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Fead, J.
Plaintiff prays for a writ of mandamus to compel defendant to reinstate him in his former employment as east gate traffic clerk in the Michigan State prison at-Jackson, on the ground that he was discharged without just cause, without hearing, and without written order of the governor, in violation of the veterans’ preference act, 1 Comp. Laws" 1929, §§ 900-903, as amended by Act No. 67, Pub. Acts 1931. Many questions are raised, but it is sufficient to consider only one.
Plaintiff, two days after his discharge by defendant, sent to defendant, addressed to him as warden, and to the chairman of the Michigan State prison commission, a written request for reinstatement. Neither the petition for mandamus nor the traverse of the return alleged that he had filed with the governor a written protest.
Section 2 of the act (1 Comp. Laws 1929, § 901, as amended by Act No. 67, Pub. Acts 1931) sets up the modus operandi of the preference. After providing that a veteran in State service shall not be removed from his office or employment except for certain stated causes and after a full hearing before the governor, at which the veteran has a right to be present, with counsel, and defend himself, the act provides:
“Provided further; That as a condition precedent to the removal of such veteran, he shall be entitled to a notice stating the cause or causes of removal at least fifteen days prior to the hearing above provided for, and such removal, suspension or transfer shall be made only upon a written order of the governor * * * Provided, however, That where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within thirty days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act. ’ ’
As the removal can be “made only upon a written order of the governor,” the governor is “the officer whose duty under the provisions of this act it is to make the removal” and with whom written protest must be filed by the veteran. It is incredible that the legislature intended the governor, with his multitudinous duties, to keep account of veterans in service of the State and initiate proceedings for a hearing when one is discharged, without notice to him that the statute had been violated and the veteran claims its benefits.
By failure to file a written protest with the governor within 30 days after his removal, plaintiff waived the benefits of the act, and the writ is denied.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff, a duly licensed embalmer, undertaker, and funeral director, attacks, by bill in equity, as invalid, certain rules and regulations of the city commission of the city of Jackson, and seeks to restrain defendants from enforcing the same against him; seeks an injunction against the superintendent of cemeteries, and complains of the misconduct of the superintendent of cemeteries of defendant city. Prom a decree for defendants, plaintiff appeals. The important question is the validity of the rules and regulations of defendants attacked. These are, that funerals, while within the cemetery grounds, shall be under the control of the superintendent of cemeteries or one of his assistants, and that no tents except those owned by the city will be allowed in the city cemeteries for funerals. Plaintiff claims these rules are arbitrary, capricious, and unreasonable as applied to him. Burial is a right subject to public control. Perkins v. Lawrence, 138 Mass. 361; Kincaid’s Appeal, 66 Pa. 411 (5 Am. Rep. 377). Tbe right of the legislature in the exercise of the police power to regulate burial of the dead may be delegated to municipalities. Campbell v. Kansas City, 102 Mo. 326 (13 S. W. 897, 10 L. R. A. 593); Page v. Symonds, 63 N. H. 17 (56 Am. Rep. 481); 11 C. J. p. 51.
The city of Jackson is a “home rule” city. 1 Comp. Laws 1929, §§ 2235, 2236, provide for acquisition either within or without the city by “home rule” cities, of cemeteries. The charter of Jackson provides for acquisition by the city of cemeteries. The city of Jackson, having acquired such cemeteries, owns them (5 R. C. L. ,p. 244); and is governed by the same rules which control private corporations engaged in a similar business under like circumstances. Andrews v. City of South Haven, 187 Mich. 294 (L. R. A. 1916 A, 908, Ann. Cas. 1918 B, 100). The city as proprietor has a right to control its cemeteries, but such control must not be exercised in an arbitrary, unreasonable, or capricious manner. Laurel Hill Cemetery v. City and County of San Francisco, 152 Cal. 464 (93 Pac 70, 27 L. R. A. [N. S.] 260, 14 Ann. Cas. 1080); Ritchey v. City of Canton, 46 Ill. App. 185; State, ex rel. City of St. Paul, v. Ramsey County District Court, 114 Minn. 287 (131 N. W. 327); City of New York v. Kelsey, 158 App. Div. 183 (143 N. Y. Supp. 41), affirmed 213 N. Y. 638 (107 N. E. 1074); Iuszkewicz v. Luther, 30 R. I. 570 (76 Atl. 829); 11 C. J. p. 51.
Plaintiff claims the rules prescribed by the defendant city, above mentioned, are arbitrary, capricious, and unreasonable as applied to him. Persons desiring to bury dead in defendants’ cemeteries are required to acquire a right of burial substantially similar to that prescribed by 2 Comp. Laws 1929, § § 6480, 10403, 10431, 10445. The charter of the city of Jackson provides:
“The city commission shall make snch regulations for the burial of the dead, the care, management, and protection of the grounds, monuments, and appurtenances of the cemeteries, buildings, and other improvements in all parks or public grounds and for the public use and enjoyment thereof and the orderly conduct of persons therein, as may be consistent with the general laws.”
“An ordinance relative to city cemeteries of the city of Jackson,” adopted September 17, 1900, provides for the creation of. a cemetery board, and that:
“Said board, subject to the directions and ordinances of said council, shall have the care and management of such cemeteries and the buildings therein, and shall have the power to employ a superintendent and such laborers as may be necessary therefor; shall direct the improvements and embellishments of the grounds; * * * fix the price of lots, and make the sales thereof. ’ ’
It is also provided:
“It shall be the duty of the superintendent to superintend the grounds in the city cemeteries, to keep the walks and drives in good condition and repairs, and also the public grounds and unsold lots, and to see that the rules and regulations in this ordinance prescribed are properly observed, for which he shall receive such compensation as may be established by the common council.”
The individual reputation of members of the cemetery board, their tenure of office, acting on the rights of others in the face of a people vigilant to watch and active to discern, and the force of public opinion, ordinarily, may be relied upon to keep the board and superintendent of cemeteries within the legitimate sphere of their undoubted rights. Upjohn v. Richland Township Bd. of Health, 46 Mich. 542 (41 Am. Rep. 178). If the members of the cemetery board or the superintendent of cemeteries act in an arbitrary, capricious, and unreasonable manner contrary to plaintiff’s rights, an injunction is the appropriate remedy. Upjohn v. Richland Township Bd. of Health, supra; Township of Oneida v. Allen, 137 Mich. 224.
Under the lawful rules and regulations of the city council and cemetery board of the city, parties may purchase and acquire rights of burial, but not the absolute title in fee to cemetery lots in defendants’ cemeteries. Rowley v. Laingsburg Cemetery Ass’n, 215 Mich. 673. The entry of the lot owner and his possession is by permission — a license under a right of burial — and continuing possession by him cannot ripen into an absolute title in fee. Rowley v. Laingsburg Cemetery Ass’n, supra. Persons acquiring burial lots in cemeteries of the city of Jackson have a right personally to care for, beautify, adorn, and improve the same (Chariton Cemetery Co. v. Chariton Granite Works, 197 Iowa, 403 [197 N. W. 457, 32 A. L. R. 1402]) subject to reasonable rules and regulations that such improvements shall conform to the general plan for improving and beautifying the cemetery and the manner of doing the same. Scott v. Lakewood Cemetery Ass’n, 167 Minn. 223 (208 N. W. 811, 47 A. L. R. 64); Ex Parte Adlof, 86 Tex. Cr. 13 (215 S. W. 222). These cases are based upon the theory that a cemetery is not only a place where the dead may be buried, but one in which the living may express their affection and respect of the dead by marking and decorating the place of interment and beautifying its surroundings. Ex parte Adlof, supra; Mansker v. Astoria, 100 Ore. 435, 459 (198 Pac. 199, 199 Pac. 381). "What the owner of the lot may do personally he may canse to be done by his agents or employes. These cases are not controlling of the question here involved. No one is compelled to purchase or acquire a cemetery lot in cemeteries belonging to the city of Jackson. One has a right to lawfully acquire a cemetery lot or right of burial in any other municipality than that in which he lives. The regulations complained of do not concern the exercise of control over the lots in question after burial. They involve the conditions attached to the use of lots and the exercise of the right of burial therein. They place, in the interest of uniformity and order, the control and direction of funerals under the general superintending control of the superintendent of cemeteries or his assistants. The rule prohibiting the erection of the tents of private funeral directors for use at funerals and compelling the use of the tents of the city or of the cemetery board is a condition attached to the exercise of the right of burial, and may be justified under the police power which has to consider rights of other lot owners than those where burial is to take place, and may be justified upon the ground of public revenue for the care, support, and maintenance and ornamentation of the cemetery itself. So long as there is no discrimination between persons conducting funerals, there is no ground for attacking this rule. The trial court arrived at a correct conclusion.
Decree affirmed, but without costs, public questions being involved.
McDonald, C. J., and Clark, Sharpe, North, Fead, and Butzel, JJ., concurred with Potter, J. Wiest, J., concurred in the result. | [
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] |
Sharpe, J.
Plaintiff secured a judgment against the defendant Tritten for damages arising out of a collision between defendant’s car and that in which plaintiff was riding, in the sum of $3,500. It was affirmed by this court (258 Mich. 236). A writ of garnishment was served on the defendant company. It filed a disclosure denying liability. On the trial of the statutory issue, the plaintiff had judgment, from which the defendant company has taken this appeal.
At the time of the collision Tritten had a policy of insurance in the sum of $5,000 issued by the defendant company, protecting him against liability for the damages for which the judgment was rendered.
Among the “policy conditions” appear the following :
“In case of accident or loss occurring which is covered by this policy, assured shall give immediate written notice thereof to the company at its home office.
“Notice given by or on behalf of the assured to any authorized agent of the company within the State of Michigan, with particulars sufficient to identify the assured, shall be deemed sufficient notice to the company under this policy and failure oh the part of the assured to give any notice required to be given under this policy within the time specified therein, shall not invalidate any claim made by the assured if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as reasonably possible.”
In the policy the defendant company agreed:
“To defend, in the name and behalf of the assured, any action brought against the assured to enforce a claim for damages covered by this policy; to pay all costs taxed against the assured in any legal proceeding defended by the company; to pay all interest accruing after entry of judgment * * * ; to pay all expenses incurred by tbe company for investigation, negotiation, and defense, within limits of protection indicated in the declarations; providedtbe assured shall bave immediately forwarded to tlie company any summons or other process of law that may bave been served upon him.”
Tbe defense was based upon tbe failure of Tritten to give notice of tbe accident and upon an instrument signed by him hereafter referred to. Tbe accident happened on September 28, 1930. A copy of tbe declaration was served on Tritten on February 4, 1931. He at once saw tbe local agent of tbe defendant company at Manistee, and then went to tbe home office of the company at Traverse City and left tbe copy with W. P. Crotser, its secretary and manager. After some conference be signed a writing reading as follows:
“Whereas, on September 28, 1930, I had an accident with my car, and that of Edwin Milks, in. which Loren Milks was injured, and I did not notify tbe Michigan Mutual Auto Insurance Company of tbe happening of this accident until suit was brought against me upon February 4, 1931, by tbe injured parties, by reason thereof it is understood and agreed by me that tbe only liability of said company shall be to defend such suit by attorney. The witnesses I shall furnish and if any judgment is secured against me therein, I agree that there shall be no liability to pay the same on the part of said company. Such payment shall be made by me only. ’ ’
As to what occurred at that time Tritten testified:
“Well, he said, — first he said they were not liable for any damage; then he said, ‘But we will furnish you an attorney; and I didn’t know much about this case or about these things,’ so I said, ‘If I could be sure of that now,’ and he said, ‘Yes, we will draw up an agreement here and we will both sign it, so that you’will know that we will.’ ”
Mr. Crotser testified that when Tritten came to see him he (Tritten) said to him that as he passed the car in which plaintiff was riding-—
“something happened; he did not know just what it was, but something happened. The Milks car swung off to the right and into the ditch;”
that he then called Tritten’s attention to the provision in the policy as to notice and “he said he did not know it was necessary;” that, some days after, he returned and wanted to know if the company would defend the suit; that he told him there was no obligation on the part of the company, but agreed to do so “with the understanding there was no liability on the part of the company to do it;” that Tritten agreed to it, and the agreement was then drawn up and signed. Mr. Crotser, who is an attorney, then entered an appearance for Tritten, and on the trial appeared for him with Mr. Patchin as counsel.
The printed record of the proceedings in that case as filed in this court, on appeal, was offered and received in evidence. We refer to and quote therefrom.
Mr. Tritten was called as a witness in his own behalf and examined at length by Mr. Patchin. He testified:
“The rear end of my car did not come in collision with the front end of their car because if it had I would have heard it, or felt it. I did not hear or feel anything of the kind, or see anything of the kind. I was driving at that time. I was not in a position where I could have seen the rear end of my car but I did not hear or feel anything of the kind. ’ ’
And on cross-examination he said:
££I did not hear or feel any striking of my car against their -car. ’ ’
In submitting* the case to the jury the trial court, when referring to the defense, said:
££It is his further claim that the automobiles did not collide but that the plaintiff, in the operation of turning his car around there, lost control of it, and the car ran over the bank of its own accord, and that the plaintiff sustained the injury in that way.”
At the conclusion of the proofs in this case both parties moved for a directed verdict. During the argument thereon, the following occurred:
“The Court: If there wasn’t any interference on the part of Tritten, then there wasn’t any liability, and there wasn’t any need of any notice to you. That is what I want to hear from you on, — whether he would be compelled to give you notice when there was no liability on his part at all.
££My idea is this; if he went along there, minding his own business, and turned out to pass this car, with a nice clearance, which he had a right to do, on the extreme left-hand side of the road, as you claimed in the other case, and defended on that ground, that he was in no way legally responsible for that accident, then was there any need of any notice to the insurance company, until suit was commenced.
“Mr. Patchin: No; I don’t think there was, if he had no notice or knowledge; he would not be presumed to have knowledge he caused an accident, there would be no occasion for notice.”
Counsel, however, insisted that it was ££ conclusively established in this court” by the verdict of the jury “that he was liable for this accident,” and that, in the writing signed by him, Tritten absolved the company from liability in consideration of its defending him in the action.
After some discussion, it appears that the jury were discharged by consent of counsel and it was agreed that counsel should file briefs and a judgment be entered pursuant to an opinion to be filed by the court. In the opinion filed pursuant to this understanding, the trial court stated:
“Had Tritten known that his car struck plaintiff’s car or caused it to swerve off of the highway and upset, it would have been his duty to notify the garnishee company; but the proofs are the other way, and Tritten did not know that his car caused the accident, or that any such claim was made against him, until the declaration was served upon him. Therefore, he did not know of an ‘accident or loss occurring which is covered by this policy-.’ ”
Under the circumstances, this statement must be treated as a finding of fact by the trial court, and in our opinion it is supported by the evidence. Upon this appeal it has the force and effect of a special verdict. Richards-Wilcox Manfg. Co. v. Talbot & Meier, 252 Mich. 622. It follows that the notice given reasonably complied with the requirements of the policy.
The effect of the writing signed by Tritten must now be considered. There having* been compliance by the insured'with the terms of the policy in respect to notice, an obligation rested upon the defendant to defend the action, and there was no consideration for the agreement relieving it from liability.
“It is too well settled to require the citation of authorities that doing* what one is legally bound to do is not a consideration for a new promise.” Doebler v. Rogge, 221 Mich. 508, 511.
Counsel urge that the writing was in effect a “compromise settlement,” and that, although ex-ecutory, it operated as a bar to any action that Tritten might bring upon the policy. The law favors settlements if made in good faith. But, to effect a settlement by compromise, there must exist an actual controversy, 'terminated by mutual concessions. No such controversy here existed. In the writing Tritten stated that he had no claim against the company arising out of the accident, and, if so, there was nothing to compromise or settle, and his release of the company from liability was without consideration, as also was the promise of the company to defend the action.
The judgment is affirmed.
McDonald, C. J., and Potter, North, Fead, Wiest, and Btjtzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Potter, J.
