder’s Court that they could deny offenders the benefit of the 10% bail deposit act. The circuit court granted relief to Pressley individually, but refused to grant the requested relief to the class as a whole. The Court of Appeals viewed that class action as an expedient and sensible method for correcting a policy that affected the statutory rights of the numerous persons who were similarly situated with appellant Pressley and adequately represented by him before the court. The circuit court was not allowed to restrict its relief to one individual litigant.
We believe that the same considerations apply to the present case. As indicated by the earlier quoted "prayer for relief’, Cahill was challenging the general practices of the 15th District Court regarding the posting of bond and the availability of jury trials. Cahill’s claim that there was a class of persons similarly situated with himself was initially borne out by the fact that four other persons were permitted to intervene in the case as parties-plaintiff. While appeal did provide a suitable procedure to resolve Cahill’s individual case, it could not have supported relief for the class as a whole. Under the present facts only superintending control allowed the circuit court to address and resolve the objections concerning the generalized practices of the district court and, if appellants had prevailed, to issue an appropriate remedial order.
II
Little need be said here concerning this second issue beyond citing the case of People v Flint Municipal Judge, 383 Mich 429; 175 NW2d 750 (1970). In that case this Court had occasion to comment on the procedural posture that the circuit court should assume when reviewing the actions of a municipal judge under an order of superintending control:
"The superintending court does not substitute its judgment or discretion for that of the magistrate; neither does it act directly in the premises. Rather it examines the record made before the magistrate to determine whether there was such an abuse of discretion as would amount to a failure to perform a clear legal duty; and in such case, the superintending court orders the magistrate to perform his duty.
"The process is not, properly speaking, an appeal. It is rather a whole new lawsuit, with different parties and different purposes. People v Yeotis [People v Flint Municipal Judge] is not a criminal case, but is rather an original civil complaint designed to require the defendant municipal judge to perform a clear legal duty.” (Emphasis added.) 383 Mich 429, 432.
See also, People v Cason, 387 Mich 586, 595; 198 NW2d 292 (1972).
Following People v Flint Municipal Judge, we hold that a true complaint for an order of superintending control filed in the circuit court is an original civil action. Any appeal from such an action is clearly appealable as a matter of right to the Court of Appeals. See GCR 1963, 806.1; MCLA 600.309; MSA 27A.309.
We do not reach the merits of the issues raised in appellants’ complaint for superintending control. Those issues when properly briefed may be presented to the Court of Appeals as a matter of right.
The order of the Court of Appeals dismissing appellants’ claim of appeal is vacated and this case remanded for a hearing on the merits.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Swainson, J.
"The person for whom bail has been set shall execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10% of the bail but at least $10.00.”
Appellant’s complaint described the class as consisting of "all persons who have not been informed by the Court Clerk of their right to post a deposit for misdemeanor or traffic offenses pursuant to MCLA 780.66(1)” and "all persons who have been denied by the Court Clerk or by Defendant judge a right to jury trial on demand for traffic offenses”.
No issues questioning the class action status of plaintiff Cahill’s complaint have been raised herein and we find it unnecessary to consider any. See Pressley v Wayne County Sheriff, 30 Mich App 300, 317-322; 186 NW2d 412 (1971). | [
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] |
Rehearing denied.
Reported at 402 Mich ante, p 286. | [
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Per Curiam.
The question before the Court is whether the circuit court’s order denying defend ant Bixby’s motion to set aside a default judgment is appealable as of right to the Court of Appeals. We believe it is.
I
The plaintiff (GE) filed an action in Leelanau circuit court in 1973 against two corporate defendants and six individuals. Bixby was one of the six and was sued in his capacity as an officer of both corporations and a director of one.
In the only count naming Bixby as a defendant, GE alleged fraud by the corporate defendants and sought damages of $27,500. On May 6, 1974, a default judgment entered on the count, which included a judgment against all individual defendants, jointly and severally, for $30,354.92 plus costs and attorney fees. On August 8, 1975, a writ of garnishment was issued against Bixby’s bank account. On August 29, 1975, Bixby filed a motion to set aside the default judgment. He alleged that the judgment "should be set aside since he was never served with process and [the court] never obtained jurisdiction over him”. The circuit court denied the motion.
Bixby filed a claim of appeal in the Court of Appeals. GE moved to dismiss the appeal for lack of jurisdiction. The Court of Appeals agreed with GE:
"for the reason that this Court lacks jurisdiction to entertain an appeal as of right from the order denying motion to set aside default judgment since said motion was not timely filed pursuant to GCR 1963, 528 and Hartman v Roberts-Walby Enterprises, Inc, 380 Mich 105 [155 NW2d 842] (1968).”
Bixby has now filed an application for leave to appeal.
II
Although Bixby’s motion did not identify the rule on which he based his request for relief, the circuit judge recognized that GCR 1963, 528.3(4) was the applicable rule:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (4) the judgment is void; * * * . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment order or proceeding was entered or taken.”
In Hartman, supra, although there were four opinions, a majority of the Court accepted the proposition that there was an appeal of right after the denial of a motion to set aside a default judgment. The issue was whether the post-judgment motions were timely and therefore preserved the appeal of right.
We agree with Justice Souris’ opinion in Hartman. He focused not on the time of filing the motion to set aside the default judgment, but the timeliness of the claim of appeal filed after denial of the motion and a timely filed motion for rehearing. He based his analysis in part on GCR 1963, 803.1 which provides:
"Appeal to the Court of Appeals as of right in civil cases, shall be taken not later than 20 days after the entry of the judgment or order appealed from, or within 20 days after the entry of an order denying a motion for a new trial or rehearing, provided such motion is made and served (a) within 20 days after the entry of the judgment or order appealed from, or (b) within such further time as may be allowed by the trial court during such 20-day period. In criminal proceedings, appeal as of right shall be taken not later than 60 days after the entry of the judgment or order appealed from or after the entry of an order appointing appellate counsel for an indigent defendant pursuant to subrule 785.4(1), or within 60 days after the entry of any order denying a motion for new trial, provided such' motion is made and served (a) within 60 days after the entry of judgment or order appealed from, or (b) within such further time as may be allowed by the trial court during such 60-day period. The time herein provided is jurisdictional in appeals as of right.”
He said:
"It is not disputed that defendant had a right to appeal denial of its motion to vacate the default judgment. What is disputed is the timeliness of defendant’s claim of appeal. The docket entries show that the motion was filed in June of 1966, just barely one month after entry of the default judgment. In July, the circuit judge announced from the bench his decision to deny the motion to vacate the judgment. However, the order denying the motion was not entered until August. After the circuit judge’s announcement of his decision to deny the motion, but before entry of the order of denial, defendant filed a petition for rehearing thereof. That petition was denied from the bench by the circuit judge on October 3, but the order denying rehearing was not entered until October 10. Defendant’s claim of appeal from the denial of its motion to vacate the default judgment and from denial of its petition for rehearing was filed 14 days later.
"The decision of the Court of Appeals was that defendant’s claim of appeal was not timely filed, and with this decision, as it relates to review of denial of the motion to vacate and of the motion for rehearing thereof, I disagree.” (Emphasis added.) 380 Mich 111.
In People v Pickett, 391 Mich 305, 316-318; 215 NW2d 695 (1974), we held that there existed the potential for two appeals of right in criminal cases. We developed Justice Souris’ idea of the limited scope of review in the appeal of right from the sentence entered after a finding that the defendant violated his probation. Later in Gherardini v Ford Motor Co, 394 Mich 430, 431; 231 NW2d 643 (1975), we held that a post-judgment order establishing the amount of attorney fees was appealable as of right as one which "affected with finality rights of the parties”.
Bixby’s appeal of right was timely filed. Review as of right was available to him, limited to issues arising out of the denial of the motion to set aside the default judgment.
In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the Court of Appeals order and remand the case to the Court of Appeals for consideration of the issues raised in Bixby’s brief on appeal.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
Defendants appeal from orders of the Oakland Circuit Court appointing a receiver, granting partial summary disposition to plaintiffs pursuant to GCR 1963, 117, now MCR 2.116, and dissolving defendant Livonia Associates, a Michigan limited partnership. Defendants raise several claims of error. Finding no issue which merits reversal, we affirm.
Plaintiffs held limited partnership interests in defendant Livonia Associates (partnership). Defendants Robert Horvath and Cornel Peleo were the general partners. On July 19, 1970, C & R Investment Company, Inc. (c & R) entered into a purchase agreement with a group of sellers known as the Morganroth Group for a 115-acre parcel of land in Livonia (Lot No. 1). The sole stockholders of c & r were defendants Horvath and Peleo. The agreement provided for a purchase price of $1,000,000 with a $15,000 deposit to be credited to the purchase price when the sale was completed.
On February 19, 1971, the partnership was formed. Its purpose was to acquire, hold, develop, improve and manage for investment Lot No. 1. Horvath and Peleo, as general partners, were given the specific power to acquire Lot No. 1 by entering into a land contract. The partnership authorized a purchase price of $1,265,000 with an initial down payment of $295,000.
On February 22, 1971, three transactions occurred. First, c & R entered into a land contract with the Morganroth Group to purchase Lot No. 1. The purchase price was $1,000,000 with an initial payment of $200,000. The balance was payable in yearly installments with interest at eight percent per annum. On that same day, c & R assigned its purchaser’s interest in the land contract to defendants Cornel Peleo and his wife, Viora Peleo. Also on February 22, 1971, Peleo and his wife entered into a land contract with the partnership to sell Lot No. 1 for $1,265,000 with an initial payment of $295,000, the balance payable in yearly installments with interest at eight percent per annum. Defendant Belcrest Realty Company, a sole proprietorship owned by defendant Horvath, received a sales commission of approximately $80,000 in connection with the sale to the partnership.
On December 3, 1971, Peleo and his wife purchased a second parcel of land (Lot No. 2) by land contract for $9,000 with an initial payment of $3,000. On April 15, 1972, the Peleos sold Lot No. 2 to the partnership by land contract for $18,000 with an initial payment of $6,000.
Plaintiffs filed a complaint on April 27, 1977, alleging that Horvath and Peleo had neglected to properly perform their duties as general partners by: failing to maintain the residence on the partnership property, resulting in a loss of rental income; failing to pay real estate taxes on Lot No. 1 in 1974, 1975 and 1976, resulting in the danger of the lot’s being sold at a state tax sale on May 7, 1977; failing to make the land contract payment; refusing to provide plaintiffs access to partnership records; failing to take action against Jerry Spero, a limited partner who had not paid his capital contribution for two years; defaulting on their own obligation to make capital contributions; refusing to provide information regarding the rezoning of the land; and depositing capital contributions into an account other than the partnership’s. In count n, plaintiffs alleged that Horvath and Peleo had made an undisclosed profit for the sale of Lot No.
I. Plaintiffs asked for an accounting and payment of the secret profit. Plaintiffs also requested that the court appoint a receiver to take possession and control of the partnership’s assets.
On June 8, 1977, the trial court denied plaintiffs’ motion for appointment of a receiver. The parties were ordered to deposit their 1977 capital contributions with a specified escrow agent who would apply the sums to the past due payment on the Lot No. 1 land contract. Horvath and Peleo were also ordered to produce the books and records of the partnership. On August 3, 1977, the court entered an order determining that defendants Horvath and Peleo and an added defendant, Michael J. Hand, a limited partner, had not complied with the June 8, 1977, order.
On October 28, 1977, the trial court granted plaintiffs’ motion to appoint a receiver. The receiver was authorized to stand in the place of the general partners, collect contributions and disburse funds, make a thorough investigation, and hire an accountant and legal representative to assist him.
On February 3, 1978, the trial court entered an order allowing plaintiffs to amend their complaint. Plaintiffs added Belcrest Realty as a defendant and information regarding the acquisition of Lot No. 2. Count hi alleged that Viora Peleo had not contributed any money to the acquisition of Lot No. 1. Plaintiffs requested a reformation of the land contracts. They also asked the court to impose a lien against any commissions that Belcrest Realty might receive in connection with the sale of partnership property in order to secure the claims against Horvath.
On April 26, 1978, the trial court, pursuant to the receiver’s motion, ordered Peleo and his wife to assign their purchasers’ interest in the land contract between c & k and the Morganroth group to the partnership, assign their sellers’ interest in the land contract between the Peleos and the partnership to the partnership, and execute a quitclaim deed to the partnership. The court also directed the receiver to withhold the commission payment of $22,500 to Horvath, doing business as Belcrest Realty, and apply it to Horvath’s $18,600 capital contributions debt.
On July 5, 1978, the complaint was amended to allow plaintiffs to seek dissolution of the partnership. On July 10, 1978, defendants brought a motion to dismiss the receiver because the order appointing the receiver failed to require a bond. Defendants argued that, because the receiver was not duly appointed, the October 28, 1977, order appointing the receiver and the subsequent actions of the receiver were null and void. The court denied the motion and entered an order nunc pro tunc requiring that the receiver post a bond.
The court granted partial summary judgment to plaintiffs on August 23, 1978, holding that Horvath and Peleo had a duty to disclose to the partnership the profit made on both lots and that they breached that duty. Horvath and Peleo were ordered to hold, as trustees for the partnership, all benefits and profits derived from the sale of Lot No. 1 to the partnership.
On May 30, 1979, the court denied defendants’ motion to disqualify the trial judge. On April 4, 1980, following a bench trial, the court ordered dissolution of the partnership based on MCL 449.32(l)(b), (c) and (d); MSA 20.32(l)(b), (c) and (d). The receiver was given the authority to commence accounting and wrapping-up proceedings commensurate with the findings of the court.
On June 4, 1980, defendants moved to dismiss counts ii and m of the complaint. The trial court denied the motion as to count n because the relief had already been granted. The trial court dismissed count in.
The land was eventually sold for an aggregate amount of $1,830,000. On September 7, 1982, the court denied Belcrest Realty’s claim against the partnership on the ground that it was untimely filed. On February 4, 1983, the court denied Horvath’s and Peleo’s claims against the partnership because the partnership agreement did not provide that the general partners should be compensated for management of the affairs of the partnership.
On December 18, 1985, the court authorized the receiver to distribute money from the sale to the partners. The court also authorized the receiver to continue to collect the land contract payments and make annual distributions to the partners.
This appeal was filed on December 9, 1986. On May 1, 1987, plaintiffs filed a motion to require a complete filing of the transcript, but did not specify which transcripts were missing. On May 27, 1987, this Court entered an order compelling defendants to file a complete transcript. After an exhaustive search of the files, however, we have determined that many transcripts are missing.
The record on appeal consists of, inter alia, the transcript of any testimony or other proceedings in the case appealed. MCR 7.210(A)(1). Appellants have a duty to file with the trial court the full transcript of testimony and other proceedings in the trial court except as otherwise provided. MCR 7.210(B)(1)(a). We limit our review to what is presented on appeal and will not consider any alleged evidence or testimony proffered by the parties where there is no record support. Nye v Gable, Nelson & Murphy, 169 Mich App 411, 414, 416-417; 425 NW2d 797 (1988).
i
Defendants’ first four issues are concerned with the appointment of the receiver. First, defendants claim that the trial court abused its discretion when it appointed a receiver. We disagree. The power to appoint receivers is inherent in courts of equity. Michigan Minerals, Inc v Williams, 306 Mich 515; 11 NW2d 224 (1943). The primary purpose of a receiver is to preserve property and to dispose of it under the order of the court. Westgate v Westgate, 294 Mich 88, 91; 292 NW 569 (1940); Cohen v Cohen, 125 Mich App 206, 214; 335 NW2d 661 (1983), lv den 417 Mich 1100.35 (1983). MCL 600.2926; MSA 27A.2926 states:
Circuit court judges in the exercise of their equitable powers, may appoint receivers in all cases pending where appointment is allowed by law. This authority may be exercised in vacation, in chambers, and during sessions of the court. In all cases in which a receiver is appointed the court shall provide for bond and shall define the receiver’s power and duties where they are not otherwise spelled out by law. Subject to limitations in the law or imposed by the court, the receiver shall be charged with all of the estate, real and personal debts of the debtor as trustee for the benefit of the debtor, creditors and others interested.
The statute provides that circuit court judges "may appoint receivers in all cases pending where appointment is allowed by law.” The phrase "allowed by law” does not require the presence of statutory authority, although such exists in certain situations. Rather, this Court has interpreted that phrase to mean "(1) those cases where appointment of a receiver is provided for by statute and (2) those cases where the facts and circumstances render the appointment of a receiver an appropriate exercise of the circuit court’s equitable jurisdiction.” Petitpren v Taylor School Dist, 104 Mich App 283, 294; 304 NW2d 553 (1981). The appointment of a receiver is a harsh remedy and should only be resorted to in extreme cases. If less intrusive means are available to effectuate the relief granted by a trial court, a receiver should not be used. The appointment of a receiver may be appropriate when other approaches have failed to bring about compliance with the court’s orders. Petitpren, p 295.
We find no error in the court’s appointment of a receiver. Less intrusive means were attempted when, on June 8, 1977, the court entered an order that the parties pay the full amount of their 1977 capital contributions to a specified escrow agent by June 4, 1977. However, defendants Horvath, Peleo and Hand did not comply with the court’s order. Horvath and Peleo were each delinquent in their capital contributions by approximately $22,000. Both Horvath and Peleo stated that they were unable to comply with their financial obligations. A court has the basic responsibility of enforcing its own orders and has considerable discretion in choosing the means to be employed. Butler v Butler, 356 Mich 607, 618; 97 NW2d 67 (1959).
The trial court recognized that serious, immediate and irreparable harm would occur if a receiver were not appointed. Defendants admitted that they did not have funds to pay their capital contributions. They admitted that they did not pay the taxes. The land contract was in default. Part of the land had already been sold to pay taxes and the redemption period would soon expire.
Defendants claim that the court should have conducted a full evidentiary hearing before ruling on the motion to appoint a receiver. Defendants cite Petitpren for the proposition that the appointment of a receiver without an evidentiary hearing is erroneous. In Hofmeister v Randall, 124 Mich App 443, 447; 335 NW2d 65 (1983), this Court discussed the role of an evidentiary hearing:
Due to the harsh nature of a receivership, a court must proceed carefully before deciding that the circumstances warrant such remedy. Therefore, an evidentiary hearing may often be necessary before a court exercises its inherent equitable authority to appoint a receiver. Petitpren, supra, 104 Mich App 297. However, Petitpren also suggested that such a hearing would be unnecessary if the facts were totally uncontroverted and the actual conditions were established. Id.
In the instant case, no material factual dispute existed. The important facts were uncontroverted. Defendants do not indicate what additional evidence they would have presented to refute the uncontroverted facts. We conclude that the actual conditions were established which necessitated the appointment of a receiver.
The receiver was appointed on October 28, 1977. On May 25, 1978, defendants filed a motion to remove the receiver because of the failure to post bond. On July 10, 1978, following a hearing, the trial court amended its previous order nunc pro tunc and required that the receiver post a $50,000 bond as stipulated to by the parties. The bond was filed on August 2, 1978, and the order nunc pro tunc was entered on August 23, 1978. Defendants claim that failure to initially provide for a bond in the order appointing the receiver renders the appointment void and nullifies all the actions of the receiver. Defendants state that the nunc pro tunc order was ineffective and not an appropriate remedy. Plaintiffs do not dispute that, under MCL 600.2926; MSA 27A.2926, the trial court must provide for a bond, but contend that the nunc pro tunc order properly corrected the trial court’s inadvertent mistake. We agree with plaintiffs’ position.
There is no Michigan case law which has dealt with the effects of a court’s failure to provide for a bond under the statute. See Smith v Menominee Circuit Judge, 53 Mich 560, 564; 19 NW 184 (1884). However, except in a few jurisdictions, an order not requiring a receiver to give security is not void. When the order of appointment does not require the receiver to give a bond, a failure to give one is not fatal, even in a jurisdiction where a statute provides that a receiver must execute and file a bond before entering on his duties. 75 CJS Receivers, §76. We adopt the majority view. We further conclude that entering an order nunc pro tunc is the correct procedure to remedy the mistake. A nunc pro tunc order is the proper procedure to enter an order "which should have been made as a matter of course, and as a legal duty.” Grand Rapids v Coit, 151 Mich 109, 110; 114 NW 880 (1908). The order appointing the receiver should have provided for a bond as a matter of course and as a legal duty, thus, it was appropriately remedied by the nunc pro tunc order.
Defendants next claim, citing several instances, that the trial court permitted the receiver to act outside the scope of his powers. We disagree.
The receiver derives his authority from statutes and court rules and from the order of appointment and specific orders which the appointing court may thereafter make. Woodliff v Frechette, 254 Mich 328; 236 NW 799 (1931). The trial court’s order appointing the receiver authorized the receiver to (1) stand in the place and stead of the general partners with full powers to sell partnership property in accordance with the partnership agreement, (2) collect contributions and disburse funds in accordance with the partnership agreement and for the purpose of preserving the assets, (3) make a thorough investigation and report to the court with a recommendation as to specifics, and (4) hire an accountant or legal representative to assist the receiver to the extent he shall deem necessary.
In Westgate, supra, p 91, our Supreme Court held:
A receiver is sometimes said to be the arm of the court, appointed to receive and preserve the property of the parties to litigation and in some cases to control and manage it for the persons or party who may be ultimately entitled thereto. A receivership is primarily to preserve the property and not to dissipate or dispose of it.
The duty of a receiver is not to litigate as between the adverse parties, but, under the order of the court, to preserve and care for the property and turn it over to the person who is ultimately decided to be entitled thereto.
Defendants allege that the trial court allowed the receiver to exceed the scope of his authority by withholding a commission payable to Belcrest Realty in satisfaction of Horvath’s unpaid capital contributions. We disagree. Pursuant to the receiver’s motion, after the April 26, 1978, hearing, the court entered an order allowing the receiver to withhold a $22,500 commission payable to Horvath, doing business as Belcrest Realty, and apply the money to Horvath’s capital contributions account. Horvath admitted that Belcrest Realty was his assumed name for his business as a real estate broker. He further admitted, that, in contravention of the court’s order, he had not paid his capital contributions. He stated that he did not have the funds to do so.
When persons other than the receiver have property in their hands which should be in the hands of the receiver, or when any person diverts or attempts to divert from the receiver property which belongs to the receiver, the receiver may take all appropriate steps in law and equity to reduce such property to possession and protect it from being diverted from its lawful custodian. Pontiac Trust Co v Newell, 266 Mich 490, 499-500; 254 NW 178 (1934). We conclude that the receiver was acting under his duty to preserve the assets of the partnership and his authority to collect capital contributions.
Defendants next claim that the receiver acted outside the scope of his authority when he filed a motion requesting that the court order the Peleos to assign and convey their land contract interest in Lot No. 1 to the partnership. Again, we disagree. The receiver was in the process of selling a portion of Lot No. 1 and, in order to close the transaction, the partnership had to acquire title. The funds from the sale would be used to discharge the underlying contract on Lot No. 1 with the Morganroth Group and to pay back taxes. Without an assignment of the land contract, the partnership would have had to use its money for the nonpartnership purpose of vesting title to Lot No. 1 in the Peleos. We conclude that the receiver was acting under his duty to preserve the assets of the partnership and did not exceed the scope of his authority.
We reject defendants’ argument that the receiver adopted the position of the plaintiffs in violation of his duty to the partnership. We conclude that the receiver was acting in the best interest of the partnership. This interest at times coincided with the position of plaintiffs, but did not evidence an improper bias by the receiver.
Next, defendants argue that the receiver exceeded his authority because he acted as an attorney for the partnership. The court’s order appointing the receiver authorized him to hire legal representation when he deemed necessary. Instead of hiring separate legal representation, the receiver used his own expertise as an attorney to file motions, review contracts and the like. We conclude that, in performing these tasks, the receiver was not acting as an attorney for the partnership but was acting in conjunction with his duties as a receiver. This was clearly within the receiver’s scope of authority.
A receiver is under no legal duty to perform legal services for the benefit of the estate committed to his charge. Where the necessity for legal counsel arises, the court may provide the receiver with counsel. The necessity for the employment of counsel must be clearly apparent. Where the receiver himself is a lawyer, he should not employ other counsel except in an extraordinary case, as where unusual complications arise. 75 CJS, Receivers, § 161. It is the plain duty of such receiver-attorney to render legal services to the estate himself and save the estate a duplication of attorney fees. 66 Am Jur 2d, Receivers, § 294.
Finally, defendants contend that the trial court abused its discretion in approving the fees of the receiver. We disagree. The amount of compensation to be awarded to the receiver is within the trial court’s discretion. Receivers have a right to compensation for their services and expenses. Fisk v Fisk, 333 Mich 513, 518; 53 NW2d 356 (1952); Cohen, supra. Our review of the record leads us to conclude that, for the amount of time the receiver expended and in light of the various duties the receiver was required to perform in order to protect the property, including numerous court appearances, the fees awarded to the receiver were reasonable and not an abuse of the trial court’s discretion.
n
On August 23, 1978, the trial court granted plaintiffs’ motion for partial summary judgment, holding that Horvath and Peleo had a duty to disclose to the partnership the profit they realized on the sale of both lots and that they breached that duty. Horvath and Peleo were ordered to hold, as trustees for the partnership, all benefits and profits derived from the sale of Lot No. 1 to the partnership. Defendants claim that the trial court erroneously granted partial summary disposition to plaintiffs. We disagree.
The motion for partial summary judgment was granted pursuant to GCR 1963, 117.2(3), now MCR 2.116(0(10), that there was no genuine issue of material fact. When ruling on a motion for summary judgment under GCR 1963, 117.2(3), the affidavits, pleadings, depositions and other documentary evidence must be considered by the court. The party opposing the motion must come forward with some proof to establish the existence of an issue of material fact. Bennison v Sharp, 121 Mich App 705, 718; 329 NW2d 466 (1982), lv den 417 Mich 1100.13 (1983).
The undisputed evidence reveals that Lots No. 1 and No. 2 were sold to the partnership for more than the Peleos paid. As to Lot No. 1, the purchase agreement was entered into prior to the formation of the partnership, but the land contracts for purchase were signed subsequent to the formation of the partnership. Deposition testimony of Horvath and Peleo was presented wherein they admitted that they had not informed the limited partners that the lots were sold to the partnership for more than the Peleos’ purchase price. Defendant Hand testified that Horvath and Peleo had told him that they had an interest in the property but they did not tell him the amount. Defendants Horvath and Peleo took the position that they had no duty to disclose. The trial court held that there was a duty to disclose and that Hand’s representation did not constitute disclosure to the partnership.
The duty of the general partners in this case is based on §§ 20 and 21 of the Uniform Partnership Act:
Partners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner or partner under legal disability. MCL 449.20; MSA 20.20.
(1) Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property;
(2) This section applies also to the representatives of a deceased partner engaged in the liquidation of the affairs of the partnership as the personal representatives of the last surviving partner. [MCL 449.21; MSA 20.21.]
Section 20 has been broadly interpreted as imposing a duty to disclose all known information that is significant and material to the affairs or property of the partnership. Jaffa v Shacket, 114 Mich App 626, 640; 319 NW2d 604 (1982). The trial court properly concluded, based on the law, that defendants had a duty to disclose.
Defendants claim, however, that there was a genuine issue of material fact as to whether they failed to disclose. On February 20, 1985, defendants filed a motion to set aside the partial summary judgment. In support of this, on March 15, 1985, defendants filed three affidavits wherein three limited partners, one being Hand, stated that they had been told that Lot No. 1 had been previously acquired by defendants for $1,000,000. Defendants aver that, under MCL 449.12; MSA 20.12, notice to any partner operates as notice to or knowledge of the partnership. We disagree. Defendants’ reliance on § 12 of the act is misplaced. Section 12 comes under part in of the act which concerns relations of partners to third persons dealing with the partnership, whereas defendants’ duty to disclose comes under part iv of the act which concerns the relations of partners to one another.
The courts universally recognize the fiduciary relationship of partners and impose on them obligations of the utmost good faith and integrity in their dealings with one another in partnership affairs. Partners are held to a standard stricter than the morals of the marketplace and their fiduciary duties should be broadly construed, "connoting not mere honesty but the punctilio of honor most sensitive.” 59A Am Jur 2d, Partnership, § 420, p 453. The fiduciary duty among partners is generally one of full and frank disclosure of all relevant information. Each partner has the right to know all that the others know, and each is required to make full disclosure of all material facts within his knowledge in any way relating to the partnership affairs. 59A Am Jur 2d, Partnership, § 425. Thus, disclosure to one or several partners does not fulfill this duty as to every other partner. We conclude that there was no genuine issúe of material fact and a partial summary judgment was properly granted.
hi
On April 4, 1980, following a bench trial, the trial court ordered dissolution of the partnership based upon MCL 449.32(l)(b), (c) and (d); MSA 20.32(l)(b), (c) and (d), which states:
(1) On application by or for a partner the court shall decree a dissolution whenever:
(b) A partner becomes in any other way incapable of performing his part of the partnership contract,
(c) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business,
(d) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him.
Defendants claim that the trial court erred in ordering dissolution of the partnership because there was insufficient evidence on which dissolution could be based. We disagree. The trial court found that there was dissension and acrimony among the partners, that the purposes of the partnership had been frustrated by the personal interests of certain individual partners in their nonpayment of obligations and by the financial incapabilities of other partners, that Horvath’s and Peleo’s breach of their fiduciary duties prejudicially affected the continuation of the partnership, and that some of the limited partners no longer trusted Horvath and Peleo as general partners and were reluctant to place any additional investment money in their hands. Our review of the record convinces us that there was substantial and clear evidence to justify a decree of dissolution.
Defendants also contend that the trial court erred by failing to determine the interests of the partners in the order of dissolution. We disagree. The partnership agreement contained a schedule of the partners’ interests. There is no requirement that such determination must be made part of an order of dissolution, although the court may do so on the basis of the proofs presented absent an express agreement for a different method of determination. Gertz v Fontecchio, 331 Mich 165, 170; 49 NW2d 121 (1951).
IV
Defendant Viora Peleo was added as a defendant in plaintiffs’ second amended complaint. On April 26, 1978, the trial court, pursuant to a motion by the receiver, ordered the Peleos to assign their purchasers’ and sellers’ land contract interests in Lot No. 1 and to quitclaim their interest in the lot to the partnership. The order also provided that the execution of the assignments and the quitclaim deed would not affect any claim or right of the Peleos to any money which might be due from the partnership. The receiver had recognized the Peleos’ claim for the $265,000 difference in the purchase prices.
A hearing was held on June 4, 1980, on the Peleos’ motion to dismiss counts n and m of plaintiffs’ second amended complaint. Plaintiffs objected to dismissing Viora Peleo because of her possible claim against the partnership, reserved by the April 26, 1978, order.
On September 3, 1980, the court entered an order dismissing count iii of the complaint, which alleged that Viora Peleo did not contribute any money to the acquisition of the land and which sought reformation of the land contract.
Defendants now claim that Viora Peleo’s due process rights were violated because her property interest was abrogated without notice or a hearing. We disagree. Viora Peleo was represented by counsel on both April 26, 1978, and June 4, 1980. In fact, on June 4, 1980, Viora Peleo’s attorney stated that Viora Peleo sought to be dismissed from the case and sought no claim or recovery. The attorney stated that plaintiffs’ objection to her dismissal on the grounds that she had a claim against the partnership was a "red flag.” The court ordered that count hi be dismissed and "that with regards to Mrs. Peleo, she does not seek any rights or relief under what’s been heretofore entered.” Both parties agreed that the court’s interpretation was correct.
However, in the order of September 3, 1980, the language which stated that Viora Peleo had abandoned her claim was crossed out. Thus, Viora Peleo’s possible claim of right to any money owed to her by the partnership has been preserved. Viora Peleo has not been deprived of her interests without a hearing and, thus, her due process rights have not been violated.
v
The third receiver’s report filed on July 20, 1981, contained claims for compensation by Horvath and Peleo for hours expended as general partners in managing and conducting partnership business. On September 2, 1981, the court entered an order stating that the last date for filing claims would be September 16, 1981. On February 17, 1982, Belcrest Realty filed a motion to allow its claim for approximately $295,000 for expenses and services rendered to the partnership, pursuant to the partnership agreement.
On August 12, 1982, the court barred the Belcrest Realty claim because it was not timely filed, but stated that it would consider Horvath’s and Peleo’s claims.
A hearing on these claims was held on September 7, 1982. The court found that the claims of Horvath and Peleo were claims for recovery of services performed as managers of the partnership. Because the agreement contained no provision for compensation to general partners, their claims were denied by order of February 4, 1983.
Defendants now argue that the trial court erred in denying defendants’ claims for services rendered to the partnership. We disagree. The trial court did not err in denying Belcrest Realty’s claim on the ground that it was untimely. Belcrest Realty clearly had notice of the deadline for filing claims, but did not file its claim until after the deadline set by the court. The court did not err in denying the claims of Horvath and Peleo on the ground that the partnership agreement did not provide for compensation. A partner is not entitled to compensation for services performed on behalf of the partnership unless the express terms of the agreement provide for such compensation. MCL 449.18(f); MSA 20.18(f); Alford v Lehman, 350 Mich 446, 457; 86 NW2d 330 (1957).
VI
On May 30, 1979, defendants brought a motion to disqualify the trial judge pursuant to GCR 1963, 912.2(2). Defendants claimed that the trial court had prejudged trial issues. This motion was not timely, a factor which may be used to decide whether the motion should be granted. GCR 1963, 912.3(a). Defendants’ motion could have been denied on the basis of untimeliness. People v Bettistea, 173 Mich App 106, 123; 434 NW2d 138 (1988). However, the record reflects that the trial judge denied the motion because he did not find any basis for disqualifying himself. A trial judge will not be disqualified absent a showing of actual bias or prejudice. MacDonald v Ford Motor Co, 117 Mich App 538, 542; 324 NW2d 489 (1982). Defendants base their assertion of bias and prejudice on the fact that the majority of the court’s decisions on motions and preliminary matters were against defendants. Repeated rulings against a litigant, even if erroneous, are not grounds for disqualification. The court must form an opinion as to the merits of the matters before it. This opinion, whether pro or con, cannot constitute bias or prejudice. Mahlen Land Corp v Kurtz, 355 Mich 340, 350; 94 NW2d 888 (1959).
The record reflects that over the nine years that this case was before the court, the trial judge exercised extreme patience and courtesy toward the parties. Decisions were made on the basis of the facts and law before the court. The record is devoid of any actual bias or prejudice on the part of the trial judge.
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Holbrook, Jr.,
P.J. In this products liability case, plaintiffs appeal from a directed verdict entered in favor of defendants. Plaintiff Hezekiah Reeves was injured when a power press unexpectedly cycled, crushing Reeves’ right hand so that the fingers had to be medically amputated. Suit for personal injuries was brought against defendants Cincinnati, Inc., the manufacturer of the press, and Addy-Morand Machinery Co., the dealer arranging the sale of the press to Reeves’ employer, General Motors Corporation. At trial, plaintiffs introduced evidence to support theories of recovery for negligent design of the press and failure to provide warning of the dangers associated with the press. After plaintiffs rested, the trial court granted a directed verdict, reasoning that the evidence was insufficient to create issues submissible to the jury as to whether the press was unfit for its intended purposes or whether Cincinnati failed to use reasonable care to eliminate foreseeable risks. We reverse and remand for trial.
In determining whether to grant a motion for a directed verdict, the trial court must view the evidence in a light most favorable to the nonmoving party and determine whether a prima facie case is thereby established. Clery v Sherwood, 151 Mich App 55, 63-64; 390 NW2d 682 (1986). If the evidence presents material issues of fact upon which reasonable minds can differ, those issues are to be decided by the trier of fact, thereby precluding a directed verdict. Dixon v W W Grainger, Inc, 168 Mich App 107, 110; 423 NW2d 580 (1987). A directed verdict for the defendant is properly granted only when the evidence, viewed in this manner, fails to establish a prima facie case. Goldman v Phantom Freight, Inc, 162 Mich App 472, 477; 413 NW2d 433 (1987), lv den 429 Mich 867 (1987).
When, as in this case, theories of negligence and implied warranty are both premised on an allegedly improper design of the product, the legal elements of the two theories converge to the point of identicalness; proofs that suffice for one theory will suffice for the other; proofs that fail to establish a prima facie case on one theory are equally inadequate for the other. See Prentis v Yale Mfg Co, 421 Mich 670; 365 NW2d 176 (1984). Under either theory, the crux of liability is "whether the manufacturer took reasonable care in light of any reasonably foreseeable use of the product which might cause harm or injury.” Id., p 695. A similar rule prevails in the context of a claim that the manufacturer breached a duty to give a warning; viewed as either negligence or breach of an implied warranty, both theories "involve identical facts and require proof of exactly the same elements.” Smith v ER Squibb & Sons, Inc, 405 Mich 79, 90; 273 NW2d 476 (1979). The common legal standard dispositive of liability is that of "reasonable care under the circumstances.” Id. However, the defective nature of the product must, in fact, exist at the time of the manufacturer’s relinquishment of possession, even if the subsequent malfunction and resultant injury occur much later. Pippen v Denison Division of Abex Corp, 66 Mich App 664, 669; 239 NW2d 704 (1976), lv den 399 Mich 823 (1977). See also Scott v Allen Bradley Co, 139 Mich App 665, 670-671; 362 NW2d 734 (1984). A defect may be proven by circumstantial evidence. Holdsworth v Nash Mfg, Inc, 161 Mich App 139, 148; 409 NW2d 764 (1987), lv den 429 Mich 872 (1987).
Specifically, plaintiffs’ theory of recovery is that the press unexpectedly and spontaneously cycled for unknown reasons, but that this is a common and foreseeable occurrence of working with presses. Contending that Cincinnati should have designed and implemented more adequate safety devices, plaintiffs primarily relied on Cincinnati’s failure to provide an interlocking barrier guard integrated into the clutch mechanism activating the cycling process of the press. Plaintiffs’ expert witness opined that an interlocking barrier guard could have been included by Cincinnati as part of the design of the press and that, if it had been installed, an accident of the nature causing Reeves’ injuries would have been rendered "virtually impossible.”
Plaintiffs’ theory, if supported by sufficient evidence, is viable under products liability law. "A product may be rendered unreasonably dangerous by the omission of a safety device. Furthermore, where an injury is reasonably foreseeable, the trier of fact must determine whether a safety device should have been put on the product by the manufacturer.” Scott, supra, p 670.