Plaintiff sued defendants to recover damages for injuries sustained by reason of defendants’ negligence. Plaintiff was struck by defendants’ automobile while he was standing on a public highway. Plaintiff was a witness in his own behalf. At the conclusion of his testimony, defendants moved for a directed verdict because of plaintiff’s contributory negligence. Such verdict was directed. Plaintiff subsequently made a motion for a new trial, which motion was denied. Plaintiff appeals, claiming the court was in error in directing a verdict before plaintiff rested his ease, before hearing the testimony of plaintiff’s corroborating explanatory witnesses, in overruling plaintiff’s motion for a new trial, in holding plaintiff was guilty of contributory negligence as a matter of law, and in holding plaintiff bound to see and anticipate the approach of traffic on the wrong side of the road, obscured from plaintiff’s range of vision.
Plaintiff, just prior tó the accident, was riding on a kerosene tractor coupled with a bean thresher, going south on the right-hand side of the traveled portion of trunk line highway M-47. Plaintiff left the tractor on the left side thereof, at a point two and one-third feet west of the center of the highway, having previously looked both ways and feeling assured of no danger, whereupon he was struck by defendants’ automobile on the wrong side of the highway, driven at a high rate of speed, not under control, lay a driver who did not look or observe due care.
The rule is well settled that one driving an automobile upon a public highway should drive on the right-hand side of the center of the traveled portion of such road. One who drives on the wrong side of the road assumes the liability for so doing. Plaintiff was on the right side of the road and defendant was on the wrong side; It is not contributory negligence, as a matter of law, for plaintiff to be where he had a right to be. Contributory negligence cannot be imputed from plaintiff’s failure to anticipate defendants’ unlawful acts.
Plaintiff was not bound to anticipate defendant would drive at an excessive rate of speed on the wrong side of the highway. Lawrence v. Bartling. & Dull Co., 255 Mich. 580; Wood v. Priborsky, 259 Mich. 556; Willis v. Tucker, 261 Mich. 83; Travis v. Eisenlord, 256 Mich. 264.
If it was necessary for defendants to drive upon the wrong side of the highway, in violation of the provisions of the statute, it was incumbent upon defendants to show the circumstances of such necessity. The question of plaintiff’s contributory negligence was for the jury. Dreyfus v. Daronco, 253 Mich. 235.
Judgment reversed. New trial granted.
McDonald, C. J., and Clark, Sharper North, Fead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, C. J.
This suit was brought to set aside a special assessment on plaintiffs’ land for benefits arising out of the widening of Bagley avenue in the city of Detroit, Michigan.
The plaintiffs own property on the southwesterly corner of Cass and Bagley avenues, described as lots 1, 2, and 3, having a depth of 100 feet on Bagley avenue and a width of 120 feet on Cass avenue. In the condemnation suit, all of lot 1, with a width of 40 feet on Cass avenue, was taken, and plaintiffs were awarded and paid $324,217.46. In. subsequent proceedings for the assessment of benefits, the value of the benefits to plaintiffs’ land was fixed at the sum of $51,954.48. The assessment was protested by plaintiffs, but the roll as made was adopted by the common council. The plaintiffs then brought this suit to have the assessment set aside on the theory that, in arriving at the benefits, the assessors followed a plan incapable of producing reasonable equality and so inequitable as to amount to legal fraud. On the hearing the trial court declined to adopt the plaintiffs’ theory, and entered a decree dismissing the bill. The plaintiffs have -appealed.
It is stipulated that all of the procedural requirements of the city charter and statutes were followed in levying the assessment. The only question for our consideration is as to the validity of the plan adopted by the assessors in determining the benefits to the plaintiffs’ property from the widening of the avenue.
In assessing city property, assessors consider what they term “corner influence.” The theory is that the value of a lot is enhanced by its nearness to a street corner or intersection. In Detroit they have adopted a rule by which all property within 60 feet of a corner is placed in a corner influence zone. This plan of appraising values with slight variations as to the zone area is followed by assessing officers in cities throughout the United States. It is based upon the experience of assessors skilled in determining values of city land. There can be no objection to a plan so evolved and uniformly followed. But, as we understand the plaintiffs’ contention, such a plan cannot always be justly applied; that it cannot be applied in assessing benefits in the instant case, where the property was on a corner before the widening; that following this plan in awarding compensation in the condemnation proceedings and again in the assessment of benefits, the owners of the property were twice charged with corner influence benefits which did not accrue from the widening of the avenue. We are not able to arrive at the conclusion reached by the plaintiffs. In awarding compensation for the taking of lot 1, the rule an nounced by this court in Re Widening of Fulton Street, 248 Mich. 13 (64 A. L. R. 1507), was followed. The value of the whole parcel owned by the plaintiffs was determined, then the value of what remained after lot 1 was taken, and the difference was the compensation awarded. In determining these values, a 60-foot corner influence was considered and valued at $45,000, of which $42,588 was allocated to lot 1, and $2,412 to the north 20 feet of lot 2. As lot 1 with a width of 40 feet was all the land that was taken for the widening, the plaintiffs ^vere paid $42,588 for corner influence, and, in arriving at the value of what remained, $2,412 was added as corner influence value to the north 20 feet of lot 2. So the plaintiffs were paid for the corner influence added to lot 1 and were charged with that added to lot 2. In making the special assessment for benefits, the assessors considered that 40 feet of what remained of the plaintiffs’ land had been brought nearer to the corner and into the corner influence area by the widening, and therefore had been benefited by an enhanced value. On this theory they determined the corner influence value on lot 2 and the north 20 feet of lot 3 and subtracted therefrom the corner influence on the north '20 feet of lot 2 which had been charged to the plaintiffs in awarding them compensation in the condemnation proceedings. In view of these facts we are not able, to agree with the plaintiffs that they were twice charged with corner influence values or that the plan followed by the assessors operated inequitably. In Marks v. City of Detroit, 246 Mich. 517, we held.that courts will not disturb such assessments in the absence of “fraud or bad faith or the following of a plan in-' capable of producing reasonable equality.” In the present case no fraud or bad faith was shown or claimed. The assessors were called as witnesses by the plaintiffs. They testified that the plan they followed was approved and used by assessing officers in all cities throughout the United States, and that they applied it uniformly to all property in the assessment district. The plaintiffs may have been too highly assessed for corner influence, but with that we are not concerned. On this record the judgment cannot be disturbed.
The decree is affirmed, with costs to the defendants.
Potter, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Clark, J.
We adopt opinion of trial judge.
“Bill by the Windmill Point Land Company, a corporation, against Mary P. Strickland, for specific performance of a land contract, in which plaintiff was the vendor and defendant the purchaser, of a lot in Windmill Point Subdivision, the purchase price being $13,500. Defendant first filed a motion to dismiss the bill of complaint, such motion being based upon several grounds, particularly the fact that plaintiff had served a notice of forfeiture of the land contract because of default in payments, and that such forfeiture, ending the contract, had the effect of preventing plaintiff thereafter from seeking to specifically enforce the contract. This motion came on for hearing prior to the trial, before the undersigned, and oral argument was had thereón. At that time the court denied the motion to dismiss, without prejudice. * * *
“Thereafter defendant filed a sworn answer. Upon the assignment of the cause for hearing upon the merits to the undersigned, defendant again renewed the motion above referred to. Written briefs were filed upon this motion, in which one question was discussed, viz., ‘Did the service of the notice of forfeiture upon defendant by plaintiff have the effect of terminating the contract, so that plaintiff may not now seek specific performance of the contract in chancery?’
“For the purpose of this motion the following facts are agreed upon by the parties: Plaintiff sold the lot in question to defendant on June 30, 1923. The land contract contained the following clause: ‘It is further agreed by the parties hereto that time is of the essence of this contract. * * * It (vendor) may declare this contract void and retain whatever may have been paid hereon, and also the buildings and improvements upon said premises, as stipulated damages for the nonperformance of this contract, in which case the right of the vendee to the possession of said premises shall cease, and the vendor may, with or without notice to the vendee, re-enter upon and take possession of said premises and remove therefrom the vendee and any person or persons claiming by, through, or under her.’ On February 18, 1931, defendant being in default in payments due under the contract, plaintiff served a preliminary notice of forfeiture upon her. On February 28, 1931, defendant served upon plaintiff a notice of 'rescission of the land contract, upon the ground that plaintiff was unable to convey the land described in the contract. At the same time defendant tendered a quitclaim deed to the plaintiff, which was refused. On March 3, 1931, plaintiff served upon defendant a notice of forfeiture of the land contract, because of failure to make payments due thereon. Subsequently, defendant herein instituted a suit at law against plaintiff in the circuit court for Wayne county to recover all sums paid by her to the Windmill Point Land Company on account of said land contract, with interest thereon, upon the theory that said contract had been validly rescinded for good cause, and that, accordingly, plaintiff was not entitled to retain the moneys paid upon the same. Thereafter plaintiff filed this bill in chancery for specific performance of the contract, and the court is called upon by the motion to dismiss to pass squarely upon the question as to the effect of the notice of forfeiture of March 3,1931.
“In the case of Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448, it was held that the purpose and effect of a valid declaration of forfeiture of a land contract are to end the contract and discharge the vendor of the duty to convey and the vendee of duty to pay, and, consequently, after forfeiture, action at law will not lie for recovery of any part of the purchase price, nor may suit in equity for foreclosure and deficiency decree be maintained. The Supreme Court in that case very clearly set forth the effect of a valid declaration of forfeiture. Applying the principles laid down in that case to the facts conceded in the case at bar, it seems obvious that the plaintiff, having terminated the contract by notice of forfeiture, now may not seek to invoke the inconsistent remedy of specific performance of the same contract.
“Counsel for plaintiff concedes, of course, that the Chicago Boulevard Land Company Case sets forth the law of Michigan upon the subject, but insists that the case is distinguishable from our case, upon the ground that in the instant case, the action of the defendant in seeking to rescind the contract nullified the action of the plaintiff in serving the notice of forfeiture. Upon tlie original hearing of the motion, which was had before the court had the benefit of briefs filed by the parties, and the opportunity of fully considering the facts of the case, the court declined to pass upon the merits of the question, stating that the attempt by the vendee to rescind the contract prior to forfeiture ‘introduces a complication which did not exist in the Chicago Boulevard Case, and warrants a hearing of the case upon the merits, with a complete record being made, showing the various acts of the vendor and the vendee.’ Now, when all the facts are before the court, and fully conceded by the parties, it seems to the court that the ‘complication’ referred to in the original opinion, presumably introduced because of the attempted rescission of the contract had no effect whatsoever upon the legal rights of the parties. It was after the attempted rescission that the plaintiff, with full knowledge of the facts, served a final and definite declaration of forfeiture of the contract. The purpose and effect of this declaration were to end the contract and to discharge the vendor of the duty to convey and the vendee of the duty to pay. The following apt statement of the law contained in 27 R. C. L. p. 666, is quoted in the Chicago Boulevard Land Company Case, on p. 450:
“ ‘If the vendor exercises Ms option to declare the contract at an end, he cannot change his position and thereafter hold the purchaser liable to complete the purchase or pay any part of the unpaid purchase money. The remedy of the vendor by way of a cancellation of the contract and the continued liability of the purchaser for the purchase money are totally inconsistent, and the exercise of the former terminates any further liability of the purchaser for the purchase money.’
“As pointed out in the Chicago Boulevard Land Co. Case, forfeiture may be waived. It is not conceded by defendant, nor held by the court, that attempted rescission by the vendee after declaration of forfeiture by the vendor, would have the effect of waiver; but certainly it could not have sucb effect when preceding, in point of time, tbe notice of forfeiture. * * *
“In the instant case an injunction was issued, preventing the purchaser, Mary P. Strickland, from proceeding with her action at law to recover back the payments made by her upon the contract. That injunction, of course, will be dissolved by the decree dismissing this bill of complaint. This court has not before it, and accordingly does not assume to pass upon, any questions raised by the case at law, with regard to the right of the purchaser to rescind the contract, or her right to collect payments previously made by her thereon. Those questions will be determined by the court hearing the law case. ’ ’
Affirmed, with costs.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Btttzel, JJ., concurred. | [
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] |
Sharpe, J.
Pursuant to. an application made therefor, this court, on June 3, 1931, ordered a writ of habeas •corpus to issue to inquire into the cause of the detention of the petitioner in the branch of the State prison at Marquette. On June 3, 1931, an ancillary writ of certiorari was allowed to bring up the proceedings in the recorder’s court in Detroit relating to the trial and sentence of petitioner. Re turns to both, writs have been made and the cause submitted on motion at the present term of this court.
The cértified copies of the records disclose that the petitioner was arraigned in the recorder’s court on February 28, 1929, before Judge Charles Bowles on a charge of robbery while armed with a dangerous weapon, and pleaded not guilty. On March 9, 1929, he signed a formal waiver of a trial by jury. The evidence was then submitted to Judge Bowles and taken under advisement by him.
On March 21st the following entry appears in the court journal:
“The People of the State of Michigan
“v. “87836
“Franklyn Richard Curtis.
“Heretofore convicted of robbery being armed.
“The above-named defendant being in open court for sentence and having been heard in response to the statutory questions propounded to him is sentenced by the court he being now of the age of 29 years to be committed to the branch State prison at Marquette in the county of Marquette and therein confined for the remainder of his life. Warrant and commitment papers issued.”
The mittimus delivered to the warden of the prison, certified to by the clerk of the court, stated that defendant was—
“convicted of having on the 12th day of February, A. D. 1929, committed the crime of robbery armed at the city of Detroit, county of Wayne, Michigan.”
The records of the court do not contain a finding of guilt on the part of the judge other than as above stated. However, after the allowance of the writ, the people moved for the entry of an order nunc pro tunc adjudging the defendant to be guilty of the offense charged, and such an order was entered on July 7, 1933, as of March 21, 1929.
Counsel for the petitioner contends that the sentence imposed without a finding of guilt .was void and the order entered nunc pro tunc was without authority of law.
Under 3 Comp.. Laws 1929, §17132, when a defendant in a criminal case waives his right to a trial by jury and elects to be tried by the judge, any judge of the court in which the cause is pending has jurisdiction to proceed with the trial and to determine his guilt or innocence in like manner as if trial was had before a jury. Before sentence can be imposed there must be a conviction of guilt. The proceedings in the court at the time of sentence do not appear to have been taken by a stenographer. "While the clerk made no record adjudging the defendant to be guilty, the statement in the entry imposing sentence that the defendant had been “heretofore convicted of robbery being armed,” and the statement in the mittimus clearly indicate that the judge at that time announced that he found the defendant guilty of the offense with which he was charged. If a determination of guilty was pronounced at the time of sentence, and there is no contention on the part of petitioner’s counsel that it was not, and .the clerk through inadvertence omitted to make a record thereof, the entry of the order nunc pro tunc cured this defect and validated the sentence imposed.
In Freeman v. Wayne Probate Judge, 230 Mich. 455, 460, it was said:
“The order asked is not 'of action now taken to be dated back,, but to perfect of record action here tofore judicially had. If the order was pronounced by ¿Fudge Command — and that it was does not seem to be questioned — but record evidence thereof omitted through inadvertence or mistake, then entry of the order may be made now of what was in fact done then, for such an order is to perfect a record of judicial action taken and not to supply now some judicial action omitted.”
See, also, Toms v. Judge of Recorder’s Court, 237 Mich. 413, and Curtis v. Curtis, 250 Mich. 105.
The writs are dismissed.
McDonald, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Sharpe, J.
On January 4, 1930, the plaintiff was the sole owner of a lot in the village of Ecorse. She was at that time the wife of Otto E. Grube, but procured a divorce from him on August 19, 1931. Otto was engaged in the real estate and insurance business, and, on the day first above mentioned, plaintiff testified, that— .