Whether an alleged design defect is actionable under theories of negligence and implied warranty is decided with reference to the risk-utility balancing test. Prentis, supra. The precise burden imposed on the plaintiff by this test was delineated by the Supreme Court in Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982), a case affirming the trial court’s directed verdict in favor of the manufacturer of a forklift. The plaintiff’s decedent was fatally injured when he was ejected from the forklift, which collided with a post and then rolled over for reasons that were entirely unknown and unexplained at trial. The plaintiff’s theory of design defect was the manufacturer’s omission of a driver restraint, e.g., a seatbelt, that would have minimized the decedent’s injuries. Plaintiffs theory depended almost exclusively upon expert testimony for evidentiary support, and the Court’s exhaustive review of that testimony led to its conclusion that the plaintiff failed to make a prima facie case:
Our conclusion that the plaintiff did not present a prima facie case is based on the lack of evidence concerning both the magnitude of the risks involved and the reasonableness of the proposed alternative design. Although from the testimony of plaintiff’s expert one might infer that a forklift rollover and the injuries resulting from being pinned under the overhead protective guard were foreseeable, neither his testimony nor any other evidence on the record gave any indication how likely such an event might be. In conjunction with this uncertainty, the record also produces no indication how the use of any of the driver restraints would affect a forklift operator’s ability to do his or her job or the operator’s safety in other circumstances. [Id., pp 429-430.]
Additionally, the Court noted that particularly "where the magnitude of the risks is quite uncertain because it is dependent upon the unknown incidence of forklift rollovers, an examination of the effects of any proposed alternative design must bear a heavy burden in determining whether the chosen design was unreasonably dangerous.” Id., p 430. In arriving at its holding that the evidence presented by that plaintiff was insufficient, the Court emphasized the lack of evidence as to the effectiveness and feasibility of driver restraints and of the costs of the incorporation of restraints into the design.
Other cases illustrative of the approach taken in Owens have been decided by this Court. See Kinzie v AMF Lawn & Garden, Division of AMF, Inc, 167 Mich App 528, 533-535; 423 NW2d 253 (1988), lv den 431 Mich 863 (1988); Petto v The Raymond Corp, 171 Mich App 688, 693-695; 431 NW2d 44 (1988), lv pending. In Scott, supra, a case where the contention of insufficient evidence was made in the context of the press manufacturer’s failure to supply a guard as a safety device to protect a switch mechanism from being accidentally bumped, this Court stated:
Allen Bradley next contends that Scott failed to present sufficient evidence to establish defective design according to Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982). Owens established that the plaintiff must present evidence concerning the magnitude of the risks involved and the reasonableness of any proposed alternative design. Owens, supra, p 432. Allen Bradley’s expert testified that the company began producing switch guards sometime after 1955. Two guards were introduced at trial which cost approximately $1 each to produce. It was obvious that the proposed guards would not affect the worker’s ability to perform his job. Allen Bradley’s expert stated that the guards were developed to avoid accidental activation. Therefore, it is apparent that Allen Bradley was aware of the magnitude of the risks involved. Under the circumstances, we find that Scott introduced sufficient evidence to satisfy Owens. [139 Mich App 671.]
To summarize, a prima facie case of a design defect premised upon the omission of a safety device requires first a showing of the magnitude of foreseeable risks, including the likelihood of occurrence of the type of accident precipitating the need for the safety device and the severity of injuries sustainable from such an accident. It secondly requires a showing of alternative safety devices and whether those devices would have been effective as a reasonable means of minimizing the foreseeable risk of danger. This latter showing may entail an evaluation of the alternative design in terms of its additional utility as a safety measure and its trade-offs against the costs and effective use of the product. See Prentis, supra, p 687, n 24.
In this case, the testimony provided by plaintiffs’ expert witness can be summarized as follows: Unexpected, spontaneous cycling of a power press, such as that resulting in this accident, occurs for unknown reasons in spite of good maintenance. It is an inevitable consequence of the operation of presses, and it is well known that such cycling causes numerous serious injuries in workplaces. Prior to the 1950 manufacture of the press in this case, technical literature, primarily generated in England, documented the availability of an interlocking barrier guard that soon thereafter became the norm in England, although not in the United States. This guard has a mechanical component interlocking with the clutch that locks the press ram in place and makes it "virtually impossible” for the press to cycle if the operator’s hands are in the way of the point of operation, i.e., the juncture where the cycling of the press causes the dies to come together. If the guard had been in place, the accident in this case would almost certainly have been avoided. This guard could have been installed on the press and could have been designed to be adjustable to the limited number of multiple purposes for which the press was designed. However, because the guard is integrated with the clutch mechanism, it is not practical for anyone other than the manufacturer to install the guard onto the mechanical working of the press. This pre eludes fitting the machine with this particular type of guard after the press is acquired.
This evidence is sufficient to raise a question of fact for the jury. Although plaintiffs do lack a statistical breakdown of the risks of injuries caused by presses with and without interlocking barrier guards or a cost-accounting analysis of the incremental added costs (in 1950) if the design had been altered to include the guard, there was considerable evidence of the reasonableness of the design — that power presses in general are unsafe because of unavoidable cycling, i.e., the magnitude of the risks, and that the alternative design, the installation of the guard, would have prevented plaintiffs’ accident by precluding unexpected cycling of the press. In view of this evidence, we do not believe that statistical deficiencies in the expert testimony prevented plaintiffs from making a prima facie case.
Relying on Villar v EW Bliss Co, 134 Mich App 116; 350 NW2d 920 (1984), lv den 422 Mich 871 (1985), and Bullock v Gulf & Western Mfg, 128 Mich App 316; 340 NW2d 294 (1983), defendants argue that the grant of a directed verdict was proper because the duty of a manufacturer such as Cincinnati to install safety devices is vitiated when it sells an unassembled multiple purpose press to an employer owing a duty to its employees to provide a safe workplace. However, both Villar and Bullock are premised upon the principle that it is unforeseeable from the standpoint of the manufacturer how the employer will use a press designed to accommodate multiple purposes, thereby defeating any attempt to anticipate and protect against the specific unsafe application of the press by installing an appropriate guard in advance of its sale to the user. In the case at bar, plaintiffs’ expert testified that an adjustable bar rier guard could have been designed and that this guard would have been functional under any of the limited number of applications for which the multiple purpose press was designed. Therefore, the holdings in Villar and Bullock are factually distinguishable.
We conclude that a rational trier of fact could find for plaintiffs on a claim based on factual allegations of negligent design of the press. Therefore, the grant of a directed verdict was erroneous.
We do agree with defendants that Cincinnati was under no duty to place warnings on the press of this open and obvious danger. See Bullock, supra, pp 322-323. In the event of retrial, the question of failure to warn need not be submitted to the jury.
To the extent that liability against Addy-Morand, the alleged seller of the press, is premised upon a breach of warranty resulting from a defective design attributable to Cincinnati, our holding reversing the directed verdict and remanding for trial is applicable to Addy-Morand as well as Cincinnati. See Prentis, supra, p 693 ("When proceeding under a theory of implied warranty, a design defect is established by proof that the product is not reasonably safe for the uses intended, anticipated, or reasonably foreseeable. . . . For the sale of a product defective in such respect, the seller may be answerable for breach of an implied warranty.”). However, we find no evidence of independent negligence chargeable to Addy-Morand on the record.
Plaintiffs argue that the trial court erred by not excluding references to Reeves’ entitlement to retirement benefits. Should this issue recur in a retrial, we admonish the parties to adhere to foundational requirements for admission of evidence of Reeves’ entitlement to benefits for pur poses not prohibited by the collateral source rule. See McMiddleton v Otis Elevator Co, 139 Mich App 418, 429-432; 362 NW2d 812 (1984), modified 424 Mich 862 (1985); Blacha v Gagnon, 47 Mich App 168; 209 NW2d 292 (1973); Gallaway v Chrysler Corp, 105 Mich App 1, 7; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982). Because a ruling of this nature is largely discretionary, determined as a function of factual circumstances prevailing at trial, we decline plaintiffs’ invitation to set forth rigid parameters governing admission of evidence of retirement benefits in this case. However, we do not believe that the trial court abused its discretion by ruling below that such evidence, offered on the issue of how long Reeves would have worked before retirement if he had not sustained the disabling injury, was not excluded by the collateral source rule.
Reversed and remanded for trial. | [
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Murphy, J.
Defendant appeals as of right from the lower court’s judgment in plaintiffs’ favor. Plaintiffs prevailed in their wrongful death action brought against defendant pursuant to the building exception to governmental immunity. We affirm._
Plaintiffs’ decedent was a mildly retarded seventeen-year-old who suffered from uncontrolled and frequent epileptic seizures. Decedent was originally admitted to defendant’s Fairlawn Center in 1972 at the age of nine. The facility is for emotionally disturbed children and adolescents. Later, he was transferred to Meadowview Three, an inpatient ward for older adolescents at the same facility.
On the morning of September 13, 1980, decedent asked Henry Bareiss, a childcare worker at Meadowview Three, if he could take a shower. Decedent was required to wear a helmet while showering because of his seizure disorder. If decedent wanted to take a bath, direct supervision was required. Bareiss testified that he gave decedent a towel, opened the door to the bath area and let decedent enter the room. Bareiss heard the shower water turn on and Bareiss proceeded to leave the immediate area to attend to other duties. Bareiss believed that decedent was taking a shower. He would not have let decedent take a bath alone. Meadowview Three had a shower and bath facility which consisted of one bathtub and three showers. The water for the showers and bathtub was controlled by a water valve box which was located in a recessed cabinet mounted in the wall of the shower and bath room.
Decedent’s overall functioning level was equivalent to that of a fourth or fifth grader, although he read at a tenth grade level. Decedent understood that he was not to take a bath unsupervised.
At approximately 9:30 a.m. on September 13, 1980, decedent’s mother, Mary Williamson, arrived at the facility to pick up her son. She testified that when she arrived Bareiss told her that decedent was "soaking in the tub.” Bareiss denied making this statement. Apparently Bareiss had been su pervising other activities in the lounge near the shower room and had attended to another patient who needed to be escorted to his room. Bareiss went to get decedent and found him on his back under the water in the tub. Decedent was not wearing his helmet. Bareiss attempted to revive decedent but was unsuccessful. The autopsy report listed the cause of death as asphyxia due to drowning.
The chief of maintenance at Fairlawn Center testified how the water valve box in the bath and shower area operated. Both the main hot and cold water pipes went into a mixer so the water temperature was maintained at 110°F. Each of these main pipes had valves located before the mixer that were always left open. A main pipe carrying the temperature-controlled water left the mixer and this pipe had an on/off valve known as valve d. This valve was used by the staff and patients to turn on the water to the showers and bath. The pipe beyond valve D then branched off into four separate pipes; three went to the three showers and one pipe went to the bathtub. Each of these four pipes had on/off valves that were always left on. The pipe to the bathtub had a valve known as valve e. When the main valve d was turned on, water would run to all three showers and the bathtub. If the faucets at the bathtub were turned on, water would flow into the tub when the showers were on.
Decedent was permitted to turn on control valve d the morning he drowned.
Plaintiffs filed suit, alleging that decedent’s death resulted from a dangerous or defective condition of a public building as provided for in the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106). Following a bench trial, the court found defendant liable under the statute and the court assessed damages in plaintiffs’ favor in the amount of $750,000. However, decedent was found to be twenty percent comparatively negligent thereby reducing the award to $600,000. Defendant now appeals as of right.
Defendant first contends that the trial court clearly erred in finding that the shower and bath facilities at Fairlawn Center constituted a dangerous and defective condition within the meaning of the building exception to governmental immunity. We disagree.
The public building exception to governmental immunity is codified at MCL 691.1406; MSA 3.996(106) and in pertinent part provides:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.
The elements of proof under this exception are: (1) a defect, (2) actual or constructive knowledge of the defect, and (3) failure to act on the part of the responsible agency. MCL 691.1406; MSA 3.996(106); Ransburg v Wayne Co, 170 Mich App 358; 427 NW2d 906 (1988).
A building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices. Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979). The question of whether a part of a public building is dangerous or defective is to be determined in light of the "uses or activities” for which the building is "specifically assigned.” Id., p 531; Lockaby v Wayne Co, 406 Mich 65, 76-77; 276 NW2d 1 (1979). A building may be safe for one use or purpose but not for another. Bush, supra, p 532.
Most recently, our Supreme Court in Reardon v Dep’t of Mental Health, 430 Mich 398, 409-410; 424 NW2d 248 (1988), reiterated the above principles and stated that the Legislature intended that the building exception is to apply to a situation in which an injury arises out of a dangerous or defective physical condition of the building itself. The existence of a defect and its relation to the alleged injuries is to be determined by the trier of fact. Young v Ann Arbor, 119 Mich App 512, 521; 326 NW2d 547 (1982).
Having set forth the applicable law, we next note that the lower court’s findings of fact are subject to some degree of deference. MCR 2.613(C) provides that findings of fact by the trial court may not be set aside unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). Moreover, MCR 2.613(C) provides that regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.
On appeal, defendant basically contends that the lower court erred because the facts of this case reveal nothing more than a case of improper supervision. Defendant argues that cases which involve improper, inadequate, or a lack of supervision are not cases which fall within the building exception to governmental immunity. While it is true that cases which involve nothing more than improper or inadequate supervision do not make out a case under the building exception to governmental immunity, we disagree with defendant’s contention that this case is one involving only improper supervision. We believe that the facts of this case involve a building defect as well.
There is no question that improper supervision played some role in decedent’s death. The lower court specifically found that Henry Bareiss was negligent. The lower court explained:
The Court finds that Henry Bareiss was negligent. Bareiss’ conduct, in allowing Plaintiffs’ decedent to turn the main water valve on, and in leaving him unattended for half an hour while he returned to the nursing station, which is not within speaking and hearing distance, was a proximate cause of Plaintiffs’ decedent’s death.
However, the court went on to note that its finding that Bareiss’ conduct was a proximate cause of decedent’s death did not preclude the court from finding that a building defect, that is the defective design of or absence of safety devices, was also a proximate cause of decedent’s death. We agree. Clearly, there may be more than one proximate cause of an injury. See, e.g., May v Parke, Davis & Co, 142 Mich App 404, 419; 370 NW2d 371 (1985), lv den 424 Mich 878 (1986). See also Davis v Detroit, 149 Mich App 249, 262-264; 386 NW2d 169 (1986), lv den 426 Mich 856 (1986).
The lower court in finding that the building exception applied to the facts of this case concluded the following:
The Court does, however, find that Plaintiff has proven by a preponderance of the evidence that the improper design of the shower and bathing facilities at the Fairlawn center constituted a dangerous or defective condition within the meaning of MCLA 691.1406. Because of improper design, the system had to be completely altered or some safety device necessarily should have been employed as hereafter explained.
The complexity of the valves contained in the control box, their location in relation to the showers and bathtub, valve "d” which automatically and unnecessarily activated all three showers when one wanted only to activate the bathtub, the inability to hear the water being drawn in the bathtub while the showers were on, the failure to have monitors, alarms, video cameras, or other protective devices which would alert the staff that a patient was drawing water in the bathtub all constitute a dangerous and defective condition, due to the design of the shower and bathing facility at Fairlawn, within the meaning of MCLA 691.1406, in light of the use for which the shower and bathing facilities was specifically assigned; that is, the bathing and showering place for a known epileptic and mildly retarded patient subject to convulsions which occured [sic] without warning whom the staff was well aware was at risk for drowning if subject to a seizure while taking a bath. True, as Defendant argues, there is no medical standard that requires special safety devices to control the flow of water in an institution of this kind. However, Defendant does not have a normal water flow system which would meet the standard. Defendant had a complex and unwieldy system and was responsible to change it or protect patients from it by the use of one of many available safety devices.
We are persuaded by the reasoning employed by the trial court and find no basis for concluding that the trial court clearly erred in finding that the shower and bath facilities at Fairlawn Center constituted a dangerous and defective condition within the meaning of the building exception to governmental immunity. Therefore, the trial court did not clearly err in finding a defect in defendant’s building which falls within the building exception. Ransburg, supra.
As for the remaining two elements necessary for establishing a prima facie case under the building exception, that is, defendant’s actual or constructive knowledge of the defect and defendant’s failure to act in light of that knowledge, we conclude that there is ample support in the record establishing these elements. Ransburg, supra. Since plaintiffs established all three elements of the cause of action, and there is support for each of these elements in the record, we affirm the trial court’s finding of liability against defendant.
Defendant’s remaining issues raised on appeal are without merit. Briefly, the evidence produced at trial did not exceed the scope of plaintiffs’ pleadings, and there was no error by the trial court in denying defendant’s motion for a directed verdict.
Affirmed.
Sullivan, P.J., concurred. | [
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Levin, J.
The issue is whether, to preserve the right to a mechanic’s lien, one who deals directly with an owner must give notice of intention to claim a lien.
In Mielis v Everts, 264 Mich 363; 249 NW 875 (1933), this Court held that notice was not required where the lien claimant and the owner dealt directly with each other.
The Court of Appeals, in Burton Drywall, Inc v Kaufman, 69 Mich App 85, 89, 90; 244 NW2d 367 (1976), declared that Mielis "was erroneously decided”, that if the decision were "examined today by the Supreme Court, it would be overruled”, and held that notice of intention to claim a lien is required even when the claimant deals directly with the owner. We granted leave to appeal.
Judges of the United States District Court for the Eastern District of Michigan, stating that a question of state law was raised by that declination to follow Mielis, "which had been understood as having established an exception for lien claim ants dealing directly with owners”, certified the following question:
"Must notice of intent to claim a lien as described by MCL 570.1; MSA 26.281, be given in order to perfect the lien of a lienor who dealt directly with the owner?”
This Court set oral argument and authorized interested parties to file briefs.
We adhere to Mielis. We reverse Burton Drywall and in Certified Questions respond that there is a direct dealing exception.
I
The statute provides generally that suppliers of labor and material shall have a mechanic’s lien upon the premises. A proviso requires that persons desiring to claim a lien "shall within 90 days after furnishing the first of such material or performing the first of such labor or engineering or surveying services, or renting or leasing equipment for any contractor or subcontractor” serve on the owner written notice informing him
(i) of the nature of the materials being furnished or labor being performed, and a description of the premises where furnished,
(ii) a lien will be claimed on the premises for amounts unpaid, and
(iii) of his right to demand a statement under oath "from such contractor or subcontractor prior to payment of any money on such contract”. (Emphasis supplied.)
The statute continues:
"No person shall have a right to claim a lien as in this act provided, unless and until he shall have served a notice as in this section provided * * *."
The requirements of (i) above are derived from a proviso in the statute as amended in 1893. Those set forth in (ii) and (iii) and the condition precedent of service of notice of intention to claim a lien were added in 1929.
The 1893 proviso required that the notice be served within ten days "after furnishing the first of such material, or performing the first of such labor to any contractor or subcontractorThe phrase "to any contractor or subcontractor” was printed as "or any contractor or subcontractor” in a 1941 amendment. It became "tor any contractor or subcontractor” in a 1958 amendment. We do not perceive nor is it claimed that "tor any contractor” has a meaning other than "to any contractor”. (Emphasis supplied.)
II
In Mielis, decided under the statute as amended in 1929, this Court rejected a contention that a lien was invalid because notice of intention to claim a lien had not been served on the owners:
"It was not necessary. The lien claimants were dealing with the part-owner, not with a contractor. 1929 CL 13101; Smalley v Ashland Brown-Stone Co, 114 Mich 104 [72 NW 29 (1897)].” Mielis v Everts, supra, p 364.
The Court of Appeals, in Burton Drywall, stated that Mielis’ reliance on Smalley "was misplaced” because:
—Smalley had found that notice under the statute, as amended in 1893, "was for the protection of the subcontractor, materialman or laborer to preserve its claim against the owner, and as such, was not a condition precedent to the lien attaching”
—"it apparently escaped the attention of the Mielis Court” that the statute had been amended to state that there was no right of lien "unless and until” notice was served.
—Webster v Cooper Development Co, 266 Mich 505, 507; 254 NW 186 (1934), construed "unless and until” as requiring notice as a condition precedent to the perfection of a mechanic’s lien. Smalley, accordingly, "was overruled sub silentio by Webster. Therefore, the Mielis exception is grounded on authority no longer of precedential value.”
—the statement in Wallich Lumber Co v Golds, 375 Mich 323, 328; 134 NW2d 722 (1965), that "notice is not required of a person who contracts directly with the owner. Mielis v Everts, 264 Mich 363, 364”, was obiter dictum.
Webster did not "overrule” Smalley. It stated only that the statute had been subsequently changed. Webster held that by reason of amendments of the statute, compliance with the 1929 notice proviso "is a condition precedent to the acquisition of the lien”.
In Webster, the lien claimant, who had furnished materials to a contractor, failed to file with the Register of Deeds proof of service of notice of intention to claim a lien. Since the claimant had dealt with a contractor, Webster did not consider the direct dealing exception recognized in Mielis.
It may be, as stated by the Court of Appeals, that the Mielis Court overlooked the 1929 amendments and that those amendments superseded the holding in Smalley that service of notice was not prerequisite. Another hypothesis is that the Court in Mielis was aware of the significance of the 1929 amendments and Smalley was cited be cause it inferentially recognized that the proviso has no application to one dealing directly with the owner.
Smalley stated that the function of notice under the 1893 proviso was to protect a subcontractor against a failure of the contractor with whom he dealt to list him in the sworn statement furnished the owner. A person dealing directly with the owner would have no need to protect himself against such an omission, and therefore would, have no occasion to avail himself of the opportunity to serve notice pursuant to the proviso.
III
The direct dealing exception is not "judicially created”. It is, rather, inherent in the language of the statute itself. From its inception the proviso has applied only to á claimant furnishing labor or material "to [for] any contractor or subcontractor”. A claimant dealing directly with the owner does not furnish labor or material to or for a contractor.
Since the proviso, as originally adopted, only required claimants to inform the owner that they were furnishing materials or performing labor and a description of the premises, it would have been pointless to require a claimant dealing directly with the owner to inform him that the claimant is furnishing materials or labor to him or to describe the premises.
The 1929 amendments do indeed add two additional requirements:
—notice to the owner of the materialman’s or laborer’s intention to claim a lien (see [ii] supra), and
—notice that he has a right to demand a sworn statement "from such contractor or subcontractor” before paying any moneys (see [iii] supra). Nevertheless, the proviso by its terms still applies only to a person furnishing labor or material "to [for] a contractor or subcontractor”.
A person dealing directly with an owner is not, therefore, required to provide either the 1893 notice of furnishing materials or labor or the 1929 notices of intention to claim a lien and of the owner’s right to demand a sworn statement from the contractor.
Since the proviso does not apply to a person dealing directly with the owner, such a person is not required to serve "a notice as in this section provided”. Hence, that language, relied on in Webster and in Burton Drywall, does not support the result reached by the Court of Appeals.
The Mielis construction was anticipated in treatises, apparently reflecting the understanding of the profession, written after the 1929 amendments were adopted and before that case was decided.
The rationale of the direct dealing exception is stated in Wallich:
"The reason for the notice requirement and the distinction between one who deals directly with the owner and a subcontractor, materialman, or laborer who does not, is that in the first situation the owner knows there is a claim against him, but in the second case he may be unaware of a claim without such notice.” Wallich Lumber Co v Golds, supra, pp 328-329.
IV
After Burton Drywall was decided the amount owing to the lien claimant in that case was adjudicated in a separate action and tendered to it. After leave to appeal was granted we denied a motion to dismiss the appeal. The motion was renewed and now is again denied.
The decision of the Court of Appeals created uncertainty concerning the law. The matter is of sufficient ongoing importance both to the lien claimant in that case and to the jurisprudence to warrant resolution at this time. There is the requisite adversariness that provides some assurance that the issues are properly presented.
Our disposition makes it unnecessary to consider the other issues considered in the opinion of the Court of Appeals in Burton Drywall.
Burton Drywall is reversed and remanded to the circuit court for further proceedings consistent with this opinion.
We respond in the negative to the certified question stated in the introduction to this opinion; there is a direct dealing exception.
Kavanagh, C.J., and Williams, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
399 Mich 875 (1977).
Actions to foreclose real estate mortgages are pending in the district court. Lien claimants who did not serve notice of intention to claim a lien have asserted that they were not obliged to do so because they dealt directly with the owners.
See GCR 1963, 797.2, authorizing a federal court or a state appeals court to certify a question of law to this Court. This is the first instance in which this Court has answered a question so certified.
They also certified a question concerning the retroactivity of the Court of Appeals decision in Burton Drywall, Inc v Kaufman, 69 Mich App 85; 244 NW2d 367 (1976), an issue which our disposition makes it unnecessary to address.
400 Mich 1029 (1977).
MCL 570.1; MSA 26.281. The text of the proviso, which also prescribes the form of the notice to be given, is as follows:
"Provided, That any person, firm or corporation furnishing materials or performing labor of any kind entering into the construction of any such building, swimming pool, structure, foundation, cellar, basement, well, sewer, sewage disposal equipment, water line and pumping equipment or walk, or furnishing or planting of nursery stock or who shall survey or plat any lot or parcel of land, or portion thereof, or engineer or design any sewers, water lines, roads, streets, highways, sidewalks, or prepare and furnish pursuant to such contract to such owner, part owner or lessee of any interest in real estate any survey, plat, plat of survey or design or engineering plan, or plans, for the improvement of any lot or parcel of land not exceeding one-quarter section of land, or who shall rent, lease or supply contractor’s equipment shall within 90 days after furnishing the first of such material or performing the first of such labor or engineering or surveying services, or renting or leasing equipment for any contractor or subcontractor, serve on the owner, part owner or lessee of the premises, or his agent, if such owner, part owner or lessee has a known agent in charge of such structure, swimming pool, improvement, foundations, cellars, basements, wells, sewers, sewage disposal equipment, water lines and pumping equipment, walk or walks, personally or by mailing by certified mail, return receipt demanded, to the last known address of such owner, part owner or lessee, or his agent in charge of said premises, as aforesaid, a written notice, which notice shall be such as will inform the owner, part owner or lessee of the premises, or his agent, of the nature of the materials being furnished, or labor being performed, or to be performed, and a description of the premises where furnished, which notice shall notify such owner, part owner or lessee of said premises that such person, firm or corporation furnishing materials or performing labor will claim a lien upon such premises for any amounts unpaid for such materials so furnished or labor performed, or equipment leased, also such part or portion of section 4 of this act as will clearly notify such owner, part owner, or lessee of said premises, that he has a right to demand a statement under oath from such contractor or subcontractor prior to payment of any money on such contract. If neither of such persons can be found for service within the county where the premises are situated, or written notice has not been received, then the notice shall be served by posting in some conspicuous place on the premises within 5 days after the same might have been personally served, if the agent or principal had been found. Such notice shall be in substantially the following form:
"To _, Take notice that the undersigned is furnishing _to_certain labor or materials for building, excavating, or altering, improving, repairing, erecting or ornamenting, surveying, or designing engineering plans or surveys for the installation of swimming pools, sewers, water lines, roads, streets, highways or sidewalks, or is renting or leasing equipment as the case may be, a certain _, situated on or around or in front (or the improving by furnishing nursery stock or labor in connection therewith) of the following described property:_You are further notified that the undersigned _ will claim a lien upon the foregoing described premises, and any and all additions, alterations and improvements thereto for any amounts now and hereafter owing and unpaid to the undersigned for the performance of such labor, or for the furnishing of such materials, or both. You are further notified that you may at any time retain from any moneys due or to become due to the original contractor, an amount sufficient to pay all demands owing or unpaid to any subcontractor, material man or laborer, who files this notice with you. The original contractor shall, whenever any payment of money shall become due from you, or whenever he desires to draw any money from you on such contract make out and give to you or your agent a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount, if anything, which is due or to become due to them, or any of them, for work done or materials furnished, and you may retain out of any money then due, or to become due to the contractor, an amount sufficient to pay all demands that are due or to become due to such subcontractors, laborers and material men, as shown by the contractor’s statement, and pay the same to them according to their respective rights, and all payments so made shall, as between you and such contractor be considered the same as if paid to such original contractor.
"Such notice, solely as to labor, however, shall be sufficient if served at any time subsequent to said 90 days, but before the original contractor shall make out and give to the owner, part owner or lessee or his agent, a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person, firm or corporation furnishing materials, giving the amount, if anything, which is due or to become due on them or any of them, for work done or materials furnished as required by section 4 of this act. The owner, part owner or lessee shall not be liable to the subcontractor, material men or laborers, for any greater amount than he contracted to pay the original contractor, and shall be entitled to recoup any damages which he may sustain by reason of any failure or omission in the performance of such contract, but the risk of all payments made to the original contractor after he shall have received the notice above mentioned shall be upon the owner, part owner or lessee until the expiration of 90 days, within which claims for lien may be recorded as hereinafter provided, and no payment made to any contractor before the expiration of said 90 days shall defeat any lien of any subcontractor, material man or laborer, unless such payment has been distributed among the subcontractors, material men or laborers, or if distributed in part only, then to the extent of such distribution. No person shall have a right to claim a lien as in this act provided, unless and until he shall have served a notice as in this section provided, and proof of the service of such notice shall be attached to the verified statement or account when recorded with the register of deeds as provided in section 5 of this act.”
1893 PA 199; 1897 CL 10710. There were earlier enactments. See, e.g., 1891 PA 179 and 1879 PA 258. The 1891 act provided:
"That any person, firm or corporation furnishing material of any kind entering into the construction of such building or structure shall, within ten days after the sale of the same to any contractor or subcontractor, serve on the owner, part owner or lessee of the premises or his agent a fairly detailed statement of the goods so sold, if such owner, part owner or lessee resides in or has a known agent in the county in charge of such structure or improvement.”
1929 PA 264; 1929 CL 13101.
1941 PA 266.
1958 PA 213.
The word "or” may have been a typographical error which upon discovery was "corrected” to "for” on the assumption that the error was the dropping of "f ’ without recognition that it may instead have been in printing "to” as "or”. Alternatively, the change may have been purposeful, an effort to improve the diction of the proviso.
The argument that "for any contractor or subcontractor” does not relate to the person for whom material or labor is provided but refers, rather, to persons who rent or lease contractor’s equipment, ignores the history of the statute and that the words "renting or leasing equipment” were not added until 1963 PA 104, a number of amendments after "to” became "or” and "or” became "for”.
Burton Drywall, Inc v Kaufman, supra, p 89.
Id., p 90.
Id., p 88.
Id
While the briefs in Mielis v Everts, 264 Mich 363; 249 NW 875 (1933), do not highlight the 1929 amendments, lien claimant Mielis’ brief contains the following statement:
"Question No. 1: Is it necessary that notice of intention to claim a lien be served by a laborer upon the owner?
"Appellant relies upon the provisions of Section 13101 of the Compiled Laws of 1929. We submit that the provisions of this section of the statute are not applicable where the lienor contracts directly with the part owner.” Michigan Supreme Court Records and Briefs (104-109 June Term, 1933, No. 108).
See fn 6, supra.
"It is true that, for his own protection, the subcontractor, if he wishes to prevent a payment which will be valid as against him [emphasis in original], must see to it that the sworn statement of the original contractor (if the owner exacts one) embodies his claim, or must himself serve the notice provided by section 1.” Smalley v Ashland Brown-Stone Co, 114 Mich 104, 108; 72 NW 29 (1897).
"Section 1, of the Lien Law provides for a notice to be served upon the owner, part owner, or lessee of the premises by one furnishing labor or materials in the building, erecting and ornamenting of a structure, or the furnishing of such labor or material. This notice, however, is not a prerequisite to the filing of the lien nor does the laborer or material man gain any advantage by it, except in cases where the owner, part owner, or lessee has paid the original contractor under the sworn statement required by section 4, of the Law, and which statement turns out to be either incorrect or false. However, in order to avoid any such contingency it would be better practice for the laborer or material man who is about to furnish labor or material, or is furnishing the same on a building, to give the owner notice of such fact, which notice may be in the following form: * * * .” Wilkinson, Mechanics’ Liens on Real Property in Michigan (1906), § 43, pp 35-36.
"The prerequisites to a valid lien may be stated as follows:
"(b) A notice to the owner within thirty days after furnishing the first material or labor is provided for under section 1 of the statute, and will furnish protection to the subcontractor, materialman or laborer as against an erroneous statement to the owner by the contractor under section 4, though such notice is for the protection of the subcontractor, laborer or materialman and is not a prerequisite to a valid lien of such subcontractor, etc., even if the owner pays the contractor without first requiring the sworn statement required by section 4; nor will it be needed in the practical operations under the law if the contractor makes truthful statements to the owner.” Wykes, The Michigan Law of Mechanics’ Liens (1918), § 39, pp 56-57.
Burton Drywall, Inc v Kaufman, supra, p 88.
It is contended that the explicit language of § 6 (MCL 570.6; MSA 26.286), that the statement Or account required to be recorded by § 5 (MCL 570.5; MSA 26.285) need not be served on the owner by "those persons contracting or dealing directly with the owner, part owner or lessee of such premises”, implies that there is no such exception to § 1 (MCL 570.1; MSA 26.281).
The § 5 requirement that a statement or account be recorded within 90 days after the last of the materials or labor has been furnished or performed applies to all persons who desire to claim a lien. But for the explicit language, § 6 by its terms would apply to those dealing directly with the owner.
A direct dealing exception is not inherent in § 6, as it is in § 1, and hence the need for explicit language in § 6 and its absence in § 1.
The explicit language of § 6 is derived from 1893 PA 199, § 6; 1897 CL 10715.
While it may be desirable that the owner know whether one dealing directly with him intends to claim a lien, there is a reason for a distinction based on whether the mechanic’s lien secures payment of an obligation which the owner incurred or whether the right of action against the owner arises under the mechanic’s lien law. Where the owner deals directly with the contractor he need not he dependent on any other person for the administration of the contract.
Requiring that a person intending to claim a lien inform the owner of his right to demand a sworn statement from the contractor is readily understandable where the claimant dealt with the contractor and therefore may not be known to the owner. Where, however, there is no intervening contractor, the owner would have no way of exercising the right it is contended he must be informed of. It is unlikely that the Legislature would impose this requirement on all lien claimants for the general edification of owners; where there is in fact an intervening contractor the information must be provided and the owner will therefore necessarily be so informed.
"The Register of Deeds will accept liens without the proof of service attached from general contractors, architects and material-men, where the lien states that the work was performed or the material was furnished in pursuance of a contract with the owner, since no notice at all, at any time is necessary where the lienor contracts direct with the owner, and this also applies to service of a copy of the lien. That is, it is not necessary to serve either the fifteen-day notice or the copy of lien on the owner if the person claiming the lien was engaged by the owner, since it is obvious that if the owner hired a person, he would know about it without the service of a notice, but where a person is hired by a contractor or subcontractor, it is an altogether different matter, since the owner has no knowledge of the persons engaged by the general contractor. Hence the fifteen-day notice requirement.” Smith, New Michigan Mechanics’ Lien Law and How To Use It (1929), p 9.
"The prerequisites to a valid lien may be stated as follows: * * * (b) A notice to the owner, where dealings are not directly with him, within fifteen days after furnishing the first material or labor is provided for under section 1 of the statute. A notice, solely for labor, is timely if given before the contractor or subcontractor furnishes sworn statement under section 4 of the act. An additional prerequisite to claim of lien is now provided by Act 264 of 1929, C.L. 1929 § 13101, as follows:
"New Requirements of 1929 Amendment to Section 1, Applicable to Furnishings to Contractors and Subcontractors. — All furnishers of materials and performers of labor, including subcontractors, dealing with a contractor or subcontractor, and not with the owner directly, are now required to serve on the owner, etc., personally or by registered mail, a written notice of the furnishing, and its nature, calling attention to the owners’ right to demand a sworn statement from the contractor or subcontractor before any payment can be required on the contract, and his right to retain funds to pay subcontractors, materialmen and laborers, and giving notice of the intention to claim a lien.” Wykes, The Michigan Laws of Mechanics’ Liens (2d ed, 1931), §§ 39, 39(a), pp 77-78, 86-87.
A more recent comment, in response to Burton Drywall, states:
"The court’s reasoning is clearly erroneous. First, the so-called 'judicial exception’ to the requirement that a subcontractor had to serve a notice of intent to claim a lien upon the owner is not a judicial exception at all but, clearly and unambiguously, a statutory one. The relevant [portion] of the Act provides:
" 'that any person, firm or corporation furnishing materials or performing labor of any kind * * * shall within 90 days after the furnishing of the first of such materials or performing the first of such labor * * * for any contractor or subcontractor, serve on the owner * * * a written notice.’
"The only reasonable interpretation of this statutory language is that while a claimant who furnishes material or performs labor to a contractor or subcontractor must serve notice of intent, one who furnishes or supplies to an owner does not have to comply with the requirement of sending to the owner a notice of intention to claim a lien.
"The court based its statement that the Michigan supreme court’s decision is Mielis was erroneous on the dubious and highly speculative proposition that the supreme court was unaware of a 1929 amendment to the mechanic’s lien statute.” Snider, Commercial Transactions (§ V, Mechanics’ Liens), 23 Wayne L Rev 423, 438 (1977) (emphasis in original).
See also Ruffus, Burton Drywall, Inc v Kaufman: Pre-Lien Notice Requirements: An Exception?, 1977 Detroit Col of L Rev 725.
See Wattles ex rel Johnson v Upjohn, 211 Mich 514; 179 NW 335 (1920); Lafayette Dramatic Productions, Inc v Ferentz, 305 Mich 193; 9 NW2d 57; 145 ALR 1158 (1943); Milford v People’s Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968). | [
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] |
Per Curiam.
Plaintiff urges in this worker’s compensation case that the Workmen’s Compensation Appeal Board erred iri denying benefits on the strength of MCLA 418.833; MSA 17.237(833), known as the one-year-back rule, because in its appeal defendant did not raise the one-year-back rule and expressly stated that the appeal was limited to whether the administrative law judge was correct in finding that plaintiff had lost the industrial use of his right hand. We agree with plaintiff and hold that the one-year-back provision is a defense which is waived if not raised before the appeal board.
Plaintiff suffered a work-related injury in 1962 resulting in the amputation of his middle and ring fingers and severance of the index finger, the index finger being sewn back on. Defendant voluntarily paid 93 weeks of compensation. Being right-handed, plaintiff could do only simple work, but he was kept on until 1964 when he developed a brain tumor and was given a disability pension.
In 1972 plaintiff filed for additional worker’s compensation benefits and the sole issue at the hearing before the administrative law judge was whether, in 1962, plaintiff had lost the industrial use of his right hand. The administrative law judge found that he had, and awarded 122 weeks of compensation, that being the difference between the 215 weeks of benefits to which he was entitled and the 93 weeks of benefits previously paid.
Defendant took an appeal limited to the issue of whether plaintiff had lost the industrial use of his hand. The appeal board agreed that he had, but nevertheless went on to invoke the one-year-back rule sua sponte and deny benefits altogether. Plaintiff challenged this holding before the Court of Appeals but leave to appeal was denied over Judge Brennan’s dissent. We remanded the case to the Court of Appeals for consideration as on leave granted, 395 Mich 813 (1975), and the Court of Appeals affirmed in an unpublished memorandum opinion concluding that the one-year-back rule constitutes a limit on the authority of the appeal board to award compensation and cannot be waived.
In Kushay v Sexton Dairy Co, 394 Mich 69; 228 NW2d 205 (1975), appellee advanced in this Court the one-year-back rule and other arguments which it had not presented to the administrative law judge, the appeal board or the Court of Appeals. In determining whether to review these arguments we took note of several prior decisions by this Court, among them Aske v WE Wood Co, 248 Mich 327; 227 NW 722 (1929), which held that the failure to submit the defense of "loaned employee” to the Workmen’s Compensation Commission amounted to a waiver of that defense. Our conclusion in Kushay was that the appellee had failed properly to preserve the issues. We added:
"[Appellee] relies on the statement of three justices in Loucks v Bauman, 356 Mich 514, 517-518; 97 NW2d 321 (1959), for the proposition that the one-year-back provision is not a defense which can be waived. That view did not then and does not now have the support of a majority of the Court.” 394 Mich 77, fn 13.
We are of the opinion that the one-year-back provision is a defense, akin to the statute of limitations, which can be waived. It is not jurisdictional.
Defendant outlined the nature of its arguments before the appeal board in the statement of facts of the brief submitted to that body:
"The only issue before the referee and the only issue raised by this appeal is: Is the plaintiffs right hand useless for any type of work whatsoever?”
There was no oral argument. Under these circumstances, we hold that defendant waived the defense of the one-year-back rule by failing to raise it before the appeal board.
We reverse the decision of the Court of Appeals and remand the case to the Workmen’s Compensation Appeal Board for further proceedings consistent with this opinion. No costs, a public question.
Kavanagh, C.J., and Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred.
MCLA 418.833; MSA 17.237(833) provides:
“(1) If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.
"(2) When an employer of carrier takes action to recover overpayment of benefits, no recoupment of money shall be allowed for a period which is more than 1 year prior to the date of taking such action.”
MCLA 418.361(1)(h); MSA 17.237(361)(1)(h).
In Clarkson v Lufkin Rule Co, 367 Mich 19, 22; 116 NW2d 223 (1962), the defendant raised before this Court for the first time the $10,500 limitation which then existed as the maximum compensation payable in a silicosis case. MCLA 417.4; MSA 17.223. We observed that defendant did not raise the issue before the appeal board and concluded that under "such circumstances, it comes too late when raised for the first time here”. | [
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Per Curiam.
On May 21, 1987, a complaint and warrant issued charging defendant with uttering and publishing. He was not arraigned in district court until December 3, 1987. On December 22, 1987, defendant stood mute to the charge. On January 8, 1988, defendant pled guilty to attempted uttering and publishing, MCL 750.249; MSA 28.446, MCL 750.92; MSA 28.287. He was subsequently sentenced to six months to five years imprisonment. In June, 1987, defendant had begun serving sentences on two unrelated convictions. Defendant now appeals as of right, contending that his attempted uttering and publishing conviction must be reversed because it was obtained in violation of the 180-day rule, MCL 780.131; MSA 28.969(1).
The people concede that more than 180 days passed between defendant’s incarceration and his plea and that a valid guilty plea does not waive any claimed error as to a 180-day-rule violation. People v Wolak, 153 Mich App 60; 395 NW2d 240 (1986); People v New, 427 Mich 482, 495-496; 398 NW2d 358 (1986). The people contend, however, that defendant’s conviction should be affirmed de spite the 180-day-rule violation because neither defendant nor counsel objected to the delay. The people cite no authority for the proposition that a defendant must affirmatively assert his rights under the 180-day rule, and we have found none. Indeed, under the 180-day rule, the burden to bring a case to trial is on the state; the defendant need do nothing to expedite his trial date. See People v Farmer, 127 Mich App 472, 477; 339 NW2d 218 (1983). Good faith action must be taken by the prosecution to bring an incarcerated defendant to trial within the 180-day period of MCL 780.131; MSA 28.969(1). Here, no action was taken within that period. Accordingly, defendant’s conviction must be vacated.
Conviction vacated and case remanded. | [
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Levin, J.
The issue is whether re-prosecution of the defendant following the trial judge’s sua sponte mid-trial declaration of a mistrial was vio lative of the Double Jeopardy Clause. We hold that it was and that the information should be dismissed.
I
Fred Benton was charged with armed robbery. The first trial commenced July 30, 1973. On the first day of that trial — after the prosecution had called all the witnesses who were to testify at the second trial, with the exception of the officer in charge of the case, who at the second trial testified solely with regard to unsuccessful efforts to produce two res gestae witnesses — the people called Tommy McBride. McBride had also been charged with the commission of the offense but was not bound over for trial.
The prosecutor’s direct examination was devoted entirely to eliciting a statement made by McBride to the police. McBride recognized his signature on the statement, but could not recall making it. He said that he was under the influence of narcotics during and immediately after his arrest. The statement inculpated Benton and was read into the record in the form of a question. There was no objection by defense counsel.
Cross-examination explored the extent of McBride’s drug intoxication at the time the statement was made. On redirect, McBride asserted that the statement was untrue. The truth was that a man had run up to the car in which, immediately after the robbery, he and Benton were seated and threw a pistol and wallet into the back seat of the car.
At the beginning of the second day of trial, the judge, sua sponte, declared a mistrial. She said that the prosecutor had improperly impeached McBride, that McBride’s testimony was prejudicial to Benton and that a cautionary instruction would not be efficacious.
Benton’s second trial began October 1, 1973. His motion to dismiss on the ground that he had previously been placed in jeopardy on the same charge was denied. He was convicted and the Court of Appeals affirmed.
II
It is established that if the defendant himself moves for or consents to the declaration of a mistrial he will ordinarily be deemed to have waived any double jeopardy claim. In determining whether the defendant has consented to a mistrial, the United States Supreme Court declared, in a case where the defendant’s mistrial motion was assertedly occasioned by judicial error, that "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed”. United States v Dinitz, 424 US 600, 607-609; 96 S Ct 1075; 47 L Ed 2d 267 (1976). This Court, on the authority of Dinitz, has declared that the defendant must "do something positively in order to indicate he or she is exercising that primary control”. Defendant’s silence or failure to object to a declaration of mistrial does not constitute the requisite affirmative showing on the record.
In the instant case, there is no indication that Benton or his counsel consented to a mistrial and there is substantial evidence that his counsel objected. In declaring a mistrial, the judge relied on United States v Compton, 365 F2d 1 (CA 6, 1966), where counsel for a witness called by the government had advised the court that the witness would claim the Fifth Amendment privilege against self-incrimination and, over objection, the government read into the record in the form of a question a purported statement given by the witness to the FBI. It appears that counsel for Benton may have argued that Compton was distinguishable because McBride had not asserted his Fifth Amendment privilege: "I just wanted the court to note my objection raised yesterday as to this Fifth Amendment argument.”
In declaring a mistrial, the judge in the instant case said:
"And the Court is mindful, also, of the case of People v Grimmett [388 Mich 590; 202 NW2d 278 (1972)], where it indicated that, at least in general terms, if a mistrial were declared without the consent of the defendant that the defendant could not be tried under the abiding principle of double jeopardy.”
It is apparent that the judge was aware that she was declaring a mistrial without Benton’s consent and that, indeed, her action gave rise to an arguable defense of double jeopardy. She concluded, nevertheless, that she would declare a mistrial because the circumstances caused "the court to feel it was manifestly necessary to declare a mistrial in this cause because [of] the plain error which erroneously did occur”.
Ill
The governing standard, manifest necessity, was enunciated in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824): "[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”
"Manifest necessity” has escaped precise formulation. Indeed, the United States Supreme Court has followed an uncertain course in applying Perez. In Gori v United States, 367 US 364, 369; 81 S Ct 1523; 6 L Ed 2d 901 (1961), the Court declared that a sua sponte mistrial did not bar retrial if the mistrial had been declared "in the sole interest of the defendant”. Subsequently the Court declared that the Gori test "does not adequately satisfy the policies underpinning the double jeopardy provision”. United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971).
Jorn requires that the judge consider viable alternative curative measures before sua sponte declaring a mistrial. As stated in Dinitz, quoting from Jorn, in the absence of a motion by a defendant for a mistrial, " 'the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings’ ”.
In Illinois v Somerville, 410 US 458, 464, 471; 93 S Ct 1066; 35 L Ed 2d 425 (1973), the Court ruled that there was manifest necessity where under local law a defect in the indictment was not curable by amendment and could not be waived by the defendant’s failure to object: "A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction * * * would have to be reversed on appeal due to an obvious procedural error in the trial.”
The United States Court of Appeals for the Second Circuit reconciled Somerville and Jorn in these terms:
"Somerville holds, then, that the double jeopardy clause will not bar retrial even though the examination of alternatives mandated by Jorn is not undertaken if to do so would be futile because clearly no reasonable alternative existed.” United States v Grasso, 552 F2d 46, 52, fn 2 (CA 2, 1977).
We turn to a consideration of whether the nature of the defect in the proceedings was such that if a guilty verdict had been rendered at the first trial the conviction "would have [had] to be reversed on appeal” (Somerville, supra, p 464) and whether, if the defect was not so pervasive, a "scrupulous exercise of judicial discretion” would have revealed a less drastic remedy than declaration of a mistrial (Jorn, supra, pp 484-485).
IV
The procedural defect here would not have required reversal had Benton been convicted at the first trial.
While a prosecutor is obliged to call res gestae witnesses and, therefore, does not vouch for their credibility and may impeach them "the same as though such witnesses had been called by the respondent”, MCLA 767.40a; MSA 28.980(1), a prosecutor is not obliged to call an accomplice. "Absent [such] obligation, a witness thus called becomes the people’s witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.”
McBride, along with Benton, had been charged with commission of the armed robbery and, therefore, may properly be characterized as an accomplice. (If he is not regarded as an accomplice, what occurred would, because of the prosecutor’s undoubted right to impeach res gestae witnesses whom he is obliged to call, have been less objectionable.)
Proceeding on the assumption that McBride was an accomplice, the prosecutor could not properly impeach him (his own witness) by use of a prior statement, and the error was compounded by launching the impeachment without a foundation in the form of inconsistent direct testimony.
Although what occurred was improper, it does not follow that there was manifest necessity for declaration of a mistrial.
In affirming Benton’s conviction, the Court of Appeals said that if a mistrial had not been declared and Benton had been found guilty he "would certainly have assigned such a failure as error on appeal” (emphasis supplied). The accuracy of that assumption is debatable; be that as it may, manifest necessity does not arise because the defendant may, providently or improvidently, assign error.
The history of adjudication in the Court of Appeals demonstrates that if Benton had been convicted at the first trial it is unlikely that his conviction would have been reversed because of the defect perceived by the judge. In People v Coates, 40 Mich App 212, 214; 198 NW2d 837 (1972), and People v St Onge, 63 Mich App 16, 18-19; 233 NW2d 874 (1975), the Court of Appeals, recognizing that it is improper for a prosecutor to impeach an accomplice whom he calls, declined to consider the issue because of failure to preserve the issue for appeal by objection. Benton’s counsel did not object to the improper examination of McBride.
The judge’s reliance on Compton was misplaced. In that case, the prosecutor knew that the witness would invoke his Fifth Amendment privilege not to incriminate himself and defense counsel objected to the questioning. McBride did not invoke his Fifth Amendment privilege; he testified freely on both direct and cross-examination without objection by Benton’s counsel.
We conclude that, although the direct examination was improper and there was a defect in the proceedings, it is improbable that Benton would on that account have obtained a reversal on appeal if he had been convicted at his first trial.
V
There was a less drastic alternative which a scrupulous exercise of judicial discretion would have revealed.
The power to discharge a jury before a verdict should be exercised "with the greatest caution, under urgent circumstances, and for very plain and obvious causes”. United States v Perez, supra, p 580.
"[W]here the judge, acting without the defend ant’s consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.’ ” United States v Jorn, supra, p 484. Before a trial judge sua sponte declares a mistrial he or she should make explicit findings, after a hearing on the record, that no reasonable alternative exists.
In the instant case there was no record of any discussion with counsel of the efficacy of alternative curative measures. A thorough consideration of the situation with counsel would have revealed that the impropriety of confronting McBride with his inconsistent statement on direct was mitigated by his subsequent testimony.
The impropriety appears to have been primarily in the order of proof. McBride’s prior statement might have been admissible to impeach his apparently unexpected testimony. Under the circumstances, it would have been in order to give a cautionary instruction on the limited use for which an inconsistent statement may be used. In contrast with People v White, 401 Mich 482; 257 NW2d 912 (1977), it does not appear that the prosecutor knew that the witness would testify in a manner inconsistent with his earlier statement.
The declaration of a mistrial "entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case”. Illinois v Somerville, supra, p 469. At the subsequent trial the prosecutor did not call McBride; the defense did. The mistrial thereby relieved the prosecutor of the embarrassment of having his own witness exculpate the defendant.
Further, at the first trial the prosecution could not produce two witnesses. The delay occasioned by the declaration of a mistrial gave the police an added opportunity to search for the missing witnesses. While the search in this case proved fruitless, nevertheless, this illustrates the possible advantages to the prosecution of a mistrial.
The possible advantages to the prosecutor incident to declaration of a mistrial suggest the need for caution. When a mistrial is declared after the taking of evidence has begun, strategies of cross-examination are often revealed and the prosecution has, for the first time, learned the real strengths and weaknesses of its case. "Under these circumstances, mistrial exposes defendant not only to the burden of retrial and the possible loss of a favorably disposed tribunal, but also to the possi bility that the government will improve the strength of its case significantly in the second prosecution.” The Double Jeopardy Clause stands as a protection against precisely these dangers.
While the judge no doubt acted in good faith, good faith is not a factor unless the defendant moves for a mistrial and asserts that his "consent” to a mistrial, thereby evidenced, was constrained by prosecutorial or judicial misconduct or bad faith. In Dinitz the Court observed a distinction between sua sponte mistrials and mistrials granted at the defendant’s request, declaring that where the defendant requests the mistrial, retrials may be barred when the judge or prosecutor acted in bad faith.
Where the defendant does not request or consent to a mistrial, the "manifest necessity” standard governs. " 'In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.’ ” Dinitz, supra, p 607.
If appellate courts were to take into account the absence of judicial bad faith in deciding whether there is manifest necessity, a mistrial could be declared sua sponte whenever there is an arguable basis for such a declaration; the judge’s good faith, not manifest necessity, would define the inquiry.
This Court accords considerable deference to a judge’s determination of whether there is manifest necessity justifying declaration of a mistrial. People v Alvin Johnson, 396 Mich 424, 437; 240 NW2d 729 (1976). A mistrial may only be declared, however, after an on the record consideration and discussion of alternatives with counsel. The wishes of defendant and his counsel can then be ascertained and a full exploration of the alternatives undertaken. In the instant case correct procedures were not followed. Had they been observed the insignificance of the error may have been discovered and proper curative instructions given. Instead, an unnecessary mistrial was declared. We conclude that there was no "manifest necessity” to declare a mistrial.
Reversed.
Kavanagh, C. J., and Williams, J., concurred with Levin, J.
The Double Jeopardy Clause of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). Const 1963, art 1, § 15, additionally protects a defendant from being placed twice in jeopardy.
"Q. And did you make a statement concerning a robbery at 6562 Linwood?
"A. Well at the time * * *
”Q. (interposing): Yes or no, please. Did you make a statement?
"A. Yes.
"Q. Did you sign that statement?
"A. I think so.
"Q. Is this (indicating) your signature?
"A. Yes.
"Q. O.K. And this would be the statement, then, that you made, is that correct (indicating), if you signed it?
"A. Yes.
”Q. Mr. McBride, did you tell the officer, then, that James Johnson had nothing to do with the holdup, that (reading) 'Me and James Robinson, the other man arrested with me and Johnson, went into the TV shop, I was not armed, I didn’t know James Robinson had a gun, either. Me and James walked in. I stayed up front a while. James took the owner into the back room. I went behind the counter looking for money. I didn’t find any money. And I didn’t know how much James got from the owner and the other man that was there, also. We left the store and walked up Linwood until I saw James Johnson coming in his car. We then got in the car, with me in the front seat and James Robinson in the back seat. The police then came and arrested us.’ And it is signed Tommy McBride. Did you make that statement?
"A: I was under the influence of drugs. I don’t really * * *
"Q. (interposing): Did you make that statement?
"A. I really don’t know. I made a statement. I don’t recall what I said.
"Q. Is that your signature?
"A. That is my signature.
"Mr. Horn: I have no further questions.”
James Robinson is an alias for defendant Benton.
"Q- (by Mr. Horn): Would you tell us what happened December 22nd.
"A. Yes. You mean before I was arrested?
"Q. Yes, the events that led up to your being arrested.
"A. Well, I don’t know exactly what time, but Johnson the owner of the car came by on Linwood and Virginia Park at the Pink Lady Bar and picked * * *
"Q. (interposing): Which bar?
"A. Pink Lady.
"Q. Where is that?
"A. It is on Linwood and Virginia Park, I think, and from there we went to a beauty salon on Ferry Park. He was going to see about getting his hair weaved. And while we was sitting in the car waiting guys came by.
"Q. Guys came by?
"A. One guy.
"Q. One guy?
"A. Yes. And he ran to the car and asked us do we want to make some money and I said 'What?’ He said 'Drop me off.’ I said 'I’m not driving.’ So by this time Johnson come out of the beauty salon and gets in the car and we see a scout car cruising, coming by us. The guy, I don’t know who he was, he kept inquiring he wanted a lift. We told him we had some business to take care of. He takes a pistol and wallet and throws it in the back seat and walks away. And as we was getting ready to pull away the police stopped us.”
There is no claim here of judicial or prosecutorial misconduct designed to avoid a jury verdict at the first trial. United States v Glover, 506 F2d 291 (CA 2, 1974); State v Marquez, 113 Ariz 540; 558 P2d 692 (1976).
People v Alvin Johnson, 396 Mich 424, 432-433; 240 NW2d 729 (1976).
People v Grimmett, 388 Mich 590, 601; 202 NW2d 278 (1972); People v Gardner, 37 Mich App 520; 195 NW2d 62 (1972); United States v Grasso, 552 F2d 46, 49-50 (CA 2, 1977); Curry v Superior Court of San Francisco, 2 Cal 3d 707, 713; 87 Cal Rptr 361; 470 P2d 345, 348 (1970).
It is also distinguishable because Compton’s counsel had objected to the reading of the statement and Benton’s counsel did not.
See People v Alvin Johnson, supra, p 434.
See Schulhofer, Jeopardy and Mistrials, 125 U Pa L Rev 449 (1977); Comment, Double Jeopardy and Reprosecution After Mistrial: Is the Manifest Necessity Test Manifestly Necessary?, 69 NW U L Rev 887 (1975), and Note, Mistrial and Double Jeopardy, 49 NY U L Rev 937 (1974).
Justice Harlan explained the underlying rationale of United States v Jorn, 400 US 470; 91 S Ct 547; 27 L Ed 2d 543 (1971), as follows:
"[I]ndependent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.” Id. p 485.
United States v Grasso, supra, p 52; Arizona v Washington, 546 F2d 829, 832 (CA 9, 1976); United States ex rel Stewart v Hewitt, 517 F2d 993, 996 (CA 3, 1975); United States v Lansdown, 460 F2d 164, 168-169 (CA 4, 1972).
The Court continued:
"But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice.” Illinois v Somerville, 410 US 458, 471; 93 S Ct 1066; 35 L Ed 2d 425 (1973).
See Note, supra, 49 NY U L Rev, pp 947-948.
In Somerville, the procedural error was of such importance as to mandate reversal on appeal and another trial: "A trial judge properly exercises his discretion to declare a mistrial * * * if a verdict of conviction * * * would have to be reversed on appeal due to an obvious procedural error in the trial”; where "reversal on appeal [is] a certainty” and "automatic.” Somerville, supra, p 464.
People v Raider, 256 Mich 131, 135-136; 239 NW 387 (1931); People v Threlkeld, 47 Mich App 691; 209 NW2d 852 (1973).
People v Fidel, 37 Mich App 338, 342-343; 194 NW2d 732 (1971); People v White, 401 Mich 482; 257 NW2d 912 (1977).
People v Fidel, supra; People v White, supra.
This Court has held that because of "the danger that an adverse inference may be drawn from a claim of testimonial privilege”, it is improper for the prosecutor to call a witness whom he knows will invoke the privilege. People v Giacalone, 399 Mich 642, 646; 250 NW2d 492 (1977).
See United States v Jorn, supra, pp 484-485; United States v Grasso, supra, p 52; United States v Tinney, 473 F2d 1085 (CA 3, 1973); Note, supra, 49 NY U L Rev, p 952.
See Hileman v Indreica, 385 Mich 1, 8; 187 NW2d 411 (1971). It does not appear that the prosecutor knew that McBride would testify in a manner inconsistent with his prior statement. If the testimony was not unexpected then the cause of the mistrial might have been prosecutorial misconduct, posing still other issues which our disposition makes it unnecessary to reach. See fn 4, supra.
It may still be maintained that McBride’s statement improperly read into the record was so prejudicial as to constitute plain error. The procedural defect was not, however, of that magnitude.
Before McBride testified, a wealth of evidence had been introduced establishing Benton’s guilt. The victim positively identified him. Police officers testified that the victim’s personal property and identification cards were found on Benton’s person when he was arrested in the vicinity of the crime not more than ten minutes after the robbery. A revolver and approximately $280 was taken from Benton’s person and the car. On retrial the prosecution did not call McBride as a witness. While the prosecution’s impeachment of McBride on direct examination was a defect in the proceedings, in light of the nature of the defect, which does not go to the integrity of the judicial process, the failure of Benton’s counsel to object and the overwhelming evidence against Benton, the defect was not plain error.
The transcript reveals that after the first day of trial there was an off-the-record discussion of a possible declaration of mistrial. In declaring a mistrial, the judge briefly mentioned and dismissed the possibility of a curative instruction.
United States v Kin Ping Cheung, 485 F2d 689, 691-692 (CA 5, 1973).
Schulhofer, supra, pp 508-510.
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).
"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by the judge or prosecutor’ * * * threatens the '[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” United States v Dinitz, 424 US 600, 611; 96 S Ct 1075; 47 L Ed 2d 267 (1976).
Even if it were clear that the mistrial was declared for Benton’s benefit this would not be decisive. See text accompanying fn 10.
A trial judge assumes a burden of persuasion when depriving the defendant of his "valued right to have his trial completed by a particular tribunal”. Wade v Hunter, 336 US 684, 689; 69 S Ct 834; 93 L Ed 974 (1949).
A judge’s discretion in such matters is not absolute. The rationale for deferring to the judge so that he or she will not be discouraged from vigilant protection of the defendant has been criticized:
"Defense counsel is as well situated as the judge to assess the impact of incidents that are potentially prejudicial to the accused. The usefulness of mistrial to the defense depends, moreover, not only on the impact of the particular event but also on two other factors— the nature of other circumstances that may have helped or hindered the defendant’s cause, and the extent to which the resources of the accused will permit an adequate defense in a second trial. A trial judge normally will have only vague familiarity with the first of these factors and none at all with the second. Deference to the trial judge therefore seems particularly inappropriate when the mistrial decision ostensibly was intended to protect an accused who objected to mistrial or was given no opportunity to do so. In such a case, there is no excuse for not ascertaining defense preferences directly and then honoring them.” Schulhofer, supra, p 496. See, also, Curry v Superior Court of San Francisco, supra, 2 Cal 3d 717.
The United States Supreme Court has noted that "[m]any juries acquit defendants after trials in which reversible error has been committed, and many experienced trial lawyers will forego a motion for mistrial in favor of having his case decided by the jury”. United States v Tateo, 377 US 463, 474; 84 S Ct 1587; 12 L Ed 2d 448 (1964).
Reprosecution after a sua sponte declaration of mistrial because of improperly admitted testimony has been barred on double jeopardy grounds in this and other jurisdictions. See People v Alvin Johnson, supra (the mere mention of a polygraph test, without more); People v Gardner, 37 Mich App 520; 195 NW2d 62 (1972) (inadmissible reference by prosecution witness to defendant’s prior conviction); Klinefelter v Superior Court of Maricopa County, 108 Ariz 494; 502 P2d 531 (1972) (state’s witness on redirect referred to information which had specifically been excluded); State v Embry, 19 Or App 934; 530 P2d 99 (1974) (the prejudicial effect was curable by instruction). | [
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Rehearing denied.
Reported at 401 Mich 398. | [
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Request for appointment of counsel granted December 16, 1977. Defendant shall file with the Recorder’s Court for the City of Detroit an affidavit concerning his present financial status (see guidelines at 387 Mich xxxi). The prosecutor shall be furnished a copy of the financial affidavit and may challenge defendant’s asserted indigency within 20 days after receiving the affidavit. The challenge, if brought, shall be resolved at a hearing before the Recorder’s Court for the City of Detroit at which the prosecutor, defendant, and counsel for defendant shall appear personally to aid the court’s inquiry. The Recorder’s Court for the City of Detroit, upon a finding of indigency, shall appoint counsel for defendant and shall furnish any portion of the record counsel may require. The scope of the application for leave to appeal shall be limited to a discussion of the issues previously raised by defendant in the Court of Appeals with regard to the habitual offender proceedings which were brought against him in this cause.
Reported below: (After Remand) 77 Mich App 71. | [
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Per Curiam.
The plaintiff was suspended from her position as a physical education instructor for failing to report for work for approximately one month. Following a hearing before the defendant school board, the plaintiff was discharged. The teachers’ tenure commission reversed on the grounds that the school board’s refusal to grant the plaintiff’s last-minute request to subpoena a doctor whose report was in evidence constituted a denial of due process and violated MCLA 38.104(g); MSA 15.2004(g). The commission awarded "all salary lost” to the plaintiff. The defendant appealed to the Wayne Circuit Court, which upheld the commission’s decision that the plaintiff was denied due process because of the failure to subpoena the doctor. However, the court found the error correctable and remanded the case to the board to hear testimony from the doctor. Back pay was denied.
The Court of Appeals affirmed the order of remand, but reversed the ruling on payment of salary. The Court characterized the plaintiffs status as that of a suspended teacher and held that "[b]y express statutory language, a suspended teacher is entitled to be paid until such time as an entirely legal and proper hearing is held”. 72 Mich App 717, 726-727; 250 NW2d 504 (1976).
We disagree with that interpretation of MCLA 38.103; MSA 15.2003, which provides,
"On the filing of charges in accordance with this section, the controlling board may suspend the accused teacher from active performance of duty until a decision is rendered by the controlling board, but the teacher’s salary shall continue during such suspension: Provided, That if the decision of the controlling board is appealed and the tenure commission reverses the decision of the controlling board, the teacher shall be entitled to all salary lost as a result of such suspension.”
A teacher is entitled to salary during the period of suspension, but the suspension ends when the school board renders a decision. The statute does not address the question whether salary must be paid during the pendency of appeals from board or commission rulings.
We do not impute to the Legislature an intent to award salary to a teacher who has not yet prevailed on the merits and whose discharge was vacated on procedural grounds, subject to correction on remand without a rehearing. Under such a construction of the statute, interlocutory rulings on procedural errors would result in windfalls to teachers who later lose on the merits. Teachers who prevail on the merits are entitled to no more than the actual economic loss suffered. Shiffer v Board of Education of Gibraltar School District, 393 Mich 190; 224 NW2d 255 (1974). The awarding of salary to a teacher who has not yet prevailed on the merits and whose discharge was reversed on procedural grounds is at odds with the rule of compensation for actual loss suffered. Moreover, the practice of awarding salary at this stage conflicts with the policy of deferring determination of the amount of back pay until after there has been a definitive ruling on liability. See Shiffer v Gibraltar Schools, supra, 207-209.
The award of salary here was premature. The commission reversed the board decision on procedural grounds and the lower courts have ruled that the record be supplemented. If it is ultimately determined that the discharge was wrongful and the plaintiff is reinstated, she would then be entitled to an award of back pay. Until the discharged teacher prevails on the merits, back pay for the time required for appeals and new hearings on remand may not be awarded.
The application for leave to appeal is considered and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we affirm the Court of Appeals remand order and reverse its ruling that the plaintiff be paid salary until the ordered hearing is held.
Kavanagh, C. J., and Levin, Coleman, Fitzgerald, and Ryan, JJ., concurred.
Upon remand, the school board convened a further hearing at which the doctor appeared and testified. The board again decided to terminate plaintiffs employment. | [
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Per Curiam.
Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, carrying a dangerous weapon with unlawful intent, MCL 750.226; MSA 28.423, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Sentenced on June 15, 1988, to two to ten years in prison on the first count, six months to five years on the second count, and to a mandatory two years for felony-firearm, defendant appeals as of right. We affirm.
Defendant was charged following a shooting outside of the Airport Bar in Newberry Township. Testimony at trial disclosed that on February 16, 1987, the defendant and Robert Taylor were in the Airport Bar drinking with their friends. As the evening wore on Taylor from time to time made disparaging remarks concerning defendant and was told to quiet down by the bartender, who also owned the bar. Eventually defendant began to leave the bar, first stopping by where Taylor was sitting and openly challenging him to come outside and settle things. Defendant and Taylor, each accompanied by two or more friends, then left the Airport Bar. Defendant walked to a parked car, removed a .25 caliber gun from the glove compart ment and, as Taylor approached him in a threatening manner, raised the gun and fired one shot striking Taylor in the chest. At trial, defendant raised self-defense and intoxication as defenses.
Prior to trial in circuit court, the prosecution moved to discover the names of defense witnesses and the statements they made to a defense investigator who the prosecution alleged presented himself to the witnesses as someone from the prosecutor’s office. At a hearing on the motion, the prosecution argued that the motion related only to the statements taken by the investigator and did not involve any legal theories, planning, strategy or defenses that the defendant might have in mind. The prosecutor argued that most of the statements taken were from persons whom the prosecution would call as witnesses and that the prosecution was entitled to know if the witnesses were making inconsistent statements. The trial court granted the motion explaining:
Well, the prosecutor’s motion is granted. The trend certainly is to increase the right of the prosecutor to discover the defendant’s case and to make more equal the ability to obtain information in advance of the trial as to what the witnesses— what witnesses will be called form [sic] each side and also any statements that those witnesses have made.
It has long been the rule that the prosecutor not only has to name his witnesses, but make available to defense counsel the statements of any of the witnesses, any of such witnesses. And I really see no harm in allowing the prosecutor the same privilege as the defendant has.
I’m not asking the defendant to violate his privilege against self-incrimination, but only to disclose in advance of the trial what witnesses he was going to call and any statements that those witnesses have made.
This is not a violation of any work product privilege because such product applies only to the matters pertaining to opinion, impressions, and the like, the validity of theories, and matters of this kind. It does not apply to written statements of witnesses, of prospective witnesses. So the motion will be granted.
The single issue raised on appeal is whether the trial court erred in granting the prosecution’s motion to discover the names of defense witnesses and the statements they made to a defense investigator who, according to the prosecution, presented himself to the witnesses as someone from the prosecutor’s office.
Defendant argues that the trial court’s order of discovery is error which requires reversal because: (1) it is contrary to People v Paris, 166 Mich App 276, 278-280; 420 NW2d 184 (1988), which held that, until our Supreme Court approves the broader rules of criminal discovery set forth in proposed MCR 6.205 (422A Mich 79), a trial court is without the power to order the disclosure of anything other than the defense of insanity or diminished capacity, MCL 768.20a; MSA 28.1043(1), or the defense of alibi, MCL 768.20; MSA 28.1043; (2) statements given to an investigator for the defense are as much a work product as if prepared by defense counsel himself and under United States v Nobles, 422 US 225; 95 S Ct 2160; 45 L Ed 2d 141 (1975), are shielded from discovery by the work product doctrine.
In answer, the prosecution argues: (1) that defendant reads Paris far too broadly and, (2) assuming arguendo that the trial court erred as to the work product rule, defendant has not established or even alleged prejudice, and thus any error is harmless.
We agree that defendant construes Paris too broadly. Contrary to defendant’s contention, the factual situation in Paris is not comparable to the instant case. There, the requested discovery was broad and all-inclusive, going so far as to include memoranda of oral statements made by defense witnesses, reports prepared by defendant’s experts, and any tangible evidence in defendant’s possession. The requested discovery could only have been granted pursuant to the broad discovery powers proposed under MCR 6.205, which was pending before the Supreme Court. 166 Mich App 278. In the instant case, the request for discovery was limited to statements of persons who were present at the Airport Bar and who would be available as witnesses for the prosecution.
Implicit in defendant’s Paris-based claim is the assumption that, in the absence of express legislation, a trial court is without the inherent authority to grant any pretrial discovery in criminal actions. This is not the law in Michigan. In People v Johnson, 168 Mich App 581; 425 NW2d 187 (1988), a case decided three months after Paris, supra, this Court affirmed a trial court’s order authorizing discovery of a letter written by defendant’s girlfriend to his defense counsel. In reaching that conclusion, the Johnson Court stated:
In Michigan, the liberal rules of discovery available in civil proceedings are not equally applicable to criminal cases. MCR 6.001(B). However, this is not to say that discovery in criminal cases is prohibited. Even where discovery is not authorized by statute or rule, it has long since been recognized that discovery in criminal cases is a matter within the trial court’s discretion. People v Freeman (After Remand), 406 Mich 514, 516; 280 NW2d 446 (1979); People v Taylor, 159 Mich App 468, 471-472, n 5; 406 NW2d 859 (1987), lv den 428 Mich 913 (1987), and cases cited therein. Although this state has not yet decided the issue, there seems to be a growing trend in other jurisdictions to allow prosecutors greater access to the pretrial statements and notes of defense lay witnesses, at least where such does not impinge upon a defendant’s constitutional or statutory rights. See United States v Nobles, 422 US 225; 95 S Ct 2160; 45 L Ed 2d 141 (1975); Anno: Right of prosecution to discovery of case-related notes, statements, and reports — state cases, 23 ALR4th, 799, § 7, pp 830-834. See also, LaFave & Israel, Criminal Procedure (student ed), § 19.4(a) and (g), pp 741-742, 748-750. [168 Mich App 584. Emphasis supplied.]
Similarly, the United States Supreme Court and courts in other jurisdictions have ruled that a trial court, in the absence of an explicit statute, has the inherent authority to permit discovery in criminal cases. In Nobles, supra, a trial court’s order requiring defendant’s investigator to disclose statements that he obtained from persons who, as in the instant case, were available as witnesses to both the prosecution and defense, was held not to violate defendant’s Fifth Amendment rights.
In addition to Michigan, a number of jurisdictions hold that a trial court has the inherent authority to grant discovery going beyond the scope of discovery prescribed by statute in criminal cases. Scott v State, 519 P2d 774 (Alas, 1974); Spears v State, 272 Ind 634; 401 NE2d 331 (1980), modified 272 Ind 647; 403 NE2d 828 (1980); State v Montague, 55 NJ 387; 262 A2d 398 (1970); State v Means, 268 NW2d 802 (SD, 1978); State v Hardin, 558 SW2d 804 (Mo, 1977). In view of the above authority, we reject defendant’s claim that, in the absence of new legislation granting broad rights of criminal discovery or the Supreme Court’s approval of proposed MCR 6.205, the trial court was without the power to grant discovery in the instant case. In our opinion, the rule set forth in Johnson, supra, is more applicable to the facts before us than the rule set forth in Paris, supra.
Having determined that the trial court had the inherent authority to compel pretrial discovery, we next inquire whether the order of discovery was precluded by the work product rule. In Nobles, supra, the United States Supreme Court held that the work product doctrine protects an investigator’s report from discovery, but the protection was waived when the defendant placed the investigator on the stand and sought to adduce his testimony.
At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself. Moreover, the concerns reflected in the work product doctrine do not disappear once trial has begun. Disclosure of an attorney’s efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case. We need not, however, undertake here to delineate the scope of the doctrine at trial, for in this instance it is clear that the defense waived such right as may have existed to invoke its protections.
The privilege derived from the work product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution’s witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. [422 US 238-239.]
Other jurisdictions are split on whether the work product rule is a defense to an order of discovery. State courts come to contrary conclusions based largely on the degree to which the material sought to be discovered reflects or does not reflect the legal theories, impressions, or trial strategies of counsel. See 23 ALR4th 805. Commonwealth v Mustone, 353 Mass 490; 233 NE2d 1 (1968); Montague, supra; Lepley v Lycoming Co Court of Common Pleas, 481 Pa 565; 393 A2d 306 (1978).
Michigan has not ruled on the question of to what extent the work product doctrine might protect a defendant from pretrial discovery of statements taken by defendant’s investigator. In view of the sparse treatment, both as to the facts and the law, found in the briefs in this case, we decline to decide the issue. Further, for the reasons hereinafter set forth, we do not find it necessary to make that decision. Instead, we will assume that, as argued by defendant, the work product doctrine is applicable and that the trial court erred in ruling to the contrary.
We turn now to what we perceive to be the decisive issue in this case: Is the trial court’s presumed error grounds for reversal and a new trial? We conclude that it is not. We have carefully reviewed the transcript of trial and find that at no time did either the prosecution or defense counsel make use of, or even refer to, any of the statements taken by defendant’s investigator. At no point during trial or on appeal did defendant assert, or even suggest, that he was prejudiced by the pretrial disclosure of the witnesses’ statements. Admittedly, the pretrial disclosure relieved the prosecution’s concern that something in one or more of the statements might be inconsistent with what the witness might say when testifying for the prosecution. But that is hardly the type of prejudice to defendant which merits a new trial.