“He came home about 11 o’clock with two blank papers. He asked me if I would sign them. He said he and Mr. William Fiedler had property on Burke street and they were selling it; he wanted me to sign the deed. I asked”him, I said, ‘Are you sure that is a deed to that property and it is nothing pertaining to mine?’ He said, ‘Absolutely not; you can call Mr. Fiedler if you want to.’ But I didn’t call him. I signed the paper and he went out. * * * He told me he was in a hurry for me to sign the deed because these people were waiting, or‘ coming to his office, and then he was to fill the blank papers out there, because he didn’t want to lose the sale of the property, that was why the papers weren’t filled out when he brought them home, because he says sales are very rare now; he wanted me to hurry and sign this blank paper for fear he would lose it if he filled it out at the office and then, brought it home for me to sign them; ’ ’
that, having confidence in him, she signed her name on the blank instruments. Otto took one of the deeds to his office, filled in the- description of plaintiff’s lot, and secured the names of two witnesses and a notary public to the acknowledgment thereof. Frank G-. Saunders was named as the grantee therein. On January 11, 1930, Saunders executed and delivered to the defendant Frank H. Bessenger a mortgage on the lot for the sum of $1,500. The deed and this mortgage were recorded on January 13, 1930, and the mortgage was afterwards assigned by Bessenger to the defendant corporation. Later, the plaintiff learned of these transfers, consulted an attorney, and through his efforts received a reconveyance of the lot from Saunders.
The Bessenger company began proceedings to foreclose the mortgage, whereupon plaintiff filed the bill of complaint herein, seeking a cancellation thereof. She had decree, from which the defendants have appealed.
The trial court was of the opinion—
“that the plaintiff’s signature to the deed in question was obtained by a. trick and in such a fraudulent manner as to make her purported signature thereto a forgery.”
Counsel for appellee relies upon a number of decisions of this court to sustain this holding. They are collected and commented on in Horvath v. National Mortgage Co., 238 Mich. 354 (56 A. L. R. 578), and may well be said to hold that where a genuine signature to an instrument is procured by some trick or device, without intent on the part of the party signing to execute such an instrument, the signature thereto will be treated in law as a forgery. Such a result is usually accomplished by the manipulation of a number of documents or the substitution of one instrument for another in such a way that a signature to one was procured where the intent was to sign another. There must be an assent of the will of the person signing to execute the instrument to which the name is appended.
The facts in this case do not justify the application of the holding in these cases to the signature in question. The plaintiff here knew that she was executing a deed to be used in the conveyance of real estate. No trick or device was resorted to, to induce her to sign her name thereto. She understood the nature of the instrument, and delivered it to her husband to be used by him as a conveyance of property. The deception practiced by him was in misleading her as to the description of the real estate he intended to insert therein.
In Kurbel v. O’Hair, 256 Mich. 680, the following from 1 R. C. L. p. 1022, was quoted with approval:
“Where a person executes an instrument containing blanks and entrusts it to a third person with power, express or implied, to fill the blanks in a certain manner, and such third person exceeds his authority in filling them, it is well settled that a bona fide holder will be protected, and the instrument is enforceable in his hands.”
Without passing upon the admissibility of the testimony of plaintiff as to what her husband said to her at the time she signed the deed, it seems clear that she did not make out a case entitling her to equitable relief. No claim is made that the defendant Frank H. Bessenger, Inc., is not a Iona fide holder for value.
It follows that the decree will be reversed and set aside, and one here entered dismissing the bill of complaint, with costs of both courts to appellants.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
November 14, 1901, by quitclaim deed, plaintiff and wife conveyed to Jackson & Albion Electric Railway Company a two-rod strip of land adjacent to a highway. The granting, habendum, and tenendum clauses of the deed were unqualified, hut following the description was the provision:
“In the event of abandonment of this strip of land for the purpose granted electric car line, for a period of three years, the same shall revert to grantor, his heirs or assigns.”
Shortly thereafter, an electric railway was constructed by the grantee and it was continuously operated until the summer of 1929, when it was abandoned, the rails removed, and the land sold by the grantee to defendant-, which proposes to use it for construction and maintenance of an electric distribution line.
This suit was commenced July 26,1930, to restrain the contemplated use by defendant as contrary to the use provided in the deed and as injuring the reversion. Defendant contended the action was prematurely brought and that the conditipn was fulfilled and abrogated by long use of the strip for electric railway purposes.
The court held the action premature, and that the bill should be dismissed without prejudice to later proceedings. On defendant’s contention that the condition has been abrogated and on its insistence that such question be determined, the court filed opinions holding the condition operative and inserted in the decree dismissing the bill a provision that the opinions are made part of the decree. Defendant now complains of the latter provision. We think it should be stricken as a matter of good form in a decree. Where reasons and rulings are to be incorporated in a decree, in rare instances where it seems necessary in the interest of clarity, they should be concisely set out. The record shows that the issue was raised by defendant, and the decree covers it without direct reference to the opinions.
The deed conveyed, not an easement of way, but a fee upon condition subsequent. Quinn v. Railway Co., 256 Mich. 143. The authorities cited by defendant to the effect that contracted use for a reasonable time may fulfil and abrogate a condition subsequent involved construction of an instrument in the light of its language, the character and purpose of the condition subsequent, and the intention of the parties.
The deed at bar is so plain that construction is unnecessary. It clearly defined the estate, the test of breach of condition, and the remedy for breach. We cannot change the contract of the parties by reading into it a restriction upon use while it is operative or a limitation of time upon duration of the condition. ,
The decree will be modified by striking the clause incorporating the opinions, and otherwise affirmed, but without costs of this court.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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North, J.
In a replevin suit plaintiff waived return of a Ford motor truck and took a money judgment for the vehicle which he alleged defendant, a constable, had unlawfully levied upon and. sold. Plaintiff’s right to recover depends upon the validity of the sale of the truck to him by the Fairview Family Laundry Company, a Michigan corporation. In effect, the court charged the jury that the sale was valid, and submitted to the jury only the question of the amount of damage. From the judgment in favor of plaintiff, defendant has appealed.
The first question presented is whether the alleged sale to plaintiff was void because of failure to comply with all the requirements of the statute governing the transfer of title to motor vehicles. 1 Comp. Laws 1929, §§ 4660-4665. The execution by virtue of which defendant levied was issued incident to a judgment against the Fairview Family Laundry. When defendant was about to make the levy he was informed by the president of the laundry company that the Ford truck had previously been sold to plaintiff and was shown a written instrument which purported to evidence the transaction. This paper was dated and notarized February 6, 1931, and the levy was made February 16th. The following testimony by plaintiff is undisputed:
“Q. When did you buy that truck?
“A. On February 6,1931.
“ Q. At the time you bought that truck from them did you receive from them the assignment of the title to the car?
“A. Yes.”
Notwithstanding plaintiff did not forward his assigned certificate of title to the secretary of State until February 24, 1931, title to the Ford truck passed to plaintiff on the day of the sale to him accompanied by delivery of the certificate of title properly signed and sworn to before a notary public. While the following cases do not adjudicate the exact question, they seem to plainly indicate that title passes upon delivery of the properly executed assignment of the certificate of title to the purchaser, and not before. Endres v. Mara-Rickenbacker Co., 243 Mich. 5; Ittleson v. Hagan, 245 Mich. 56; Bos v. Holleman De Weerd Auto Co., 246 Mich. 578; Scarborough v. Detroit Operating Co., 256 Mich. 173. It thus appears from the undisputed testimony that there had been sufficient compliance with the provisions of the statute cited and title had passed to plaintiff prior to the date on which de fendant levied upon the motor truck. The same question is presented and passed upon in Schomberg v. Bayly, ante, 135.
After the sale to plaintiff, the Ford truck continuously remained in the possession of the laundry company up to and including the time defendant seized it upón levy of the execution. Appellant claims that under the statute this circumstance raised a presumption that the alleged sale was fraudulent as to the judgment creditor for whom the levy was made, and that this issue should have been submitted to the jury instead of having been determined by the trial judge. This is assigned as a reason for appeal, and we think is well founded.
“Every sale made by a vendor of goods and chattels in his possession or under his control * * * unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold * •* * shall be presumed to be fraudulent and void as against the creditors of the vendor * * * and shall be conclusive evidence of. fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith, and without any intent to defraud such creditors or purchasers.” 3 Comp. Laws 1929, § 13421.
“The defendant’s contention that one who purchases an absolute title in personal property, and permits the same to remain in the possession of the seller, has the duty cast upon him, in such an action as the present, to show, not only good faith on his own part, but also on the part of the seller, is supported by Kipp v. Lamoreaux, 81 Mich. 299.” Canfield v. W. J. Gould & Co., 115 Mich. 461.
See, also, Detroit & Security Trust Co. v. Gitre, 254 Mich. 66.
Because of the above-quoted statutory provision, this record clearly presents an issue of fact as to the bona fides of the sale of the Ford truck to plaintiff. Defendant was entitled to have this issue submitted to the jury.
For the reason indicated, judgment is reversed, and a new trial ordered. Costs to appellant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
March 15, 1928, Leverett A. Clapp and Amanda E. Clapp, husband and wife, each then close to ninety years of age, made a joint will providing, after payment of debts and charges:
“Upon the decease of either of us our entire real and personal estate is hereby bequeathed to the survivor.
“Upon the decease of such survivor, we do hereby give, devise and bequeath to our beloved daughter-in-law, Emma Gr. Clapp, our homestead property known as lot nine, in section 24, in Centerville, Michigan, and also all our furniture, wearing apparel, jewelry, and bric-a-brac of every name and nature in said residence property.”
Then followed four bequests of money to relatives; and “the remainder of our estate we give to our loved daughter-in-law, Emma Gr. Clapp.”
The will contained no gifts over or provision for devolution of the estate in case of death of any of the beneficiaries named in it.
Leverett died in 1929. His estate was probated and the residue assigned to Amanda, “to be finally disposed of at the death of said Amanda E. Clapp in accordance with the terms of their joint will.” Emma died February 13, 1931, testate. February 23d Amanda executed a codicil to the joint will, revoking the legacy to Emma and making new devises. She died March 9,1931.
The suit is for specific performance of contract to make the joint will, with prayer that Amanda’s estate be distributed under it.
We will assume that the instrument is a joint and mutual will, executed in pursuance of contract between Leverett and Amanda Clapp, and that Emma, if living, would be entitled to specific performance of the contract and to take under the will. Smith v. Thompson, 250 Mich. 302 (73 A. L. R. 1389); notes in 2 A. L. R. 1193, 33 A. L. R. 739, 73 A. L. R. 1395. The claim of her executor to like relief raises the questions, (1) whether a devisable interest in the estate vested in Emma during her lifetime; and (2) whether the legacy to her lapsed at her death.
Plaintiff contends that the will became irrevocable at the death of Leverett Clapp, and, therefore, at that time became operative as a testamentary conveyance and vested in Emma an interest in the estate which was not divested by her subsequent death.
Plaintiff relies upon an expression in Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596, 16 Am. St. Rep. 528), to the effect that beneficiaries under contract to make a will were proper parties plaintiff, “as parties having vested interest in this real estate under the contract of their father and mother.” The question of vesting was not raised in the case, and the expression cannot be given the force of authority thereon. Plaintiff also, cites Freeman v. Arscott, 2 Ch. Div. (1930) 190. But in that case, in addition to being a testament, the joint will was a contract by which the estate of the survivor became subject to the terms of the will on the death of the other party, thereby, in effect, working a conveyance of the survivor’s estate.
The rather common expression that a- joint and mutual will is irrevocable by the survivor, after the death of one party to it, is not technically and legally correct. It is the contract to make the will, not the will itself, which is irrevocable. The contract is irrevocable because a court of equity, under its fraud and trust jurisdiction, will decree its specific performance. Such decree • incidentally, although by indirection, enforces the will and so the latter often is called irrevocable. Doyle v. Fischer, 183 Wis. 599 (198 N. W. 763, 33 A. L. R. 733); notes in 33 A. L. R. 739, 43 A. L. R. 1024, 57 A. L. R. 607, 60 A. L. R. 627; 28 R. C. L. p. 172; 40 Cyc. p. 2117. The distinction is important because the estate is conveyed by the will itself, not by the contract to make a will, and, consequently, no claim of vesting under the will can be laid upon the ground of its irrevocability. Estates are vested under a joint and mutual will in the same manner as under ordinary wills. It is only the right of action to enforce the contract, if anything, which vests in the beneficiary at the death of one of the testators.
There seems to be a paucity of authority upon the point. The only case we can find is In re Lage, 19 Fed. (2d) 153, which held, on a similar will, that no estate vested in the beneficiary until the death of the surviving party.
The most Emma Clapp or her representative could ask is that the contract between Leverett and Amanda to make the will be specifically enforced. The most the court could decree would be that the joint will be given effect at the death of Amanda as her will, according to its provisions and legal import. Pittman v. Burr, 79 Mich. 539. The will purported to give nothing to Emma Clapp at the death of Leverett. By its plain terms, the whole estate then devolved upon Amanda. The provision for Emma was not a gift in prcesenti at death of Leverett, with merely the right of enjoyment postponed, as in Hibler v. Hibler, 104 Mich. 274, but the gift itself was deferred until the death of Amanda. Consequently no interest in the estate could vest in Emma until Amanda’s death.
It is the general rule, obtaining also in this State, that the death of a legatee prior to the death of testator causes the legacy to lapse. Mann v. Hyde, 71 Mich. 278; Pittmann v. Burr, supra; In re Spier’s Estate, 224 Mich. 658; 40 Cyc. p. 1927. The statutory exception, 3 Comp. Laws 1929, § 15552, is not applicable here. Emma having predeceased Amanda, her legacy lapsed, her executor has no interest in the estate and cannot maintain the bill.
Decree for defendant affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
This is an appeal from a judgment of the recorder’s court for the city of Detroit denying confirmation of the verdict in condemnation proceedings.
The defendant is the owner of the fee in two lots in the Dix Eouge subdivision in the city of Detroit. The lots are located on the south side of Dix avenue immediately west of a bridge over Eouge river. By proper proceedings the city sought to condemn the fee in one of these lots and a part of the other for a water board site and for the construction of a tunnel under the river to carry a water main. More than two years prior to the commencement of these proceedings, it had acquired by purchase an' easement in the property from one Henry Silverman, who was buying it on land contract from the defendant. Subsequently Silverman defaulted, and the contract was foreclosed. But in the meantime the city proceeded with the construction of the tunnel and had completed it without the knowledge or consent of the defendant. About two years after its completion the defendant first learned of it. A demand for its removal was made at once. This demand was met by the city with a condemnation suit. On the trial the jury found the land was needed for a necessary public improvement and awarded damages in the sum of $87,500. After the time to move for a new trial had elapsed the defendant filed a motion to confirm the verdict. In the meantime, without the consent of the defendant, the city discontinued the suit. For that reason the court denied the motion to confirm the verdict. The defendant filed objections to the discontinuance, on the ground that it was not in good faith and was not accompanied by a surrender of possession of the property. These objections were overruled, and defendant caused an appeal to be taken to this court.
"When the suit was discontinued, the city determined that it was not necessary to condemn the fee to the property, and began a new suit for the condemnation of an easement. In this second suit the defendant was awarded $2,500 damages.
On this appeal the only question involved is the right of the city to discontinue the condemnation suit without surrendering possession of the property. The defendant recognizes the general right to discontinue before confirmation of the verdict, but insists that no such right exists unless accompanied by surrender of possession; that retaining possession is an election to be bound by the verdict; that the discontinuance must be in good faith and constitute an abandonment of the entire project; that these essential requirements to a valid discontinuance were not followed in this case, and that therefore the court erred in recognizing the discontinuance and in refusing to confirm the verdict.
On the question of good faith we would be inclined to agree with the defendant if the city, after discontinuing the suit, had reinstituted the same proceedings with the same purpose. Such action would justify the suspicion that it was taken to secure a more favorable verdict from another jury. The law will not permit a party to commence condemnation proceedings, withdraw them when not satisfied with the award for damages, and again commence and again withdraw until a more favorable award is obtained. But that was not the purpose of the discontinuance in this case. The first suit was for condemnation of the fee pursuant to a plan to erect buildings on the land. The verdict of the jury on the question of damages showed the cost to be prohibitive. For that reason the original plan for acquiring the fee to the land was abandoned and a new suit was begun for the condemnation of a right of .way only. In adopting’ this less expensive plan the city seems to have acted in good faith and for the best interests of its people.