No claim is made that receipt of the statements disclosed defendant’s theory of defense or a surprise witness not already known to the prosecution. From the very outset it was patently apparent that self-defense and intoxication would be raised as defenses. Furthermore, the principal and perhaps only value of the statements to defendant would be their potential use for impeachment purposes. If the statements were used by defendant for impeachment, any immunity from discovery would be waived. Nobles, supra, pp 238-239. Thus, not only did the trial court’s assumed error not prejudice defendant, but the error would have been waived had defendant used the statements. Under MCR 2.613(A), a trial court’s error is not grounds for reversal unless refusal to do so appears to the court to be "inconsistent with substantial justice.” See also MCL 769.26; MSA 28.1096. Given the strong testimony against defendant and the non-reference to the disputed statements, it is impossible for us to find the trial court’s limited order inconsistent with substantial justice.
Where, as in the instant case, discovery is found to be violative of the work product doctrine, the error is found harmless unless defendant is prejudiced thereby. Thus, even in California, which has adopted a policy of judicial restraint in the absence of explicit legislative authority for discovery, discovery of notes of a defense investigator was held not to prejudice the defendant even though the notes should have been protected by the work product doctrine. People v Collie, 30 Cal 3d 43; 177 Cal Rptr 458; 634 P2d 534; 23 ALR4th 776 (1981). The court reasoned:
Nevertheless, defendant fails to demonstrate any prejudice from the revelation. The reports reflected solely on the potential utility of a witness who had already been utilized. Thus even if the defense plan to use Ms. Morris was improperly revealed, no harm resulted because it had been already revealed when she was called to the stand by defense counsel. [30 Cal 3d 60.]
In Spears v State, supra, the trial court ordered pretrial discovery of the recorded statements or summaries of statements of witnesses whom the defendant intended to call at trial. After finding that the trial court’s discovery order violated the work product doctrine, the Spears court held that defendant’s bald assertion of harm failed to show that the trial court’s improper discovery order dictated reversal. In the instant appeal, defendant does not even make a bald assertion of harm.
State v Sandstrom, 225 Kan 717; 595 P2d 324 (1979), cert den 444 US 942; 100 S Ct 296; 62 L Ed 2d 308 (1979), involved a pretrial order of discovery directing defense counsel to produce the statements of any witness who would testify for the defense. Relying on Nobles, the court first held that the order was erroneous since there was no statutory authorization to compel defense counsel to furnish statements of his witnesses prior to trial. The court then held the error was not prejudicial.
We find nothing in the record to show that any of the statements were used for the purpose of impeaching or discrediting any witnesses called by either of the parties. There is nothing to indicate that any of the reports or statements furnished information which enabled the State to obtain evidence to establish the guilt of the defendant. Although the action of the trial court was erroneous in ordering production of the statements and reports by the defense counsel, we find that such action in no way prejudiced the right of the defendant to a fair trial and we decline to reverse the case on this point. [225 Kan 729.]
Factually, Sandstrom is similar to the case before us. Like Sandstrom, in the instant case there is nothing in the briefs on appeal or in the transcript which indicates that any of the statements given to the prosecution supplied information which enabled the state to establish defendant’s guilt. Indeed, as noted earlier, the statements were neither used nor mentioned by either counsel at trial. Accordingly, assuming arguendo that the trial court did err in issuing the order of discovery, we find the error harmless.
Affirmed.
Other courts, particularly California, have concluded that in the absence of explicit statutory authority, the better policy is to refuse prosecutorial discovery. People v Collie, 30 Cal 3d 43; 177 Cal Rptr 458; 634 P2d 534; 23 ALR4th 776 (1981).
Statements made to the police, or at preliminary examination, or given to defense counsel personally were used for impeachment purposes at trial. However, the statements given to defendant’s investigator and covered by the trial court’s order of discovery at issue in this case were not used. | [
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] |
Griffin, J.
Plaintiffs Peter and Maria Janice appeal as of right from a lower court order grant ing summary disposition in favor of defendant Heritage Newspapers, doing business as News Herald. We affirm.
i
One day each week since December, 1978, defendant John Hondzinski would deliver newspapers for the weekly newspaper, News Herald. On May 28, 1986, while driving in his own unmarked vehicle and in the process of his weekly deliveries, Hondzinski was involved in a motor vehicle accident with plaintiff Peter Janice. The accident occurred as Hondzinski drove out of a private driveway and attempted to turn left onto a thoroughfare. Plaintiffs’ first amended complaint alleges negligence against Hondzinski in the operation of his motor vehicle. Primarily, it is asserted that Hondzinski failed to yield the right-of-way to the plaintiffs’ oncoming vehicle.
Plaintiffs’ negligence action seeks recovery of personal injuries and damages by Peter Janice and loss of consortium by his wife, Maria Janice. Count i of plaintiffs’ complaint (not at issue in the instant appeal) alleges negligence by Hondzinski in the operation of his motor vehicle; Count n: vicarious liability against defendant News Herald for the negligence of its alleged employee Hondzinski; and Count hi: negligent hiring of Hondzinski by defendant News Herald.
The contract between the News Herald and Hondzinski required defendant News Herald to make available to Hondzinski an agreed-upon number of newspapers as soon as practicable after publication. Hondzinski promised to pick up the newspapers and promptly deliver them to newsstands, carriers, persons, and places designated by the News Herald. The means and method of trans portation and delivery of the newspaper were within the discretion and control of Hondzinski. He had the full right to determine the route or routes to be taken. Hondzinski was permitted to distribute other periodicals, advertisements, or commodities, or to engage in other business activities so long as he did not place materials in the newspapers. He was to use his own transportation for the deliveries and the News Herald did not make any payments for repairs, expenses, or mileage. It was Hondzinski’s responsibility to provide a substitute if prevented by illness or other causes from making the distribution or deliveries, and Hondzinski was to maintain the exclusive control of and responsibility for any substitute.
The trial court granted defendant News Herald’s motion for summary disposition as to Count n under MCR 2.116(0(10), ruling that plaintiffs had failed to document sufficient facts to establish a genuine issue of material fact as to an employer-employee relationship between defendant News Herald and Hondzinski.
Subsequently, the trial court also dismissed Count in under MCR 2.116(C)(8) and (10). The court held that defendant News Herald did not have a duty to inquire into the background of its contract drivers and that, even if such a duty existed, defendant News Herald neither breached a duty by hiring Hondzinski nor contributed to the cause of the accident.
n
A motion for summary disposition under MCR 2.116(0(10) tests the factual basis for a claim. A party defending against a motion brought under MCR 2.116(0(10) may not rest upon his or her pleadings alone but must support allegations with factual documentation:
When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. [MCR 2.116(G)(4).]
Plaintiffs argue that a genuine issue of material fact existed as to whether Hondzinski was an employee of the News Herald and therefore the trial court erred in dismissing Count n. We disagree.
Generally, one who employs an independent contractor is not vicariously liable for the contractor’s negligence. Hartford Fire Ins Co v Walter Kidde & Co, Inc, 120 Mich App 283, 294; 328 NW2d 29 (1982). The rationale for this rule is that an independent contractor is not subject to the control of the employer, and therefore the employer should not be held vicariously liable for actions outside its control. Id. See also Nichol v Billot, 406 Mich 284, 296; 279 NW2d 761 (1979). The test generally applied to determine whether a newspaper carrier is an employee or an independent contractor is one of control. Sliter v Cobb, 388 Mich 202, 205-206; 200 NW2d 67 (1972). See also Anno: Newspaper boy or other news carrier as independent contractor or employee for purposes of respondeat superior, 55 ALR3d 1216 (1974).
There are several indicia that the carrier is an independent contractor rather than an employee of the publisher: if the carrier purchased his route from another carrier rather than the publisher, if the carrier is referred to as an "independent contractor” in the contract with the publisher, if the carrier is not included in any of the benefit plans, and if the carrier trains his successor. Other important factors for this determination include: whether the carrier hired his own substitutes, whether the company rules or suggestions had to be followed, and whether the carrier could deliver other items as well as the publisher’s newspaper. 55 ALR3d, § 2, pp 1219-1220.
Michigan courts have followed these general principles to determine the relationship between carrier and publisher. This precise issue has been before the Michigan courts on two occasions. In Gall v Detroit Journal Co, 191 Mich 405; 158 NW 36 (1916), the plaintiff was injured when struck by an automobile driven by a carrier delivering papers for a defendant publisher. The contract between the carrier and publisher was terminable at the will of either party and provided that the carrier would deliver and distribute the newspapers at such places, along such routes, and on such schedules as designated by the publisher. The means and methods of such delivery were under the exclusive control of the carrier. In Gall the Supreme Court held that, since the publisher had control only over the final result and the means of accomplishing the task was within the carrier’s discretion, the carrier was an independent contractor rather than an employee. Gall, p 409.
In Sliter v Cobb, supra, a plaintiff was also injured in a motor vehicle accident with a carrier delivering newspapers. The Court found that the following factors were indicative of an employer-employee relationship between the carrier and the publisher: the route was owned by the publisher and leased to the carrier (whereas in Gall, the carrier owned the route and could sell it to another party), the carrier was forbidden from delivering any other publications on the route, the publisher directed the manner in which the papers were to be rolled, banded, and deposited, the carrier was required to comply with the publisher’s billing procedure, credit policies, and bookkeeping methods, the carrier could not terminate delivery to customers, except for nonpayment, without the permission of the publisher, and the carrier received a mileage allowance for servicing the route.
In the present case, the following facts are undisputed: the News Herald did not reserve the right to cancel the contract at will, Hondzinski was not prohibited from delivering other publications, and Hondzinski was not required to follow the publisher’s credit policies, billing procedures, and bookkeeping practices. Neither was Hondzinski provided with benefits or paid vacations by the publisher. The publisher retained control over only the result, i.e., that the newspapers were to be timely delivered at the appropriate locations; Hondzinski retained control over the manner and method of the delivery.
These undisputed facts establish that Hondzinski was an independent contractor. Moreover, other factors, such as the fact that Hondzinski is defined by the contract as an independent contractor and was not included in the News Herald’s benefit plans support this conclusion. None of the factors cited by the Sliter Court give rise to a genuine issue of material fact as to the existence of an employer-employee relationship in the instant case. Therefore, we find that the trial court properly granted summary disposition in favor of defendant News Herald as to Count n of plaintiffs’ complaint.
in
Plaintiffs next argue that the trial court erroneously granted summary disposition in favor of defendant News Herald under MCR 2.116(C)(8) and (10) on their claim in Count m that defendant News Herald negligently hired Hondzinski as an independent contractor.
The standard of review of a ruling under MCR 2.116(0(10) is set forth above. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone.
The existence of a duty owed by a defendant to a plaintiff is a necessary element of every negligence action. The issue of duty is a question of law for the court to decide. Moning v Alfono, 400 Mich 425, 436-437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977); Simonds v Tibbitts, 165 Mich App 480, 482-483; 419 NW2d 5 (1987).
As stated above, the general rule is that an employer of an independent contractor is not liable for the contractor’s negligence. Hartford, supra. However, many jurisdictions recognize an exception to this rule where an employer knowingly, recklessly, or negligently selects an incompetent independent contractor. See generally, Anno: When is employer chargeable with negligence in hiring careless, reckless, or incompetent independent contractor, 78 ALR3d 910; 41 Am Jur 2d, Independent Contractors, § 26, pp 779-781; Restatement Torts, 2d, § 411, p 376.
It is unclear whether Michigan recognizes such a tort. Further, Michigan has yet to define whether an employer’s conduct must be knowledgeable, reckless, or merely negligent. Resolution of these questions is not necessary in the present case.
Plaintiffs allege that the News Herald breached a duty by failing to inquire as to whether Hondzinski possessed a chauffeur’s license, maintained his vehicle in good working order, or carried automobile liability insurance in excess of the minimum limits required by law. The Honorable Robert J. Colombo, Jr., ruled that defendant News Herald did not owe such duties and even if such duties did exist plaintiffs failed to assert sufficient facts to establish that such tortious conduct was a proximate cause of the accident. We agree.
There is absolutely no evidence that the accident was caused by poor maintenance of Hondzinski’s vehicle or by the failure of Hondzinski to carry liability insurance great than the minimum limits required by law.
As to the failure of Hondzinski to possess a chauffeur’s license, plaintiffs note that negligence may be inferred from the breach of a licensing requirement. Klanseck v Anderson Sales & Service, Inc, 426 Mich 79; 393 NW2d 356 (1986). The issue of proximate cause need not be addressed since it is clear that the licensing statute was not breached. The Michigan Vehicle Code states that "[n]o person shall knowingly employ any chauffeur to operate a motor vehicle who is not licensed as provided in this chapter.” MCL 257.327; MSA 9.2027. (Emphasis added.) The trial court ruled that, since Hondzinski was an independent contractor and not "employed” by defendant, this requirement was inapplicable. As indicated by our holding, supra, we agree.
In addition, we note that whether or not a chauffeur’s license is required depends upon the principal purpose of the employment. OAG 1941-42, No 20265, p 202. In the present case, the principal purpose of the contract was the delivery of newspapers, not the operation of a motor vehi ele. The method of the delivery, whether by foot, bicycle, or motor vehicle, was within the control of Hondzinski. Accordingly, even if Hondzinski were regarded as an employee of defendant News Herald, a chauffeur’s license would not be required.
Affirmed.
Passing reference to such a tort is made in Eger v Helmar, 272 Mich 513; 262 NW 298 (1935), and Burch v A & G Associates Inc, 122 Mich App 798; 333 NW2d 140 (1983). The parameters of such a tort, should it exist in Michigan, have never been defined.
It is undisputed that Hondzinski possessed a valid operator’s license at the time of the accident. Further, Hondzinski’s driving record was exemplary. | [
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Pee Cueiam.
This is a matter before us on an application for leave to appeal from a decision of the Court of Appeals which affirmed the summary conviction of the defendant for contempt of court.
In lieu of grant, pursuant to GCR 1963, 865.1(7), we reverse the Court of Appeals, and discharge the defendant, for we are convinced from our examination of the record that rather than for the reasons urged in the application, the conviction should not stand because the incident giving rise to it was based upon such a fundamental error and abuse of the contempt power that it is unseemly to sanction it.
FACTS
On July 20, 1973, defendant Jasper appeared in the Traffic and Ordinance Division of the Recorder’s Court of the City of Detroit to contest a citation issued for an alleged parking meter violation. He brought with him a tape recorder and asked if the referee had any objections to his taping the conversation for his own record. Instead of answering defendant’s question the referee ordered him to turn the recorder off and found him in contempt of court.
Thereupon the defendant was brought before a judge of the court and when he again asked if there were objection to the tape recorder was ordered to turn it off. The judge pointed out the court reporter who was recording the proceedings and said that there would be no tape recorder in the courtroom.
Upon defendant’s refusal to turn the recorder off and his attempt to leave the courtroom, he was subdued by police officers, summarily found guilty of contempt of court and sentenced to serve ten days in the Detroit House of Correction.
Defendant was released on appeal bond after serving five days.
There was no authority for the order to turn off the tape recorder in the circumstances of this case.
The former Canons of Judicial Ethics which were in effect at the time of this trial did not prohibit tape recordings. Only the improper publicizing of court proceedings was prohibited. Judicial Canon 35 read:
"Proceedings in court should be conducted with fitting dignity and decorum.* The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings are calculated to detract from the essential dignity of the proceedings, distract the witness in giving his testimony, degrade the court, and create misconceptions with respect thereto in the mind of the public and should not be permitted.
"Provided that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.”
Since the recording was not prohibited at the time of trial, and as the record will not support the assertion that defendant wished to publicize or disrupt the trial, we conclude that the referee and the judge abused their discretion in demanding that the tape recorder be turned off.
We do not condone the actions of defendant subsequent to the court’s refusal to articulate the objection to his tape recording, although we realize that but for such refusal, defendant would not reasonably be expected to have acted in the manner he did.
We must not be understood, however, to approve of the defendant’s conduct or to give the impression that a person may enforce his rights with unrestrained belligerence. The court may properly punish any contempt.
This record on the other hand unfortunately seems merely to portray an exhibition of mutual contempt.
The contempt citation is set aside and the defendant is discharged.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Levin, and J. W. Fitzgerald, JJ., concurred.
Swainson, Williams, and M. S. Coleman, JJ., concurred in the result. | [
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] |
Leave to appeal prior to decision by the Court of Appeals considered November 21, 1974, on application of plaintiffs-appellants, and it appearing to this Court that the cases of Beverly Lambert v Esker Calhoun (Docket No. 55,165) and Raymond Yelder v Glen Stevens (Docket No. 55,388) are presently pending on appeal before this Court and that the decision in those cases may be decisive of an issue raised in the present application for leave to appeal, it is ordered that the present application for leave to appeal prior to decision by the Court of Appeals be held in abeyance pending decision in Lambert v Calhoun and Yelder v Stevens.
Court of Appeals Nos. 20,185, 20,186. | [
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Williams, J.
This case involves a petition for a discretionary writ of mandamus. It presents a double challenge of awesome proportion. First, it is a case of first impression requiring construction of the constitution without significant precedential guidance. Second, a legislative deadline requires a final definitive judicial decision in this Court not less than 90 days from the original filing of the case in the Court of Appeals and within a few days of oral arguments in this Court.
I. FACTS.
On June 7 of this year by 1974 PA 145; MCLA 600.9934; MSA 27A.9934, the Legislature transformed five Oakland County Municipal Courts with five judges into two district courts with three judges. On July 24, 1974 an interested resident and elector of Berkley, one of the municipalities affected by the transformation, sought an original writ of mandamus to compel the Secretary of State and the county clerk to hold an election for the judgeship in one of the new districts, 45a, the district which is wholly contained in Berkley, at the November general election instead of carrying over the current Berkley municipal judge. Plain tiff based his complaint on Const 1963, art 6, § 23, as amended, which pertinently reads:
"Whenever a new office of judge in a court of record, or the district court, is created by law, it shall be filled by election as provided by law.”
It was August 27 before the county clerk, the Secretary of State and the intervening three judges filed responsive pleadings. Although the Supreme Court promptly took jurisdiction pursuant to GCR 1963, 816.2(2)(a) on September 9, it was too late for the August 6 primary election (with respect to which the plaintiff says nothing) and barely time for the November 7 election, although oral argument was set for the next, or October term.
Two major questions are raised by this case concerning the June 7, 1974 enactment of MCLA 600.9934(2); MSA 27A.9934(2) because that section of 1974 PA 145 provides for the carrying over of the elected municipal judge of Berkley to sit in the 45a district court which has been transformed from the former Berkley municipal court.
1. May the elected Berkley municipal judge be carried over to serve as the district court judge for the 45a district which geographically encompasses the same area as the Berkley municipal court as 1974 PA 145; MCLA 600.9934, MSA 27A.9934 provides, or is this prohibited by Const 1963, art 6, § 23, as amended, which pertinently reads:
"Whenever a new office of judge in a court of record, or the district court, is created by law, it shall be filled by election as provided by law.”
2. If the carry over provision of 1974 PA 145 is unconstitutional, does this Court possess the authority to order a special election or does the absence of specific legislation establishing special elections preclude the special election and necessitate waiting until the 1976 elections to give these courts their own judges.
If the first question is answered affirmatively then, of course, it is unnecessary to answer the second question.
II. 1974 PA 145 NOT UNCONSTITUTIONAL.
Plaintiff asserts that the carrying over of a municipal judge to fill the newly created judgeship in District 45a is contrary to the expressed intent of Const 1963, art 6, § 23, as amended, which provides:
"A vacancy shall occur in the office of judge of any court of record or in the district court by death, removal, resignation or vacating of the office, and such vacancy shall be filled by appointment by the governor. The person appointed by the governor shall hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs, at which election a successor shall be elected for the remainder of the unexpired term. Whenever a new office of judge in a court of record, or the district court, is created by law, it shall be filled by election as provided by law. The supreme court may authorize persons who have been elected and served as judges to perform judicial duties for limited periods or specific assignments.” (Emphasis added.)
This is the first occasion we have been called upon to construe Const 1963, art 6, § 23, as amended. To assist us in our task we apply the rules of constitutional interpretation set out in Traverse City School Dist v Attorney General, 384 Mich 390, 405-406; 185 NW2d 9 (1971). Two of those rules require us to 1) ascertain the "common understanding” of the public who adopted the measure and 2) "consider the circumstances surrounding the adoption” and the "purpose sought to be accomplished”.
An examination of the "common understanding” as well as the "circumstances” and "purposes” attendant upon the passage of Const 1963, art 6, § 23, as amended, demonstrate the Legislature has not exceeded its authority.
The language of the section makes two things abundantly clear. First, the people intended to rectify the mistake of the 1963 Constitution in its original form of having removed the historic constitutional authority of the Governor to appoint persons to fill judicial vacancies. This Court would blink the facts of life if it did not take judicial notice of the fact that this omission embarrassed the operation of government by leaving important judicial offices without their own regular incumbent for long periods of time. The first sentence of § 23, as amended, rectifies this error by restoring gubernatorial authority to appoint to fill judicial vacancies caused by the incumbent leaving office for one reason or another.
Second, the people on the other hand intended to reserve to themselves the power to fill newly created judgeships by election "as provided by law.” First, § 23, as amended, specifies such newly created judgeship "shall be filled by election”. Second, examination of the language describing the type of vacancy to which the Governor may appoint makes it clear that newly created judge- ships are precluded. Included are vacancies "by death, removal, resignation or vacating of the office”. In other words there must have been a judge who, for one of the enumerated reasons, is no longer present. Again the reason for this can hardly escape judicial notice, namely the prevention of collusion between the Governor and the Legislature to create a new judgeship for a favored appointee.
It is also worth noting that the Legislature on a previous occasion authorized the continuation of municipal judges when the municipal courts were changed to district courts. 1968 PA 154; MCLA 600.9923; MSA 27A.9923. Interestingly enough this act became effective June 17 of an election year just as 1974 PA 145 became effective June 7 of an election yearl Of further note and interest is that the provisions of § 23 were approved by the people about 2 months after the passage of 1968 PA 154 in August of 1968.
So it appears from the "common understanding” as well as the accompanying "circumstances” and "purposes” behind the passage of § 23, as amended, that the Governor would have the power to replace a judge who for some reason left office, but that the Legislature should provide by law for election to fill new created judgeships.
In this case the critical fine question of interpretation is the degree of discretion the Legislature has in establishing the manner in which the new judgeships shall be filled by election. That some degree of discretion was contemplated by the people is clear from the fact that the people said "shall be filled by election as provided by law” rather than "shall be filled by election at the next election”, which would have been no more words and more precise and limited.
The reason for giving the Legislature some discretion is illustrated by the instant case. The date of enactment was June 7, 1974, the primary election was August 6, 1974, hardly time enough for potential candidates to become acquainted with the fact of the new judgeship, the area it served, etc., and certainly not sufficient time to take the necessary steps to qualify and stand for election.
Plaintiff by not filing his suit until July 24, 1974, made it impossible to conduct a primary election and general election for the judicial posts in question on the dates set aside for the primary (August 6) and the general election (November 5). In fact, the plaintiff recognized the time squeeze and did not even include a request for a primary election in his prayer for relief. As it is impossible to conduct the primary and general election for this judgeship on the prescribed dates, the interesting question is raised whether this Court without any legislative authorization would have power to set up a special primary and special election on its own power. However, in this case it is unnecessary to answer this question.
Looking then to the possibility of waiting until the 1976 election, that action would leave a district court without its own judge for a period of two years, because §23, as amended, specifically precludes the Governor from appointing to a newly created judgeship. It is difficult to conceive that the people would mandate such a state of affairs.
Thus the facts of this case demonstrate forcibly the wisdom of the apparent purpose of the people to give the Legislature a measure of discretion in providing by law for election to fill the new judge-ships. We do not believe the Legislature has overstepped the boundaries specified in § 23.
In interpreting § 23 in such a manner, furthermore, we follow the final rule of constitutional construction set out in Traverse City School Dist v Attorney General, supra, that "[wjherever possible an interpretation that does not create constitutional invalidity is preferred to one that does”.
III. CONCLUSION.
Mandamus is not issued as matter of right but is a discretionary writ, Geib v Kent Circuit Judge, 311 Mich 631, 636; 19 NW2d 124 (1945); Donovan v Guy, 344 Mich 187, 192; 73 NW2d 471 (1955); and Livonia Drive-In Theatre Co v Livonia, 363 Mich 438, 446; 109 NW2d 837 (1961). The plaintiff has not made a case for the exercise of our discretion to grant the writ of mandamus by proving that the Legislature has exceeded its constitutional authority
The writ of mandamus is denied.
No costs a public question and one of first impression.
Swainson, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Williams, J.
T. M. Kavanagh, C. J., and T. G. Kavanagh, J., concurred in the result of the opinion by Williams, J.
In light of the urgent nature and unique character of this action we must restrict our discussion to those issues absolutely essential to the resolution of this matter and forgo discussion of other issues raised by the parties which under different circumstances we might have deemed proper questions for our consideration.
That portion of 1974 PA 145 which pertains to the carrying over of the Berkley municipal judge to fill the 45a district, MCLA 600.9934(2); MSA 27A.9934(2) reads as follows:
"Effective January 1, 1975, the elected incumbent attorney municipal judge of the city of Berkley shall become the judge of the district court within the forty-fifth-a district and shall serve as a district judge until 12 noon of January 1 of the odd numbered year next following the date on which his term as municipal judge would normally have expired. In seeking election to the district court after January 1, 1975, the municipal judge becoming a judge of the district court pursuant to this subsection may file an affidavit of candidacy in like manner as other incumbent judges of the district court and shall be entitled to designation on the ballot as a judge of the district court.”
The Legislature on one other occasion provided for the carrying over of certain municipal court judges to serve as district court judges. 1969 PA 344; MCLA 600.9930; MSA 27A.9930.
The conclusion that the Legislature in passing 1974 PA 145; MCLA 600.9934; MSA 27A.9934 has not exceeded its authority could • be buttressed by the fact that this legislation may be considered not to have created "a new office of judge” within the meaning of Const 1963, art 6, § 23. 1974 PA 145 merely divided the 45th district of the district court system which was originally created by 1968 PA 154; MCLA 600.8123(3); MSA 27A.8123(3). Consequently, a strong argument can be made that 1974 PA 145 did not create a "new” court but merely divided a preexisting court into geographic subdivisions.
As was pointed out, plaintiff was delayed in the filing of his suit until such time that it became impossible to conduct primary and general elections on the prescribed dates. Waiting until the 11th hour to challenge some aspect of the electoral process has served as grounds for denying relief. In O’Brien v Skinner, 409 US 1240; 93 S Ct 79; 34 L Ed 2d 211 (1972) Justice Marshall in his capacity as Circuit Justice denied relief to prisoners who had waited until the last day of registration before submitting their registration statements and four days before the election to file the application before Justice Marshall challenging the constitutionality of a voting statute. Justice Marshall concluded that: "Voting rights are fundamental, and alleged disfranchisement of even a small group of potential voters is not to be taken lightly. But the very importance of the rights at stake militates against hasty or ill-considered action. This Court cannot operate in the dark and it cannot require state officials to do the impossible. With the case in this posture, I conclude that effective relief cannot be provided at this late date”. 409 US 1240, 1242. | [
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On order of the Court, notice is hereby given pursuant to GCR 1963, 933, that the Supreme Court proposes an amendment to GCR 1963, 910 to read as follows (new matter in italics):
Rule 910. Statement by Trial Judge as to Matters Undecided.
Each circuit judge, and- each judge of the Recorder’s Court of the city of Detroit, and tho judge of the Superior Court of tho -city — of Grand Rapids each district judge and each judge of the Common Pleas Court of the city of Detroit shall, on the first day of January, tho first day of May and tho first-day of Soptombor in each year horoaftor, present April, July, and October of each year submit to the court administrator a certified statement on the form herein prescribed, containing full information as to any matter which was all matters submitted to him- the judge for-deeision-mere-than ■ four months prior thereto, which remains undecided, upon which the decision has been withheld in excess of two months.
If no such matters are pending, the report will he submitted quarterly as required above, but will indicate "None”.
’’Decision" as referred to in this rule shall be construed to include disposition of motions or interlocutory matters as well as ñnal dispositions but is not intended to include criminal cases in which delayed sentences are involved incident to probationary conditions or other rehabilitative processes ordered by the court or deferred ñnal dispositions authorized by statute. Such judge shall also sot forth in such statement his reasons for his-omiesion to malee his decision:
For the purpose of this rule, the period of time of submission required for a matter to be included in this report shall he deemed to he computed from the time at-whleh the last argument or presentment in tho-matter-was is made in the matter or the expiration of the time allowed for filing the last brief, as the case may be. For those matters included in such a report, the following information will be included for each case reported:
(a) Case or ñle number;
(b) Title of cause;
(c) Stage of proceedings at which action is pending; i.e., motion, verdict, decision, etc.;
(d) Reason for withholding decision;
(e) Anticipated date when decision will be rendered;
Administrative procedures should be established within each court to automatically bring the need for this recurring report to the attention of the judge.
STATEMENT OF JUDGE
To the Court Administrator:
In accordance with the provisions of Rule 910, I hereby certify that the following is a statement containing full information as to such matters as enumerating all matters which were submitted to me for decision more than -4 two months prior to the hist day of_, 19_, and-why-t have omitted-to-make- decision thereon: which listing contains full information as to the matters remaining undecided, the reasons therefor, and the anticipated date(s) of completion:
(If no such items are on hand, indicate "None”.)
Dated this_day of_, 19__
(Court) (Judge)
A copy of this order shall be given to the Secretary of the State Bar of Michigan and to the Court Administrator, pursuant to GCR 1963, 933, and any comments with reference to the adoption of the proposed amended Rule 910 may be forwarded to the Chief Justice or Michigan Supreme Court Director of Legal Services within 60 days from the publication of this rule. | [
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] |
Complaint for writ of mandamus dismissed.
Michael Franck, Executive Director, and Douglas Sweet, Director of Research and Development, State Bar of Michigan. | [
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Per Curiam.
This is an action for declaratory judgment. Plaintiff-appellee GRP, Ltd. (hereinafter GRP), filed an action in Kent Circuit Court seeking a declaration to the effect that at the time when an airplane owned by it crashed, there was a binding contract of insurance between it and defendant-appellant United States Aviation Underwriters, Inc. (hereinafter USAU). The trial court found that such a contract did, in fact, exist, and the Court of Appeals affirmed. The main thrust of USAU’s argument has been that there was "no meeting of the minds” as to the essential elements necessary to form a contract and that the evidence adduced below was insufficient to support the trial court’s finding that USAU had agreed to cover the risk. We granted leave to appeal and our review of the record discloses no reversible error. Accordingly, we affirm.
In early 1974, Grand Rapids Label Company and Grand Rapids Forging and Steel Company decided to purchase an airplane for their joint use. A third corporation was to be formed to be known as GRP, Ltd., for purposes of acquisition of the airplane. GRP, Ltd., in turn, was to be owned equally by Grand Rapids Label Company and Grand Rapids Forging and Steel Company. James Crosby, an independent insurance agent, was contacted for purposes of obtaining an insurance quotation for the as yet unpurchased airplane.
On April 25, 1974, Crosby attended a meeting with Paul Widener and Daniel Ek, who represented USAU. The discussions which were had at this meeting culminated in the composition of a "work sheet”. The work sheet contained certain facts and figures dealing with the proposed operation of the airplane and the coverage desired. The parties disagree on whether the filling out of this "work sheet” was intended to be a firm quotation as to the conditions and cost of coverage. USAU contends that its intent was not to make the "work sheet” a quotation because additional information was still needed. At trial, Daniel Ek admitted that he had checked a box on the work sheet entitled "quote” but contended that this had been inadvertent on his part. It is the position of GRP that as of April 25, 1974, they had a firm quotation for insurance coverage by USAU. Mr. Crosby testified at trial that both Ek and Widener had indicated to him that the "work sheet” was indeed a quotation by USAU. Thereafter, Crosby sent a letter to GRP which suggested that insurance coverage be secured from USAU.
On May 3, 1974 Crosby spoke on the telephone with Daniel Ek of USAU. Here again there is conflicting testimony as to the content and significance of the communications between the principals. Crosby maintained at trial that Ek definitely informed him that he (Crosby) could bind coverage when the exposure existed. In other words, according to Crosby, he had been given authority to commit insurance coverage when the airplane was purchased and ready for use in accordance with the terms previously agreed upon. However, Ek testified that he did not respond to the question of whether Crosby could bind coverage. Ek took the position that he lacked authority to bind such coverage on his own. It is significant to note, however, that when Mr. Widener testified at trial he indicated that Mr. Ek had told him that he (Ek) had declined to bind coverage because of the pending questions with regard to pilot information, rather than because of any lack of authority to do so.
Shortly after the May 3, 1974 telephone conversation, GRP purchased the airplane — a Beechcraft Baron. Representatives of GRP informed Mr. Crosby of the purchase and requested that he obtain the requisite insurance coverage. Mr. Crosby indicated that the insurance was bound with USAU and would be effective on May 10, 1974. On May 14, 1974 the airplane crashed, killing the pilot and three passengers.
USAU argues first of all that the finding of the trial court to the effect that Mr. Ek had given Mr. Crosby the authority to bind insurance coverage on behalf of USAU was factually unsupported and clearly erroneous. In reaching this conclusion, the trial judge found initially that it is the practice in the aviation insurance industry to "quote a risk” only after the insurance company has made a decision to bind that risk. The trial court also found that it is the practice of the industry to bind risks orally. The trial court then went on to find that on April 25, 1974 Mr. Crosby had indeed received a quotation from USAU and that on May 3, 1974 Crosby had received a quotation on voluntary settlement coverage. The trial court also found that Mr. Crosby received authority from Mr. Ek to bind coverage in accordance with that quotation and the quotation of April 25, 1974.
The Court of Appeals, in reviewing USAU’s allegation of error in this regard, noted initially that although a declaratory judgment proceeding is to be reviewed by that Court de novo, the findings of fact are nonetheless to be examined pursuant to the standard set forth in GCR 1963, 517.1. The Court of Appeals took note of the conflict in the testimony at trial. The Court of Appeals placed particular emphasis upon the express statement of the trial judge that he found Mr. Crosby’s testimony to have been more credible than that of either Ek or Widener.
On appeal here, USAU argues that the findings of fact of the trial court in this vein should be rejected because they are based, inter alia, upon the preliminary finding that it is the custom in the aviation insurance industry to quote a risk only after a decision to bind has been made. USAU argues that there is no support for that conclusion in the record. However, even assuming pro arguendo that USAU is correct in this regard, it is of no avail because the trial judge expressly found that on May 3, 1974, Mr. Crosby had been given authority to bind USAU with regard to both the quotation on voluntary settlement and with regard to the April 25, 1974 quotation. Thus, regardless of whether or not the practice in the industry is to quote only after an internal decision to insure has been made, the trial court in the instant case expressly believed Crosby’s testimony that he had been given the authority to bind and expressly disbelieved the testimony of Mr. Ek. We cannot say that the finding of the trial court on this point was factually unsupported or clearly erroneous.
USAU also contends that the decision of the trial court should be set aside because there was no "meeting of the minds” with regard to the essential terms of the oral contract. USAU relies principally upon the Court of Appeals decision in State Automobile Mutual Ins Co v Babcock, 54 Mich App 194, 204; 220 NW2d 717 (1974), for definition of just what those essential terms are. In Babcock, the Court of Appeals quoted from Bankers Indemnity Ins Co v Pinkerton, 89 F2d 194, 197 (CA 9, 1937), wherein the United States Court of Appeals indicated:
"The necessary elements to effectuate an oral contract of insurance are: (a) Subject-matter; (b) the risk; (c) premium; (d) duration of the risk; (e) the amount of insurance.”
In Babcock, the Court of Appeals also indicated that the identity of the parties might be an additional element.
The Court of Appeals, in rejecting USAU’s contentions on this point, indicated that USAU’s arguments were based upon a faulty premise. That premise, according to the Court of Appeals, was that there must be evidence in the record of express agreement on each and every essential term. The Court ruled that the proper test was that which our Court had quoted with approval in the case of Martin v Lincoln Mutual Casualty Co, 285 Mich 646, 650; 281 NW 390 (1938). In that case, this Court made reference to the following statement contained in 1 Cooley’s Briefs on Insurance (2d ed), p 535:
"Though it is regarded [as] essential that all the elements of the contract be agreed upon, it is not necessary that this be done expressly. In Concordia Fire Ins Co v Heffron, 84 Ill App 610 [1899], it was held that an oral contract of insurance will sustain an action, though no express agreement is made as to the amount of premium to be paid or the duration of the policy, if the intention of the parties to the contract in these particulars can be gathered from the circumstances of the case.”
The Court of Appeals, in applying this standard, found evidence in the record which would support a finding that every essential element of the contract had been agreed upon by the parties. According to the Court, there was some question with regard to the duration of the contract, but the quotations which had been written on the work sheet clearly indicated that the coverage was to be for one year.
We have examined the record in this cause, and our analysis leads us to the same conclusion reached by the trial court and by the Court of Appeals. The evidence adduced below, both testimonial and documentary, supports the finding that a valid oral contract of insurance existed between GRP and USAU when the airplane in question crashed.
We have examined USAU’s other allegations of error and find them to be without merit.
Because of our disposition of USAU’s appeal, it is unnecessary to reach the merits of GRP’s cross-appeal.
Costs to appellee.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
For purposes of this opinion we adopt the explanation of this form of coverage set forth in the Court of Appeals opinion in the instant case:
"Voluntary settlement coverage is a type of insurance peculiar to the aviation insurance industry whereby after an accident those occupants of a plane who are covered by it, or their estates, may elect to accept a predetermined cash settlement rather than pursue legal remedies which would require the establishment of legal liability of the insured.” 70 Mich App 671, 675, fn 1; 247 NW2d 583 (1976).