In regard to the question raised by the defendant that the city lost its right to a discontinuance while retaining possession, it should be noted that our statute (1 Comp. Laws 1929, § 3763 et seq.) does not allow possession until after confirmation of the verdict and provision for the payment of the compensation awarded (1 Comp. Laws 1929, § 3778). It does not permit a discontinuance after confirmation, and provides no remedy for the owner if possession is taken contrary to its provisions. Where, as in this case, possession was taken wrongfully, not by virtue of the statute and not through condemnation suit, and retained after discontinuance, it would seem that owner’s only remedy is in an action of ejectment. We agree with the defendant that a party may not use condemnation proceedings to obtain possession of land and discontinue suit without surrendering possession. This is because retaining possession is treated as an election to be bound by the verdict of the jury. But that rule is not applicable in this case, because here possession was not obtained through condemnation proceedings. It was taken before proceedings were begun under the mistaken belief that the city had acquired a right of way from Mr. Silverman, the vendee in the land contract. In such a situation the following language of the court in Rowe v. City of Minneapolis, 135 Minn. 243 (160 N. W. 775), is applicable:
“It may be true that where the city takes possession during the pendency of the condemnation proceeding, it must give up such possession in order to effect an abandonment of the proceeding. See Witt v. Railway Co., 35 Minn. 404 (29 N. W. 161). The taking and holding of possession is in a sense an election to stand upon the award. But where possession was taken before the condemnation proceeding was commenced, the situation is not the same. The taking is, in such case, not referable to the proceeding. The taking of possession before the proceeding was commenced was not an election as to any matters arising in proceedings subsequently commenced, nor, is the continuance of possession such an election. . The right to maintain an ejectment is open to plaintiff, if the possession of the city is not agreeable to him.”
Quite apart from the legal principles involved, it may be said that the city, acting in good faith but mistaken in its rights, entered on the defendant's land, and, far below the surface, constructed a tunnel for a water main at an expense of $70,000. It has been, shown that its maintenance is of vital necessity to the health and safety of the people of Detroit. To compel the city to remove such a costly and necessary structure while pursuing a legal method to acquire the right of possession would be ridiculously unjust and contrary to all reason and good sense.
The judgment is affirmed, with costs to the city.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, J.
This is an appeal from a circuit court judgment in summary proceedings. The plaintiffs are vendors in a land contract. The defendants are the vendees. The premises were improved with buildings. There was a loss by damage from fire. The loss was adjusted at $1,312.91 and a check therefor given to the parties to be applied “as their interests may appear.” It was agreed that the money should be used in repairing the building. The defendants claim that it was also agreed that payments on the land contract should be deferred until the building was -repaired. Pur-, suant to agreement, the insurance money was placed in the hands of Miss Davidow, an attorney, with authority to pay it to the contractor as the repairs on the building progressed. By presenting a false affidavit to Miss Davidow, the contractor succeeded in getting the money from her without having made .the repairs. The defendants defaulted in their pay-.me.nts on the contract, and the plaintiffs began summary proceedings. In the commissioner’s court the judgment was in favor of the defendants. The plaintiffs appealed to the circuit court, where the issue was tried before the court and a jury. At the conclusion of the plaintiffs’ case, the defendants moved for a directed verdict on the ground that there was no evidence in proof of a service of the notice of forfeiture. The motion was refused, and defendants went forward with their defense. After the opening statement of counsel to the jury, the court directed a verdict in favor of the plaintiffs, on the theory that the defenses outlined in the opening-statement were not available to the defendants in a suit for summary proceeding’s. Prom the judgment entered the defendants have appealed..
The defendants were entitled to a directed verdict at the close of the plaintiffs’ case. There was no evidence of service of the notice of forfeiture. The court permitted the plaintiffs to reopen their case to make the necessary proof. They then introduced in evidence the files and records of the case in the commissioner’s court, after which the court denied the motion to direct a verdict. The commissioner’s files contained no affidavit of service and no other proof was offered. The court ought to have granted the defendants’ motion to direct a verdict in their favor.
The defendants claimed they were not in default in their payments on the contract because the plaintiffs orally agreed to extend the time of payment until after the repairs on the building were completed and that they had not been completed at the time of suit.' Such an agreement if made was invalid. It was without consideration. It was solely for the defendants’ benefit.- It was made, defendants claim, because they were not able to make their payments except from the income of the property, and there would be no income until the repairs were completed. The agreement was unenforceable. Schneider v. Levy, 256 Mich. 184.
No other material questions are likely to arise on a new trial. Because the court erred in refusing to direct a verdict for the defendants at the close of the plaintiffs’ case, the judgment is reversed, and a new trial granted, with costs to the defendants.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
In April, 1927, defendant leased two oil and gasoline filling stations to plaintiffs Beck, then copartners, a condition of the lease being the exclusive sale of defendant’s products at the stations. In July, 1927, with defendant’s written consent, plaintiffs orally sublet the stations at monthly rentals.
About October, 1928, plaintiffs discontinued the use of defendant’s products in their various stations and required the sublessees in the premises leased from defendant to use the products of others. For this breach of - the leases, defendant demanded possession of the stations, and the sublessees peapeably surrendered it, although plaintiffs had told them not to do so. After defendant had taken peaceable possession of the stations, plaintiffs tried to regain it by force, and were repelled by force.
The action is for damages for forcible entry. Defendant had directed verdict and judgment.
Defendant was entitled to possession because of plaintiffs’ breach of the leases. As between plaintiffs and the sublessees, the latter had both possession and right of possession. Their voluntary delivery of possession to defendant made defendant’s entry peaceable and left no right of action for forcible entry in plaintiffs. Vincent v. Brant, 101 Mich. 60. The subsequent retention of possession by force did not relate back and make defendant guilty of forcible entry. Richter v. Cordes, 100 Mich. 278.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
Defendant reviews conviction for assault Avith intent to murder. Within 30 days after verdict, 3 Comp. Laws 1929, § 17356, motion for new trial was made, on the ground that the verdict was against the great weight of the evidence, and later denied. The denial is reviewable by this court. 3 Comp. Laws 1929, §§ 17355,17370; People v. Kuhn, 232 Mich. 310; People v. Swift, 172 Mich. 473; People v. Mullane, 256 Mich. 54.
About nine o’clock in the evening of October 14, 1927, someone shot through the window of Herman Weber’s summer cottage, in Oceana county, and wounded him. His wife turned out the light, and they tried to staunch the flow of blood. Being unable to do so, Weber decided to go to Shelby for medical attention. As Mrs. Weber was going down the porch step she was shot in the shoulder and arm, and some five or ten minutes later she was again shot across the neck. Weber saw a man running away, some 125 feet distant, whom he afterward described as weighing about 150 pounds. Defendant’s weight was not shown in the evidence, but evidently the man Weber saw bore no resemblance to him, as Weber did not identify defendant but later identified another person as resembling the man he saw.
A few days later, defendant was arrested for investigation, but released. After a one-man grand jury inquiry, extending over a period of a year and a half, defendant was formally charged with the offense in the fall of 1930.
For motive, the people relied upon four incidents, all occurring a year and a half before the assault:
(1) Weber bought the land in 1925 from one Hilt. Defendant was living on it. Weber told him in the fall he would have to vacate in the spring, and he did.
(2) Defendant claimed Hilt' owed him $600 for work on the place. In April, 1926, while defendant was working for Weber, the claim was settled for $25. Weber took part in the settlement, but the record does not show in what way, except to advance part of the money to pay defendant. Defendant was not and is not satisfied that the settlement was fair.
(3) In the early spring of 1926, Weber gave defendant and another permission to plant a crop of beans on the land; they started to plow sodded ground; Weber stopped them, and they raised a crop on other land.
(4) Weber gave defendant a piece of old fence* When, after considerable time, defendant did not take it, Weber gave it to another, as he wanted it removed. Later, Weber gave defendant another piece of fence, and he took it at once.
In connection with some of these incidents, especially the settlement, defendant expressed dissatisfaction with Weber’s conduct at the time, making irritable but not threatening remarks. It was testified that, as late as July, 1927, in recounting the bean deal, defendant said he would get even with Weber some time. No motive was shown or suggested for the vicious assault on Mrs. Weber.
On the other hand, the testimony is undisputed that, during the summers of 1926 and 1927, defendant worked for Weber, at times was paid for his work, traded work with him, did some work for bim without pay, visited the Webers occasionally, had some meals at their home, frequently loaned Weber carpenter tools, and acted toward the Webers, and was considered by them, as a good friend. In fact, when defendant was first arrested, Weber was indignant, and said he would go bail for him. No unfriendly act by defendant toward the Webers, prior to the assault, was shown.
The case against defendant is wholly circumstantial. The principal circumstances may be summarized:
1. Defendant is a bachelor, then living with the LeFevre family, a scant half mile south of Weber’s place. Between them, and about 700 feet from Weber’s, lived Henry Omness, an important witness, with whom defendant had had a lawsuit. Defendant was a carpenter by trade, but at times had been a lumberjack, farmer, and laborer, and had done some trapping. He had once been charged with rape on his half-sister’s daughter, but, after two trials in which the juries disagreed, the case was dismissed. He had once shot a dog. He owned two old cars, team of horses, cow, implements, and a dog. He had some sort of a contract on his farm, whether purchase or lease does not appear. These circumstances carry no conclusion of violent disposition or of a mentality which would nurse trivial grievances into murderous impulses.
2. Defendant knew Webers did not keep a dog, gun, or telephone. He could walk to their place in about 12 minutes. He and the LeFevres said he went to bed about 8:30. Allowing for the difference in time, it was possible for him to have gone to Webers and committed the assault after the LeFevres last saw him that night.
3. About two o’clock in the morning some neighbors, looking for the assailant, came to defendant’s home, woke him up, and, while he offered to do anything to help if they called on him, he did not offer to go with them. After the assault he did not visit the Webers.
4. The offense evidently was committed with a 12-gauge shotgun. Defendant owned such gun. So did a large number of other people in the community. When officers came to defendant’s place the Tuesday after the assault, his gun appeared to have been lately cleaned, but how lately the officers could not say. Defendant told them, he had the gun out to shoot a hawk, but had not shot it for three weeks or more.
5. Weber testified that, a year before the trial, defendant told him he had done the shooting. Defendant’s version of the incident was that he and Weber were discussing the rumors, and, in substance, Weber said he and his wife had been accused of shooting each other, and defendant said that, according to some of the officers, he was the guilty person. Weber’s attitude toward defendant has undergone a marked change as time passed and the assault remained a mystery. He was clearly impeached by officers with reference to statements of friendliness toward defendant, which he had made at the time of defendant’s arrest immediately after the assault and with reference to having pointed out a real estate agent, with whom he had had trouble, as corresponding to the assailant he had seen running away.
6. LeFevre and defendant testified that when they got ready for bed the night of the assault they heard their dogs barking, went outdoors, could not ascertain the cause of the disturbance, returned to the house, put out their lights, and the dogs barked again in a few minutes. Henry Omness corroborated this testimony, except in one respect. He testified he heard a shot, went outdoors, saw a light at the Weber cottage and one at defendant’s. He heard the second shot, the dogs barked again, and defendant’s light was out. The difference in the testimony is that defendant and LeFevre testified their dogs were barking angrily, while Omness said defendant’s dog was crying with the tone he uses when his master is away from home.
Defendant’s conduct after the assault was not inconsistent with innocence, and contained no element of concealment. He visited the Webers at the hospital. When officers came to his place a few days after the assault and asked him if he had a gun, he pointed to his 12-gauge shotgun on the wall, gave them two boxes of shells and another shell he had found. On his release from jail he loaned the gun to officers for experiment, freely aided them in the experiments, and finally sold the gun to an officer on request.
There was considerable testimony that he made remarks in crowds indicating how the assault was committed and that he claimed to know the assailant. The affair aroused intense interest in the community, and, as might be expected, a great many people aired their theories and pretended special knowledge. The public nature of defendant’s conduct in this respect was that of the usual local wiseacre and would hardly be expected of the assaulter.
The shells used in the assault had been tampered with, the shot removed and replaced by steel balls, somewhat imperfect ball-bearings, sold generally for airgun use. None of such balls was found in defendant’s possession, nor, although inquiry was made in the neighborhood, was there evidence that he had purchased any, nor that he had gone away from home so that he could have purchased them elsewhere.
Many witnesses were sworn, and a mass of testimony was introduced. Evidently the grand jury investigation had disclosed all the evidence that hore against defendant. The outstanding feature of the case is that no witness testified to an overt act of defendant which indicated his guilt and which was not as consistent with his innocence. While we appreciate the superior opportunity of the jury to pass upon the character and credibility of witnesses, a reading of the record leaves a strong impression that the atrocity of the crime aroused such local feeling that -a conviction of someone was deemed necessary. Undoubtedly the record discloses some circumstances directing suspicion toward defendant, probably more than point to any other individual. But, adding the circumstances together, with Weber so completely impeached, we are of the opinion that it cannot be said that they form so complete a chain as to exclude any other hypothesis than the guilt of defendant.
In passing on motion for new trial, the court expressed serious doubt of respondent’s guilt, and'denied the new trial only because he did not have the positive conviction that he was not guilty.
Upon the whole record, we feel that the judgment should be reversed and a new trial ordered. Defendant will be remanded to the sheriff of the county, to be held in custody or let to bail in due course of law.
Clark, C. J., and McDonald, Sharpe, North, Wiest, and Butzel, JJ., concurred. Potter, J., did not sit. | [
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Wiest, J.
May 21, 1929, defendant) by order and conditional sale contract, purchased certain theatre equipment from the National Theatre Supply Company, Inc. The contract provided:
“Title to the goods ordered shall remain in you (seller) * * * at your option, until the undersigned (defendant) has delivered to you the undersigned’s promissory notes therefor secured by chattel mortgage in form and substance satisfactory to you.”
June 27, 1929, defendant executed, and the National Theatre Supply Company accepted, a chattel mortgage on the equipment to secure payment of 12 promissory notes, of $177.48 each, the first being due July 27,1929, and one maturing the 27th of each month thereafter. The mortgage and notes contained an acceleration clause. August 17, 1929, the National Theatre Supply Company assigned the mortgage and indorsed the notes over to the Theatre Acceptance Corporation, plaintiff herein. The same day defendant paid $100 on the first note due July 27th, leaving $77.48 due thereon, and August 31st, she paid in full the note due August 27th, and October 1st, paid in full the note due September 27th. October 24, 1929, three days before maturity of the fourth note, plaintiff caused demand to be made for full payment of all of the notes under the acceleration clause, basing such election on the unpaid balance due on the first note. Upon refusal of defendant to pay, plaintiff demanded possession of the property, and, upon refusal of such demand, brought this action in replevin and obtained the property under the writ.
The issues were tried without a jury and the court found there was no unlawful detention of the property, and defendant, waiving a return, was awarded judgment for the value thereof.
The appeal of plaintiff presents three questions requiring opinion:
1. “Was there a waiver of default precluding plaintiff from demanding possession of mortgaged property based on such default where a payment of $100 had been made and accepted on note No. 1, providing for payment of $177.48 and payment in full of notes Nos. 2 and 3 had been made and accepted and plaintiff had written a letter which defendant received demanding payment of the balance of note No. 1, 20 days prior to the demand for possession?”
2. “The court found that the plaintiff did not in good faith deem itself insecure so as to be entitled to possession under the insecurity clause contained in the chattel mortgage.”
3. “In replevin suit where plaintiff is assignee of mortgagee, defendant is mortgagor and the court finds possession of mortgaged chattels was taken prematurely by plaintiff- and the defendant waives return of the property, should the amount admittedly owing plaintiff on the mortgage be deducted from the value of the property in assessing the defendant’s damages?”