GCR 1963, 517.1 provides in relevant part:
".1 Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. * * * Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.” | [
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The plaintiff’s petition for special relief and motion for stay and the defendant’s motion for instruction are considered. Former Judge Maurice E. Schoenberger is appointed as a fact finder before whom the parties shall present evidence, including testimony on the issue plaintiff raises. Former Judge Maurice E. Schoenberger shall make findings on any factual matters controverted by the parties and submit his findings to this Court. In light of defendant’s willingness to defer collection of plaintiff’s dues pending adjudication of the issue raised, instruction becomes moot by entry of this order and is denied. | [
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J. T. Kallman, J.
Defendant appeals as of right from his conviction by jury of three counts of first-degree criminal sexual conduct, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), and one count of kidnapping, MCL 750.349; MSA 28.581. Defendant was sentenced to concurrent terms of life imprisonment for the esc convictions and a fifteen-to forty-year term of imprisonment for the kidnapping conviction. We reverse and remand for a new trial.
On December 19, 1985, at 8:00 p.m., the seventeen-year-old victim noticed a parked car while walking in an alley in Munising, Michigan, on her way to a friend’s house. As she passed the car, a man jumped out, accosted her and said, "Get in the car or I’ll kill you.” After the victim unsuccessfully attempted to flee, the man struck her and dragged her into the car. The assailant drove for a while and forced the victim to engage in three separate sexual acts in the car. At trial, the victim identified defendant as her assailant.
Defendant presented a defense of alibi. Defense witnesses testified that defendant and a friend spent December 19, 1985, in the Gladstone-Rapid River area, a considerable distance from Munising, and visited defendant’s parents’ farm until 6:30 or 6:45 p.m. Defendant left his friend at 7:30 p.m. to go to his girlfriend’s home, arriving at her home at 7:45 p.m.
Defendant raises several issues on appeal. While certain errors which occurred, standing alone, may not have required reversal, we hold that the cumulative effect of certain instructional errors, prosecutorial misconduct and the ineffective assistance of counsel deprived defendant of a fair trial. People v Smith, 363 Mich 157, 164; 108 NW2d 751 (1961); People v Kvam, 160 Mich App 189, 200-201; 408 NW2d 71 (1987).
i
In instructing the jury regarding identification of defendant as the perpetrator of the crime, the trial court omitted paragraph (5) from CJI 7:7:01. That paragraph states:
You may also consider any occasions on which the witness failed to identify defendant, or made an identification or description that conflicted with his identification of defendant at trial.
In response to defense counsel’s objection to the deletion of the paragraph, the trial court expressed its belief "that the substance of the standard jury instruction was given and appropriate and that nothing further was required.” We cannot agree.
The crucial question in determining whether an omitted portion of a criminal jury instruction requires reversal is whether the instruction as a whole adequately informed the jury of its responsibilities. People v Young, 146 Mich App 337, 339; 379 NW2d 491 (1985). The committee notes regarding CJI 7:7:01 indicate that the fifth paragraph should be given, upon request, when supported by the evidence.
Evidence was introduced at trial that less than one month after the occurrence of the crime (prior to defendant’s arrest), the victim, while at a friend’s house, saw a blurred picture of her friend’s boyfriend, Jim McGee. The victim, who did not know McGee, notified the police that she thought McGee was her assailant. A lineup was held which included McGee. Officer Joseph Beebo testified that the victim stated to him before the lineup that, based on the picture, she was "positive” McGee was her assailant, but, at the lineup, the victim declined to identify McGee or anyone else as the perpetrator of the crime. One and one-half months later, after seeing a tv news story about the arraignment of defendant on a sex crime in Delta County, the victim notified the police that defendant was the man who had raped her. A lineup was held with defendant participating. While the victim was initially confused by the fact that defendant’s eyes were blue, in contrast to her remembering and having described her assailant as having brown or hazel-green eyes, the victim eventually identified defendant at the lineup as her assailant.
Subsequently, a "voice lineup” took place where the victim heard each suspect in the lineup make a statement similar to that spoken by her assailant. The victim identified a voice belonging to a suspect other than defendant. At trial, the victim explained the discrepant identification resulted from the fact that the suspect she had identified had "put more stress in the words” than the other suspects.
The evidence regarding the victim’s prior inconsistent identifications supported the giving of paragraph (5) of CJI 7:7:01. This Court has previously upheld the fairness of CJI 7:7:01 in response to a defendant’s argument that the instruction is biased in favor of the prosecution.
Defendant first argues that the trial court should have supplemented the standard jury instruction, CJI 7:7:01, since it is biased in favor of the prosecution. We feel that CJI 7:7:01 in proper cases properly states the law and is not biased in favor of the prosecution. This instruction adequately informs the jury of the problems with eyewitness identification testimony and the factors that may affect an eyewitness’s identification of defendant. People v Anderson, 389 Mich 155, 172- 180; 205 NW2d 461 (1973). The instruction also emphasized that the prosecutor has the burden of proof on this issue. Since the instruction is accurate, there is no need to supplement it to make it more favorable toward defendants. [Young, supra, pp 338-339.]
Here, where the evidence supported the giving of paragraph (5), the trial court gave an instruction which was unfairly biased in favor of the prosecution and failed to adequately inform the jury of the appropriate factors to consider in evaluating the victim’s identification of the defendant by giving CJI 7:7:01 without the benefit of paragraph (5).
ii
The testimony of defendant’s sister, Vickie Long, and her boyfriend, John Baird, corroborated defendant’s alibi. During examination of one of the police officers assigned to defendant’s case, the prosecutor elicited from the officer testimony that Vickie’s estranged husband, Lonnie Long, was incarcerated on the night of the crime. On cross-examination of Vickie, the prosecutor elicited an admission that Lonnie Long had been incarcerated at Marquette Prison prior to December 19, 1985, that Vickie was divorcing Lonnie, and that Vickie had met John Baird through correspondence while he was incarcerated with Lonnie at Marquette. Over defendant’s objection, the prosecutor impeached Baird’s testimony by reference to his previous guilty plea to two counts of second-degree criminal sexual conduct.
When defendant initially objected to the relevancy of testimony regarding Lonnie Long, the prosecutor explained that the purpose of the testimony was to exonerate Lonnie by establishing his unavailability on the night of the offense. The prosecutor explained that this was necessary because the victim testified that her abductor had told her his name was "George Long.” The prosecutor’s explanation was a subterfuge. There was no rational connection between the pseudonymous "George Long” and Vickie’s incarcerated husband. Even if the assailant had used the name "Long,” there was no danger of confusing Lonnie with that name, since the jury had no knowledge of Lonnie’s existence until the prosecutor elicited from the police officer the irrelevant testimony that Lonnie was defendant’s brother-in-law. The testimony regarding Lonnie Long was irrelevant, potentially confusing, and unfairly prejudicial to defendant.
We also believe the admission into evidence of Baird’s prior criminal sexual conduct conviction was erroneous. Under the then-applicable version of MRE 609, impeachment of the witness with evidence of a prior conviction was permissible only where the court determined the probative value of admitting the evidence on the issue of credibility outweighed its prejudicial effect and articulated on the record the factors considered in making its determination. Defense counsel objected at trial to disclosing the nature of Baird’s prior conviction on the ground that the jury would potentially find defendant guilty of criminal sexual conduct because his sister’s boyfriend had been guilty of the same crime. The evidence of Baird’s prior conviction was potentially unfairly prejudicial, and since the prior conviction did not involve dishonesty, false statement or theft, it was minimally, if at all, probative on the issue of credibility. Moreover, the trial court failed to articulate on the record the factors considered in deciding to allow the impeachment.
The admission of irrelevant evidence was compounded by the prosecutor’s unfairly prejudicial use of the evidence in his closing argument. The prosecutor stated:
And then there is Vickie Long, the sister of the defendant, another biased witness. That’s her brother she’s talking about. She’s the one who is divorcing one sex offender to spend her days with another one ....
Assuming for the sake of argument that evidence of Lonnie Long’s and Baird’s convictions was admissible for the purposes initially proposed by the prosecutor (to "dispel” confusion regarding the assailant’s use of the name Long and to impeach Baird’s credibility), the prosecutor’s use of the evidence in closing argument exceeded the scope of the proposed use and was wholly improper. People v Dalessandro, 165 Mich App 569, 581-582; 419 NW2d 609 (1988).
The improper discrediting of Vickie Long’s character was not the only example of improper argument by the prosecutor. The prosecutor called to the stand two friends of defendant, Clausen and Gerou. The prosecutor inquired of both witnesses whether defendant had requested their participation in fabricating an alibi. In spite of the prosecutor’s repeated attempts to refresh the witnesses’ recollections by asking if they had so indicated to police investigators, the witnesses both denied defendant’s ever having asked them to fabricate an alibi. Nonetheless, in his closing argument, the prosecutor (at least partially) based his suggestion that defendant had fabricated an alibi on the prosecutor’s questions to Clausen and Gerou. A prosecutor may not argue facts material to the case which are not in evidence. Dalessandro, supra, p 581. The prosecutor’s suggested inference was improper.
m
Some troubling issues are raised in connection with defendant’s claim that he was deprived of the effective assistance of counsel at trial. Defendant sought and obtained a remand of this case to the trial court for a Ginther hearing. Upon motion by defendant, this case was remanded a second time to allow defendant to introduce into evidence testimony of an expert witness.
Defendant has the burden of showing he was denied effective assistance of counsel. People v Stubli, 163 Mich App 376, 379; 413 NW2d 804 (1987). In People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), our Supreme Court established a bifurcated test for ineffective assistance of counsel claims. First, defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Secondly, even though the first test is satisfied, counsel must not make a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal.
In Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United States Supreme Court set forth the test for determining claims of ineffective assistance of counsel brought under the Sixth Amendment. The defendant must establish that counsel’s performance was deficient and that the deficiency prejudiced the defense.
Attorney William Carmody was originally appointed as counsel to defendant in this matter. Trial was scheduled for April 28, 1986. On the Wednesday preceding the scheduled date for trial, Carmody learned that he was to be called by the prosecution as a rebuttal witness. According to one of the prosecution witnesses, on the date of the charged offense the witness had an appointment with Carmody to discuss an unrelated suit pending against the witness, and defendant accompanied the witness to Carmody’s office for the appointment. The prosecution planned on calling Carmody to identify his appointment book which indicated an appointment with the witness for 3:30 p.m. on December 19. The testimony was contrary to defendant’s alibi and placed defendant closer to the scene of the crime.
On that Wednesday, Attorney James Conaway, who was representing defendant in connection with a criminal sexual conduct charge in another county, was contacted concerning his willingness to substitute as counsel in the instant case. Conaway indicated he could (if defendant acquiesced), but advised that he would not be able to even look at defendant’s file until Friday. Conaway testified at the Ginther hearing that he felt from the trial court a sense of urgency to go forward with the trial as scheduled, but also testified that he advised the trial court that he would not proceed unless he felt adequately prepared. The attorneys and the trial court ultimately decided to proceed with the jury selection on the scheduled date of trial (April 28), but to delay the commencement of trial until Thursday, May 1, to allow Conaway two extra days to prepare. After the substitution, Carmody continued to assist Conaway with certain trial preparation. During jury voir dire Carmody sat at counsel’s table with Conaway to assist in jury selection because Carmody, unlike Conaway, was familiar with local names and people.
Defendant’s contention that he was denied the effective assistance of counsel is based on three claims: (1) lack of adequate preparation on the part of Conaway; (2) undue prejudice created by the jury’s having seen Carmody at the defense table during voir dire and later having seen Carmody testify contrary to defendant’s alibi; and (3) Conaway’s history of alcohol abuse. In its two opinions denying defendant’s motion for new trial, the trial court ruled: (1) that Conaway, a former assistant prosecutor and experienced defense lawyer, was adequately prepared for trial; (2) no prejudice occurred as a result of Carmody’s participation in jury selection and his testifying on behalf of the prosecution; and (3) there was no showing that Conaway was either intoxicated at trial or that problems with alcohol rendered his performance deficient.
Evidence introduced at the Ginther hearings showed that Conaway had a serious alcohol-abuse problem at the time of this trial. However, the evidence also showed that Conaway did not take a drink on the mornings prior to trial or during the trial itself, although in the evenings following trial (which included meetings with the defendant and other trial preparation), Conaway testified he probably had four to six mixed drinks. The expert witness presented by defendant on remand testified regarding the effects of alcohol use and abuse on various physiological and psychological abilities, although the expert had never personally examined Conaway. We are unwilling to find that the performance of an attorney suffering from an alcohol-abuse problem is per se deficient. Further more, here, the trial court did not err in finding that defendant failed to show that Conaway’s problems with alcohol rendered his representation of defendant deficient.
However, contrary to the trial court’s finding, we believe defendant sustained his burden of showing inadequate preparation by counsel for trial. In addition to the Sixth Amendment guarantee of effective assistance of counsel, general principles of due process are implicated where there is a claim of lack of adequate time to prepare for trial. People v Suchy, 143 Mich App 136, 142; 371 NW2d 502 (1985), lv den 424 Mich 855 (1985). Defendant was charged with three counts of first-degree criminal sexual conduct, crimes carrying life sentences, and one count of kidnapping, also a very serious charge. Over twenty witnesses were called during the four-day trial. While Conaway testified that he felt adequately prepared to go to trial, he testified to a number of things he normally would want to do prior to commencement of a trial which the time constraint prevented him from doing in this case, including Conaway’s inability to interview certain witnesses prior to trial and the fact that his review of prosecution exhibits was limited to copies contained in Carmody’s file, several of which were marginally legible. Of particular significance is the fact that the jury was selected prior to much of Conaway’s preparation. Selecting a jury is a critical part of the trial process. As Conaway himself testified, it is very important for counsel to know and have prepared for his or her case prior to voir dire. Conaway further testified that with more time he would have found someone other than Carmody to assist him in the jury selection, thereby avoiding the possible confusion and potential for unfair prejudice caused by Car mody’s appearance first with the defense and later as a prosecution witness.
The record is not clear as to why a continuance was not obtained to allow Conaway appropriate time to prepare for trial. If this was a result of a decision by the trial court, that decision was wrong. The defense was in no way responsible for the last-minute need for substitution of new counsel, and a continuance was in order. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972). If the failure to obtain a continuance was the result of Conaway’s failure to request one, then that failure was a serious mistake, absent which there was a reasonable probability that the jury would have had a reasonable doubt respecting guilt.
IV
We conclude that the denial of effective assistance of counsel to defendant combined with the prosecutor’s misconduct and instructional error by the trial court deprived defendant of the fair trial guaranteed to him by the federal and state constitutions. Defendant’s convictions are reversed and this case is remanded for a new trial. Our disposition of this case renders it unnecessary to consider the remaining issues raised by defendant on appeal.
Reversed and remanded for a new trial.
CJI 7:7:01 states:
(1) One of the issues in this case is the identification of defendant as the one who committed the crime. The prosecution has the burden of proving beyond a reasonable doubt not only that the crime was committed, but also that the defendant was the one who committed it.
(2) The value of identification testimony depends on the witness’s opportunities to observe the offender at the time of the offense and to make a reliable identification later.
(3) Factors affecting the witness’s opportunity to observe the offender at the time of the offense include: the length of time available for observation, whether the witness had occasion to see or know the offender before the incident, the distance between the witness and offender, the light or lack of light at the time, the witness’s state of mind at the time of the offense, and any other circumstances affecting the witness’s opportunity to observe the person committing the offense.
(4) Factors affecting the reliability of any identification of the defendant made after the offense include: the length of time between the occurrence of the crime and the identification, the circumstances surrounding the identification, the witness’s certainty or lack of certainty about the identification, the witness’s state of mind at the time of the identification, and any other circumstances bearing on the reliability of the identification.
(5) [You may also consider any occasions on which the witness failed to identify defendant, or made an identification or description that conflicted with his identification of defendant at trial.]
(6) [You should examine the witness’s identification testimony carefully. You may consider whether the testimony is supported in whole or in part by other evidence or circumstances, because if it is so supported it may be more dependable. If the identification testimony is not supported by other evidence or circumstances, it still may be used for conviction, as long as you believe the testimony and you find that it proves beyond a reasonable doubt defendant’s identity as the person who committed the crime.]
Under MRE 609, as revised in People v Allen, 429 Mich 558, 606-608; 420 NW2d 499 (1988), reh den 430 Mich 1201 (1988), the "bright-line” aspect of the amended rule applies to witnesses called by the prosecution and nondefendant witnesses called by the defense. Under that test, Baird’s prior criminal sexual conduct convictions would be inadmissible for impeachment purposes. However, the bright-line test does not apply to this case since trial occurred prior to March 1, 1988.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). | [
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Per Curiam.
Plaintiffs appeal as of right from the September 23, 1987, order of the Oakland Circuit Court granting summary disposition to defendant on the ground that plaintiffs failed to state a claim upon which relief could be granted. MGR 2.116(C)(8). We reverse.
Plaintiff Alan Shapiro is an attorney licensed in the State of Massachusetts but not in the State of Michigan. At the time this cause of action arose, he resided in Huntington Woods, Michigan, and served as District Legal Counsel for the Army Corps of Engineers.
In March of 1985, Shapiro’s personal friend, James Bray, was killed in a plane crash. The son of the deceased, Michael Bray, thereafter consulted with Shapiro regarding selection of legal counsel in Michigan to represent any possible claim against the airline for his father’s death. Shapiro contacted defendant, Lee Steinberg, whom he knew in both a personal and professional capacity, about handling the case. Steinberg agreed to accept the case for a twenty-five percent contingent fee. Allegedly, Steinberg also orally agreed to give Shapiro one-quarter of any attorney fees recovered in exchange for Shapiro’s assistance in researching the claim and preparing certain documents, such as a lost employment benefits report and "A Day in the Life of . . .” booklet.
In September of 1986, Steinberg filed suit in Wayne Circuit Court on behalf of the Bray family. A substantial settlement was reached with the airline on February 6, 1977, which netted Stein-berg approximately $325,000 in attorney fees. He apparently refused to share any of the award with Shapiro.
On June 15, 1987, Mr. and Mrs. Shapiro filed suit against Steinberg in the Oakland Circuit Court for recovery of twenty-five percent of the attorney fee award. The Shapiros’ claim for the money was based on the alleged oral agreement with Steinberg or on a theory of quantum meruit.
On August 12, 1987, Steinberg filed a motion for summary disposition asserting that the Shapiros failed to state a claim upon which relief can be granted and lacked standing to bring their claim for attorney fees. MCR 2.116(C)(5) and (8).
A hearing on the motion was conducted on September 23, 1987. Counsel for the Shapiros argued that the oral agreement did not violate public policy because Mr. Shapiro was not engaged in the unauthorized practice of law. MCL 600.916; MSA 27A.916. To this, the trial court stated: "Of course he was [practicing law]. You’re practicing law when you enter into a contingent fee contract of any kind. That is the practice of law, no question.” Finding the oral agreement was against public policy, the court granted summary disposition "as prayed for.” An order to that effect was entered on September 23, 1987.
This appeal as of right followed.
The principal issue before us is whether the trial court erred in granting summary disposition on the ground that the Shapiros failed to state a claim for which relief can be granted. We believe the court did err.
A motion for summary disposition under MCR 2.116(C)(8) is tested by the pleadings alone. Only the legal basis of the complaint is examined. All well-pled factual allegations in the complaint, along with any inferences which may fairly be drawn therefrom, must be accepted as true. Unless a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should be denied. Beaudin v Michigan Bell Telephone Co, 157 Mich App 185, 187; 403 NW2d 76 (1986).
It is well established that the courts of this state will not enforce, either in law or in equity, a contract which violates a statute or which is contrary to public policy. Jaenicke v Davidson, 290 Mich 298, 304; 287 NW 472 (1939); Cardillo v Camisa Extrusion Engineering, Inc, 145 Mich App 361, 370-371; 377 NW2d 412 (1985); Peeples v Detroit (On Reh), 99 Mich App 285, 302; 297 NW2d 839 (1980). This includes contracts for the practice of law where the person is not qualified under the laws of the jurisdiction to do so. 7 CJS, Attorney and Client, § 31, p 870. Hence, if the oral agreement between Shapiro and Steinberg was for Shapiro to engage in the unauthorized practice of law, in violation of MCL 600.916; MSA 27A.916, the agreement would be void as against public policy and the Shapiros would be unable to obtain relief in the courts. The crucial inquiry then is whether, as a matter of law, Shapiro was engaged in the unauthorized practice of law.
Whether or not a particular activity constitutes the practice of law is a matter left largely to the judiciary to decide. The Legislature has not seen fit to provide the courts with a definition of what constitutes the "practice of law.” State Bar of Michigan v Cramer, 399 Mich 116, 132-133; 249 NW2d 1 (1976); Ingham Co Bar Ass’n v Walter Neller Co, 342 Mich 214, 221; 69 NW2d 713 (1955). Generally, the decisive factor in determining whether certain conduct constitutes the practice of law is the character of the act done, and not the place (e.g., a judicial or administrative tribunal) where it is performed. 7 Am Jur 2d, Attorneys at Law, § 101, p 171. A broad definition of what constitutes the practice of law is the preparation of instruments for others which "define, set forth, limit, terminate, specify, claim, or grant legal rights . . . .” Id., pp 172-173. An important factor in this regard is whether a fee was charged for the services performed. Id., p 172. However, work of a preparatory nature, such as research, investigation of details, assemblage of data, and similar activities which enable the attorney of record to bring a case to conclusion through his own examination, approval, or additional effort does not constitute the practice of law. Id., p 185.
In the instant case, the Shapiros’ complaint alleged that Mr. Shapiro "rendered a great deal of legal services and collected information and data necessary to process said wrongful death claim.” (Emphasis added.) To the extent that the complaint alleged mere collection of data, the Shapiros did not fail to state a claim upon which relief can be granted. That activity was of a type which a law clerk might properly perform. We do not believe that, simply because Shapiro is a licensed attorney in another state, every activity he performs during the course of a lawsuit constitutes the practice of law. Moreover, although Shapiro allegedly was to receive compensation for his work, this is not determinative. We do not believe it is unusual, or unlawful, for an attorney to contract with a person to perform nonattorney work (e.g., a law clerk or a private investigator) and then pay that person with part of the proceeds recovered as attorney fees.
Taking all the well-pled allegations in the com plaint as true, the Shapiros could be entitled to compensation for those services performed by Mr. Shapiro which do not constitute the unauthorized practice of law. The Shapiros would be precluded from recovering, as a matter of public policy, only for that work which constituted the unauthorized practice of law. We therefore hold that summary judgment in favor of Steinberg on this issue was improper. Accordingly, the case is remanded for further proceedings. On remand, assuming the factual question of the existence of a contract is resolved in the Shapiros’ favor, the trial court shall determine what portion of Mr. Shapiro’s work was not the practice of law and shall permit him to recover only the corresponding percentage of the compensation to which he claims he is entitled.
Also on appeal, the Shapiros claim that Stein-berg failed to preserve the issue of whether Mrs. Shapiro had a separate legal interest in the alleged fee. Because this is a question which was not first ruled on by the trial court, we decline to review it. Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672, 685; 423 NW2d 311 (1988).
Reversed and remanded for further proceedings.
Mrs. Shapiro was named a party plaintiff because in 1986, while the Shapiros were in the process of divorce, Mr. Shapiro assigned his right to the fee to Mrs. Shapiro. The Shapiros eventually reconciled and brought this action together. | [
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Per Curiam.
Plaintiffs appeal as of right from a Wayne Circuit Court order of August 10, 1987, granting defendant’s motion for summary disposition on the basis that there was no genuine issue of material fact as to whether defendant’s construction and maintenance of its water system constituted an intentional nuisance. We affirm.
During the summer of 1982, plaintiffs and their children moved into their Bedford Township home. On July 6, 1982, while Jimmie Lee McCracken was mowing his lawn, the ground between the sidewalk and curb collapsed underneath his feet and he fell into a water-filled hole, up to his chest. His feet never touched bottom. He was able to pull himself out by grabbing the cement curb and the lawn mower handle. As a result of this accident, McCracken suffered a sciatic injury and probable herniated disc.
McCracken immediately contacted defendant Redford Township Water Department and within fifteen minutes defendant’s work crew had barricaded the hole in plaintiffs’ lawn. The area was inspected and repaired by defendant the next day. Discovery revealed that the ground collapsed due to an electrolysis leak in the water main.
Plaintiffs filed this lawsuit on May 31, 1984, alleging negligence and nuisance. On October 25, 1985, defendant’s motion for summary disposition as to plaintiffs’ negligence claim was granted on the basis of governmental immunity, but defendant’s motion for summary disposition as to plaintiffs’ claim of intentional nuisance was denied.
Plaintiffs subsequently amended their complaint to more specifically plead intentional nuisance and to add a count on strict liability. On February 20, 1987, plaintiffs’ strict liability claim was dismissed on the basis that the maintenance of a water system is not an inherently dangerous activity.
This case was assigned for trial on the sole remaining claim of intentional nuisance. On the date of trial, defendant renewed its motion for summary disposition pursuant to MCR 2.116(C)(10) as to plaintiffs’ intentional nuisance claim. The motion was granted.
On appeal, plaintiffs claim that the trial court erred in granting summary disposition because there was a genuine issue of material fact as to whether defendant’s construction and maintenance of its water mains constituted an intentional nuisance. Plaintiffs argue that the electrolysis problem was well known to defendant and defendant took no steps to rectify the danger.
Before we proceed to analyze the issue presented by plaintiffs, we must consider the essential ques tion of whether the intentional nuisance exception to governmental immunity survived the Supreme Court’s decision in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988). There is currently a conflict concerning this issue among panels of this Court. In Scott v Dep’t of Natural Resources, 169 Mich App 205, 208; 425 NW2d 518 (1988), the panel held that, following Hadñeld, there is no intentional nuisance exception to governmental immunity. However, in Li v Wong (On Remand), 170 Mich App 256; 428 NW2d 36 (1988), the panel determined that the intentional nuisance exception to the doctrine of governmental immunity survived the Supreme Court’s decision in Hadñeld. The panel analyzed each of the opinions of the concurring justices and concluded:
While the three-justice plurality led by Justice Brickley clearly holds that there is no intentional nuisance exception to governmental immunity, we do not believe that the opinions of the concurring justices can be read as providing the crucial fourth vote to overrule prior precedent which recognizes the intentional nuisance exception. [Li, p 257.]
In Garcia v City of Jackson (On Remand), 174 Mich App 373, 376; 435 NW2d 796 (1989), the majority held:
It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadñeld, which is the last word on the matter, the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception to governmental immunity so as to establish any new binding precedent for future cases. There was a majority for the result only.
We agree with the cases which hold that the intentional nuisance exception to governmental immunity survived the Hadfield decision because we cannot conclude that a majority of the justices voted to override prior precedent which recognized the intentional nuisance exception.
Prior to Hadfield, a conflict in decisions existed in this Court on the question whether an omission to act can be the basis of an intentional nuisance action. Whether this conflict still exists after Had-field is questionable.
In Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985), our Court reversed the trial court’s order granting summary disposition because we found that the plaintiffs claim for an intentionally created nuisance in fact based upon omissions to act was valid. Likewise, in Veeneman v Michigan, 143 Mich App 694; 373 NW2d 193 (1985), our Court found that the plaintiff had sufficiently alleged an intentional nuisance based upon omissions to act so as to avoid the defendant’s claim of governmental immunity.
In Hadfield, pp 194-195, 199, the lead opinion reversed this Court in both Landry and Veeneman because it determined that neither case fell within the trespass-nuisance exception.
In Justice Boyle’s concurring opinion, p 209, she stated that she agreed with the reversal of Landry and Veeneman because "plaintiffs cannot sustain either a private nuisance or public nuisance on the basis of the facts.”
In Justice Levin’s separate opinion, pp 209-210, he agreed with Justice Boyle that "neither a private nuisance nor a public nuisance action may be maintained 'on the basis of the facts’ in Veeneman and Landry.”
We conclude that neither Justice Boyle’s nor Justice Levin’s opinion makes a clear statement on the issue of whether omissions to act can be the basis of an intentional nuisance claim.
In Justice Archer’s opinion concurring in part and dissenting in part, p 213, he stated that he would hold that intentional nuisance is an exception to governmental immunity. He would affirm Veeneman and Landry. Id., p 216. Justice Archer opined that in describing the scope of the exception it is important to focus on the responsibility of government for its "actions or omissions,” and added that if the governmental unit "acts or fails to act” and thereby creates a nuisance, the governmental unit should be liable regardless of where the trespass or nuisance occurs.
Justice Archer’s opinion makes it clear that he considers that omissions to act may be the basis of an intentional nuisance, provided that the requisite intent is established. Id.
We note that in Garcia, released after Hadñeld, this Court found an intentional nuisance based upon omissions to act. Thus, we conclude that an intentional nuisance may be based upon omissions. However, although plaintiffs’ claim of intentional nuisance in the instant case is based upon omissions to act, we need not consider the issue of omissions for purposes of deciding this case. The question which is dispositive of this appeal is whether a genuine issue of material fact existed on the intent required for an intentional nuisance claim. We conclude that the requisite intent was not established.
A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When passing on such a motion, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. The party opposing summary disposition has the burden of showing that a genuine issue of disputed fact exists. Giving the benefit of reasonable doubt to the nonmoving party, the court must determine whether the kind of record which might be developed will leave open an issue upon which reasonable minds might differ. The appellate court is liberal in finding a genuine issue of material fact. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988).
Intentional nuisance is a subdivision of the nuisance category known as nuisance in fact. Martin v Michigan, 129 Mich App 100, 108; 341 NW2d 239 (1983), lv den 422 Mich 891 (1985); Hadfield, p 153. A nuisance in fact is actionable by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact where its natural tendency is to create danger and inflict injury to persons and property. The nuisance in fact is intentional if the creator intends to bring about the conditions which are in fact found to be a nuisance. Rosario v City of Lansing, 403 Mich 124, 142; 268 NW2d 230 (1978) (Moody, J., concurring). To establish intent, the plaintiffs must show that the defendant created or continued the condition causing the nuisance while they knew or must have known that injury was substantially certain to follow, i.e., deliberate conduct. Guinan v Truscott, 167 Mich App 520, 525-526; 423 NW2d 48 (1988). It is not enough that the person creating the nuisance knows that harm "might result.” Velmer v Baraga Area Schools, 157 Mich App 489, 500; 403 NW2d 171 (1987), rev’d on other grounds 430 Mich 385; 424 NW2d 770 (1988).
Through the course of discovery, it was revealed that approximately two years prior to the incident involving McCracken a similar electrolysis leak had occurred in the same water main, about one block away from plaintiffs’ home, which caused a similar collapse of the ground. Plaintiffs contended that, despite defendant’s knowledge of this prior incident and knowledge that another collapse was substantially certain to follow and cause injury, defendant took no action to inspect the area or rectify the danger, thus creating an intentional nuisance.
In granting defendant’s motion for summary disposition, the court considered the deposition testimony of defendant’s employee, Robert Wing, who for thirty-two years served as crew leader of defendant’s water department. Wing testified that the leakage which caused the ground on plaintiffs’ property to collapse was created by electricity in the ground emanating from the copper lines that run from the water main to the meter on the house. This electricity slowly eats away the steel bolts on the water main through a process known as electrolysis. Electrolysis causes a very small leak that washes the soil away a little at a time. It is difficult to detect electrolysis even by means of an electronic-listening device because it is silent. Unless and until the soil is washed away at the surface, the only way to monitor a water main for electrolysis is by actually digging down six to twelve feet with a backhoe and uncovering it.
The court found that the undisputed testimony of Wing indicated that there was no way to discover whether electrolysis was occurring in a certain section of the water main without digging down to the pipe. The court held that there was no duty on the city to dig up different areas to determine whether or not a leak was occurring. The court found no evidence to indicate that defendant either knew or should have known that a dangerous condition existed beneath plaintiffs’ property.
The facts of the case indicate that defendant had knowledge of a similar leak in the same water main produced by electrolysis, which caused the ground to collapse one block away from plaintiffs’ home. Further, defendant knew or should have known that electrolysis would probably cause other leaks in the water main. Nevertheless, this does not establish the requisite intent. As the Court stated in Freedman v Oak Park, 170 Mich App 349, 356; 427 NW2d 557 (1988), lv den 431 Mich 863 (1988):
[Although some decisions of this Court have considered a "knowledge” standard to be an appropriate test for the intent element of a nuisance claim, the standard applied has been whether defendant knew or must have known that harm to a plaintiff was substantially certain to follow, as distinguished from the lesser standard of whether defendant knew or should have known of a defective condition.
We conclude that defendant could not know that harm was substantially certain to occur in an area unless they dug up and exposed for inspection the entire water main. A municipality is not required to take such drastic measures. A J Brown & Son, Inc v Grand Rapids, 265 Mich 465, 470; 251 NW 561 (1933). Defendant’s failure to do so does not rise to the level of a "deliberate act by the governmental agency to create the complained-of condition.” Rosario, p 143. We find no evidence of the requisite intent to bring about the complained-of condition.
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] |
Per Curiam.
Defendants Clarence and Edna Parkin appeal as of right a judgment of the Gene-see Circuit Court rescinding a land contract entered into between the parties. We affirm.
On September 18, 1979, plaintiffs purchased a parcel of land in Atlas Township, Genesee County, from defendants Clarence and Edna Parkin on land contract. The realtor handling the sale, Barry Young and Company, and Barry Young, personally, were joined as defendants.
What attracted plaintiff Earl Britton to the property was a sign which advertised "Commercial Property For Sale.” He assumed the zoning to be commercial as he owned a building in the vicinity which was zoned commercial. Britton entered into the transaction for the purposes of developing the land and dividing it into parcels. There was an old farmhouse on the land in which Britton was not interested. He did, however, make improvements to the house, lived in it for a short while and eventually leased it.
Defendant Clarence Parkin also believed the property to be zoned commercial as he had inquired of the township supervisor and had been informed that the parcel was zoned commercial.
Plaintiffs listed the property after they acquired it. In the listing they described the parcel as commercial property. They obtained one offer, but the prospective buyer determined that the land was actually zoned residential-agricultural and the offer was cancelled. Plaintiffs were thereby apprised that they were mistaken in their assumption that the zoning was commercial.
Plaintiffs brought suit on the theories of fraud and misrepresentation. In the course of trial, these theories were changed to mutual mistake and rescission.
The matter was scheduled for a nonjury trial on liability before Judge Thomas C. Yeotis of the Genesee Circuit bench.
After hearing testimony and receiving briefs of counsel, Judge Yeotis determined that, indeed, the parties had made a mutual mistake, that rescission of the contract was the proper remedy, and that the parties should be returned to the status quo ante. In support of his decision, Judge Yeotis cited Lenawee Co Bd of Health v Messerly, 417 Mich 17; 331 NW2d 203 (1982), and Miller v Varilek, 117 Mich App 165; 323 NW2d 637 (1982).
If in the sound discretion of the trial court a mutual mistake has been made, rescission is a proper remedy. Dingeman v Reffitt, 152 Mich App 350, 355; 393 NW2d 632 (1986).
In Lenawee, supra, 417 Mich 24, our Supreme Court cites 1 Restatement Contracts, 2d, ¶ 151, p 383, for the rule that a contractual mistake must be a belief that is not in accord with the facts and it must relate to a fact in existence at the time the contract is executed. Secondly, the mistake must relate to a "basic assumption of the parties upon which the contract is made, and which materially affects the agreed performances of the parties.” Garb-Ko, Inc v Lansing-Lewis Services, Inc, 167 Mich App 779, 784; 423 NW2d 355 (1988), citing Lenawee, supra, 417 Mich 29-30.
Defendants contend that a clause in the contract of sale which reads "subject to all applicable building and use restrictions and easement, if any” is an exculpatory clause which by agreement of the parties placed the risk of a mistake in zoning on the purchaser.
The decision in Lenawee turned on a clause which provided: "Purchaser has examined this property and agrees to accept same in its present condition. There are no other or additional written or oral understandings.” Lenawee, supra, 417 Mich 32.
However, in this case there were additional representations in the listing agreement and advertising that the land was zoned commercial. Further, defendants furnished plaintiffs with drawings dividing the property for commercial use. These understandings and representations distinguish this case from Lenawee and Miller v Varilek (On Remand), 129 Mich App 703; 342 NW2d 94 (1983).
We believe that the better rule is one providing that rescission is justified in cases of innocent misrepresentation if a party innocently relies upon the misstatement. The theory underlying this rule is that the party responsible for the misstatement would be unjustly enriched if he were not held accountable for his misrepresentation, even though innocently made. This rule works to deny a seller the benefit of his bargain when the benefit is derived at the expense of the buyer who is misinformed by the seller. Shore Builders, Inc v Dogwood, Inc, 616 F Supp 1004,1012 (D Del, 1985).
Here, the misrepresentation, albeit innocent, was made first in the real estate listing by defendants, and it was compounded with advertising and further sales encouragements.
Under these circumstances the trial court’s decision to grant rescission and return to the status quo ante was equitable.
Affirmed.
Miller was reversed on other grounds in Miller v Varilek (On Remand), 129 Mich App 703; 342 NW2d 94 (1983). | [
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Per Curiam.
This is a no-fault insurance case. Plaintiff appeals as of right from the trial court’s order granting summary disposition in favor of defendant, daiie. We affirm.
Plaintiff filed a complaint for declaratory judgment, requesting among other things that the court compel defendant insurer to submit to arbitration to settle disputed issues under a policy of insurance issued by defendant to plaintiff.
Plaintiff drove his truck to some property that he owned, intending to cut the grass on the property site. At the site, an unidentified man asked plaintiff if he could help. Plaintiff instructed the man to back plaintiff’s vehicle up to the porch. The man backed up the vehicle and, once he got to the porch, plaintiff instructed him to stop to enable plaintiff to unload his equipment. Plaintiff was in the back of the truck preparing to unload the equipment when the unidentified man apparently put the truck in gear. The truck lurched forward and plaintiff fell out of the back of the truck, sustaining injuries.
Plaintiff argued that the matter should be submitted to arbitration because the uninsured motorist provision of the policy insuring plaintiff’s vehicle was ambiguous. Defendant argued that this was not an uninsured motorist claim because the unidentified man was operating plaintiff’s vehicle under plaintiff’s consent and direction and was, therefore, an insured under plaintiff’s policy.
Plaintiff’s policy, which undisputedly insured the truck involved in the accident, provides in part the following uninsured motorist coverage:
We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. Bodily injury must be caused by accident and arise out of the ownership, operation, maintenance or use of the uninsured motor vehicle.
The policy defines "uninsured motor vehicle” as follows:
Uninsured Motor Vehicle means a motor vehicle which is:
not insured by a bodily injury liability bond or policy that is applicable at the time of the accident ....
Plaintiff relies on the following exclusion from uninsured motorist’s coverage:
This coverage does not apply to bodily injury sustained by an insured person: while occupying a motor vehicle which is owned by you or a relative unless that motor vehicle is your car ....
The policy also provides as follows concerning arbitration:
If we do not agree with the insured person(s): that they are legally entitled to recover damages from the owner or the operator of an uninsured motor vehicle; or
as to the amount of payment; either they or we must demand, in writing, that the issues, excluding matters of coverage, be determined by arbitration.
Disagreements concerning insurance coverage, insurance afforded by the coverage, or whether or not a motor vehicle is an uninsured motor vehicle are not subject to arbitration, except by express written consent of both parties.
After hearing arguments on defendant’s motion for summary disposition, the trial court concluded that there was no ambiguity in the contract and granted summary disposition in favor of defendant.
Plaintiff argues that the policy of insurance is ambiguous and, therefore, that it is necessary that the underlying dispute be submitted to arbitration.
Defendant’s motion for summary disposition cited MCR 2.116(C). We conclude that summary disposition could have been granted under either MCR 2.116(C)(8), failure to state a claim on which relief can be granted, or MCR 2.116(0(10), no issue as to material fact.
Summary disposition was proper first because the matter at issue is one of coverage, and questions of coverage are expressly excluded from arbitration by the policy in question.
Further, the policy involved is not ambiguous. Where there is no ambiguity, contract construction is a question of law for the trial court’s determination. Wilson v Home Owners Mutual Ins Co, 148 Mich App 485, 490; 384 NW2d 807 (1986), lv den 425 Mich 876 (1986). An insurance policy should be read as a whole in order to determine if an ambiguity exists. Auto-Owners Ins Co v Zimmerman, 162 Mich App 459, 461; 412 NW2d 925 (1987), lv den 428 Mich 920 (1987). Ambiguities must be construed in favor of coverage for the insured. Boyd v GMAC, 162 Mich App 446, 452; 413 NW2d 683 (1987). If a contract fairly admits of but one interpretation, it is not ambiguous. Zimmerman, supra, p 461.
The insurance policy involved in this case fairly admits of but one interpretation. In order to be eligible for uninsured motorist benefits, the insured must be injured by an uninsured motor vehicle. The pertinent provision reads:
We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. Bodily injury must be caused by accident and arise out of the ownership, operation, maintenance or use of the uninsured motor vehicle.
Plaintiff does not contend that his vehicle was uninsured. Thus, uninsured motorist coverage is not applicable.
The exclusions from uninsured motorist coverage do not render the policy ambiguous as to whether coverage is afforded in this case. Plaintiff cites the following exclusion:
This coverage does not apply to bodily injury sustained by an insured person: while occupying a motor vehicle which is owned by you or a relative unless that motor vehicle is youk car ....
Plaintiffs argument seems to run as follows: the exclusion eliminates uninsured motorist coverage for injuries sustained when the insured is not occupying "[his] car”; conversely, uninsured motorist coverage is available when the insured is occupying "[his] car.”
While ambiguities are to be construed in favor of the insured, contract language should be given its plain and ordinary meaning, rather than a technical or strained construction. Boyd, supra, p 452. Reading the contract as a whole, it appears clear that the basic condition of uninsured motorist coverage is the involvement of an uninsured vehicle. Because the contract in this case is not ambiguous, its interpretation is a matter of law. The trial court correctly concluded that the terms of the policy do not afford plaintiff uninsured motorist coverage in this case. Thus, the trial court properly denied arbitration and granted summary disposition in favor of defendant.
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Per Curiam.
Defendant was convicted of rape and larceny. The Court of Appeals affirmed. People v McGinnis (On Rehearing), 76 Mich App 268; 256 NW2d 587 (1977).
Defendant testified on his own behalf. He denied committing the offenses, claiming that he had spent the day in question at a Clock restaurant and at a coney island. He further stated that while Rt the restaurant he spoke with a witness named Ms. Maranucci and offered to fix her car windshield.
Before trial, defendant filed notice of alibi listing Ms. Maranucci as an alibi witness; she was never called as a witness.
During cross-examination the prosecutor questioned defendant concerning the failure to produce Ms. Maranucci and again commented during closing argument upon the nonproduction of defendant’s alibi witness.
Although defense counsel admitted confusion about the legitimacy of an alibi defense, he submitted a request for an alibi instruction and argued alibi to the jury. The prosecutor stated that he had no objection to the requested instruction. The trial judge refused to give an alibi instruction, being of the opinion that the defense had been withdrawn. Following the trial court’s charge to the jury, defense counsel again objected to the failure to give the requested instruction.
The issue in this case is not the issue in People v Merritt, 396 Mich 67; 238 NW2d 31 (1976), of whether a defendant who does not file a proper notice of alibi may be precluded from putting in an alibi defense through his own testimony. Mc-Ginnis put in an alibi defense through his own testimony.
The issue here concerns entitlement to an instruction on alibi where there is alibi testimony.
We have unequivocally stated that "[i]f requested, an alibi instruction must be given”. People v Burden, 395 Mich 462, 466; 236 NW2d 505 (1975); People v Miller, 250 Mich 72; 229 NW 475 (1930). There is no dispute that in this case a request was made.
In Miller the defendant introduced alibi testimony without objection. The trial court refused her request for an alibi instruction. This Court rejected the prosecutor’s argument that because the alibi evidence might have been excluded because of defendant’s failure to give notice of alibi the instruction need not be given.
Alibi testimony has been defined as "testimony offered for the sole purpose of placing the defendant elsewhere than at the scene of the crime.” People v Watkins, 54 Mich App 576, 580; 221 NW2d 437 (1974). See, also, People v Gillman, 66 Mich App 419, 424; 239 NW2d 396 (1976). See, generally, 2 Underhill, Criminal Evidence (5th ed), §§ 440-445, pp 1110-1124. While a defendant’s general denial of the charges against him does not constitute an alibi defense, People v Watkins, supra, if a defendant gives specific testimony regarding his whereabouts at the time in question, it is alibi testimony the same as if another witness had given the testimony, People v Merritt, supra.
Implicit in the retroactivity analysis of the Court of Appeals based on Merritt, supra, is that Merritt announced a new rule of law that a defendant would be permitted to testify to an alibi although his own testimony was not corroborated and was entitled to an instruction on an alibi defense whether or not corroborated.
While we find no pre-Merritt Michigan authority recognizing the right of a defendant to put in an uncorroborated alibi defense and to an instruction, we think this is because of the novelty of the intimation that the right to put in a defense, or to an instruction on a defense, depends on corroboration of the defendant’s testimony.
It might, for the same reason, be difficult to find authority that a defendant may offer uncorroborated testimony and thereupon become entitled to an instruction on such defenses as self-defense, accident, mistake, duress, intoxication, consent, non-culpable intent, provocation mitigating murder to manslaughter, or law enforcement or other public duty. But undeniably such defenses can be maintained solely on the defendant’s testimony, and upon proffering such uncorroborated testimony the defendant would be entitled to an appropriate instruction. There is no basis for the intimation that until Merritt an uncorroborated alibi defense could not have been proffered or that an instruction was not required.
Defendant was entitled to an instruction on his theory of the case, which, as his testimony and argument to the jury clearly showed, was that he was elsewhere when the crime occurred.
In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), the defendant’s convictions are reversed and the cause is remanded for further proceedings.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Even if McGinnis had failed to file proper notice of alibi, the judge could, in the exercise of discretion, have allowed alibi witnesses to testify. MCL 768.21; MSA 28.1044, before amendment by 1974 PA 63.
This Court said: "The point should have been made at the trial, was not made, thereby waived, and will not be entertained here.” People v Miller, 250 Mich 72, 74-75; 229 NW 475 (1930).
Retroactivity analysis applies only to "new rules” of law. See Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969); reh den 395 US 931 (1969); Anno: United States Supreme Court’s Views as to Retroactive Effect of Its Own Decisions Announcing New Rules, 22 L Ed 2d 821.
Both the majority and dissenting opinions in People v Merritt, 396 Mich 67; 238 NW2d 31 (1976), proceed on the assumption that a defendant may testify to an alibi without corroborative evidence. | [
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] |
Per Curiam.
Plaintiff Robert Dixon was employed by the defendant Ford Motor Company as a probationary employee when, on November 19, 1968, he was discovered by his supervisor urinating at his work station. Plaintiff was given the option of being fired outright or signing a "quit slip”. Plaintiff signed the "quit slip”.
Two days later, however, plaintiff went to the plant’s employment office and was hired to work in another department of the defendant. Plaintiff’s new position was soon discovered, and he was fired.
On November 26, 1968, plaintiff filed a complaint with the Michigan Civil Rights Commission, alleging that his discharge was the result of racial discrimination. A hearing was held which resulted in a finding by the hearing officer of no discrimination. The Civil Rights Commission, however, did find discrimination and ordered that plaintiff be reinstated to his former position with back pay.
Thereafter, defendant appealed to the Ingham Circuit Court. The matter was heard de novo in that court, though no new witnesses or evidence were introduced. On August 25, the circuit court issued an oral opinion in which it found:
"This court finds, based upon the record, total record I’ve reviewed de novo, Mr. Vaughn’s protestations aside, that the record supports the inference that an employee or employees of Ford Motor Company did more likely than not consider the claimant’s race or color in making their determination to discharge him and to redischarge him after he was rehired. This decision is based upon the totality of the record, including the fact that two white men allegedly guilty of the same infraction were not so disciplined, the court recog nizing again that racial discrimination is not subject to direct, positive and uncontroverted proof in all instances, that at the same time recognizing that the actions taken by subordinate personnel within the Ford Motor Company are not necessarily policies of the Ford Motor Company but the doctrine of respondeat superior.”
Defendant appealed to the Court of Appeals. The Court concluded that the scope of its review of the circuit court judgment was to ascertain whether the decision below was "supported by competent, material and substantial evidence”. 75 Mich App 59, 62; 254 NW2d 652 (1977). The Court found that it was not.
"By demonstrating that white employees were treated differently, plaintiff raised facts sufficient to support an inference of racial discrimination. However, by showing that both white employees were also seniority workers, plaintiff made facts of record which rationally justify the differing treatment afforded plaintiff.”
We conclude that the Court of Appeals, in reviewing the decision of the circuit court, applied the wrong standard of review.
An appeal to the circuit court from a final order of the commission is a trial de novo. The Court of Appeals was of the opinion that although it was reviewing the case on appeal from the circuit court since Const 1963, art 6, § 28, and MCLA 24.306; MSA 3.560(206) require a determination whether the judgment of the circuit court was "supported by competent, material and substantial evidence on the whole record”, its review was not governed by the "clearly erroneous” standard contained in GCR 1963, 517.1.
The constitutional standard for judicial review of agency action — competent, material and substantial evidence on the whole record — is not a higher standard than the "clearly erroneous” standard of rule 517.1. Rule 517.1 requires that the reviewing court substitute its own appraisal of the record where, on review of the "whole record”, it is "left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). If the reviewing court, the Court of Appeals, concludes on its examination of the record that the judgment on appeal is not supported by "competent, material and substantial evidence on the whole record”, then it should have a "definite and firm conviction that a mistake has been committed”.
We conclude that when the circuit court, on appeal from a final order of the Michigan Civil Rights Commission, tries the matter de novo, and then issues a judgment, that judgment is a final one from which a claim of appeal as a matter of right may be filed in the Court of Appeals. Jones v Chrysler Corp, 394 Mich 432; 231 NW2d 642 (1975). Since it is a final judgment of the circuit court, GCR 1963, 517.1 is applicable.
The circuit court in this case specifically found that the defendant, in discharging plaintiff, had done so on the basis of racial discrimination. The Court of Appeals must make an independent review of the whole record but cannot substitute its own judgment unless left with the definite and firm conviction that a mistake has been committed.
This case had its genesis in 1968. To remand to the Court of Appeals for a determination of whether the findings of the circuit court were clearly erroneous would only further delay ultimate disposition of this case. Accordingly, we have reviewed the record in the instant case rather than remand to the Court of Appeals.
We are not persuaded that the findings of fact of the circuit court were clearly erroneous. The circuit court was faced with a situation in which a black probationary employee, guilty of essentially the same misconduct as two white employees with seniority, was discharged while the white employees were not. The fact that the plaintiff was a probationary employee while the employees who were not discharged were employees with seniority does not indicate that the circuit court clearly erred. The record indicates that the plaintiff had an unblemished work record while the two employees who were not disciplined did not. Based upon this evidence, the circuit court could properly conclude that the discipline visited on the plaintiff was based on racial considerations and therefore improper. It cannot properly be said that the decision of the circuit court was clearly erroneous.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4) we reverse the decision of the Court of Appeals and reinstate the judgment of the circuit court.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
"Appeals from final orders of the [Michigan Civil Rights] commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law.” Const 1963, art 5, § 29.
Const 1963, art 6, § 28 provides in pertinent part:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.”
MCLA 24.306(1)(d); MSA 3.560(206)(1)(d) provides:
"(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside the decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
"(d) Not supported by competent, material and substantial evidence on the whole record.”
"Findings of fact shall not be set aside unless clearly erroneous.” GCR 1963, 517.1. | [
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Per Curiam.
Plaintiffs argue that the trial judge should not have disqualified their attorney, A. Albert Sugar, from representing them in this matter merely because he had drafted a memorandum of understanding that is involved in this litigation. We agree.
I
Minority shareholders of Arc-Mation, Inc., represented by Mr. Sugar, brought this action alleging that the majority shareholders entered into an agreement, evidenced by a memorandum of understanding, with certain other defendants providing that Oxford Precise Casting, Inc., was to take over Arc-Mation for the purpose of revitalizing that corporation. The minority shareholders claim that, contrary to the memorandum of understanding, destruction rather than revitalization occurred. Arc-Mation is now an insolvent corporation. The only relief requested as to that corporation is that a receiver be appointed.
The minority shareholders acknowledge that A. Albert Sugar had in the past acted as counsel for Arc-Mation and drafted the memorandum of understanding for the two major shareholders of ArcMation on October 8, 1973. Mr. Sugar has not represented Arc-Mation since late October of 1973.
Defendants moved to have A. Albert Sugar disqualified as attorney for the minority shareholders because his continued representation would be contrary to Code of Professional Responsibility and Canons, Canon 4, DR 4-101(R), subds (1) and (2), and Canon 5, DR 5-101(B), subds (1)-(4), and DR 5-102(A). The trial judge found no breach of confidentiality and no violation of Canon 4 because the suit involved an intra-corporate struggle. He did find, however, that while "there are no specific allegations of affirmative wrongdoing or a clear conflict of interest”, A. Albert Sugar’s continued representation of plaintiffs would violate DR 5-101(B) and DR 5402(A) because "the meaning and interpretation” of the memorandum of under standing "is a material issue in this cause and that as a draftsman of that instrument A. Albert Sugar ought to be called as a witness”.
The Court of Appeals denied leave to appeal from the trial judge’s ruling in an order that cited GAC Commercial Corp v Mahoney Typographers, Inc, 66 Mich App 186, 192; 238 NW2d 575 (1975), for the proposition that:
"But the bottom line should always be this: where it is a question of ethics, the answer is 'no’. There is no room for 'close’ questions of professional propriety, particularly at a time when public trust in and respect for the legal profession is not at its highest level.”
II
The trial court, which also cited GAC Corp, and the Court of Appeals appear to be saying that if any arguable question can be raised regarding the propriety of a lawyer continuing to appear in a case, an order can be obtained disqualifying that lawyer. That constitutes, in our opinion, a dangerous doctrine. It puts in the hands of an adversary the ability to force an opponent to change counsel if the adversary can advance any arguable grounds in support of disqualification. Under this doctrine, no lawyer or firm that participates in drafting an instrument will be able to represent the client if litigation results.
DR 5-101(B) and DR 5-102(A) prohibit a lawyer from accepting or continuing in employment if he "knows” or "learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client” except in certain situations delineated in DR 5-101(B), subds (1) through (4). The trial judge erred in saying that because A. Albert Sugar drafted the memorandum of under standing and its meaning and interpretation is a material issue in this case he "ought to be called as a witness”. In an affidavit, Mr. Sugar states under oath that he "has no intention of being called as a witness in this litigation and that there is no likelihood that he will be called as a witness since all of the allegations contained in the complaint will be proved by competent testimony and proofs from other sources”. The suggestion that defendants will call plaintiffs’ lawyer to testify on the issue of ambiguity, if any, of the memorandum of understanding is not supported in the record in this case. Indeed, defense counsel never clearly expressed an intention of calling Mr. Sugar as a witness.
The rules prohibit a lawyer from participating in litigation only if "he knows” or "it is obvious” that he ought to be called. Under these circumstances, Mr. Sugar does not "know” that he ought to be called and it is not "obvious” that he ought to be called, and his disqualification is premature.
We are mindful of the American Bar Association, Special Committee on Evaluation of Ethical Standards, note 31 to DR 5-102(B), which cites Galarowicz v Ward, 119 Utah 611, 620; 230 P2d 576, 580 (1951), as follows:
"Apparently, the object of this precept is to avoid putting a lawyer in the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony. It was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.”
On order of the Court, the application for leave to appeal is considered and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the order of the trial court and remand the case to the Oakland Circuit Court for further proceedings consistent with this opinion.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Canon 4, DR 4-101(B):
"Except when permitted under DR 4-101(0, a lawyer shall not knowingly:
"(1) Reveal a confidence or secret of his client.
"(2) Use a confidence or secret of his client to the disadvantage of the client.”
Canon 5, DR 5-101(B):
"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
"(1) If the testimony will relate solely to an uncontested matter.
“(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
"(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in this particular case.”
DR 5-102(A):
"If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).” | [
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H. R. Gage, J.
Plaintiffs, assistant Wayne County prosecutors and assistant Wayne County corporation counsel, filed suit in separate actions alleging that they were deprived of the opportunity to compete for three attorney positions which were filled by direct appointment rather than by civil service eligibility lists. After consolidation in the circuit court, both sides moved for summary disposition pursuant to MCR 2.116(0(10). The circuit court held that the county civil service system had been lawfully modified by the county charter and county ordinances, thus removing the disputed positions from the classified civil service system. Therefore, the circuit court held that the direct appointments were valid. Plaintiffs appeal these rulings as of right. The circuit court also held that the public employee relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., does not preempt the action or establish the Michigan Employment Relations Commission as the proper forum for the action. The court also held that plaintiffs could maintain the action in their individual capacities rather than through their union. Defendants cross-appeal these rulings.
Plaintiffs first argue that a county has no authority to modify its civil service system and that only the Legislature has such authority. Plaintiffs rely on MCL 45.514(l)(f); MSA 5.302(14)(l)(f), which provides:
(1) A county charter adopted under this act shall provide for all of the following:
(f) The continuation and implementation of a system of civil service in those counties having a system at the time of the adoption of the charter. The system of civil service provided under the charter shall recognize the rights and status of persons under the civil service system then in effect. The charter shall not infringe upon nor be in derogation of those rights and that status. The charter shall not preclude future modification of the system. Except as provided in subdivision (d), the charter shall provide that the system of civil service be coordinated among the county offices, boards, commissions, and departments.
This subsection clearly provides that a chartered county which has a civil service system at the time it adopts its charter must continue and implement a civil service system. Therefore, defendants would be required to continue to implement a civil service system.
The above statutory provision does not clearly state whether such a county must continue precisely the same system or whether the county is free to modify its civil service system as its needs require. It would seem illogical for the statute to prohibit the charter from precluding future modification of the civil service system, as the above statute clearly does, and yet hold that future modification is also prohibited. It would also seem illogical to give a chartered county without a civil service system the power to adopt a civil service system of its choosing under MCL 45.515(g); MSA 5.302(15)(g) but deny a chartered county the power to amend its civil service system as its needs change. Clearly, one purpose of the charter counties act, MCL 45.501 et seq.; MSA 5.302(1) et seq., was to give charter counties some degree of autonomy over county affairs. Construing and interpreting the statute as a whole to best achieve its intended purpose, we conclude that a charter county may modify its county civil service system. Latham v Wedeking, 162 Mich App 9, 12; 412 NW2d 225 (1987); Norcross Co v Turner-Fisher Associates, 165 Mich App 170, 178; 418 NW2d 424 (1987).
Plaintiffs concede that, if defendants had the authority to modify the county civil service system, then the modifications were properly accomplished by charter and ordinance. We would observe further that the positions were not removed from the classified civil service system until they had become vacant. The modifications did not infringe upon the rights and status of any classified employees holding those positions, nor did the modifications violate MCL 45.514(l)(f); MSA 5.302(14)(l)(f) in any other respect.
Plaintiffs next argue that summary disposition was improperly granted because a question of fact existed regarding whether the disputed positions were managerial. The county charter in question provides in part:
The classified service includes all employees of the County except:
5) Managerial or confidential positions as prescribed by ordinance [.]
When a statute or ordinance expressly provides definitions of its terms, those definitions are binding on the courts. W S Butterfield Theatres, Inc v Dep’t of Revenue, 353 Mich 345, 350; 91 NW2d 269 (1958); In re Jones Estate, 52 Mich App 628, 636; 218 NW2d 89 (1974), lv den 392 Mich 770 (1974). The charter provides that whether a position is managerial or confidential is a matter to be determined by reference to the county ordinances. Since Wayne County Ordinance 83-248 clearly provides that the disputed positions are managerial, the circuit court did not err in finding this issue to be an issue of law rather than an issue of disputed fact. Affidavits of fact pertaining to the responsibilities of the persons holding these positions would have had no bearing on whether these positions were defined by ordinance to be managerial.
Defendants argue on cross-appeal that pera grants exclusive jurisdiction to merc to hear the issues raised by plaintiffs in the circuit court. Merc does have exclusive jurisdiction over all unfair labor practices committed by public employers. Detroit Bd of Ed v Parks, 417 Mich 268, 283; 335 NW2d 641 (1983). However, in this case plaintiffs did not seek a determination of whether defendants engaged in an unfair labor practice. Rather, plaintiffs sought a determination of whether defendants’ modification of the county civil service system violated specific provisions of the charter counties act and the county civil service act, to-wit; MCL 45.514(l)(f); MSA 5.302(14)(l)(f) and MCL 38.415; MSA 5.1191(15). Legal issues pertaining to the construction of statutes are not particularly within the scope of the expertise of merc, but are more properly brought before the circuit court. Smigel v Southgate Community School Dist, 388 Mich 531, 538-539 (opinion of Chief Justice T. M. Kavanagh), 543-544 (opinion of Justice Williams), and 558 (opinion of Justice Swainson); 202 NW2d 305 (1972); Viera v Saginaw Bd of Ed, 91 Mich App 555, 564-565; 283 NW2d 796 (1979), lv den 408 Mich 922 (1980) (dissenting opinion of Judge Baguley). The circuit court did not err in holding that it and not merc had jurisdiction to hear and decide these cases.
Defendants also contend that plaintiffs were attempting to negotiate new conditions of their employment by bringing this litigation. Therefore, defendants argue, pursuant to MCL 423.211; MSA 17.455(11), this is a matter which plaintiffs cannot assert individually but which must be brought by their union. We find this argument to be meritless. First, plaintiffs’ collective bargaining agreements do not declare these positions to be part of the unclassified civil service. By taking the contrary view plaintiffs would not be violating the statute. Second, plaintiffs contend that when their actions arose their prior collective bargaining agreements were expired. Defendants have presented no evidence to the contrary. Therefore, this Court must accept as true the position of plaintiffs. Morganroth v Whitall, 161 Mich App 785, 788-789; 411 NW2d 859 (1987). Finally, defendants have cited no authority for their position that only a union may maintain a suit to protect an employment right of one of its members. A statement of position without citation to authority is insufficient to bring an issue before this Court. Harrison v Grand Trunk W R Co, 162 Mich App 464, 470; 413 NW2d 429 (1987).
Affirmed.
Gillis, P.J., concurred. | [
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Per Curiam.
On September 24, 1986, the Ingham Circuit Court granted summary disposition to defendant Sprout Brothers, Inc., on counts one, three and four of plaintiff’s second amended complaint and to defendant Michael Bidwell on count three of the complaint. The September 24, 1986, order reflected the court’s decision announced after oral arguments were presented at an August 6, 1986, hearing. On January 21, 1987, the court entered a judgment conforming to the provisions of a September 18, 1986, mediation evaluation. On appeal, plaintiff, Walter J. Henderson, argues that the circuit court erred in entering a judgment based on the mediation evaluation, in granting summary disposition to Sprout Brothers, Inc., and to Bidwell on count three of the second amended complaint, and in granting summary disposition to Sprout Brothers, Inc. on counts one and four of the complaint. We find that it was proper to enter a judgment based on the mediation evaluation and that defendants were entitled to summary disposition on count three of plaintiff’s complaint. We also find that the circuit court erred in granting summary disposition to Sprout Brothers, Inc., on counts one and four of plaintiff’s complaint, but conclude that that error does not require us to reverse the judgment entered on January 21, 1987, by the circuit court. Accordingly, we affirm that judgment.
The record reveals that plaintiff, a Texas resident who invests in various businesses, was a limited partner in a California business, Sprout Gardens of California. On February 26, 1980, plaintiff sold for $27,500 two of Sprout Gardens’ three-drum, sprout-growing machines to Michael Bidwell, Brian Bartley and David L. Sutton. These three individuals had executed articles of incorporation on February 15, 1980, for their new com pany, Sprout Brothers, Inc. On March 17, 1980, the company’s articles of incorporation were accepted and filed by the director of the Michigan Department of Commerce. On February 26, 1980, each of the three individuals signed a promissory note for payment to plaintiff of $17,500, plus ten percent interest. In addition, each of the three individuals signed a chattel mortgage reflecting plaintiffs $17,500 security interest in the sprout-growing machines. The line on the chattel mortgage for the signature of the president of Sprout Brothers, Inc., remained unsigned. Moreover, a royalties agreement was also signed by each of the three individuals in which they promised to pay plaintiff "20% of profits in excess of $50,000 on a yearly basis.” This royalties agreement was typed on the letterhead of Sprout Brothers, Inc., and noted that "[a]ll future equipment purchased by Sprout Bros., Inc., Lansing, Michigan, for the use of Sprout Bros., Inc., . . . from Walter J. Henderson, Dallas, Texas, will be at dealer cost F.O.B., Dallas, Texas.” Finally, two of the three individuals, Bidwell and Bartley, each delivered a check for $5,000 to plaintiff as a down payment on the sprout-growing machines.
Following the sale of the equipment, disputes arose and, apparently, plaintiff received no further payments. Plaintiff sued Sprout Brothers, Inc., and each of the three individuals with whom he had dealt. Brian Bartley and David L. Sutton were never served with process, however, and, accordingly, were not subject to the circuit court’s jurisdiction. Bidwell, who was served, filed a counterclaim against plaintiff, alleging breach of warranty and misrepresentation. On August 6, 1986, after oral arguments were presented, the circuit court decided to grant summary disposition to Sprout Brothers, Inc., on plaintiffs claim for payment of the purchase price balance, payment of royalties due, and return of the sprout-growing machines, and to Bidwell on plaintiffs claim for payment of royalties due, concluding that plaintiff himself, in a deposition, had revealed that he had earlier transferred to a third party his right to receive any royalties. This decision was reflected in a September 24, 1986, order.
In September, 1986, plaintiffs claim against Bid-well for payment of the purchase price balance of $17,500 and Bidwell’s counterclaim were submitted for mediation. The mediation panel evaluated plaintiffs claim as worth $13,700, and Bidwell’s counterclaim as worth $17,000. Bidwell made no response to the evaluation, and thus was deemed to have accepted it. Plaintiff filed a response to the evaluation, accepting the award for his claim but rejecting the award for Bidwell’s counterclaim. On December 5, 1986, Bidwell filed a motion requesting entry of a judgment in conformity with the mediation evaluation, arguing that plaintiffs partial acceptance and partial rejection of the evaluation was to be deemed an acceptance of the evaluation under MCR 2.403(L)(1). After oral arguments were presented at a December 23, 1986, hearing, the circuit court decided in favor of Bidwell and, on January 21, 1987, entered a judgment in favor of Bidwell in the amount of $3,300, that amount representing the difference between the $13,700 owing to plaintiff and the $17,000 owing to defendant under the terms of the mediation evaluation.
On appeal, plaintiff first argues that the circuit court erred by entering judgment in conformity with the mediation evaluation. Emphasizing that the court rule which sets forth the procedures for mediation does not specify the manner of response required in a situation involving a claim and a counterclaim, plaintiff contends that his accep tance of the $13,700 mediation award on his claim and his rejection of the $17,000 award on Bidwell’s counterclaim constituted a proper response to the mediation evaluation or, if an improper response, a rejection of that evaluation. Bidwell, on the other hand, asserts that plaintiffs partial acceptance and partial rejection of the mediation evaluation was an improper response to the evaluation and was correctly deemed by the circuit court to be an acceptance.
MCR 2.403 governs the mediation process. In subparagraph (K)(2) it was stated that a mediation evaluation "must include a separate award as to each . . . counterclaim . . . that has been filed in the action.” The evaluation in this case complied with this requirement by including separate awards regarding plaintiffs claim and Bidwell’s counterclaim. In subparagraph (L)(l) it is further stated that "[e]ach party must file a written acceptance or rejection of the panel’s evaluation with the mediation clerk within 28 days after service of the panel’s evaluation,” and that "[t]he failure to file a written acceptance or rejection within 28 days constitutes acceptance.” Subparagraph (L)(3)(a) specifically provides that, in mediations involving multiple parties, "[e]ach party has the option of accepting all of the awards covering the claims by or against that party or of accepting some and rejecting others,” but that, "as to any particular opposing party, the party must either accept or reject the evaluation in its entirety.”
It is clear that, at the time plaintiff filed his response to the mediation evaluation, only he and Bidwell remained as parties, Sprout Brothers, Inc., having earlier been declared entitled to summary disposition by the circuit court, and Brian Bartley and David Sutton never having been served with process. Thus, subparagraph (L)(3), which concerns mediations involving multiple parties, was inapplicable. Had it been applicable, plaintiff would have been constrained either to accept or to reject the evaluation in its entirety, i.e., he would have been obligated to accept the mediators’ awards on both the claim and the counterclaim or to reject the awards on both the claim and the counterclaim. He could not, as he attempted to do, accept the award on the claim and reject the award on the counterclaim.
However, since subparagraph (L)(3) is inapplicable, we must apply subparagraph (L)(l). That provision, as plaintiff reminds us on appeal, does not specify the manner of response in situations involving a claim and a counterclaim. "Without specific direction as to the manner of response,” plaintiff’s appellate brief states, "[plaintiff], reasonably, chose to respond to each award.” We disagree.
In situations not concerning multiple parties, there is no provision in the mediation rule that allows a party to accept part of a mediation evaluation while rejecting the rest of it. The purpose of the mediation rule is to expedite and simplify the final settlement of cases. Smith v Elenges, 156 Mich App 260, 263; 401 NW2d 342 (1986). That purpose would clearly be frustrated if a party were permitted to split its response to a mediation evaluation so that, for example, it could accept a mediation award on its claim but reject an award on a defendant’s counterclaim. Such a procedure would not necessarily expedite or simplify the final settlement of the case since only a portion of it would be settled, the remaining portion still requiring to be fully litigated. The same parties as settled concerning a part of the lawsuit would nevertheless have to go to court and litigate the balance of the lawsuit. A "final settlement,” in such an instance, can hardly be said to have resulted from the mediation process. Rather, at most, merely a partial settlement would have resulted, while the surviving portion of the case would continue to demand judicial attention. We agree with the observation of the circuit court:
[A mediation evaluation] has to be accepted in its entirety or rejected in its entirety, otherwise [the mediation rule] doesn’t make sense. The mediators simply can’t operate under the circumstances where you reject part of it, settle for part of it. You have foiled the purpose of mediation by being given that ability.
As already mentioned, in situations involving multiple parties, a party must either accept or reject a mediation evaluation in its entirety as to any particular opposing party. We see no reason to deviate from this rule in situations involving only two parties.
Moreover, we find that the circuit court did not err in deeming plaintiff’s partial acceptance and partial rejection of the mediation evaluation as an acceptance of the evaluation. The predecessor of the current mediation rule provided that the failure to timely file a written acceptance of a mediation evaluation constituted a rejection of the evaluation. GCR 1963, 316.6(h)(1). The current rule, of course, provides that the failure to timely file a written acceptance or rejection constitutes an acceptance. Commentators have cautioned that "counsel should take particular note of this rule change.” 2 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 444. In the present case, plaintiff did not timely file a written acceptance or rejection of the mediation evaluation but, rather, a written acceptance and rejection of it. We conclude that, by doing so, he complied with neither the letter nor the spirit of the mediation rule’s response requirement and, under MCR 2.403(L)(1), was properly deemed by the circuit court to have accepted the evaluation. The evaluation having been properly deemed accepted by plaintiff and Bidwell, judgment in conformity with its assessments was appropriately entered by the circuit court.
Second, plaintiff argues on appeal that the circuit court erred in granting summary disposition to Sprout Brothers, Inc., and Bidwell, under MCR 2.116(0(10), on count three of his complaint. In that count, plaintiff claimed entitlement to certain royalties promised in the February 26, 1980, royalties agreement. We disagree.
The standard for reviewing a circuit court’s decision on a party’s motion for summary disposition under MCR 2.116(0(10) — there exists no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law— is well established:
Summary disposition pursuant to MCR 2.116(0(10) is proper only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. Hagerl v Auto Club Group Ins Co, 157 Mich App 684, 686-687; 403 NW2d 197 (1987). A motion based on MCR 2.116(0(10) tests the factual support for the claim. Morganroth v Whitall, 161 Mich App 785, 788; 411 NW2d 859 (1987). In ruling on the motion, the court must consider the pleadings, affidavits, depositions and other documentary evidence, and must give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine issue of material fact. Id. Summary disposition is appropriate only if the court is satisfied that it is impossible for the nonmoving party’s claim to be supported at trial because of a deficiency which cannot be overcome. Id. [Jones v Farm Bureau Mutual Ins Co, 172 Mich App 24, 26-27; 431 NW2d 242 (1988).]
A plaintiff’s deposition testimony, given in a clear, intelligent and unequivocal manner, is binding in the absence of proper explanation, even though it contradicts allegations in the complaint. See Stefan v White, 76 Mich App 654; 257 NW2d 206 (1977); Sumpter v Kosinski, 165 Mich App 784, 800; 419 NW2d 463 (1988). In plaintiff’s deposition in this case, he unambiguously testified that he had transferred to a third party his ownership of the right to receive royalties, and thus conceded that no royalties could be owed to him under the February 26, 1980, royalties agreement. In his deposition, plaintiff was asked and answered the following questions:
Q. Do you still own the royalty?
A. What royalty? I get royalty from oil, minerals.
Q. I’m sorry, excuse me. The royalty under this agreement.
A. No. I never did.
Q. Who owns that?
A. Lauren Zindel, the daughter of Bruce Zindel.
Q. You transferred it to her?
A. Sure did.
* * *
Q. Well, aren’t you going to have an ongoing relationship with him anyway?
A. I wasn’t going to, no.
Q. I thought you told me [about] some royalties.
A. No, better than that. They owed Bruce Zindel’s daughter royalties.
Q. They never agreed to pay you royalties?
A. I agreed royalties were attached to the machine, but whenever I ever got down to it, I said Bruce, I’m here and now giving royalties to your daughter before that note was signed when the negotiation was going on between them and then I gave it to Lauren Zindel.
Q. Was anyone else present during that conversation?
A. My wife. They know that royalty belongs to Lauren Zindel, not me. They know that.
Q. If it belongs to Lauren Zindel, then why are you suing them for it?
A. I’m not suing them for it.
In an attempt to avoid the consequence of this repudiation of any entitlement to royalties, plaintiff asserted in an affidavit that, in fact, he never transferred his interest in the royalties to Lauren Zindel. However, such a late-coming, obviously self-serving denial of facts previously declared with certainty and vigor does not constitute an adequate explanation or showing of mistake. We agree with the circuit court, which, in ruling on this issue, stated:
As to Count m of the second Amended Complaint, again, Mr. Henderson said what he said. It is his position at one point in time relative to the royalties, the Defendant Sprout Brothers, Inc., has proceeded on that basis.
Now at the eleventh hour, apparently, Mr. Henderson has had a change of heart. He is unfortunately burdened with those words of his uttered on some previous date.
Finally, plaintiff argues on appeal that the circuit court erred in granting summary disposition to Sprout Brothers, Inc., under MCR 2.16(0(10) on counts one and four of his complaint. In those counts, plaintiff claimed entitlement to payment of $17,500, that amount being the balance of the purchase price for the two sprout-growing ma chines, and the return of the machines due to breach of contract. The circuit court, in granting the motion of Sprout Brothers, Inc., concluded that the corporation could not possibly be held responsible for payment of the unpaid portion of the purchase price because on February 26, 1980, the date the chattel mortgage, promissory note and royalties agreement were signed by Bidwell, Bartley and Sutton, Sprout Brothers, Inc., did not exist in law, its articles of incorporation not having been filed with the director of the Michigan Department of Commerce until March 17, 1980.
We agree with plaintiff that summary disposition was improvidently granted to Sprout Brothers, Inc., since we conclude that questions of fact exist regarding whether, on February 26, 1980, Sprout Brothers, Inc., existed as a de facto corporation, and whether the corporation ratified its incorporators’ preincorporation contracts with plaintiff. The failure of incorporators to file articles of incorporation with the Michigan Department of Commerce does not necessarily preclude a finding that an entity exists as a corporation, for parties other than the state, prior to such filing. The Supreme Court has quoted with approbation the following language in a treatise on corporation law:
When incorporators have proceeded in good faith, under a valid statute, for an authorized purpose, and have executed and acknowledged articles of association pursuant to that purpose, a corporation de facto instantly comes into being. ... A de facto corporation is an actual corporation. As to all the world except the State, it enjoys the status and powers of a de jure corporation. [Tisch Auto Supply Co v Nelson, 222 Mich 196, 200; 192 NW 600 (1923), quoting Hamilton, Michigan Corporation Code (3d ed), § 83.]