1. An acceleration option does not have to be exercised. Default presents the right, but it may be waived, and is waived by acceptance of subsequent payments. The right, if not exercised upon a first default, does not, however, prevent acceleration upon a subsequent default. Defendant’s partial default in the first payment gave plaintiff right to have acceleration, but this right was waived by acceptance of subsequent payments, and could not arise again until there was a subsequent default, and then wholly independent of the old default. At the time of the seizure no payment, except the first, was in default, and that default had been waived, so far as right to declare acceleration based thereon, and plaintiff had no right to declare acceleration. The question is controlled by Cable Co. v. Wasegizig, 130 Mich. 387.
2. We think the claim, advanced by plaintiff, that it had a right to possession of the property because it considered itself insecure is an afterthought and without foundation in fact! Plaintiff’s assignor guaranteed payment.
3. Upon the subject of damages, plaintiff cites 3 Comp. Laws 1929, § 14839, relative to partial interest of parties in property involved in replevin, and defendant cites 3 Comp. Laws 1929, § 14844, relative to waiver of return of property replevined and judgment for value thereof. It will be noted that section 14844 contains a provision subjecting itself to the provisions of section 14839 in proper cases. Section 14839 commands “such judgment as shall be just between the parties. ’ ’
When defendant executed, and plaintiff’s assignor accepted, the chattel mortgage, as provided for in the conditional sale contract, title passed to defendant, subject to the mortgage lien, and this lien survived determination of the replevin suit. Judgment for the value of the property ignored plaintiff’s mortgage lien, and was unjust.
Defendant, having waived return of the property, was entitled to recover the value thereof as of the time of the taking, less the amount of plaintiff’s lien thereon at that time, and to have damages, if any, occasioned by the wrongful taking.
For this reason, the judgment must be reversed, and a new trial had for proper determination of the mentioned rights and the assessment of defendant’s damages, if any. Plaintiff will recover costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Btxtzel, JJ., concurred. | [
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] |
Sharpe, J.
In the year 1928 the plaintiff was engaged in the retail coal business in the city of Battle Creek. The defendant had been employed for a number of years in delivering coal for another dealer in that city on the basis of 50 cents a ton commission for selling and one dollar a ton for delivering. In the spring of that year, defendant delivered some coal for plaintiff at the price above stated. From July 14th until November 20th he devoted most of his time to that work, as plaintiff claims under the same arrangement for commission and delivery as he had had with others, but neglected to turn over to him all of the collections made therefor, and this action is brought for the recovery of the balance claimed to be due, $1,728.68.
In his notice of special defense the defendant made claim that—
“At the time of the alleged occurrence of the alleged facts set forth in plaintiff’s declaration, said plaintiff and this defendant were partners”—
and that no accounting had been had between them, and that said partnership had never been dissolved, and that the matter in dispute was “not properly triable on the law side of the court. ’ ’
The jury found in favor of the defendant, and answered a special question submitted to them: “Were plaintiff and defendant partners between July 14th and November 20, 1928?” in the affirmative. Plaintiff has appealed from the judgment entered on the verdict.
1. It is insisted that there was no competent evidence to justify the answer of the jury to the special question. The defendant, called for cross-examination by plaintiff’s counsel, testified:
“The word ‘partnership’ was mentioned to me by Mr. Barker at his garage just about the first of July. No one was present at the time and Mr. Barker mentioned the word ‘partnership.’ He wanted to know if I — about how many customers I had. He wanted to know the reason why we couldn’t make good if we went into partnership, and we did go into partnership. I said, ‘Why, that suits me.’ I put the trucks and tools and the men into the business. I had three trucks and plenty of tools, five or six of them, and three or four forks and a car mover that I had used in my business previously. I put my trucks against Mr. Barker’s money. My interest in the coal that was in the yard consisted of my trucks and the tools. I didn’t buy any of the coal nor pay for any of it. I didn’t own any of the office building or the buildings in the yard or the sheds. * * * The partnership was a 50-50 one. I was to have half of all that was made out of the partnership and Mr. Barker was to buy all of the coal and furnish all of the money and I was to furnish three trucks. We were each to pay half of the expenses.”
When examined by his own counsel, he testified:
“The agreement was that I was to furnish all the help and receive part of the com — of the profits and stand half of the expenses. From the first of July until November 20th I didn’t operate on a salary and I didn’t haul coal on a truck. What I did was to sell coal and collect and look after the business on the outside.”
In answer to a question as to the number of customers he secured that plaintiff did not then have, he replied, “About 200, I believe. I never counted them. It is somewhere around there. ”
Howard Sowers testified that defendant hired him to assist in loading the coal on the trucks, and that he was paid 50 cents per hour for his work.
“After a while Mr. Barker cut the wages. I told Mr. Barker that I was working for Mr. Kraft, that he was the one who hired me, and Mr. Barker said, well, he was going to cut the wages. He said they were in partnership with Mr. Kraft.”
Ada Case testified that in a conversation had with plaintiff over the telephone—
“He said he took Mr. Kraft in as a partner because he said that he had the truck and that he could take care of the other part. ’ ’
The plaintiff denied that any partnership agreement was made, or even talked about, between them. He produced several witnesses who testified that defendant, during the time he claimed the partnership existed, told them he was hauling coal by the ton for the plaintiff. Under the proofs submitted, we think it was clearly the duty of the court to submit the question of partnership to the jury.
2. Defendant admitted that the partnership relation was terminated on November 20, 1928. He delivered coal thereafter for plaintiff on the commission and delivery rate per ton basis, before referred to. It is insisted on behalf of plaintiff that, even if the partnership relation existed until November 20th, the verdict of “no cause for action” cannot be sustained in view of this after employment. It appears, however, that defendant’s earnings after November 20th amounted to $2,130.82, that plaintiff paid out for him the sum of $1,320.33, and that defendant collected and retained $300.35. If, therefore, the statement of their account for this period alone be considered, plaintiff was overpaid to the amount of over $500. It seems clear that if a partnership existed, as claimed by defendant, plaintiff was not entitled to a judgment on account of their dealings after its termination.
3. Error is assigned upon that part of the court’s instruction to the jury reading as follows:
“I charge you that a partnership cannot he implied as a matter of law from a business relation if the parties thereto have not made or intended to make a partnership contract. Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of partnership are to be found, which at the very least should consist of the following: Community of interest in some lawful commerce or business, for the conduct of which the parties are mutually principals of and agents for each other, with general powers within the,scope of the business, which powers, however, by agreement between the parties themselves may be restricted at option to the extent even of making one the sole agent of the others and of the business. * * *
“I charge you further that as between the plaintiff and the defendant, the question of whether there was a partnership depends upon intention mutually entertained, to be established by facts and circumstances. Participation in profits as between the parties does not establish a partnership, but is only prima facie evidence of a partnership and such inference may not be drawn if the profits are received as wages.”
Counsel preferred a request containing the language of 2 Comp. Laws 1929, § 9847 (the uniform partnership act). Many parts of this section were not applicable to the facts disclosed by the evidence. Particular stress is laid upon the use of the words “facts and circumstances,” as used in the, above quotation. In our opinion, the manner in which the business was afterwards conducted, the fact that de fendant was not called upon to account for the money received by him, and the payment by plaintiff to the men employed in handling the coal, were all “facts and circumstances” which might be considered by the jury in determining the question submitted to them. A reading of the charge in its entirety satisfies us that, the jury were properly instructed on the essential facts which they must find to establish the partnership relation between the parties.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, Fead, Wiest, and Butzel, JJ., concurred. North, J., did not sit. | [
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North, J.
This is an action by plaintiff to recover damages on the ground that her decedent’s death was caused by negligence chargeable to defendant. Decedent, Thomas L. Musgrove, was a brakeman working in connection with other members of a switching crew employed by defendant company in its railroad yards in the city of Manistique. The crew consisted of a conductor, two brakemen, the engineer, and fireman. While they were working on the night of April 3, 1930, the engine, moving forward and in a southerly direction, was coupled onto three tank cars standing on a siding which extended from the main switch track. Thereafter the train was backed in a northerly direction onto the main switch track; it then again proceeded in a southerly direction over a switch and upon another siding extending in a southwesterly direction. On this siding there were two groups of flat cars, four cars in each group. From the point where the first coupling was made plaintiff’s decedent proceeded in a westerly direction across to where the flat cars were standing for the purpose of making the couplings to these cars. When the train moved northward the other brakeman went with it to throw the switch, and the conductor also went with the train to guard the highway which crossed the tracks in this locality. After the switch was thrown the engineer on signal proceeded in a southerly direction and passed over the crossing for the purpose of picking up the flat cars. It is fair to infer from the testimony that plaintiff’s decedent had adjusted the coupler on the northerly end of these flat cars and had thereupon gone to the southerly end of the first group of four cars. It is plaintiff’s contention that the testimony fairly indicates he did this incident to preparing the couplers between the two groups of flat ears so that they could be coupled together. The coupling between the leading tank car and the most northerly one of the flat cars was completed; and thereupon the conductor walked down the tracks toward the point where the coupling was made, and, hearing a call, asked of plaintiff’s decedent: “Do you want me to back up or go ahead?” Decedent called back: “I am hurt.” He was found on the westerly side of the track about eight feet from the south end of the fourth flat car, his foot caught under the second wheel of the south truck. He had received severe injuries, and died the following morning. The members of the switching crew agree that it was known to all of them that the switching operation they were performing included as one transaction picking up the three tank cars, backing out on the main switch track, going forward onto the second siding, and making a coupling with the first four flat cars, then proceeding to couple onto the second group of flat cars.
Plaintiff’s declaration alleges that it was the duty of the defendant and of the co-employees of the deceased to use reasonable care in switching and coupling cars so that deceased would not he exposed to unusual or undue danger in the performance of his duties; and that it was also the duty of defendant and decedent’s co-employees not to hack the locomotive and its attached cars up to and against the flat cars to which coupling was to he made without being signaled to do so, and to know the location of such cars and to have a man stationed on the rear end of the train which was hacking up who would be able and whose duty it would he to signal the engine crew and to assist in making the coupling; and, further, it was the duty of the other members of the train crew to so handle the train that the coupling could and wonld he made gently and without violence. Alleged neglect of these duties is asserted by plaintiff as the cause of the injuries to, and death of, her decedent.
On the other hand, defendant asserts that decedent’s duty was to he at the northerly end of the first group of four flat cars, where the coupling was to he made, and that he sustained his injuries because of his failure to remain at the point where this coupling was to he made instead of placing himself in another and dangerous location. Also defendant contends that there is no evidence in this record that the alleged custom of placing another employee on the forward end of the moving cars was certain, uniform, and invariable, or that it was universally observed and known to the defendant railroad company, or that the company had promulgated such a rule; hut, on the contrary, that it is shown in this record that this was not the custom where, as in this case, there was a brakeman in the field to signal the engineer when to proceed and ■when to stop; and it is further defendant’s contention that all the testimony which bears upon this phase of the case is to the effect that this entire switching operation was conducted in the usual and proper manner.
Plaintiff recovered a verdict on trial by jury and had judgment for $16,000. Defendant has appealed, and as reasons in support thereof asserts: (1) The trial court should have granted defendant’s motion for a directed verdict and also its subsequent motion for judgment non obstante; (2) there was no evidence of negligence chargeable to defendant or of a causal relation between defendant’s negligence, if any, and decedent’s injuries; (3) that proper instructions were not given to the jury as to assumption of risk, contributory negligence, and proximate cause; and (4) there being no evidence of damage except that incident to the pain and suffering of plaintiff’s decedent, the damages are excessive.
A careful review of the record in this case satisfies us that there was testimony which fully justified the trial court in' submitting to the jury the question of whether there was an established and definite custom on the part of the defendant requiring the placing of a man on the forward end of moving cars in switching operations in the nighttime for the purpose of assisting in making the operation more safe by way of signaling the engine crew and protecting the one making the coupling. So far as the record discloses the defendant company had no rules governing this phase of its' operations; and each of the four members of this switching crew, who for years had been working together, gave testimony tending to support plaintiff’s claim in this particular. We are also satisfied that it was a question of fact for the jury whether plaintiff’s decedent at the time of receiving his injuries was in the proper place and performing a part of his duties in connection with this switching ''operation. The coupler on the northerly end of the first four flat cars had been placed in position so that the coupling was automatically completed; and the record is wholly consistent with plaintiff’s claim that her decedent had gone to the other end of these four cars for the purpose of adjusting the coupler between the two groups of flat cars so that this final coupling of the proposed operation might also be made. It is plaintiff’s theory that her decedent was in the act of adjusting the coupler at the south end of the first four flat cars at the time the engine and three tank ears struck them with undue force and without decedent being in any way warned thereof. In this connection plaintiff charges defendant with negligence because of the failure on the part of decedent’s co-employees to give the engine crew such signals as were proper and necessary to slow down the approaching locomotive and complete the coupling with only a reasonable degree of impact. Defendant was engaged in interstate commerce, and hence, even if, under plaintiff’s theory, her decedent was guilty of contributory negligence, that would not defeat her cause of action brought under the Federal employer’s liability act (45 USCA, §51 et seq.). The trial judge was right in holding that the issue of defendant’s negligence in the manner alleged in plaintiff’s declaration was a question of fact for the jury.
In defendant’s motion for a directed verdict and also for judgment non obstante, it is urged that, even if defendant’s negligence is established, it is not shown to have been the proximate cause of decedent’s injuries. This contention is not tenable. The record shows that the other members of the switching crew knew Musg’rove was to attend to the necessary couplings incident to picking up the flat cars. It is obvious that, to make a safe and proper coupling in the nighttime, the engineer should have the assistance of other members of the switching crew in governing the movements of his train as it approaches the standing cars to which coupling is to be made. Here the engine- pushing the three tank cars was proceeding slowly, about three miles per hour; but the engineer’s view ahead was wholly obstructed by the cars in front of his locomotive and by reason of a curve in the tracks, and the speed of the train was not slackened before the impact with the flat cars, which were moved ahead from four to six feet and possibly more. The engineer testified:
“Q. Now, it is the custom among railroad men in backing up, especially in the night, especially backing up or going ahead, with a dead end, to have a brakeman with a light on that dead end, isn’t it?
“A. Yes, I think it is rulable.
“Q. And he is there for the purpose of signaling to the fireman, or to you, for the movements of the train?
“A. Yes, sir. * * *
“Q. If there had been anybody on the dead end he (the fireman) would have seen them and taken his signal from them, wouldn’t he?
“A. Yes, I think he would. * * *
“ Q. And when you had gone about two car lengths from the crossing you struck something and then stopped, did you?
“A. Yes, sir.
“Q. Afterwards you discovered it was some flat cars that you had run into?
“A. Yes, sir.
“Q. You didn’t know you were going to hit the flat cars?
“A. No, I did not.
“Q. Didn’t know yon were as near to them as that?
“A. No, I didn’t.
“Q. You couldn’t see ahead?
“A. No, I couldn’t. * * *
“Q. As I understand, you didn’t know the exact location of them (the flat cars) ?
“A. No, I did not. * * *
“Q. When you say that you did not expect to hit the flat cars, what do you mean by that?
“A. Why, I didn’t expect to hit them so soon. They were generally farther down. * * *
“Q. If there had been a man on the head end of your train signaling you with a light you would not have moved the flat cars at all would you?
“A. No, I guess not. * * *
“Q. You say if a man was on the head end you would not move the flats ?
“A. Yes, sir.
“Q. What do you mean?
“A. We would be going so much slower.”
It has often been held in the Federal courts that one who claims under the Federal employer’s liability act must establish both the negligence of the defendant and the causal connection between such negligence and the injury. Atchison, etc., R. Co. v. Toops, 281 U. S. 351 (50 Sup. Ct. 281). But from the above-quoted testimony and other like portions of the record we find there was evidence of a causal relation between the alleged negligence and the injuries sustained by the decedent, and therefore a question for the jury was presented.
The charge to the jury presented a fair statement of the law applicable to the controverted issues of fact, and covered with sufficient fullness the questions of assumed risk, contributory negligence, and proximate cause. Except as hereinafter noted, ap pell ant’s brief discusses no error in the charge of the court except that of failure to define proximate cause. While that expression was not defined by the circuit judge in charging the jury, we think this phase of the law was sufficiently covered in the charge as follows:
“I charge you that if you find by a preponderance of the evidence that there was such a custom, that the defendant at the time of the accident had violated it, and that this violation resulted in the death of plaintiff’s intestate then the defendant would be liable. If, however, you are unable to find by a preponderance of the evidence that this was the custom and that the violation of this custom, caused the accident, your labors would cease, and it would be your duty to bring in a verdict of no cause of action. ’ ’
It may be added that a proper request to define proximate cause was not presented, and that it was not until after the jury was placed in charge of the court officer for its deliberations and was retiring to the jury room that defendant’s counsel orally called the court’s attention to the fact that the term proximate cause had not been defined to the jury. Under these circumstances, failure to give a definition of proximate cause was not reversible error.
Appellant’s contention that the verdict is excessive is based in part upon the erroneous assumption that “the record is totally lacking in any evidence of contributions by decedent” to the support of his family. At the time of his death Mr. Musgrove was 48 years of age, and his expectancy of life was 22.36, years. Previously he had enjoyed good health. He was survived by Mrs. Musgrove, whose age was 42 years, and by two minor children, one 10 and the other 16 years of age. It is stipulated that at the time of Ms death deceased was earning $2,000 per year. Mrs. Musgrove testified:
“Q. Your husband during his lifetime supported you and your family all right?
“A. He did.
“Q. Do you know what he did with his money?
“A. He gave his checks right to me.
“Q. Gave his checks to you?
“A. Yes, sir.”
In the absence of any evidence to the contrary we think this was sufficient testimony to enable the jury to pass upon the question of pecuniary loss suffered by decedent’s family.
In connection with this phase of the case, appellant also contends that the portion of the charge of the court relative to minimizing damages in a suit brought under the Federal law (45 USCA, § 53) in the event decedent was guilty of contributory negligence was inaccurate, and in consequence thereof the damages were not minimized by the jury as they should have been. In this we cannot agree, but on the contrary we think the charge as a whole was free from prejudicial inaccuracies in this regard and was amply clear to enable the jury to make a proper application of the law to the facts in the case. In view of the testimony as to pain and suffering, and that pertaining to decedent’s earning capacity and Ms contributions to his family, it cannot be said as a matter of law that the amount of the verdict was excessive.
The judgment entered in the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff by this suit seeks to recover damages incident to an automobile railroad crossing accident which resulted fatally to plaintiff’s decedent. At the close of plaintiff’s case the trial judge directed a verdict for defendant on the ground of contributory negligence of plaintiff’s decedent. Plaintiff has appealed, and contends the case should have been submitted to the jury on the theory of subsequent or discovered negligence.
In the daytime plaintiff’s decedent was driving a Ford coupe in a southerly direction on a paved street in Corunna, Michigan; and as she approached the railroad crossing defendant’s employees were backing a locomotive and four freight cars from the east toward the crossing. There was nothing to obstruct decedent’s view of this crossing or of the approaching freight cars: At the time she was between 100 and 125 feet from the crossing, the approaching train was two or three car lengths away. There is testimony that decedent was driving approximately 20 miles per hour, while the train was moving at substantially eight miles per hour. The head brakeman was stationed on top of the leading car. He noted that Mrs. Graham continued to approach the crossing without slackening her speed, that she made an observation in a westerly direction but thereafter continued to look straight ahead. The brakeman tried to attract her attention by yelling at her; and not succeeding he tried to stop the train by signaling the engine crew. Crossing signals had been given both by ringing the bell on the .locomotive and sounding the whistle. The last of the three blasts was given substantially at the time the leading car reached the easterly line of the street. When the brakeman discovered Mrs. Graham’s peril he attempted to give the so-called frantic or emergency signal to the engineer which called for instantly stopping the train. In the excitement of the moment the brakeman seems to have been in a position from which the engineer could not see this signal. When the brakeman discovered this he went to the side of the car and gave the emergency signal from a point where he could see the fireman, the air brakes were applied' and the train stopped; but this application of brakes was not made until just after the collision between the train and the automobile. The train proceeded about-three car lengths after the brakes were ap plied, the automobile was wrecked, the head freight car was derailed, and Mrs. Graham received injuries from which she died in less than an hour. There was no change in the rate of speed of either the train or the automobile before the instant of collision. There is testimony that the train could have been stopped within a distance of six feet to a car length.
It is unnecessary to state the circumstances more in detail. On this record, the trial judge held that Mrs. Graham was guilty of contributory negligence which continued to the instant of the accident and which was a proximate cause thereof. He held against plaintiff’s contention that there was testimony tending to establish subsequent negligence on the part of defendant. We think this holding of the trial judge was necessitated by the record in the case. The facts and circumstances are so similar that we are constrained to hold the instant case is controlled by Johnson v. Railroad Co., 246 Mich. 52, 55. As was said there, so it might be said here:
“These acts of negligence on the part of both parties continued without interruption until the time of the collision. The obligation of each to use care to avoid the consequences of the other’s negligence was mutual. ‘There is no more of an absolute standard of ordinary care and diligence in the one instance than in the other.’ ”
It may be assumed, as alleged, that the engine crew. was guilty of negligence in failing to keep a proper lookout for signals from the brakeman or for highway travelers approaching the crossing, and that the brakeman was also negligent in his failure at first to give his signals to stop from a position where he could be seen by one of the engine crew. But it also conclusively appears that at the same time plaintiff’s decedent, who was familiar at least in a general way with this railroad crossing, was guilty of negligence in driving in daylight upon defendant’s tracks at an unprotected crossing in front of approaching freight cars, and without having looked at all in the direction from which they were coming. Surely such negligence on the part of plaintiff’s decedent was a proximate cause of the accident and continued active to the very instant of the collision. Her opportunity to stop her automobile before reaching the point of collision was at least equal to that of defendant’s agents to stop the freight train. Under the circumstances of this case, the only additional thing defendant’s employees could have done to avoid the accident after the brakeman discovered decedent’s probable peril was to stop the train. The record is barren of proof that either of the engine crew had an opportunity to stop the train by applying the brakes after they were aware of the emergency. It might well be said that there was concurring negligence; but plaintiff’s, theory of subsequent or discovered negligence is not applicable. Rushford-Surine v. Railway Co., 239 Mich. 19; Howell v. Hakes, 251 Mich. 372.
Judgment affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Butzel, J.
Robert T. Tapert, plaintiff, the assignee of a real estate mortgage, seeks foreclosure against Fred A. Lehmann and wife, defendants. The description of the mortgage, together with a statement of the circumstances leading up to and resulting in its execution are set forth in Lame v. Wood, ante, 266. Both cases were heard together, and in the opinion the trial judge decided both cases and decreed foreclosure in the instant one. Defendants claim that plaintiff’s assignor was guilty of fraud and that the mortgage should be set aside.
The record leaves no doubt that plaintiff is a bona fide purchaser for value, without any notice of infirmities. Where the agent’s interest'is adverse to that of the principal, knowledge of fraud on the part of an agent and not disclosed to the principal may not be imputed to the latter. Title Bond & Mortgage Co. v. Carpenter, 240 Mich. 319. Defendants contend, however, that the note and mortgage were nonnegotiable because the note contains the following-words :
“According to the terms of a certain real estate mortgage of even date herewith, collateral hereto.”
The mortgage imposes the obligation upon the mortgagor to pay all taxes and assessments that shall be levied on account of the mortgage or the indebtedness secured thereby. It is claimed that the amount of such taxes is uncertain, and, therefore, the note, on account of its reference to the mortgage, is likewise uncertain in amount. Uncertainty in the amount to become due under the mortgage is the only question we need discuss.
Appellants rely principally on the case of Brooke v. Struthers, 110 Mich. 562 (35 L. R. A. 536). Since the latter case was decided, however, by Act No. 91, Pub. Acts 1911, the legislature provided for a specific tax of one-half of one per cent, on real estate mortgages in lieu of general tax. This tax must be paid before a mortgage may be recorded. The act expressly provides that upon its payment the mortgage shall he exempt from further general taxes. 1 Comp. Laws 1929, §§ 3640-3649. This specific tax applies to all general State taxes, including city assessments. Union Trust Co. v. Detroit Common Council, 170 Mich. 692. We do not believe that there is any force in appellants’ contention that the legislature may change the law and again make the amount of the tax uncertain as to a mortgage on which the tax has been paid.
“So far as the power,of taxation is concerned, it has been so often decided by the supreme court of the United States, though not without remonstrance on the part of State courts, that an agreement by a State, for a consideration received or supposed to be received, that certain property, rights, or franchises shall be exempt from taxation, or to be taxed only at a certain agreed rate, is a contract protected by the Constitution, that the question can no longer be considered an open one.” 1 Cooley’s Constitutional Limitations (8th Ed.), p. 571, and cases there cited.
See, also, McGee v. Mathis, 4 Wall. (71 U. S.) 143; State of New Jersey v. Yard, 95 U. S. 104; Farrington v. Tennessee, 95 U. S. 679.
The decree of foreclosure is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Per Curiam.
Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549, in exchange for the dismissal of one count of first-degree murder, MCL 750.316; MSA 28.548, and one count of conspiracy to commit murder, MCL 750.157a; MSA 28.354(1). Defendant was sentenced to life imprisonment. He appeals as of right.
At two separate proceedings, the trial court informed defendant that the charge to which he was pleading guilty was punishable by a maximum sentence of life in prison and that he would not be eligible for parole. The court further advised defendant that he would not be eligible for probation and that the offense carried a minimum term of two years’ imprisonment. The court then explained the benefit to defendant of a plea to second-degree murder:
'The Court: Now, do you understand that as the Department of Corrections and the Attorney General presently construe the state of the law, that if I do sentence you to life imprisonment, that that would be a mandatory sentence and you couldn’t be paroled? Do you understand that?
"The Defendant: Yes, sir.
"The Court: So, really all you’re getting under the present state of the law, you’re getting the Count II nolle prossed; in other words, thrown out, which is the conspiracy. You can’t have a conspiracy except for first degree murder. So, if you’re pleading guilty to second degree murder, you couldn’t be found guilty of conspiracy. Do you understand that? The Prosecutor would dismiss it.
'The Defendant: Yes, sir.
"The Court: Okay. The second thing is that — you’re getting is the possibility that you might convince me or your attorney might to give you something less than a life sentence. Do you understand that?
"The Defendant: Yes, sir.
"The Court: Do you understand that’s not — I’m not saying that I’m going to do it and, of course, it’s a very great likelihood it’s going to be a life sentence probably? Do you understand that?
"The Defendant: Yes, sir.”
At the second proceeding, the court advised defendant that the benefit of a plea to second-degree murder was the possibility that he would be sentenced to "something less than life imprisonment”. At the same time, however, the court cautioned defendant that he could not "count on” receiving less than life imprisonment.
After learning that defendant intended to plead guilty to second-degree murder, the trial judge informed defendant that "you understand, as I told you the other day, now most people that I’ve sentenced for murder or have been involved with when I was prosecutor or anything else that got second degree murder, most of them got a life sentence”. Later in the proceeding, the court reiterated that "most of the people I’ve sentenced has [sic] been life imprisonment on second degree. Do you understand that?” Defendant was subsequently sentenced to life imprisonment.
At sentencing, defense counsel argued that several mitigating factors should be taken into consideration in imposing sentence. Counsel pointed out that defendant was far less culpable than his co-defendant and that he committed the act under the strong influence of the co-defendant. Defendant’s remorse as well as his lack of a prior criminal record were emphasized as legitimate reasons to impose less than life imprisonment. The court then stated the following:
"The Court: * * * either of you want to say? Well, I’m not going to drag this out. It’s pretty short and fair.
"I’m going to sentence you to life imprisonment. I don’t want you to think, though, I disagree with Mr. Crudder (Defense Counsel). I think much of what Mr. Crudder said is borne out and substantiated by the last couple of paragraphs of Dr. Singer’s, the licensed clinical psychologist, report. You’re clearly a leader, never would be a follower [sic]. You never would be able to plan a crime. And you were certainly acting strictly under the leadership of Charlie Glisson, who was a person that was supplying you drugs, apparently had no other relationship than that.
"However, you did commit a very brutal crime, very brutal crime, one that’s shocking really, on a person for really no reason than that Charlie Glisson wanted you to. You may or may not have known you were going to follow through on it when you got there. I don’t know. But I’m satisfied that you’re sincerely sorry for it now. I’m satisfied that your level of intellectual functioning will also place you in the role of a follower. And that you are certainly in many ways less culpable than Mr. Glisson.
"However, there are four factors that the Court should consider. I’m referring, Mr. Crudder, to People against Snow, 386 Mich 586 [194 NW2d 314 (1972)] at Page 592. And I have considered giving you a lesser sentence, in the range of 20 to 40 years, which would give you a chance to be out later on in your life. I think that would be sufficient for the first factor, which is rehabilitation of the offender. Any rehabilitation that was going to take place would certainly take place in that time.
"Now, retribution is factor No. 3. Considering the less culpability that I’ve already alluded to by reason for your lack of intellectual functioning would be satisfied, I think, by that in your case.
"Deterrence of others is No. 4. That would be satisfied in your case.
"But I can’t — I can’t justify having you loose. There’s always going to be Charlie Glissons out there and you’re always going to remain manipulatable. You have demonstrated that you can be manipulated by a leader to do about anything.
"And I think the protection of society in and of itself far outweighs those other three factors.
"And I would prefer to give you something less, but I feel that it would be — it would not be right for the rest of society for them to have — to have you in their midst any further.
"So, accordingly, the Court sentences you to life imprisonment with the State Department of Corrections.”
Defendant appeals, arguing that, as a matter of policy, he should have been allowed to withdraw his plea of guilty to second-degree murder after the trial court had decided it would impose a life sentence but before he was actually sentenced to such, that the lower court improperly maintained a "policy” that life sentences be imposed for convictions of second-degree murder, and that the lower court abused its discretion in sentencing defendant to life in prison following his plea of guilty to second-degree murder. We affirm.
Defendant’s first argument is posited on the Supreme Court’s decision in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). Defendant argues that, as a matter of policy, a sentencing judge should allow a defendant the opportunity to withdraw his plea of guilty to second-degree murder where, as here, the plea was obtained in exchange for the dismissal of a first-degree murder charge and the judge nevertheless intends to impose a nonparolable life sentence. We do not find the instant case to be controlled by the holding or the rationale of Killebrew, supra.
The operative language in Killebrew is as follows:
"To most defendants, the distinction between a sentence agreement and a sentence recommendation is little more than a variation in nomenclature.
"A full understanding of the consequences of a plea is impossible where the defendant, believing that he has negotiated a specific length of sentence, tenders his guilty plea, only to find that he is bound by the act of self-conviction, but the trial judge is free to impose any sentence within the statutory range.
"However, it is not our intention to circumscribe the judge’s statutorily granted sentencing discretion.
"Therefore, we now hold that if the plea agreement offered to the court by the prosecutor and defendant includes a non-binding prosecutorial recommendation of a specific sentence, the judge may accept the guilty plea (after consideration of the presentence report), yet refuse to be bound by the recommended sentence. The judge retains his freedom to choose a different sentence. However, the trial judge must explain to the defendant that the recommendation was not accepted by the court, and state the sentence that the court finds to be the appropriate disposition. The court must then give the defendant the opportunity to affirm or withdraw his guilty plea.” 416 Mich 209-210.
As the above language in Killebrew illustrates, the Supreme Court was concerned that most defendants do not understand the distinction between a firm sentence agreement and a mere sentence recommendation. Therefore, the sentencing judge’s refusal to abide by a sentence recommendation should be accompanied by an opportunity for the defendant to withdraw his plea. Here, however, neither a sentence agreement nor a recommendation was promised, made or incorporated into the plea bargain. Indeed, the lower court went to great pains to emphasize that defendant could still be sentenced to life in prison. Although the Killebrew Court cautioned that "most defendants rely on the prosecutor’s ability to secure the sentence when offering a guilty plea[, and] [t]his is true even when the court specifically admonishes the defendant that it is not bound by the prosecutor’s recommendation”, 416 Mich 208, there was never any promise here upon which defendant could rely. Since Killebrew was primarily based upon the notion of fairness as it relates to a defendant’s reliance on the sentence recommendation, we find the absence of any recommendation and accompanying ground for reliance a significant factor.