In addition, a corporation may be liable on preincorporation contracts of promoters or incorporators if these contracts are ratified or adopted by the corporation. Michigan Trust Co v Herpolsheimer, 256 Mich 589, 598-600; 240 NW 6 (1932).
In the present case, there are many indications that plaintiff could support his claim regarding the de facto corporate status of Sprout Brothers, Inc., on February 26, 1980, and of the ratification or adoption by Sprout Brothers, Inc., of the contracts between himself and the three individuals with whom he dealt. The name of Sprout Brothers, Inc., is included, along with Bidwell, Bartley and Sutton, in the chattel mortgage held by plaintiff in the sprout-growing machines as a party "justly indebted to Walter J. Henderson.” The. royalties agreement signed by the three individuals and plaintiff is typed on letterhead of Sprout Brothers, Inc., and it is noted that "[a]ll future equipment purchased by Sprout Bros., Inc., . . . will be at dealer cost F.O.B., Dallas, Texas.” Moreover, Bid-well opened a checking account for Sprout Brothers, Inc., on February 19, 1980, and the corporate records prepared by the corporation’s accountants listed the debt to plaintiff as an obligation of the corporation.
Thus, we conclude that the circuit court erred in granting summary disposition to Sprout Brothers, Inc., on plaintiffs claims for payment of the balance of the purchase price of the two sprout-growing machines and the return of the machines due to breach of contract. Our finding of error, however, does not prompt us to reverse the circuit court’s January 21, 1987, judgment because it is clear that the liability of Sprout Brothers, Inc.— assuming such derivative liability exists — could have been no greater or different than that of the liability of Bidwell. Put differently, plaintiff could prove no additional damages in this case than those which were incurred as a result of the actions of Bidwell. Since we have already determined that the circuit court did not err in deeming plaintiff to have accepted the mediation evaluation regarding Bidwell’s liability and in entering a judgment in conformity with that evaluation, we discern no purpose, from plaintiff’s perspective, in remanding the case for a determination of the relative degrees of culpability of Bidwell and Sprout Brothers, Inc. Plaintiff would not be entitled to any more damages and would merely incur additional attorney fees.
Accordingly, we affirm the result reached by the circuit court. | [
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N. A. Baguley, J.
The prosecutor appeals by leave granted the decision of the Detroit Recorder’s Court that People v Whitty, 96 Mich App 403; 292 NW2d 214 (1980), is controlling in the instant case rather than Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985). We reverse.
On October 15, 1986, at approximately 1:10 p.m., defendant was in his office in Warren, Michigan, when he heard a piercing sound, which he recognized as the burglar alarm on his 1986 Cadillac Seville automobile. He left the office building and walked to the parking lot where he saw a man, later identified as Alphonso Tucker, Jr., sitting in the middle of the front seat of defendant’s car. The driver’s window of defendant’s vehicle had been broken out, with glass shards littering the parking lot. Tucker was bent forward, in the process of stealing the car’s radio.
Defendant drew his licensed concealed weapon, a .38 caliber revolver, walked to the rear of the car, held the gun in the air, and said, "Get out of the car and go with me so that I can call the police.” Tucker slid over to the passenger door of the car, left the car, and said, "Okay, man, don’t shoot.” Defendant instructed Tucker to accompany him so he could call the police. Tucker then lunged toward defendant, and defendant fired a single shot. This shot did not strike Tucker. Tucker then began running away, and defendant fired two more shots from a distance of twenty to thirty feet, striking Tucker twice in the back. Tucker later died from the two gunshot wounds. Defendant returned to his office, summoned the police, and gave them a full statement concerning the incident.
Defendant was arrested and charged with manslaughter, MCL 750.329; MSA 28.561, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant moved to quash the information, claiming that pursuant to Michigan common law citizens can use deadly force to effectuate the arrest of a fleeing felon and, accordingly, defendant had a complete defense to these charges. The prosecutor opposed defendant’s motion and in limine requested that the court determine whether the United States Supreme Court decision in Garner, supra, applied to this action and rendered the defendant’s use of deadly force unreasonable. The Recorder’s Court judge found that Whitty, supra, was controlling rather than Garner. The prosecutor’s request for a jury instruction reflecting the limitation established by Garner was denied without prejudice, and defendant’s motion to quash was denied. Trial was stayed pending the instant appeal to this Court.
By statute in Michigan a private citizen can make an arrest for a felony committed in his presence. MCL 764.16(a); MSA 28.875(a). Under the common law, the allowable use of deadly force by a private citizen in making a valid arrest can be divided into two categories: the use of deadly force when the person making the arrest is met with force from the person who is to be arrested, and the use of deadly force when necessary to prevent the person who is to be arrested from fleeing. Whitty, supra, p 411. See also Werner v Hartfelder, 113 Mich App 747; 318 NW2d 825 (1982); People v Smith, 148 Mich App 16; 384 NW2d 68 (1985).
The Whitty Court examined the common-law rule which allows a private citizen to use deadly force to prevent a felon from escaping. The Whitty Court stated:
The common law rule developed in an era when the large majority of felonies were punishable by death, so that the killing of . a fleeing felon tended only to hasten the ultimate result. LaFave & Scott, Criminal Law, § 56, p 405, Pearson, The Right to Kill in Making Arrests, 28 Mich L Rev 957, 974-975 (1930), Commonwealth v Chermansky, 430 Pa 170; 242 A2d 237 (1968). This rationale is, of course, no longer applicable. It is undoubtedly considerations of this sort that have led to changes in the law regarding the use of deadly force by private citizens. Massachusetts, for example, has adopted § 3.07 of the Model Penal Code, which prohibits the use of deadly force by private citizens unless they are assisting a person believed to be authorized to act as a peace officer. Commonwealth v Klein, 372 Mass 823; 363 NE2d 1313 (1977). Pennsylvania limits the use of deadly force to violent felonies, and enumerates some of the felo nies that meet this standard. Commonwealth v Chermansky, supra.
Despite the fact that some jurisdictions have cut back on the justifiable use of deadly force, many others have maintained the common law rule, and there is good reason for doing so. The fact remains that the police cannot be everywhere they are needed at once. The occasion may arise where the private citizen is confronted with the choice of attempting a citizen’s arrest or letting the felon escape. In order to make the citizen’s arrest, it is regrettable, but sometimes necessary, to make use of deadly force. The common law in Michigan recognizes this but still stops far short of granting the private citizen a license to hunt down and kill those suspected of committing a felony. The use of deadly force is not justified if the person to be arrested is not in fact a felon. Additionally, and most importantly, the use of deadly force must be necessary either to meet deadly force or to prevent the felon’s escape. Elimination or severe curtailment of the citizen’s justifiable use of deadly force would ignore the practical limitations on the ability of law enforcement authorities to arrest every felon. [Whitty, supra, pp 415-416.]
The Whitty Court upheld the existing common-law rule, but supplied it with a new rationale. A private citizen may use deadly force to prevent a fleeing felon from escaping because there are "practical limitations on the ability of law enforcement authorities to arrest every felon.” Id.
In 1985, the United States Supreme Court held in Tennessee v Garner, supra, that where a police officer "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not unconstitutionally unreasonable to prevent the escape by using deadly force.” Garner, supra, 471 US 11. The Garner Court held that the Fourth Amendment to the United States Constitution prohibited a police officer from using deadly force to prevent a felon from fleeing unless the officer had probable cause to believe the felon posed a threat to the officer or others. If the defendant in the instant case were a police officer, Garner would be controlling.
Defendant is a private citizen, not a police officer. The Fourth Amendment was intended as a restraint upon the activities of sovereign authority and was not intended to be a limitation upon other than governmental agencies. Burdeau v McDowell, 256 US 465, 475; 41 S Ct 574; 65 L Ed 1048 (1921). A panel of this Court in People v Holloway, 82 Mich App 629; 267 NW2d 454 (1978), held that the Fourth Amendment restraints on the activities of government officers did not extend to searches by private security guards. If the actions of private security guards are not constrained by the Fourth Amendment, then obviously private citizens’ actions are not bound by the Fourth Amendment. The Fourth Amendment is not controlling on actions of private citizens and, accordingly, Garner does not directly control the instant case. However, the Garner decision does prompt us to reexamine the result reached by this Court in Whitty.
Whitty upheld the common-law rule allowing a private citizen to employ deadly force so as to prevent a felon from fleeing because, essentially, in that situation a private citizen is playing the part of a police officer. But, Garner changed when a police officer is allowed to use deadly force to prevent a felon from escaping. Therefore, employing the Whitty rationale that a private citizen, at times, stands in the shoes of a police officer, we hold that a private citizen may only use deadly force to prevent a felon from fleeing where the citizen has a reasonable belief that the felon poses a threat of serious physical harm to that citizen or to other citizens. To the degree that this decision conflicts with Whitty, we disagree with Whitty and do not apply it in this case.
We are adopting a new standard to determine if a private citizen’s use of deadly force to prevent a felon from escaping is reasonable. Although this is a new approach for this state, it’s application has been foreshadowed by other panels of this Court. See the dissent to Werner v Hartfelder, 113 Mich App 747, 758; 318 NW2d 825 (1982); Guider v Smith, 157 Mich App 92, 108; 403 NW2d 505 (1987) (questioning the viability of the common law rule in light of Tennessee v Garner); People v Coons, 158 Mich App 735, 739; 405 NW2d 153 (1987) ("We will not give defendant permission to use deadly force in a situation where it would be denied to a law enforcement officer having broader powers to effect an arrest.”); Washington v Starke, 173 Mich App 230; 433 NW2d 834 (1988) (holding as unconstitutional the common-law rule that a police officer can use deadly force to prevent a felon from fleeing).
Defendant argues that Tennessee v Garner, supra, should not be applied retroactively so as to apply to the instant case. We disagree. We first note that the Garner decision was handed down on March 27, 1985, and the instant crime occurred on October 15, 1986. Second, we follow Washington v Starke, supra, which held that the Garner decision applies retroactively to a shooting that occurred in 1982. We are not troubled by applying Garner to the instant case.
We have enunciated a new standard of reasonableness to be applied when a private citizen employs deadly force to prevent a felon from fleeing. A private citizen can use deadly force to stop the escape of a felon where it is reasonable for the citizen to believe that the felon poses a threat of serious physical harm either to that citizen or to others. We do not draw any conclusion as to whether the actions of defendant in this case were reasonable. We reverse the trial court’s ruling that Whitty is controlling over the instant case as opposed to Garner.
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] |
Michael J. Kelly, J.
Plaintiff, Marilyn Hickman, appeals as of right from a circuit court dismissal of her gender discrimination claim. Hickman sued defendant W-S Equipment Company, Inc. and its president, defendant Paul E. Johnson, for sex discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., following her discharge. Defendants moved for summary disposition under MCR 2.116(C)(8) for failure to state a claim, which the trial court granted. We affirm.
Hickman began working as a bookkeeper for defendant W-S Equipment Company in May of 1977. In 1982, defendant Johnson hired another woman, Nancy Greenhow, as an office assistant. Johnson became romantically involved with Greenhow, who later stopped working at W-S Equipment. In December of 1985, Greenhow was rehired by Johnson, who continued to be romantically involved with her. Johnson began assigning plaintiff’s work duties and responsibilities to Greenhow and eventually terminated plaintiff’s employment in July of 1986. After her termination, plaintiff sued defendants for sex discrimination under the Civil Rights Act. Her complaint alleged that defendant Johnson fired plaintiff in order to give plaintiff’s job to Greenhow, his girlfriend. Plaintiff claims that defendants’ actions constituted sex discrimination under § 202 of the Civil Rights Act and that defendants’ reasons for plaintiff’s termination were pretextual and fabricated. Defendants contended that plaintiff was terminated for just cause, namely because she repeatedly failed to produce required financial records on time.
Defendants moved for summary disposition under MCR 2.116(C)(8), on the basis that the facts alleged in plaintiff’s complaint failed to state a claim under the Civil Rights Act. The trial court agreed, reasoning that, although the facts alleged indicated an unfair termination, they did not state a claim for sex discrimination. Favoritism of one female over another was not the Legislature’s target. On appeal, plaintiff claims that the trial court erred in concluding that she failed to state a claim for sex discrimination under the Civil Rights Act. We disagree.
A motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim upon which relief can be granted tests the legal sufficiency of the claim as determined by the pleadings alone. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Tyrna v Adamo, Inc, 159 Mich App 592, 597; 407 NW2d 47 (1987).
Section 202 of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), provides:
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 applicant 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.
Section 103 of the act, MCL 37.2103(h); MSA 3.548(103)(h), provides:
Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:
(i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing.
(iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.
A prima facie case of sex discrimination under § 202 of the Civil Rights Act can be made in one of two ways, by showing disparate treatment or by showing intentional discrimination. Dixon v W W Grainger, Inc, 168 Mich App 107, 114; 423 NW2d 580 (1987); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 654; 378 NW2d 558 (1985). These two ways were described in Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich 785, 793-794; 369 NW2d 223 (1985):
(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 [class]. (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. [Citations omitted.]
Plaintiffs complaint clearly fails to state a prima facie claim under either of these two tests. Plaintiff is a member of a class entitled to protection under the act because of her gender. However, plaintiff did not allege any facts showing that she was treated differently than a man or that defendants were predisposed to discriminate against women and that this caused plaintiffs discharge from employment. Viewing the allegations made by plaintiff as true, it is obvious that plaintiffs discharge had nothing to do with her gender; plaintiffs boss merely discharged her in order to give her job to his girlfriend. This discharge would likely have occurred regardless of plaintiffs sex. Nor did these allegations show any sexual harrassment of plaintiff by defendants as defined by § 103(h) of the act.
Although plaintiffs discharge may have been unfair, it was simply not a violation of the prohibition in the Civil Rights Act against gender discrimination. As noted by our Supreme Court in Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984):
The Michigan civil rights act is aimed at "the prejudices and biases” borne against persons be cause of their membership in a certain class and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. [Citations omitted.]
Plaintiff’s claim simply does not indicate that her discharge was due to her membership in a certain suspect class. The trial court did not err in dismissing her suit.
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Per Curiam.
Plaintiif appeals, and defendants Emergency Services and Schirle cross appeal, from an order of the circuit court granting summary disposition to defendants Choi and Thanh and denying summary disposition to defendants Emergency Services and Schirle. Summary disposition was granted on the basis of governmental immunity, MCR 2.116(C)(7). The order was certified as a final order with respect to Choi and Thanh pursuant to MCR 2.604(A). We affirm in part and reverse in part.
Plaintiffs decedent, Jeffrey Roberts, was involved in an automobile accident and was taken to the emergency department of Pontiac General Hospital. Plaintiffs decedent was treated in the emergency department and later transferred to the hospital’s intensive care unit. Plaintiffs decedent died the next day, allegedly as a result of negligent acts or omissions occurring while he was in the emergency room.
The emergency department of Pontiac General Hospital was operated under contract with defendant Emergency Services-North Oakland, P.C., which is a private corporation operated for profit by defendant Schirle. Schirle was, in fact, the emergency room physician on duty at the time plaintiffs decedent was admitted to the emergency department.
Defendant Choi was a fourth-year surgical resident employed by the hospital and was available to all hospital departments, including the emer gency room, while on duty. Defendant Thanh, on the other hand, is a vascular surgeon with staff privileges at Pontiac General Hospital. As a requirement of his staff privileges, he must make himself available during certain periods should his expertise be required by any physician rendering treatment at the hospital. During these "on-call” hours, Dr. Thanh is available to all hospital departments, including the emergency room. Allegedly, Dr. Schirle summoned both doctors to the emergency room to assist in treating plaintiffs decedent.
Defendants initially moved for summary disposition on the ground of governmental immunity and the trial court denied their motions. Defendants sought leave to appeal to this Court, which, in lieu of granting leave, peremptorily reversed the trial court with respect to defendant City of Pontiac, and ordered summary disposition granted in favor of the city. It also ordered the matter remanded to the trial court for reconsideration in light of various cases with respect to the remaining defendants. It is the trial court’s disposition on remand which gives rise to the instant appeal.
For reasons which shall become clear as we proceed with this opinion, we choose to address the issue raised on the cross appeal first. On cross appeal, defendants Emergency Services and Schirle argue that the trial court erred in denying summary disposition with respect to them on the basis of governmental immunity. We disagree. There are two particularly relevant cases to be Considered in addressing this issue. The first is Jackson v New Center Community Mental Health Services, 158 Mich App 25; 404 NW2d 688 (1987). In Jackson, the defendant was a nonprofit corporation which was under contract with the county to provide outpatient mental health services. The defendant was sued by the plaintiffs after the plaintiffs were wounded by one of the defendant’s patients. The defendant asserted a defense of governmental immunity arguing that, since it was performing a function for the county government, it was entitled to immunity as an agency of the government. This Court disagreed. The Jackson Court, supra at 35, explained its reasoning as follows:
A private entity’s performance of a governmental function does not confer governmental agency status on that entity. As noted in Ross [v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984)], p 616, mental health services, albeit required of a governmental agency, are commonly provided by private facilities. The Mental Health Code expressly contemplates the participation of both public and private mental health facilities in state and county community mental health programs.
Notwithstanding its performance of a "governmental function” and its reliance on public funding, New Center retains its identity as a nongovernmental entity. Its employees are not county employees. It retains its separate corporate identity and is governed by its own board of directors. Except as it has voluntarily obligated itself by contract, New Center is not required to provide services or to remain in existence. While it may have been created in response to the recognition of mental health needs in Detroit, New Center’s creation was not mandated by law.
We are persuaded of no reason to treat a private entity as a governmental agency merely because that entity contracts with a governmental agency to provide services which the agency is authorized or mandated to provide.
Also to be considered is this Court’s decision in Hayes v Emerick, 164 Mich App 138; 416 NW2d 350 (1987). In Hayes, the plaintiff sued a physician under contract with the county sheriff to provide medical care to inmates of the county jail. This Court concluded that the defendant was an agent of the county and, therefore, was entitled to the protection of governmental immunity.
To the extent that Jackson and Hayes represent conflicting views, we believe that Jackson presents the better rationale. Like the Jackson Court, we see no reason to extend the protection of governmental immunity to a private entity merely because it contracts with the government. Jackson, supra at 35.
Accordingly, for the reasons stated above, we conclude that defendant Emergency Services, as a private entity, is not entitled to the protection of governmental immunity. It also follows that Dr. Schirle, as an employee of Emergency Services rather than of the hospital itself, is not entitled to raise as a defense the doctrine of governmental immunity.
Having disposed of the issue raised on cross appeal, we return to the issue raised on appeal, namely whether Drs. Choi and Thanh may raise the defense of governmental immunity. For reasons we will explain below, we believe that the applicability of the doctrine of governmental immunity to these defendants is dependent upon facts which have not yet been fully developed.
The relevant inquiry as to the applicability of governmental immunity to Drs. Choi and Thanh is whether they were acting as agents of Emergency Services at the time of the alleged acts of malpractice or as agents of Pontiac General Hospital. If they were agents of Emergency Services, then, like Dr. Schirle, they are not entitled to governmental immunity since they were acting as agents of a private entity. However, if they were acting as agents of Pontiac General Hospital then, as governmental employees, they would be entitled to the protections of governmental immunity if their acts constituted discretionary decision-making conduct. Hayes, supra at 140. See also Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 592; 363 NW2d 641 (1984).
This Court discussed the application of agency principles to the governmental immunity situation in Hayes, supra at 140-141:
In Ross, supra, 420 Mich 624, n 38, the Supreme Court noted that "the individual tortfeasor’s status as an employee, agent, independent contractor, etc., . . . will generally be determined with reference to common-law tort and agency principles.” Therefore, general principles of agency law must be examined. In Goldman v Cohen, 123 Mich App 224, 228-230; 333 NW2d 228 (1983), lv den 422 Mich 865 (1985), this Court reiterated the definition of the term "agent” found in Stephenson v Golden, 279 Mich 710, 734-735; 276 NW 849 (1937):
" 'An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.’ Bow-stead on Agency (4th ed), 1.
" 'An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute,' a deputy, appointed by the principal, with power to do the things which the principal may or can do.’ 2 CJS 1025.
"The term 'agent’ includes factors, brokers, etc. 2 CJS 1015.
"As said in Saums v Parfet, 270 Mich 165; 258 NW 235 (1935):
"' "Agency” in its broadest sense includes every relation in which one person acts for or represents another by his authority.’ 2 CJ 419.
" ' "Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under their agreements or acts.” 21 RCL 819.’ ”
Unlike the trial court, we do not believe it sufficient merely to rely upon the fact that Drs. Choi and Thanh were employees or agents of the hospital. Rather, we believe that facts must further be developed to determine their exact status at the time of the alleged acts of malpractice. That is, while it may be true that they were employees or agents of the hospital at the time, they may have been serving as agents of Emergency Services and, therefore, not entitled to the protection of governmental immunity. Relevant considerations include (1) whether Drs. Choi and Thanh were paid by Emergency Services, by Pontiac General Hospital, or by the patient directly for the time spent in the emergency room, (2) whether Emergency Services had to reimburse Pontiac General for the services rendered by Choi and Thanh, (3) whether the contractual relationship between Emergency Services and Pontiac General Hospital provided for Pontiac General supplying physicians to Emergency Services, and (4) what control and authority Emergency Services and its supervisory personnel, i.e., Dr. Schirle, exercised over Drs. Choi and Thanh and any other physicians supplied by Pontiac General Hospital for work in the emergency room. While each of these considerations are relevant, the list is not necessarily exclusive nor is any given factor controlling. Rather, the totality of the circumstances must be considered in order to determine whether Choi and Thanh were acting as agents of Emergency Services or were acting as employees of Pontiac General Hospital.
For the above reasons, we conclude that the determination of whether defendants Choi and Thanh are entitled to the protection of governmental immunity is dependent upon a further development of facts in order to determine whether they were acting as agents of Emergency Services or as agents of Pontiac General Hospital at the time of the alleged acts of malpractice. Therefore, we conclude that the trial court erred in granting summary disposition in favor of defendants Choi and Thanh merely because they were employees of Pontiac General Hospital.
Accordingly, we reverse the grant of summary disposition in favor of defendants Choi and Thanh and remand the matter to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs.
Affirmed in part, reversed in part, and remanded.
An interesting question concerning the jurisdiction of this Court is presented here, though the issue is not raised by the parties. Specifically, although the order appealed from denied summary disposition with respect to Emergency Services and Schirle, while granting summary disposition in favor of defendants Choi and Thanh, the trial court certified the order as a final order only with respect to Choi and Thanh. Thus, the question arises whether defendants Emergency Services and Schirle can invoke the jurisdiction of this Court by way of a cross appeal when plaintiif appeal from the certified final order. Clearly, had the trial court entered two separate orders, the first denying summary disposition with respect to defendants Emergency Services and Schirle and the second order granting summary disposition in favor of Choi and Thanh, with only the second order, of course, being certified as a final order under the rule, defendants Emergency Services and Schirle could not claim an immediate appeal from the order denying summary disposition since it would be an interlocutory order not certified as a final order, and any cross appeal filed in plaintiff’s claim of appeal from the second order would be limited to the issues raised in that second order, specifically the propriety of granting summary disposition to defendants Choi and Thanh. Thus, under such a situation, defendants Emergency Services and Schirle could not claim an immediate appeal or cross appeal and challenge the denial of summary disposition with respect to them. Rather, they would have to wait until a final order was entered in the file from which they could appeal.
Similarly, had plaintiff not claimed an immediate appeal from the certified final order in this case, instead choosing to wait to appeal from the final order which disposed of the entire case, see Comm’r of Ins v Advisory Bd of the Michigan State Accident Fund, 173 Mich App 566; 434 NW2d 433 (1988), defendants Emergency Services and Schirle could not have claimed an appeal as against plaintiff from the certified final order since the order was not certified final by the trial court as to defendants Emergency Services and Schirle. To our knowledge, this Court has not previously had an opportunity to consider whether the jurisdiction of this Court could be invoked by the cross appeal under these circumstances. However, since thé parties do not raise the issue themselves, and since considerations of judicial economy merit addressing the issue raised on cross appeal, we shall address that issue. If a detailed analysis would lead to the conclusion that defendants Emergency Services and Schirle cannot invoke the jurisdiction of this Court by claiming a cross appeal, then we consider their claim of cross appeal as an application for leave to appeal and grant that application.
We note a potential basis for distinguishing Hayes from Jackson. Specifically, while the defendant in Jackson was a corporation, it is not clear from the Hayes decision whether the defendant personally contracted with the county sheriff to provide medical services or whether the contract was between the sheriff and the defendant’s professional corporation. Thus, a distinction might arise between cases where the contract with the government is by a private company as opposed to the government retaining the services of an individual. In any event, we follow the decision in Jackson in the case at bar, particularly since Pontiac General Hospital contracted with the Emergency Services-North Oakland Corporation and did not retain the services of Dr. Schirle personally.
With respect to Dr. Thanh, we note, without deciding, that his status as a private physician with staff privileges makes his claim to governmental immunity more tenuous as, unlike Dr. Choi, he is not an employee of the governmental entity. Thus, the trial court will have to take special care in analyzing the status of Dr. Thanh. It would not necessarily be inconsistent for the trial court to conclude that one, but not both, is entitled to the protection of governmental immunity. | [
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Griffin, J.
Plaintiff appeals as of right from a lower court order granting defendants Mykonos Lounge and Mykonos Lounge partners Demetrios Panagopoulus, Agrias Korogiannis, and Athanasius A. Peristeris summary disposition as to Count i of plaintiff’s second amended complaint. Plaintiff’s suit for personal injuries arose out of a criminal assault and battery committed by codefendant Shadad Mattey upon the plaintiff while the two were patrons in the Mykonos Lounge. In granting the motion for partial summary disposition the lower court ruled that the lounge and its partners did not owe the plaintiff a duty to prevent the criminal assault. We agree and therefore affirm.
i
Count i of plaintiff’s second amended complaint alleges negligence and premises liability in general terms.
Defendant Mykonos Lounge, and its individual partners, in support of their motion for partial summary disposition, submitted to the trial court depositions or portions thereof. The Honorable Thomas J. Foley relied on such documentary evidence in holding that there was not a duty owed to prevent the sudden and unexpected criminal activity:
The Court: All right. The court has read all of your Briefs and listened to the arguments. I can’t help but place this Mykonos in the area which it belongs. It is within the shadow of the main police precinct of the City of Detroit. It is a [busy] business district, and placing it in its proper perspective, we have, according to everything I read in your Briefs and in your depositions and portions thereof, you have a criminal activity which comes about suddenly, unexpectedly, unpredictably.
Now there isn’t any question but that the premise owner is not a policeman. He is not placed in a position to be a policeman nor must he replace those services which the police are expected to provided.
From what I have seen and the cases that I’ve— some of the cases you cite are my own cases incidentally — I don’t think there is any question but that on these factual situations, that those Counts dealing with premise liability must go out, and I will grant your Motion as to that.
Witness John Zois testified in his deposition that the assault came as a "complete surprise” and that nothing happened before the incident to lead anyone to believe that violence was to occur. Further, the personnel of the restaurant quickly attempted to intercede after the incident. The deposition of partner Poyvios Panagopoulus was submitted to the trial court as evidence that the defendants did not know, prior to the incident, of any violent tendencies of Shadad Mattey or of any other assaults by Mattey in the Mykonos Lounge or other restaurants.
In defense of the motion for partial summary disposition, plaintiff Christos Papadimas filed in the trial court a "response to defendant’s motion for partial summary disposition” which contained the following conclusory statements:
2. . . . Plaintiff denies that defendant Mykonos was not aware of defendant Mattey’s violent propensities prior to his attack upon the plaintiff.
7. Denied. Plaintiff will introduce evidence at the time of trial to show that defendant’s lounge was situated in a high crime area; that one or more of the defendant’s principals were aware of the criminal activities in the vicinity of defendant’s lounge; that at least one violent assault had previously occurred within defendant’s establishment which a patron of said establishment had his ear bitten off by another patron; and that defendant’s manager Poyvios (Paul) Panagopoulus found it necessary to carry a handgun on his person during the course of his employment at Mykonos.
Plaintiff failed to support such allegations with any affidavits, depositions, admissions, or other documentary evidence. Documentary evidence not part of the lower court record but filed by the plaintiff-appellant for the first time on appeal was struck from appellant’s brief pursuant to an April 19, 1988, order of this Court.
MCR 2.116(G)(4) is explicit in its requirement of documentary evidence for the defense of a motion brought under MCR 2.116(0(10):
When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.
In the instant case, plaintiff relied totally upon his pleadings and conclusory response to the motion without submitting to the trial court any affidavits, depositions, or other documentary evidence in support of his conclusion that the defendant knew or should have known of Shadad Mattey’s dangerousness prior to the incident. Absent contradictory evidence, the trial court properly accepted the facts as presented by defendants-appellees.
ii
The existence of a duty owed by the defendant to the plaintiff is a necessary element of every negligence or premises liability cause of action. The question of duty is an issue of law for the court to decide. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977); Farwell v Keaton, 396 Mich 281; 240 NW2d 217 (1976).
Recently our Supreme Court in Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), held that as a matter of law the duty of a merchant to his invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. The Court in Williams, supra at 504, stated:
The merchant is not an insurer of the safety of his invitees, and for reasons of public policy he does not have the responsibility for providing police protection on his premises.
In numerous decisions since Williams, this Court has affirmed the dismissal of claims against business proprietors for injuries sustained to invitees committed by third-party criminal actors. Marr v Yousif, 167 Mich App 358; 422 NW2d 4 (1988) (grocery store had no duty to protect plaintiff against armed robbery in its parking lot). Heitsch v Hampton, 167 Mich App 629; 423 NW2d 297 (1988) (telephone company breached no duty to plaintiff by disconnecting his phone, preventing him from calling for help when attacked by third party). Horn v Arco Petroleum Co, 170 Mich App 390; 427 NW2d 582 (1988) (service station had no duty to protect plaintiff against injuries sustained in an assault by third party on its premises). Williams v Nevel’s-Jarrett Associates, Inc, 171 Mich App 119; 429 NW2d 808 (1988) (night club had no duty to protect patron against assault in its parking lot). Holland v Delaware McDonald’s Corp, 171 Mich App 707; 430 NW2d 766 (1988) (restaurant had no duty to protect patron against a third party).
Plaintiff-appellant Christos Papadimas attempts to distinguish Williams v Cunningham Drug Stores, Inc from the instant case and relies upon Mills v White Castle System, Inc, 167 Mich App 202; 421 NW2d 631 (1988), for the proposition that the defendants owed a duty to intervene to prevent the third-party criminal activity. In Mills, it was held that, although the defendant did not owe a duty to provide police protection, the proprietor may have owed a duty to summon the police after the commencement of the altercation or to have attempted to eject the criminal patron after he became intoxicated and obviously unruly.
The facts in the present case, as presented to the trial judge, do not parallel Mills. Rather, the incident in the present case occurred suddenly, unexpectedly, and to the complete surprise of the witnesses.
hi
Criminal activity, by its deviant nature, is nor mally unforeseeable. As noted by Prosser and Keaton, Torts (5th ed), § 33, p 201:
Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. . . . Although such things [criminal acts] do occur, as must be known to anyone who reads the daily papers, they are still so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risk.
Although crime occurs more frequently in certain areas of our cities and particular portions of the state, we again decline to apply a higher standard of duty in such so-called high crime areas. As stated by this Court in Horn v Arco Petroleum Co, supra, p 394:
The risk of an unknown assailant appearing on the leased business premises and taking a vehicle from its possessor, while perhaps more foreseeable in an area of high crime, is not the type of risk on which the law is willing to base a duty. Therefore, we hold as a matter of law that defendant owed no legally recognized duty to protect plaintiff against the crime that allegedly occurred at the service station.
Requiring business establishments in high crime areas to be turned into fortresses and to be held strictly liable for third-party criminal conduct is undesirable public policy. Such public policy considerations were recognized in Williams v Cunningham Drug and by this Court in Marr v Yousif, supra at 364:
Furthermore, we will not require storeowners, as plaintiffs apparently invite us to do, to fence up their store parking lots and provide impregnable passageways for delivery people. Plaintiff would have us create a duty on the part of storeowners to turn their stores into fortresses. Every time a crime occurred on a merchant’s premises a plaintiff would have to do no more than allege a measure that a defendant might have taken and the jury would then be allowed to speculate whether the alleged measure might have inhibited the criminal. Since such allegations can be made in every case we would be imposing strict liability in the guise of negligence.
The trial court was correct in granting partial summary disposition.
Affirmed.
Plaintiff’s second amended complaint contains the following pertinent allegations:
6. That on December 2, 1983, at or about 2:15 a.m., plaintiff was a patron at defendant, Mykonos Lounge, and was standing at the bar.
7. That at the aforementioned time and place defendant, Shadad Mattey, did intentionally strike plaintiff from behind with a handgun.
8. That as a result of the failure of defendant, Mykonos Lounge, to adequately protect the safety of its business invitee, and as a result of the assault and battery by defendant, Shadad Mattey, plaintiff Christos Papadimas, was caused to suffer serious physical and mental injuries and damages. . . .
COUNT I - NEGLIGENCE OF DEFENDANTS MYKONOS LOUNGE, DEMETRIOS PANAGOPOULUS, AGIRIAS KOROGIANNIS AND ATHANASIUS A.
PERISTERIS
9. That at all times relevant herein, the defendants, Mykonos Lounge, Demetrios Panagopoulus, Agirías Korogiannis, and Athanasius A. Peristeris owed a duty to their patrons and the general public, including the plaintiff, Christos Papadimas, to provide them with a safe place for the purposes of doing business as business invitees.
10. That the defendants, Mykonos Lounge, Demetrios Panagopoulus, Agirías Korogiannis and Athanasius A. Peristeris breached the duty owed to the plaintiff in a manner including, but not limited to, the following:
a. By failing to provide safe and secure premises for its business invitees;
b. By failing to warn plaintiff of all hazards or dangers which, by the exercise of ordinary care, it knew, or should have known, might cause injury;
c. By failing to take cognizance of previous incidents and events which gave warning of the danger to patrons, including the plaintiff.
11. That as a direct and proximate result of the aforementioned negligence, the plaintiff, Christos Papadimas, sustained serious injuries and damages as hereinbefore stated. | [
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Per Curiam.
Defendants’ appeal from a bench trial resulting in a declaratory judgment in favor of plaintiff requires us to decide whether plaintiff no-fault insurance carrier or defendant health insurance carrier is liable for payment of claimant John Golembiewski’s medical expenses resulting from injuries suffered in an automobile accident. Both policies contain coordinated benefits clauses, and each party claims that its coverage is secondary to the other.
At the time of the accident, claimant was insured under a no-fault insurance policy issued by plaintiff. The policy granted claimant personal injury protection at a reduced premium rate in exchange for his election to coordinate such benefits with his health insurance. Plaintiffs coordination of benefits clause mandated by MCL 500.3109a; MSA 24.13109(1) provided that plaintiff was not liable for payment of expenses or losses paid or payable under the provisions of any other Health or accident insurance coverage available to the insured.
At the time of the accident, claimant, as an employee of Meijer, Inc., was also a participant in the Meijer Employee Benefit Plan, which, among other benefits, provided him with protection for medical expenses resulting from accidental injuries. This portion of the employee benefit plan was funded by Meijer from its own monies. To protect the plan from catastrophic loss, Meijer purchased stop-loss coverage from Blue Cross and Blue Shield. The plan’s coordination of benefits clause provided that a participant was not eligible for benefits arising out of an accident involving a motor vehicle for which there was in effect a policy of no-fault automobile insurance.
In Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537; 383 NW2d 590 (1986), our Supreme Court established the principle that furthering the purpose of Michigan’s no-fault act, which is to contain auto and health insurance costs while eliminating duplicate recovery, required that the no-fault insurer’s coordination of benefit clause take precedence over similar provisions in health insurance policies.
However, defendants assert that, since their benefit plan is uninsured, § 3109a and Kemper do not control this case because § 3109a is preempted by the federal Employee Ketirement Income Security Act, 29 USC 1001 et seq. The preemption provision is contained in 29 USC 1144(a), which provides in part:
Except as provided in subsection (b) of this section, the provisions of this subchapter and sub-chapter m of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ....
In support of their argument, defendants refer us to Metropolitan Life Ins Co v Massachusetts, 471 US 724; 105 S Ct 2380; 85 L Ed 2d 728 (1985), where it was held that erisa benefit plans are subject to state regulation if these plans purchase insurance.
In reaching its conclusion, the Metropolitan Court considered 29 USC 1144(a), along with the erisa "savings clause,” 29 USC 1144(b)(2)(A):
Except as provided in (B), nothing in this sub-chapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance ....
Subparagraph (B) referred to above is the so-called "deemer” clause, 29 USC 1144(b)(2)(B):
Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts ....
Although the Supreme Court did not have to address the possible restrictive effect of the "deemer clause” or the "savings clause,” it did, by way of dicta, suggest that an uninsured employee benefit plan is not subject to state regulation because the plan is not an insurance company and may not be "deemed” to be such under 29 USC 1144(b)(2)(B).
Defendants refer us to State Farm Automobile Ins Co v C A Muer Corp, 154 Mich App 330; 397 NW2d 299 (1986), where another panel of this Court, relying in part on the dicta in Metropolitan, reached the conclusion that an uninsured benefit plan is indeed protected from state regulation by 29 USC 1144(b)(2)(B).
However, this argument assumes that defendant’s plan is not insured. We disagree. A similar argument was made in Northern Group Services, Inc v Auto Owners Ins Co, 833 F2d 85 (CA 6, 1987), where the court responded to the following effect:
Appellee plans argue that the Highland Plan is "uninsured” because (1) the actual insured is the employer, Highland Appliance Company, and not the Plan; and (2) the insurer’s liability comes into effect only when specified benefit ceilings are exceeded. Both arguments are without merit. Whether the actual insured is the employer or the erisa plan, the stop-loss insurance is purchased to "provide benefits for plans subject to erisa.” Metropolitan Life, [471 US 738, n 15; 105 S Ct 2388; 85 L Ed 2d 739]. That the Plan pays a deductible does not alter the fact that benefits payable above specified levels, either on an individual beneficiary or in the aggregate, are nonetheless insured. See [Michigan United Food & Commercial Workers Unions v Baerwaldt, 767 F2d 308, 313 (CA 6, 1985)]. [833 F2d 91.]