Furthermore, defendant’s bargain was not illusory or uncertain. The conspiracy charge, along with the first-degree murder charge, was dismissed in exchange for defendant’s plea. There is no requirement that a plea arrangement include a sentencing recommendation. It is permissible for a plea to be based not only on the dismissal of other charges, but also upon "defense counsel’s prediction that the judge will sentence a defendant who pleads guilty more leniently than one who goes to trial”. (Emphasis added.) Killebrew, supra, p 203, fn 6, discussing Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970). Here, we must assume that defendant’s decision to plead guilty was based on these two considerations, since defendant was never led to believe by the prose cutor or the court that he would receive a reduced sentence.
We also note that defendant’s claim of error is premised upon a misinterpretation of 1978 Initiative Proposal B, enacted as MCL 791.233b; MSA 28.2303(3), as well as misplaced reliance upon 1979 OAG No 5583, p 438 (October 16, 1979). We have recently held in People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984), that Proposal B leaves intact the provisions of MCL 791.234; MSA 28.2304 which provide that a defendant receiving a nonmandatory life sentence is eligible for consideration for parole once he has served a minimum of ten calendar years of his sentence. Thus, defendant’s bargain was not illusory.
Finally, we note that the record does not indicate that defendant ever made a motion before the sentencing court to vacate his sentence and withdraw his plea. In this connection, the Killebrew Court stated:
"[The procedures we adopt are] quite similar to Federal Rule of Criminal Procedure ll(e)(l)-(4), except that under our system, when the judge rejects the recommended sentence, the defendant may affirm or withdraw his plea, whereas under the federal system, the defendant does not have the option to withdraw the plea.
"The rules articulated in this opinion will be applied: (1) to all future trial court decisions where the defendant moves the sentencing court to vacate the sentence and withdraw the plea; (2) to all appeals or applications for leave to appeal filed prior to the date of this opinion where the issue is properly raised; and (3) to the two instant cases.” (Emphasis added.) 416 Mich 212.
Thus, this issue has not been preserved on appeal.
Moreover, because a Killebrew issue is not in volved (because the trial court did not disregard a sentence recommendation), even under general appellate principles defendant’s failure to move below to withdraw his plea waives this issue on appeal. People v Baugh, 127 Mich App 245; 338 NW2d 199 (1983).
Defendant’s next contention is that the lower court impermissibly relied upon a "sentencing policy” whereby defendants convicted of second-degree murder would receive life sentences. Defendant is correct that it is improper for a sentencing judge to follow a stated "policy” which runs afoul of the policy of individualized sentencing. Any such practice which utilizes mandatory sentences for crimes not singled out by the Legislature as requiring a minimum term of imprisonment is improper. People v Chapa, 407 Mich 309; 284 NW2d 340 (1979). We disagree, however, that such was done in the present case.
A review of the entire record convinces us that the trial judge’s statements — that in "great likelihood it’s going to be a life sentence” and that "most people * * * that got second-degree murder, most of them got a life sentence” — did not reflect sentencing policy. Rather, the trial judge was concerned that defendant be cognizant of the fact that a plea of guilty would not obviate the possibility that he could still receive a life sentence. The judge did not abdicate his sentencing discretion.
Defendant’s final claim of error is that his sentence was excessive. Pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983), this Court will review the trial court’s exercise of discretion at sentencing to insure that there was no abuse of that discretion "to the extent that it shocks the conscience of the appellate court”. 417 Mich 550. We find no such abuse.
The trial court, as borne out in the lengthy quotation from the sentencing transcript reproduced above, considered the proper factors. See Coles, supra, p 550. In light of the considerations enumerated by the trial court and the fact that the instant crime was particularly heinous (the victim was beaten to death with a tire iron because he was suspected of being a narcotics agent), we cannot say that defendant’s sentence shocks our conscience.
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R. L. Tahvonen, J.
Following a nonjury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and was sentenced to from 10 . to 15 years in prison. He appeals as of right and we affirm.
At trial, the victim, Lewis Rhinehart, testified that on September 10, 1982, at approximately 1:45 a.m. he was in the Captain’s Pub located in Trenton, Michigan. As Rhinehart was getting ready to leave the pub, defendant asked him for a ride. Rhinehart agreed and while driving down Fort Street in a southerly direction he observed a pickup truck following him. Defendant pulled out a knife, told Rhinehart to pull over, placed the knife at his throat and demanded money. Defendant told Rhinehart that if he did not comply he would cut his throat. Rhinehart gave defendant approximately $70. Defendant then pulled the keys out of the ignition, threw them on top of Rhinehart’s pickup truck and threatened to blow Rhinehart away if he followed defendant. Defendant jumped into a pickup truck which had pulled out from behind Rhinehart’s vehicle. The truck pulled off and the victim gave chase. About a mile down the road, the victim saw a parked police car and stopped and informed the police officer in the car that "he had just been robbed — pull the truck over”. The police officer stopped the truck occupied by defendant and driven by a woman named Irene Spears.
Irene and Gerald Spears testified for the defendant. Mr. Spears said that on September 10, 1982, he and his wife Irene picked up defendant and drove to the Captain’s Pub around midnight. Before leaving the pub, Gerald Spears gave his wife approximately $100 which she placed in her bra. Spears left the bar with his wife and defendant. Mr. Rhinehart left the pub at about the same time and called defendant over to his pickup truck. Defendant got into Rhinehart’s truck and a few seconds later got out and entered the Spearses’ truck. During this period, Mr. Spears was sitting in a friend’s vehicle preparing to go home. Irene Spears was in the Spears’ truck and she and defendant drove off allegedly on their way to a nearby White Castle restaurant. Mr. Spears stated that he left the Captain’s Pub parking lot at the same time as his wife, defendant and the victim. The victim was seen driving away by himself. Mr. Spears further testified that he was the owner of the knife earlier identified by Rhinehart as the one used in the assault.
Mrs. Spears testified that she left the Captain’s Pub with her husband and defendant. After entering her pickup truck, she saw the victim in his vehicle. Shortly thereafter, defendant entered Rhinehart’s truck and after a few minutes defendant walked over to the Spearses’ truck and asked Irene for a ride to Wyandotte. Mrs. Spears agreed and she and defendant left the parking lot driving in a northerly direction down Fort Street. While driving down Fort Street, Mrs. Spears saw Rhine-hart following closely behind her truck. Rhinehart allegedly bumped the Spearses’ vehicle several times. Frightened, Irene began driving faster in an attempt to lose him. She saw a police officer and drove past him while honking her horn. The police officer stopped the Spearses’ vehicle and informed Irene that Rhinehart claimed that he had just been robbed. Irene Spears identified the knife as that of her husband and the $99 confiscated from her as the money which her husband had allegedly given her at the Captain’s Pub.
Based on the advice of his attorney, the defendant did not testify.
Defendant first argues that the trial court erred in denying his motion for a new trial on the basis that he had been denied the effective assistance of counsel.
Following a post-conviction hearing held in accordance with People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), the trial court concluded that defendant had not received the effective assistance of counsel. This finding was premised upon counsel’s failure to move in limine to suppress reference to prior convictions for impeachment purposes, MRE 609, and failure to advise defendant of the availability of such a motion. However, the trial court further found that the ineffective assistance of counsel had not deprived the defendant of a fair trial because his testimony would not have altered the verdict or outcome. The court reasoned that the proposed testimony of the defendant would have generally followed the contours of the disbelieved testimony of Mr. and Mrs. Spears and would have been at odds with the accepted testimony of the victim. In short, the defendant’s testimony would not have been sufficient to raise a reasonable doubt in the mind of the trial judge concerning the defendant’s guilt.
Since the trial judge, who was also the trier of fact, concluded that the defendant’s testimony would not have affected the verdict, we agree that counsel’s errors did not deprive the defendant of a fair trial. Inadequate assistance or a major mistake by an otherwise competent lawyer does not justify reversal unless, but for counsel’s mistake, the defendant would have had a reasonably likely chance for acquittal. People v Martin, 75 Mich App 6; 254 NW2d 628 (1977). Since there is no showing that the errors had an effect on the judgment, defendant’s conviction ought not to be set aside. Strickland v Washington, — US —; 104 S Ct 2052, 2067; 80 L Ed 2d 674, 696 (1984).
Second, the defendant argues that the trial court erred by admitting testimony of a police officer regarding a possible explanation for a prior incon sistent statement made by the victim, Mr. Rhine-hart.
During cross-examination, Rhinehart admitted that he falsely told a police officer that his brother was with him at the time of the robbery. Later, the police officer to whom the statement was made was permitted, over objection by defense counsel, to opine that the victim said his brother was with him because the victim was driving on a suspended license and might want to claim that the brother was driving to avoid trouble for himself.
Although it is well settled in Michigan that an impeached witness may explain away the effect of the alleged inconsistency by relating whatever circumstances would remove it, People v Droste, 160 Mich 66; 125 NW 87 (1910); People v Davis, 217 Mich 661; 187 NW 390 (1922), there was no basis for permitting the police officer to speculate as to why the victim claimed that his brother was with him at the time of the incident. If the prosecutor wanted the victim to explain the prior inconsistent statement, the victim should have been asked to testify as to the status of his license and the effect it had on his statements to the police.
The trial court did, therefore, err in admitting into evidence the police officer’s testimony. However, we are firmly convinced that this error was harmless under the standard enunciated in People v Swan, 56 Mich App 22, 33; 223 NW2d 346 (1974). Although the victim’s credibility was central to the case, the defendant was fully permitted to call to the court’s attention the prior inconsistent statement and the effort at rehabilitation was of little moment in an overall assessment of who was telling the truth.
Third, the defendant claims that the trial court erred in permitting the prosecutor to cross-examine the defendant’s non-alibi witness concerning his failure to come forward with exculpatory information.
On cross-examination, Gerald Spears testified that he had known defendant for four or five years. Defendant was a former employee at a gas station managed by Mr. Spears and the two men were good friends. Spears admitted that he did not go to the police with information concerning the fact that: (1) he was the owner of the knife confiscated by the police at the time that defendant was arrested, (2) he saw defendant leaving the Captain’s Pub parking lot with his wife, and (3) he had given his wife $100 before she left the pub with defendant. The prosecutor questioned Spears about his failure to come forward with the information available to him and the following exchange took place:
"Q. You say he’s a good friend of yours. You see him often?
"A. Yes.
”Q. Weren’t you concerned about going to the police with this information?
”A. No one asked me. I didn’t know what was going on until the other day.
"Q. You had testimony that exculpated the defendant and you never saw fit to go to the police and say that you had the money and put this money in your wife’s bra? Wouldn’t that be a concern to you, to get your friend out of jail possibly?
"A Not till the court date.
”Q. Why then?
"A Because they weren’t supposed to have him. He was in jail until I come.”
In People v McClow, 40 Mich App 185, 193; 198 NW2d 707 (1972), this Court held that it was proper to cross-examine an alibi witness concerning his failure to come forward with the alibi prior to trial because the credibility of a witness may be attacked by showing that he failed to speak or act when it would have been natural for him to do so if the facts were in accordance with his testimony. People v MacCullough, 281 Mich 15; 274 NW 693 (1937).
Later, in People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979), this Court held that attempting to discredit an alibi witness by insinuating that he or she failed to act as a good citizen in coming forward with information is not permissible. This Court emphasized the fact that the witness had no legal duty to report whatever knowledge she may have had. Although the holdings in McClow and Kraai appear to be at variance, the facts concerning the alibi witnesses in the two cases are distinguishable. In Kraai the alibi witness who failed to come forward was apparently merely a girlfriend of the defendant’s friend. The witness testified that what little "inside information” she had concerning defendant’s escape was communicated to her by her boyfriend. The witness also stated that she herself had little desire to become involved. In a footnote, this Court stated that the witness’s failure to report the information available to her to the police did not support any logical inference of bias. 92 Mich App 411, fn 8. In contrast, the alibi witness in McClow was the defendant’s brother and the information available to him was apparently based upon his own personal knowledge.
In People v Grisham, 125 Mich App 280; 335 NW2d 680 (1983), this Court considered the issue of whether a prosecutor should be allowed to cross-examine a non-alibi witness about her failure to go to the police concerning her account of the events preceding an accident which resulted in defendant’s being charged with a criminal offense. The Court discussed the holdings in McClow and Kraai and stated in pertinent part:
"We also find improper the prosecutor’s inquiry into Janet Capps’s failure to go to the police with her account of events preceding the accident when she learned that defendant had been charged with a crime. Panels of this Court have disagreed as to the propriety of the prosecutor’s inquiry into an alibi witness’s failure to report to the police. In People v McClow, 40 Mich App 185, 193; 198 NW2d 707 (1972), and People v Diaz, 98 Mich App 675; 296 NW2d 337 (1980), such questioning was held permissible on the theory that credibility of a witness may be attacked by showing that he failed to speak or act when it would have been natural to do so if the facts were in accordance with his testimony. In People v Kraai, 92 Mich App 398, 411; 285 NW2d 309 (1979), lv den 407 Mich 954 (1980), however, the Court condemned the prosecutor’s attempt to discredit an alibi witness by attacking such witness’s failure to report to the police where the witness had no legal duty to report whatever knowledge she had to the state in advance of trial. 'Discrediting an alibi witness by insinuating her failure to act as a good citizen is not permissible.’ See also People v Gwinn, 111 Mich App 223, 259; 314 NW2d 562 (1981) (partial dissent by R. M. Maher, P.J.).
"Even assuming the rationale in People v McClow is defendable where an alibi witness is concerned, we agree with defendant that an entirely different situation exists when the pretrial conduct of a non-alibi witness is being considered. A person who was with a defendant at the time the crime occurred would necessarily have the knowledge that the defendant could not possibly have committed the charged offense. In such a case it is perhaps arguably unreasonable for the witness to fail to bring such information to the attention of the state.
"On the other hand, a non-alibi witness, although possessed of potentially relevant and material information, is not necessarily aware that the information available to him or her will provide a defense to the charged offense or be relevant to the issues raised at trial. The information possessed by Ms. Capps was not of such a nature that she would have had a 'natural tendency’ to take it to the government prior to trial if it were true. The prosecutor should not have been permitted to insinuate her testimony was fabricated because she failed to do so.” 125 Mich App 287-288.
We agree with the standard set forth in Gris-ham regarding the cross-examination of a non-alibi witness who possesses information which is "not of such a nature that the witness would have a 'natural tendency’ to take it to the government prior to trial if it were true”. However, the Gris-ham Court did not address the standard to be used for determining the scope of cross-examination when a non-alibi witness possesses information of such a nature that the witness would have a "natural tendency to come forward with it”. In this Court’s opinion, the McClow standard should be applied in this latter category of cases.
In the instant case, Spears testified that he had been a good friend of defendant’s for some time. He stated that he witnessed the defendant leave the Captain’s Pub parking lot in the pickup driven by his wife. At trial Spears claimed that the knife allegedly used to rob the complainant belonged to him. He further testified that the $99 allegedly stolen from the victim and confiscated from his wife by the police was actually money Mr. Spears had given his wife prior to leaving the pub. None of this "inside information” was communicated to Spears through a third party, as was the case in Kraai. Spears’s testimony was entirely based upon personal knowledge. Furthermore, Spears testified that not only did he know that defendant was arrested for robbing the victim at knifepoint but also that he knew that the authorities were not "supposed to have” defendant. Given the close relationship that existed between Spears and the defendant, the involvement of Mr. Spears’s own wife in the case and the nature and extent of Mr. Spears’s personal knowledge, a logical inference can be drawn that if what Spears said at trial was true he would have brought it to the attention of the police long before then. We believe McClow, supra, controls and obviates any claim of error by the defendant.