In like manner is defendants’ plan, with its stop-loss coverage, an insured plan which under erisa’s "savings clause” is not protected from the effect of § 3109a of the Michigan no-fault insurance law.
Affirmed. | [
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Per Curiam.
Defendant appeals by leave granted from an Oakland Circuit Court order denying his motion for a protective order which was brought to prevent the taking of his deposition. We reverse.
Plaintiff Dean Fitzpatrick filed a complaint against defendant Secretary of State Richard Austin requesting the court to require the Secretary of State to accept and process initiative petitions calling for a part-time Legislature and to place the proposal on the election ballot. Plaintiff further sought both an order requiring the Secretary of State to pay over to plaintiff the Secretary of State’s $25,000 statutory performance bond and a declaratory judgment regarding the constitutionality of the statutory requirement that signatures on a petition be obtained within ninety days of filing that petition, MCL 168.961; MSA 6.1961.
Thereafter, plaintiff noticed the deposition of defendant Secretary of State for November 19, 1987. On the day before the noticed deposition, defendant filed a motion for a protective order under MCR 2.302(C)(1) to restrain plaintiff from taking his deposition. The trial court denied defendant’s motion. This Court subsequently granted leave to appeal that ruling.
Under Michigan case law, discovery rules are to be liberally construed. Maerz v United States Steel Corp, 116 Mich App 710, 722; 323 NW2d 524 (1982). Generally, parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action. MCR 2.302(B)(1). However, a trial court can order that discovery not be had. MCR 2.302(C)(1) provides, in relevant part, that on motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including entry of an order that the discovery not be had.
Although never before directly addressed by courts in this state, many courts have held that heads of government agencies are not normally subject to oral depositions. See, e.g., Kyle Engineering Co v Kleppe, 600 F2d 226, 231 (CA 9, 1979); Union Savings Bank of Patchogue, New York v Saxon, 209 F Supp 319 (D DC, 1962); Halderman v Pennhurst State School & Hospital, 96 FRD 60, 64 (ED Pa, 1982). The court in Union Savings Bank, supra, explained the reasoning which supports the general rule: the time and exigencies of an agency head’s everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, was allowed to take his oral deposition. Such a procedure is against the public interest. In addition, ordinarily an agency head has little or no knowledge of facts in a case. Id., pp 319-320. See also California State Bd of Pharmacy v Superior Court of the City & County of San Francisco, 78 Cal App 3d 641; 144 Cal Rptr 320 (1978). Department heads and other similarly high-ranking offi cials should not be compelled to personally give testimony by deposition unless a clear showing is made that such a proceeding is essential to prevent prejudice or injustice to the party who would require it, California State Bd of Pharmacy, supra; Wirtz v Local 30, Internat'l Union of Operating Engineers, 34 FRD 13, 14 (SD NY, 1963); State v Beloit Concrete Stone Co, 103 Wis 2d 506; 309 NW2d 28 (1981), or absent other compelling reasons, California State Bd of Pharmacy, supra; Deukmejian v Superior Court of Marin Co, 143 Cal App 3d 632, 633; 191 Cal Rptr 905 (1983). In determining whether a department head should be compelled to testify, a court must look at whether the information sought to be elicited can be obtained from a lesser ranking official, Writz, supra, p 14; Halperin v Kissinger, 196 US App DC 285, 302-303, n 120; 606 F2d 1192 (1979), aff'd memorandum 452 US 713; 101 S Ct 3132; 69 L Ed 2d 367 (1981); Halderman, supra, p 64, or whether it can be obtained by using another discovery mechanism, Sykes v Brown, 90 FRD 77, 78 (ED Pa, 1981); Kyle, supra, p 231; Capitol Vending Co v Baker, 36 FRD 45, 46 (D DC, 1964); United States v Northside Realty Associates, Inc, 324 F Supp 287, 295 (ND Ga, 1971).
The Secretary of State in the State of Michigan is a constitutional office. Const 1963, art 5, §21. The Secretary of State is the head of the Department of State, MCL 16.126; MSA 3.29(26), and is the chief election officer of the state, MCL 168.21; MSA 6.1021. Therefore, there is no doubt that defendant Secretary of State is the head of a department and a high-ranking official. We cannot discern any injustice or prejudice which would result to plaintiff if the Secretary of State was not compelled to testify in this case. Nor can we discern any compelling reasons which would sup port our requiring him to testify. Attached to the Secretary of State’s motion for a protective order is an affidavit in which he alleges that he has no personal knowledge of the efforts of plaintiff and plaintiffs supporters to file with the Department of State initiative petitions proposing a part-time Legislature because such matters are the responsibility of the Director of Elections. Nor, he alleged, does he have personal knowledge of plaintiffs allegation that MCL 168.961; MSA 6.1961 is unconstitutional in that it places an unreasonable limitation on the right of recall. Moreover, the lesser officials in the Department of State presumably can supply plaintiff with the information he seeks. Finally, other discovery mechanisms, such as written interrogatories, are available. Under the circumstances of this case, we conclude that defendant Secretary of State should not be required to personally give testimony in an oral deposition and, hence, we reverse the trial court’s order denying defendant’s motion for a protective order.
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Per Curiam.
Defendant was convicted following a bench trial of assault with intent to commit murder, MCL 750.83; MSA 28.278, and kidnapping, MCL 750.349; MSA 28.581. Thereafter sentenced to two concurrent life imprisonment terms, he appeals as of right.
The trial testimony reveals that Paul Bosler, age 12, was throwing a baseball against a wall when the defendant approached him, picked him up and carred him approximately 40 feet to an area behind the wall. Bosler then began to shout, so the defendant laid him down and began strangling him. While on routine patrol, a policeman observed defendant lying in a grassy field. As the officer approached to investigate, defendant released his hold on the victim’s neck. Bosler jumped up and ran to the patrolman who immediately arrested defendant. On appeal, defendant raises numerous issues.
Defendant’s first claim of error is that he was denied effective assistance of counsel. In People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), the Supreme Court set forth a bifurcated test for determining whether a defendant has been deprived of his constitutional right to effective assistance of counsel. The first prong of the test requires that defense counsel perform at least as well as a lawyer of ordinary skill and training in the criminal law. If such action that appears erroneous from hindsight has been taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally deficient. However, even where the overall performance of trial counsel satisfies this constitutional minimum, a defendant also has a right to a fair trial. If an attorney makes a serious mistake, but for which a defendant reasonably might have been acquitted, a new trial is necessary. Id., 266.
With respect to the first branch of inquiry, we find that defense counsel did perform at least as well as a lawyer with ordinary training and skill in the criminal law and did conscientiously protect defendant’s interests. He requested a psychiatric evaluation to determine the defendant’s competency to stand trial. He filed a motion to dismiss, alleging that the defendant had been denied his constitutional right to a speedy trial. He made various pretrial efforts to get an early trial date. Trial counsel attempted to impeach the testimony of the complainant by reference to statements he had made at the preliminary examination. He filed a motion to dismiss at the conclusion of the prose cution’s proofs on the basis that the evidence was insufficient to sustain the charge. Defense counsel’s overall performance was more than capable.
Defendant’s ineffective assistance of counsel argument is also predicated on four specific mistakes allegedly made by his defense counsel. The first claim of improper representation relates to trial counsel’s failure to raise an insanity defense. In connection with the determination that defendant was competent to stand trial, the forensic examiner found "no overt signs of past or present mental illness”. In addition to diagnosing the defendant as generally "free from major psychiatric illness”, the examiner found that defendant recognized how terrifying his approaches are to the victims. Our review of the report persuades us that had an insanity defense been raised it would have had little chance of success. The record does not reflect whether defense counsel considered raising an insanity defense. However, in view of the foregoing, it appears that even if he did fail to consider it the defendant was not denied effective assistance of counsel. If the defense had been raised, it does not appear that defendant would have had a reasonably likely chance of acquittal. Garcia, supra.
Defendant relies on three cases where counsel’s failure to investigate and consider the possibility of an insanity defense denied the defendant effective assistance of counsel. In each of these cases, the defendant had a documented history of psychiatric problems. In two of the cases, the defendant initially had been found incompetent to stand trial, and defense counsel still did not argue the defense of insanity at trial. In the present case, no history of past or present mental illness was found.
Since the trial counsel requested a psychiatric evaluation to determine the defendant’s competency to stand trial, it seems that counsel was aware of the law relating to the insanity defense. Based on this clinical examination, the trial counsel could have concluded that an insanity defense was not the best tactical choice. Based on our reading of the forensic examination and the records of this case, we cannot say that defendant’s attorney’s decision amounted to ineffective assistance of counsel. See People v Lotter, 103 Mich App 386; 302 NW2d 879 (1981).
Defendant next claims that trial counsel erred because he failed to move for a change of venue. He contends that a tremendous amount of pretrial publicity was generated because initially it was believed that the defendant was responsible for several other killings in Oakland County. Defendant alleges that it would have been impossible to impanel an impartial jury in Oakland County and that therefore defense counsel’s failure to move for a change of venue constituted a serious mistake which caused him to forego his constitutional right to a trial by jury.
The decision whether or not to move for a change of venue constitutes a matter of trial strategy. It is well-established that this Court is reluctant to substitute its judgment for that of defense counsel in matters of trial strategy, Lotter, supra. Considering the amount of pretrial publicity which was generated statewide by the defendant’s arrest and the nature of the charges, defense counsel well may have decided that a bench trial was preferable to a jury trial regardless of where it was held. That decision does not appear to have been unreasonable. Even if we found that defense counsel committed a serious error in failing to file a motion for change of venue, it does not follow that the defendant’s chances for acquittal would have been enhanced had the mistake not been made. Such a conclusion would require a finding that a defendant who chooses a jury trial has a greater likelihood of acquittal than one who chooses a bench trial. We can find no evidence supporting that conclusion.
Another assertion is that counsel’s failure to move the trial judge to disqualify himself constituted a serious mistake requiring a new trial. We find that trial counsel’s decision not to challenge the trial judge is not a serious mistake where it can be shown that the judge is not biased against the defendant. As part of our discussion of defendant’s fourth issue, we find no evidence that the trial judge was biased or prejudiced. Hence, counsel’s decision not to challenge the trial judge does not render counsel incompetent.
Finally, defendant claims a serious mistake in defense counsel’s failure to procure a copy of defendant’s preliminary examination transcript. He contends that this failure precluded his attorney from effectively conducting cross-examination of the complaining witness. Although defense counsel did not have a copy of the transcript, it appears that he was intimately familiar with the statements that Bosler had made at that examination. He conducted extensive cross-examination concerning those statements. We cannot see how counsel could have conducted cross-examination more effectively had he obtained a copy of the transcript prior to the trial. In addition, it does not appear that had he obtained a copy of the transcript, defendant reasonably might have been acquitted. Therefore, we find that defendant was afforded effective assistance of counsel and a fair trial.
We find defendant’s second claim of error to be without merit. The trial court did not abuse its discretion in denying defendant’s motion to view the scene of the crime. Such questions are for the trial judge to decide. MCL 768.28; MSA 28.1051, People v Hughie Lewis, 97 Mich App 359; 296 NW2d 22 (1980). Where, as here, a judge finds that photographs in conjunction with a diagram accurately depict the scene of a crime, that there is no dispute concerning the accuracy of the photographs, and that a view would not help decide the facts in this case, an abuse of discretion cannot be said to have occurred. These are cogent reasons for denying the motion. People v Crown, 75 Mich App 206; 254 NW2d 843 (1977), lv den 402 Mich 803 (1977).
Third, defendant contends that sufficient evidence was not introduced to support his conviction of assault with intent to commit murder and kidnapping. This Court will not set aside the findings of fact by a trial court in a criminal case unless they are shown to be clearly erroneous. GCR 1963, 517.1, People v Bruce Ramsey, 89 Mich App 468; 280 NW2d 565 (1979), lv den 407 Mich 861 (1979). The findings of fact will not be said to be clearly erroneous unless the reviewing court, after reviewing the whole record, is left with a definite and firm conviction that a mistake has been committed. People v Starghill, 99 Mich App 790; 298 NW2d 641 (1980).
The trial court’s findings are not clearly erroneous in relation to defendant’s claim that insufficient evidence was introduced to support his conviction of assault with intent to commit murder. The trial court found that the defendant had choked Bosler and that had the choking continued Bosler would have died. It further found that the defendant did not release his grip on Bosler until after he saw the approaching police car. These findings, which defendant does not seriously contest, are in accord with the evidence. However, the defendant contends that even if these findings are accepted as true the evidence was insufficient to permit the trial court to infer an intent to kill. The trial court found that the defendant would have continued to strangle Bosler but for the approach of the police officer. Intent to kill may be inferred where the natural tendency of behavior is to cause death or great bodily harm. People v Richardson, 409 Mich 126; 293 NW2d 332 (1980). The natural tendency of defendant’s behavior was to cause the death of Bosler. Therefore, the evidence was sufficient to support the trial court’s findings that defendant possessed the specific intent to kill.
We do not reach the same result in regard to defendant’s conviction on the charge of kidnapping. Defendant maintains that the movement of Bosler was merely incidental to the underlying assault and that therefore the asportation element of kidnapping is lacking. The people argue that movement incident to another coequal offense is sufficient to establish the asportation element and that, even if this was not a coequal offense, the asportation element is satisfied where the movement enhances the danger associated with the underlying offense.
In People v Adams, 389 Mich 222; 205 NW2d 415 (1973), the Supreme Court formulated the asportation standard for Michigan’s kidnapping statute, MCL 750.349; MSA 28.581. The Court found that the asportation element must not be merely incidental to the commission of a lesser underlying crime, but it must be incidental to the commission of the kidnapping.
As to movement that is incidental to a coequal offense, the Supreme Court has recently expanded the rule established in Adams. In People v Barker, 411 Mich 291; 307 NW2d 61 (1981), the Court held that the asportation element of kidnapping is not satisfied if the movement of the victim is incidental to the commission of an underlying coequal offense. The asportation element instituted in Adams is crucial, regardless of the length of punishment. In Adams and Barker, the Court noted that enhanced danger is only a factor to aid the fact-finder in determining the asportation element.
In the present case, the trial court found:
"I have looked at several cases in which kidnapping has been discussed in connection with another charge. The kidnapping in this case is combined with another charge with an equally severe penalty. Thus it need not be found that this kidnapping was incidental to a lesser offense. In any event, I find that the asportation of the boy in this case was obviously of the type that placed him in the position of greater danger. The forcible picking up, combined with the forcible confinement of Paul Bosler behind the wall and in the weeds was a willful, malicious act without lawful authority and was a kidnapping. I find the defendant guilty of this beyond a reasonable doubt.”
The court made no findings in determining that the movement was incidental to kidnapping. Nor does it appear that the trial court could have so found. The defendant picked up Bosler and carried him a maximum distance of 38 feet. He placed him on the ground and began to choke him. There is no evidence demonstrating that the purpose of the movement was for any other purpose than to commit the assault. In fact, the prosecutor argued during trial that, with respect to the assault charge, the defendant’s intent to kill could be inferred from the fact that he carried Bosler to a more isolated area. If that was defendant’s purpose, the act of moving Bosler was clearly incidental to the assault, not incidental to kidnapping.
We recognize that a course of movement incidental to both a kidnapping and the assault could supply the asportation element. Barker, supra. However, in this case, the movement had no significance independent of the assault. The trial court’s finding of additional danger to the victim is not sufficient to satisfy the asportation element of kidnapping.
Although the Barker opinion was not issued until after the trial court’s findings had been made, it was made applicable to pending cases where the issue had been preserved. Therefore, we hold that the findings of fact by the trial court relative to asportation are clearly erroneous and reverse defendant’s kidnapping conviction.
We find no merit in defendant’s fourth claim that the trial judge erred in failing, sua sponte, to disqualify himself. Before the prosecutor’s opening statement, the trial judge stated that he had "at least an outline of what apparently may have happened” and that therefore an opening statement was unnecessary unless the prosecution wished to make one. This statement does not indicate that the judge was already familiar with the facts. We cannot even infer that the trial court had a preconceived notion regarding defendant’s guilt or innocence from his comments. The record does not disclose that the trial judge was in any way biased or prejudiced toward defendant. The record must show actual bias or prejudice before a conviction will be reversed on the ground that the trial judge should have disqualified himself. People v Elmore, 92 Mich App 678; 285 NW2d 417 (1979).
Defendant next argues that he was denied his constitutional right to a speedy trial. We conclude that defendant was not denied his right to a speedy trial under the balancing test set forth in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). That test requires consideration of four factors: (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. .
The first factor is considered a triggering mechanism, whereby inquiry into the other factors in the balancing test is not made unless the delay is such that a presumption of prejudice arises. In People v Collins, 388 Mich 680; 202 NW2d 769 (1972), the Michigan Supreme Court held that the presumption of prejudice arises when the delay exceeds 18 months. The slightly less than seven-month delay between defendant’s arrest and trial in the present case thus does not trigger our application of the four-factor balancing test.
Even if we continued our inquiry into the other factors, we would conclude, based on an overall balancing of the Barker factors, that defendant was not deprived of his right to a speedy trial. The reason for the delay was caused by the forensic center in processing the clinical examination that defendant had requested. The record does not indicate that defendant made a demand for a speedy trial. Lastly, defendant undoubtedly suffered prejudice to his person resulting from the length of his incarceration prior to trial, but the more serious prejudice to his defense was not occasioned by the delay. The combination of these factors does not lead to the conclusion that defendant was denied his constitutional right to a speedy trial.
Defendant’s last argument is that he is entitled to resentencing because the trial court mistakenly believed that by sentencing the defendant to a term of life imprisonment defendant would be eligible for parol in ten years. At the sentencing proceeding, the trial court expressly stated that defendant would be eligible for parole consideration after he had served ten years, despite the existence of 1978 PA 81 (Initiative Proposal B, now including MCL 792.233, 791.233b; MSA 28.2303, 28.2303(3). A panel of this Court has recently discussed this issue in People v Penn, 102 Mich App 731; 302 NW2d 298 (1981). In sentencing Penn to life imprisonment, the trial court stated that it interpreted the life imprisonment sentence as it had been interpreted prior to the passage of Proposal B. However, the trial court’s interpretation was at odds with OAG, 1979, No 5583 (October 16, 1979), which states that Proposal B prohibits an earlier release than the minimum term of the imprisonment. A life sentence was interpreted as being nonparolable with respect to crimes listed in Proposal B. The Penn Court held that regardless of the Attorney General’s opinion’s validity that opinion and not the trial court’s interpretation of the law was binding on the Department of Corrections. Therefore, the trial court interpreted the effect of Proposal B erroneously and the defendant was found to be entitled to resentencing.
In the present case, defendant was convicted of a crime listed on Proposal B’s list of crimes, which, according to the Attorney General’s opinion, are nonparolable where a life sentence is imposed. Since the Attorney General’s opinion is still binding upon the Department of Corrections, the trial court erred in its interpretation of law in sentencing the defendant. Because the record indicates that the trial court may have intended to sentence the defendant to a parolable life term and because the Department of Corrections cannot presently honor that intent, we vacate defendant’s sentence and remand for resentencing consistent with the court’s intent.
Since we remand this case for resentencing, it is unnecessary for us to decide defendant’s other issues related to remanding this case for resentencing.
Affirmed in part; reversed in part. Remanded for proceedings consistent with this opinion. We retain no jurisdiction. | [
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V. J. Brennan, J.
Defendant was charged with the fatal shooting of Kathleen Perry, who was allegedly shot by the defendant during a motorcycle club party. After a jury trial, defendant was found guilty of first-degree murder, MCL 750.316; MSA 28.548, and sentenced to life imprisonment. He appeals as of right.
Defendant contends that the trial court’s instruction to the jury erroneously removed the factual issue of malice aforethought from the jury’s consideration.
In its final charge, the trial court instructed the jury on the element of malice aforethought as follows:
"Fifth and last element of second-degree murder: that the killing was done with malice aforethought. More about malice — if one person, without cause inflicts a wrong upon another, we call him malicious, so when one person without legal provocation, justification, excuse or mitigating circumstances, intentionally kills another, we call them a murderer. The law implies from an unprovoked, unjustiñable, inexcusable killing without mitigating circumstances, the existence of that wicked disposition of mind which the law terms malice aforethought. Malice is implied from any deliberate or cruel act against another person however sudden. The time within which the wicked purpose is formed is not material.
"Malice aforethought does not imply deliberation or the lapse of considerable time between the formation and execution of the intent to take life, but rather it denotes purpose and design. It means malice existing at any time before the killing so as to be its moving cause.
"In determining this element, you may consider the manner in which the killing was done, any weapon used, and all other circumstances.” (Emphasis added.)
Defendant did not object to this instruction. Therefore, any error in the instruction requires reversal by this Court only if a miscarriage of justice occurred. People v McMaster, 105 Mich App 162; 306 NW2d 434 (1981).
An identical instruction was found to be erroneous, and to require reversal, by this Court in People v Griffin, 108 Mich App 625; 310 NW2d 829 (1981). Relying on People v Richardson, 409 Mich 126, 142-146; 293 NW2d 332 (1980), the Court found that "instructions telling the jury that 'the law presumes’ or 'the law implies’ facts of significance to the ultimate outcome of the case are erroneous”. Griffin, supra, 631.
In Richardson, supra, 143-144, the Supreme Court found:
"The portion of the instruction which stated that the law implies malice 'from the unprovoked, unjustifiable, or inexcusable killing’ or when 'a man kills another suddenly and without provocation’ had the effect of withdrawing from the jury the essential factual issue of the existence of malice. The law, of course, does not imply malice from a sudden and unprovoked killing, and it was error to so instruct. The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts. Maher v People [10 Mich 212 (1862)], supra, People v Martin [392 Mich 553; 221 NW2d 336 (1974)], supra.
Even though the jury instruction was erroneous, on the facts of this case, we find that the error was harmless. An error does not necessitate reversal if it can be said that the erroneous instruction is "harmless beyond a reasonable doubt”. People v Wright, 408 Mich 1; 289 NW2d 1 (1980), People v Weaver (On Remand), 98 Mich App 589; 296 NW2d 205 (1979).
In the present case, the disputed issue was identity and not intent as in Griffin and Richardson. Defendant did not assert a defense and no mitigating circumstances were presented to the jury that would indicate that the death was accidental or in any way unintentional. Richard Turner testified that during the party he accompanied the defendant and Ms. Perry to a field to have sex. He had a change of mind, turned and walked away, and then heard two gunshots. A dark object was allegedly observed in the defendant’s hand. Also, another person testified that he overheard the defendant say he had "just wasted some chick out there”. A bullet hole was discovered on the left side of the deceased’s head and was allegedly the cause of death. Therefore, malice was not the focal point of this case, as it was in Griffin and Richardson. In addition, as previously noted, the defendant did not object to the instruction. We find that the instructional error was harmless.
Defendant also claims that the trial court erred in admitting evidence of a prior similar act. In reviewing questions regarding the admissibility of evidence, the decision of the trial court is not to be disturbed unless clearly erroneous. People v Ro jem, 99 Mich App 452; 297 NW2d 698 (1980), People v McKinney, 88 Mich App 715; 278 NW2d 728 (1979). A decision is clearly erroneous when the reviewing court is left with a firm conviction that a mistake has been made. People v Goss, 89 Mich App 598; 280 NW2d 608 (1979).
Vickie Toburen testified that she attended the party with the deceased. Later, she saw the defendant with a gun in his hand. The defendant kneeled over her and placed a handgun to her head. However, he fired the gun into the air after stating that he could not kill her. The act described by Ms. Toburen was similar to the prosecution’s version of the act causing the death of Ms. Perry.
MRE 404(b) provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.”
Before evidence of similar acts can be admitted, it must be probative of one of the purposes specified in MRE 404(b), and the purpose must be material, i.e., "in issue” in the case. People v Major, 407 Mich 394, 400; 285 NW2d 660 (1979), People v Wagner, 104 Mich App 169; 304 NW2d 517 (1981). An issue may become material, i.e., in issue, when the defendant disputes the issue by raising it in opening argument, cross-examination of prosecution witnesses, or by presenting affirma tive evidence. People v Wilkens, 82 Mich App 260; 266 NW2d 781 (1978), lv den 406 Mich 857 (1979), rev’d on other grounds 408 Mich 69 (1980). The list of permissible purposes for admission of similar acts in MRE 404(b) is not exhaustive. People v Cramer, 97 Mich App 148; 293 NW2d 744 (1980).
Ms. Toburen’s testimony was probative of some of the purposes specified in MRE 404(b). Her testimony tended to show identity, the absence of mistake, and a common scheme. Additionally, the evidence tended to show that the defendant had a handgun capable of firing. The evidence was both relevant and material because the defendant’s identity was in issue. Furthermore, the probative value of the testimony was not substantially outweighed by its prejudicial impact. Since identity was in issue, the testimony established that the defendant was at the party and had a handgun capable of firing. People v King, 107 Mich App 208; 309 NW2d 207 (1981). This Court is not left with a firm conviction that the trial court clearly erred in admitting the similar act testimony.
Moreover, there was no error on the part of the trial court in giving sua sponte the limiting instruction concerning the use of the similar act testimony when the evidence was offered and refusing to renew the instruction in the final charge to the jury. People v Chism, 390 Mich 104; 211 NW2d 193 (1973), People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), People v King, 58 Mich App 390; 228 NW2d 391, lv den 394 Mich 761 (1975).
Defendant’s other claims of error lack merit.
Affirmed. | [
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K. B. Glaser, J.
This is an appeal from an order granting summary judgment to one of two defendants in a negligence action brought by plaintiff for injuries she sustained as a passenger in a vehicle driven by defendant Dolen when it collided with a vehicle driven by defendant Bosworth.
The collision occurred at an intersection governed by a traffic light. Plaintiff’s complaint set forth general allegations of negligence against both defendants. However, in her deposition, plaintiff stated that she did not believe that defendant Dolen had caused the accident. She specifically stated that immediately after seeing defendant Bosworth’s vehicle enter the intersection, she looked up and saw that defendant Dolen had the green light.
Defendant Dolen also testified in his deposition that he had the green light and that he did not cause the accident. However, defendant Bosworth testified in his deposition that he had the green light and that defendant Dolen caused the accident.
Defendant Dolen moved for summary judgment on the basis that there was no genuine issue of material fact as to his negligence and that he was entitled to judgment as a matter of law. In support of his motion, defendant Dolen offered the admissions made by plaintiff in her deposition. Plaintiff opposed the motion by offering the conflicting version contained in defendant Bosworth’s deposition.
Pursuant to GCR 1963, 117.2(3), 117.3, the trial court was obligated to consider the depositions of plaintiff and Bosworth, together with any affidavits, the pleadings, admissions, and other documentary evidence filed by the parties. The trial court essentially held that plaintiff was bound by her admission, which clearly contradicted her allegations of negligence against defendant Dolen in the complaint.
A number of decisions of this Court have held that such depositional statements are binding upon the party making them for the purposes of determining whether summary judgment would be appropriate. See, e.g., Hollowell v Career Decisions, Inc, 100 Mich App 561, 568; 298 NW2d 915 (1980), Milligan v Union Corp, 87 Mich App 179, 181-182; 274 NW2d 10 (1978), Gamet v Jenks, 38 Mich App 719, 725-726; 197 NW2d 160 (1972). However, we do not find those decisions applicable to the instant case.
Gamet illustrates that while depositional statements made by a party are conclusively binding for purposes of summary judgment under GCR 1963, 117.2(3), where a factual issue is raised by evidence outside the party’s own conflicting statements, summary judgment does not necessarily follow. In Gamet, the holding of the Court was:
"As a result of his own deposition testimony, plain tiffs ability to present a case was challenged. His affidavit merely restated his pleadings. Deposition testimony damaging to a party’s case will not always result in summary judgment. However, when a party makes statements of fact in a 'clear, intelligent, unequivocal’ manner, they should be considered as conclusively binding against him in the absence of any explanation or modification, or of a showing of mistake or improvidence. Southern Rendering Co v Standard Rendering Co, 112 F Supp 103, 108 (ED Ark, 1953). The purpose of GCR 1963, 117 is to allow the trial judge to determine whether a factual issue exists. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1969 Cum Supp, p 51. This purpose is not well served by allowing parties to create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition.” Id., 726.
We agree with that conclusion. However, we note that in Gamet the trial judge stated in part as to one of three defendants:
" 'Plaintiffs cause of action against the pick-up driver, Jenks, is based upon the alleged hand signal by Jenks waving the plaintiff across the street. The plaintiff has admitted in his deposition that he did not rely upon the hand signal of Mr. Jenks in proceeding into the lane of traffic where he was struck by a car.
" 'There is no other evidence, either contested or otherwise, which would support plaintiffs cause of action. Therefore, the court is of the opinion that the motion for summary judgment should be, and the same hereby is, granted, to defendant, Jenks.’ ” Id., 722.
As to the remaining defendants, the trial judge said in part:
" 'In the case against Tuttle and Converse, there is nothing in the file showing any negligence on their part except the complaint. There is the affidavit of Justin Converse saying that he was without negligence in driving his car and his answer to interrogatories which said that his car was moving five (5) mph at the time of the accident. There are no material facts, either contested or uncontested, which would support plaintiff’s case. Therefore, the court is of the opinion that the motion for summary judgment should be, and the same hereby is, granted, as to Tuttle and Converse.’ ” Id.
As we view Gamet, it stands for the proposition that a plaintiff cannot evade summary judgment simply by alleging one thing and testifying to another. Such is not our case. Unlike Gamet, there is direct testimony by another witness contrary to plaintiffs deposition and consistent with plaintiffs complaint.
The test for deciding motions for summary judgment is:
" '[T]he test more carefully stated would be whether the kind of record which might be developed, within the limits indicated by the pleadings and the affidavits or other material supporting and opposing the motion for summary judgment, interpreted to give the benefít of any reasonable doubt to the opposing party, would leave an issue upon which reasonable minds might differ or upon which a directed verdict would be proper.’ (Emphasis added.)
"The courts are liberal in finding that a 'genuine issue’ does indeed exist. As Honigman & Hawkins correctly comments, (1) the court will 'give the benefit of any reasonable doubt to the opposing party’ and (2) 'the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deñciency which cannot be overcome.’ (Emphasis added.)” Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973), quoting from 1 Honigman & Hawkins, Michigan Court, Rules Annotated (2d ed), p 362 and 1972 Supp, pp 81, 83.
Interpreting the available testimony to give the benefit of any reasonable doubt to plaintiff, the jury could decide that defendant Bosworth was correct as to the light and that plaintiff was mistaken. As already noted, Gamet excepted mistake and, therefore, this is not inconsistent with Gamet. We note both Hollowell, supra, 567-568, and Milligan, supra, 181, were dealing with cases in which the facts were undisputed.
Reversed and remanded for further proceedings. | [
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] |
To compel respondent to execute and deliver certain bonds.
Granted December 24, 1892, without costs.
The question raised was as to the authority of the council to issue the bonds in question without the vote of the electors. | [
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] |
To require respondent to proceed to a hearing upon a petition filed by claimant and appellant, in a cause appealed from the report of commissioners on claims in the Probate Court, alleging that the written statement of her claim as presented to the commissioners on claims was lost, and praying that it be restored, and that a time and place be fixed by the court for the taking of testimony to establish the fact of loss and the •authenticity of the copy produced by petitioner.
Granted February 26, 1895, with costs payable out of the-estate.
The loss was not discovered until after a verdict for plaintiff upon a motion for a new trial. A copy of the lost paper was-used upon the trial and the witnesses were examined and cross-examined thereupon. A new trial was denied and a bill of exceptions is in course of preparation.
Counsel for the estate contended (1) that there was no showing that the paper had ever been on file in the Circuit Court, hence there was no power in the Circuit to supply or restore it; (2) that there is no law requiring, or practicó authorizing, the filing of a written claim with commissioners, and if filed, the commissioners were not required to return it with their report and if returned, the Probate Court was not required to certify it to the Circuit on appeal, and (3) if any power existed to restore or supply the lost paper, it was in the. Probate Court and not in the Circuit.
Counsel for relator insisted that such a petition is the proper practice in such a case, Russell vs. Lillye, 90 Ill., 327; People vs. Cozoles, 27 Colo., 522; State vs. Harrison, 18 Tenn., 541; Bauer vs. Wasson, 60 M., 194; that the commission is a separate tribunal and acts judicially; that it is no part of the Probate Court and that court has no control over the commission or of the claims, except to order payment where-allowed and not appealed from; that an appeal lies not to the Probate Court but to the Circuit; that when the return is made the commissioners are functus officio; that an appeal is a statutory right and no order of the Probate Court allowing it is necessary; Lothrop vs. Conely, 39 M., 757; Shurbun vs. Hooper, 40 M., 503; Clark vs. Davis, 32 M., 154; Streeter vs. Paton, 7 M., 341; Fish vs. Morse, 8 M., 34; Fox vs. Probate Judge, 48 M., 643 (133); that the issue on appeal is the same as the one before the commissioners; it is fixed by the original form of the, claim and pleadings cannot change it; any variance is jurisdictional, Patrick vs. Howard, 47 M., 40; Hatheway’s appeal, 46 M., 326; Kroll vs. Ten Eyck, 48 M., 230; Comstock vs. Smith, 26 M., 321; White vs. Allen, 18 M., 193; Weyburn vs. Kipp, 63 M., 79; McGee vs. McDonald, 66 M., 628; McHugh vs. Dowd, 86 M., 412; Grimm vs. Taylor, 96 M., 5; Cheever’s Probate Law (3 Ed.), p. 296; that while the statute does not in express terms require a claim to be in writing, yet such has been the practice and on appeal the claims accompany the return; McKinney vs. Hamilton, 53 M., 496, and cases last cited; that acts for restoring lost, records are remedial, must receive a liberal construction and made to apply to all cases which by a fair interpretation they can be made to reach, Smith vs. Stevens, 82 Ill., 566; that Circuit Courts have have inherent power to substitute and restore lost records, 1 Black on Judgments, Sec. 125; Freeman on Judgments, Sec. 89; McLinden vs. Jones, 8 Ala., 298; 42 Am. Dec., 640; George vs. Middough, 62 Mo., 549; Welch vs. Smith, 4 So. Rep., 340; Chichester vs. Cande, 6 Cow. (N. Y.), 40; White vs. Lovejoy, 3 Johns (N. Y.), 443; Burkel vs. Luce, 1 N. Y., 163; Jackson vs. Hammond, 1 Caine (N. Y.), 496; Bauer vs. Wasson, 60 M., 194; that the appeal being direct from the commissioners the Probate Court has no means, power, authority or machinery to return the lost paper; it is simply the medium through which the appeal is perfected. Brown vs. Porsche, 43 M., 492. | [
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To compel respondent to reinstate an appeal from the allowance, by probate commissioners, of claims against, the estate, which was dismissed because not taken by the administrator but by a party in interest.
Granted February 6, 1884.
Held, that a party in interest may take an appeal in such case if the administrator declines to, and if the probate judge allows an appeal to someone else he thereby passes upon the fact of the administrator’s refusal. | [
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To allow an amendment to an answer to a bill to foreclose a mortgage.
Denied May 5, 1891, with cost.
Relator, under an arrangement witb tbe trustees of Hills-dale College in 1874, erected a building upon tbe college grounds for certain purposes.
In 1884 tbe trustees filed a bill of complaint against relator to restrain bim from placing a dining room in said building so erected and to determine wbat rights relator bad in tbe same.
A decree was entered in 1888, which was affirmed by this court in August, 1890 (83 M., 94). It was held in that case that relator's right was one personal to himself and not transferable.
In March, 1886, relator executed a mortgage upon tbe building so erected by him, to one Drake.
In September, 1887, Drake filed a bill to foreclose. Relator answered. After tbe decision in Hillsdale College vs. Rideout, relator asked leave to file an amended answer in tbe foreclosure proceeding, setting up tbat at tbe time tbat tbe mortgage was given be bad no interest in tbe property subject to mortgage. | [
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To compel the dissolution of an injunction.
Denied April 15, 1886.
Held, that a mandamus to disturb action by a circuit judge in equity can only issue upon some exigency requiring prompt action to prevent mischief; and so long as the law is open, the court is not called upon to use its extraordinary powers to assist private redress of supposed wrong’s. | [
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] |
To compel respondent to construct a culvert across its right-of-way to- accommodate a drain claimed to have been established by relator as county drain commissioner.
The circuit judge granted the writ.
Reversed April 16, 1895, with costs.
Held, that the action of the county drain commissioner in. establishing a drain wholly within the corporate limits of a city, the charter of which gives to the -city complete jurisdiction over its drainage, is void. | [
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To compel respondent to set aside a verdict, grant a new trial and receive testimony offered under defendant’s notice, the court having ruled that the matters set up in the notice, if shown, did not constitute a valid defense to the note sued upon.
Order to show cause denied July 1, 1896. | [
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] |
To compel respondent to file articles extending the corporate existence of relator without payment of the franchise fee under Act No. 182, Public Acts of 1891, as amended by Act No. 79, P. A. 1893.
Granted December 7, 1897.
Held, that the provisions of the last named Act do not apply to corporations organized for educational purposes only. | [
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To compel the issuance of certain patents for lands.
Granted July 11, 1871. | [
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] |
To compel respondent to dismiss an appeal from a judgment rendered by a justice of the peace.
Order to show- cause denied January 8, 1895.
The surety on the appeal bond did not justify in writing and under oath, before the justice, and the justification was not endorsed on said bond by the justice. A motion to dismiss was denied, but a new bond was ordered, and the clerk approved such bond. The motion to dismiss was rénewed, whereupon the court apjuoved the bond nunc pro tunc and denied the motion. | [
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To vacate an order adjudging relator guilty of contempt in against a witness for refusing to appear before a circuit court commissioner upon a commission issued from the Circuit Court to take testimony, to be used in a motion for a new trial.
Denied June 14, 1893, without costs.
The circuit judge held that the commissioner had no jurisdiction to examine the witness, as, at the time the commission issued, no motion for a new trial had been entered, and further, that the word “deposition” as used by the statute, required a notice by the moving party to the other party, ánd no such notice had been given. | [
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] |
To vacate order denying a motion for a re-taxation of costs of defendant on continuance.
Denied June 29, 1892, with costs. | [
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