Fourth, the defendant argues that he should be resentenced because the trial court exercised its sentencing discretion on the basis of inaccurate information.
The presentence report provided to the trial court referred to two prior convictions, one for unarmed robbery and one for attempted larceny in a building. During his remarks at sentencing, the trial judge referred to an earlier conviction for larceny in a building. Defendant now argues that the trial court sentenced on the basis of a prior conviction for larceny in a building instead of attempted larceny in a building and, therefore, the defendant should be resentenced.
We disagree. Although larceny in a building is a four-year offense and attempted larceny in a building is a two-year offense, we think the difference insignificant for the purpose of considering prior convictions in determining a sentence. The offenses are treated the same for purposes of habitual offender prosecutions, People v Cavanaugh, 127 Mich App 632; 339 NW2d 509 (1983), and computing prior record variables under the sentencing guidelines.
Fifth, and finally, defendant contends that he must be resentenced because the original presentence report did not include a specific evaluation and recommendation for disposition as required by MCL 771.14; MSA 28.1144.
A portion of the statute requires that the pre sentence report contain "a specific written recommendation for disposition”. In this case, the presentence report merely stated that probation was not available.
In People v Joseph, 114 Mich App 70, 78; 318 NW2d 609 (1982), lv den 417 Mich 877 (1983), this Court held that a presentence report recommending that defendant not be placed on probation sufficiently complied with the statutory mandate that a presentence report "include a specific written recommendation for disposition”. On the basis of Joseph, this issue is without merit.
We note in passing the related claim that there was no evaluation of and prognosis for defendant’s adjustment in the community. In light of the unavailability of probation, we believe that the report adequately addressed those concerns as required by statute.
All of the issues raised by defendant have been reviewed. None merit reversal.
The defendant’s conviction is affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from a consent judgment establishing a boundary between the properties of plaintiff and defendants and giving defendants a limited right to trim trees on the strip of land of plaintiff, ownership of which was formally in dispute.
At issue was a 25' x 15' strip of land lying between defendants’ land on the north and plaintiff’s on the south. When plaintiff purchased the property in 1966, the strip was a natural area with trees, bushes, and underbrush, serving as a separation between the properties. Defendants subsequently extended their lawn south into a portion of the natural area and built a guest house just north of the area in 1981. They also began piling wood, parking boats, and chopping mature trees in the remaining natural area.
Plaintiff sued, claiming title to the disputed area and alleging trespass on the part of defendants.
On the date set for trial, the trial judge urged the parties to enter into a consent judgment. Following a short recess, counsel for defendants announced that an agreement had been reached and that defendants were prepared to enter the parameters of a consent judgment between the parties on the record. Counsel for plaintiff then outlined an agreement on the record:
"[T]he parties * * * are in agreement that a new northern boundary to plaintiffs property will be established along a line to be surveyed by Mr. Young of Bidstrup and Young, to conform to the existing use of this disputed area by the parties * * *; that the plaintiffs will in the future retain rights to their privacy that this wooded area provides, and that the defendant will have the future right to view a second-story view from his guest house, and that if the defendant wishes to trim the mature trees in this area to effect his second-story view he will first seek the direction of the court who will retain jurisdiction of this matter for the purpose of controlling those trimming rights; and that the court will then permit him trimming rights with an eye towards his right to a second-story view and the plaintiffs right to privacy.”
Defense counsel agreed that the summary by plaintiffs counsel was essentially the defendants’ understanding of the settlement as well. Plaintiff herself also stated her approval on the record.
However, the parties’ attorneys ran into difficulties drafting an acceptable consent judgment. Defendants objected to the draft proposed by plaintiffs counsel. Defense counsel then drafted three successive proposed consent judgments, none of which were acceptable to plaintiff. Nevertheless, the trial court adopted the last effort, with minor changes, pursuant to defendants’ motion for summary judgment, GCR 1963, 117.2(3). Over plaintiffs objection that there was no meeting of the minds, the judgment was entered.
On appeal, plaintiff argues that the numerous proposed consent judgments drafted by the parties show that there was no meeting of the minds at the time the agreement was orally entered on the record. Plaintiff relies on Norton Shores v Carr, 59 Mich App 561; 229 NW2d 848 (1975), for her proposition that she is free to withdraw her consent prior to entry of the judgment, since consent must consist of approval both as to form and substance of the decree.
To the extent the Norton Shores case appears to have established a general right to revoke a consent judgment between the time it is orally placed on the record and when a judgment is actually signed, that decision has been the subject of criticism by this Court. See e.g., Michigan National Bank of Detroit v Patmon, 119 Mich App 772, 778; 327 NW2d 355 (1982), and Meyer v Rosenbaum, 71 Mich App 388, 391; 248 NW2d 558 (1976).
This Court in Meyer v Rosenbaum, supra, held that agreements or consents entered into between parties in open court will not be disturbed absent satisfactory evidence of mistake, fraud, or unconscionable advantage. The Court explained the rationale for forbidding litigants from disregarding settlement agreements knowingly entered into in open court:
"As a matter of public policy, it is extremely difficult to find any rationale for permitting a litigant to eschew a bargain knowingly made in open court, on the record of the court, and with the intent that the court and opposite party should rely thereon. The results of the Norton Shores doctrine would make the life of a trial judge extremely difficult. A great many, if not most, settlements are arrived at on the day of joust, when the jury is in attendance and the judge is waiting with instructions hopefully prepared. The attorneys then must be able to rely upon the knowledge that any stipulated agreement that they make will be final and binding on both parties. Otherwise, it will be extremely difficult to arrive at settlement, since the prepared litigant may not be willing to lose his day in court and be placed at the bottom of a ladder which may take him two years to climb.
"It is important that parties be able to settle cases fairly and finally on the record, and such settlements should not be upset because of any subjective hesitation or secret reservation on the part of either party.” Meyer v Rosenbaum, supra, p 393.
Plaintiff attempts to distinguish Meyer on its facts, but we find its reasoning completely applicable to the instant case. As there has been no evidence of mistake, fraud, or unconscionable advantage, the consent judgment will not be disturbed.
Plaintiff objects that there was no meeting of the minds, as evidenced by the various proposed consent judgments. There must be a meeting of the minds on all the material facts in order to form a valid contract; a meeting of the minds is judged by an objective standard, looking to the express words of the parties and their visible acts. Stark v Kent Products, Inc, 62 Mich App 546, 548; 233 NW2d 643 (1975). The agreement recited on the record is not ambiguous; it makes clear that the competing interests are defendants’ view and plaintiff’s privacy. It also makes clear that defendants have the right to trim the mature trees within the entire disputed strip, with consideration to be given by the court to plaintiff’s right to privacy. It was plaintiff’s counsel who recited the agreement on the record. The only difference between the agreement on the record and the consent judgment entered by the court is that the consent judgment states that the view contemplated is that of Little Traverse Bay. It appears to us that the consent judgment entered by the court is in accord with the agreement entered on the record, and plaintiff’s claim of lack of meeting of the minds is without merit.
Affirmed. | [
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J. E. Fitzgerald, J.
After a jury trial, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, conspiracy to commit armed robbery, MCL 750.157a; MSA 28.354(1) and MCL 750.529; MSA 28.797, and assault with intent to commit armed robbery, MCL 750.89; MSA 28.284. Defendant was sentenced to imprisonment for concurrent terms of life, from 35 to 55 years, and from 33 to 55 years, and this Court granted his application for a delayed appeal._
I
Defendant argues that the trial court erred by admitting posthypnotic testimony by one of the victims of the crimes, Kelly Faulkner, and testimony concerning Faulkner’s identification of suspects at a posthypnotic lineup. This case arises out of an attempted robbery of a convenience store in Burton, Michigan, in the early hours of June 19, 1980. Kelly Faulkner was the store clerk on duty at the time of the crimes. Also present was Rick Allen Blackmer, an acquaintance of Faulkner. The robbery was attempted by two men. In the course of the attempt, Blackmer was shot and mortally wounded. The prosecution’s theory was that the two men were defendant and one of his codefendants, Charles McIntosh.
Kelly Faulkner gave two statements to police officers on the day of the crimes. On July 1, 1980, Faulkner was hypnotized by an officer of the Burton Police Department. The hypnotism session was tape-recorded. Particular answers were not suggested by anything said to Faulkner while she was under hpynosis, but the hypnotist suggested to Faulkner that her memory of the crimes would become more clear as time passed. The lineup at issue took place on March 3, 1981.
In People v Gonzales, 415 Mich 615, 627; 329 NW2d 743 (1982), the Court addressed the problem of posthypnotic testimony:
"[W]e hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.
"We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool. A party could preserve a witness’s prehypnotic testimony by using an MRE 804(b)(1) deposition. After the hypnotic session, the subject would be considered 'unavailable as a witness’.”
The Court subsequently reconsidered its opinion on its own motion and entered an order adding the following language, 415 Mich 627:
"This opinion should not be read as determining the question of the admissibility of this witness’s testimony concerning facts she was able to recall and relate prior to hypnosis, a question which is reserved until raised on an adequate record in an appropriate case.”
In People v Nixon, 421 Mich 79; 364 NW2d 593 (1984), the Court answered the question raised by its order in Gonzales. The Court held that posthypnotic testimony is admissible provided that it is based solely on facts recalled and related by the witness prior to hypnosis and the party offering the testimony establishes its reliability by clear and convincing evidence. For guidance in determining the reliability of posthypnotic testimony, the Court commended for examination standards stated in State ex rel Collins v Superior Court for Maricopa County, 132 Ariz 180; 644 P2d 1266 (1982), and People v Hughes, 59 NY2d 523; 466 NYS2d 255; 453 NE2d 484 (1983).
The Court in Nixon also held that its decision in Gonzales would apply only to cases tried after the date of that decision and to those cases pending on appeal when Gonzales was decided in which the issue was raised. Gonzales was decided on December 23, 1982.
Here, defendant was sentenced in circuit court on May 26, 1982. This Court granted defendant’s application for a delayed appeal on October 26, 1983. The panel which granted defendant’s application found that defendant had made a timely request in circuit court for appointment of appellate counsel pursuant to GCR 1963, 785.11 and GCR 1963, 803.1, but that the appellate counsel appointed to represent defendant had negligently failed to file a timely claim of appeal. The appellate counsel was assessed costs for his negligence, and defendant elected to discharge him and to proceed with this appeal in propria persona. Because the issue concerning hypnotism was raised and extensively litigated in circuit court, it is apparent that, but for the negligence of defendant’s appointed appellate counsel, this would have been a case pending on appeal when Gonzales was decided in which the issue was raised.
The Michigan Constitution gives the accused in every criminal prosecution an appeal as a matter of right. Const 1963, art 1, § 20. The federal constitution requires appointment of counsel to represent an indigent defendant on an appeal by right, Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), although no such requirement exists for a discretionary appeal. Ross v Moffit, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974). In Evitts v Lucey, 469 US —; 105 S Ct 830; 83 L Ed 2d 821 (1985), the Court recognized that the right to assistance of counsel on appeal is meaningless unless it is the right to reasonably effective assistance of counsel and held that a criminal defendant was denied due process when his appeal by right was dismissed due to his retained counsel’s negligent failure to comply with state procedural rules for perfecting the appeal.
The findings of the previous panel demonstrate that this defendant was not effectively assisted by his appointed appellate counsel. Under the circum stances presented here, the appropriate remedy is to treat this case as if a timely claim of appeal had been filed by the appointed appellate counsel and to apply Gonzales.
Admission here of evidence concerning Kelly Faulkner’s identification of suspects at a posthypnotic lineup was reversible error. Because Faulkner had not identified the suspects before the hypnotism session, her identification was not something recalled and related before hypnotism. Because the identity of the criminals was a central issue at trial, admission of this testimony cannot be regarded as harmless error.
On remand, the circuit court shall not admit any posthypnotic testimony or testimony concerning posthypnotic statements unless it is demonstrated that the testimony is based solely on facts recalled and related by the witness or declarant prior to hypnosis and the party offering the testimony establishes its reliability by clear and convincing evidence.
We will address other issues raised by defendant to prevent them from arising on remand.
II
Defendant argues that the trial court erred by admitting into evidence a police officer’s account of a statement Kelly Faulkner made to her shortly after the crimes. The trial court held that the statement fell within the exception to the rule against hearsay for "excited utterances”, MRE 803(2). That rule allows admission of "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”. To qualify as an excited utterance, a statement must arise out of an occasion startling enough to pro duce nervous excitement and to render the statement spontaneous and unreflecting, it must be made before there is time to contrive or misrepresent, and it must relate to the circumstances of the startling occasion. People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979); People v Kreiner, 415 Mich 372, 379; 329 NW2d 7816 (1982). A statement is not necessarily disqualified as an excited utterance merely because it was made in response to questioning, but such questioning is a factor to be considered and may show that the statement was insufficiently spontaneous. Holtz v LJ Beal & Son, Inc, 339 Mich 235, 240; 63 NW2d 627 (1954); People v Hungate, 27 Mich App 496, 498-499; 183 NW2d 634 (1970). Another factor tending to show lack of spontaneity is a prior statement by the declarant concerning the incident. See People v Fenner, 136 Mich App 45, 48-49; 356 NW2d 1 (1984).
Here, the first officers arriving at the scene found Kelly Faulkner talking on the telephone to the police radio dispatcher. The officer to whom Faulkner made the statement was the fourth officer to arrive on the scene. According to the officer, a lieutenant who arrived at the scene about five minutes later instructed her to take Faulkner to a police cruiser and to obtain a statement and any additional information that could be broadcast over the police radio. The officer observed that Faulkner was quite pale and concluded that she was in a mild state of shock. The officer placed Faulkner in the back seat of a police cruiser and talked to her for a while to calm her down. Eventually, Faulkner gave the officer a description of the criminals and an account of the crimes. The officer testified that Faulkner’s statement was one of the longest excited utterances she had ever heard.
This evidence demonstrates that Kelly Faulkner’s statement was insufficiently spontaneous to qualify as an excited utterance. Faulkner had made a prior statement concerning the incident to the police radio dispatcher and made the statement at issue in response to questioning by the officer. Moreover, the officer elicited the statement from Faulkner only after isolating her and speaking to her to calm her down. The officer and Faulkner intended their discussion to produce a detailed statement for use by the police in the course of their investigation. A statement elicited in such circumstances is exactly the opposite of spontaneous and unreflecting. The trial court erred by admitting the statement as an excited utterance.
Ill
Defendant argues that insufficient evidence of a conspiracy to rob independent of the admissions of defendant and his co-conspirators was admitted at trial. On independent proof of the conspiracy, a statement made by a co-conspirator of, the defendant during the course and in furtherance of the conspiracy is admissible as an admission by the defendant and is not hearsay. MRE 801(d)(2)(E). In People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974), the Court explained that the essence of the offense of conspiracy is an unlawful agreement between two or more persons and that direct proof of a formal agreement is unnecessary as long as sufficient circumstantial evidence is presented to support a fair inference of an agreement in fact.
The evidence here showed an attempted robbery by two men acting in concert. The concerted activity of the two armed robbers supports a fair inference of an agreement in fact between the robbers to commit an armed robbery. Fingerprint evidence at the scene of the crimes supports a fair inference that the robbers were defendant and his codefendant, Charles McIntosh.
We note that in People v Vega, 413 Mich 773, 782; 321 NW2d 675 (1982), the Court abandoned the old "prima facie evidence” test and held that the independent proof of the conspiracy required by MRE 801(d)(2)(E) must be proof by a preponderance of the evidence. We need not decide whether Vega should be applied retroactively to this case because ample evidence was presented here to satisfy either standard.
The preliminary examination testimony of Beverly Alexander was admitted into evidence at trial pursuant to MRE 804(b)(1). Alexander’s testimony included statements codefendant Charles McIntosh made to her after the robbery when the robbers had returned to the house defendant shared with Alexander and others. The statements by Charles McIntosh at issue were an account of the robbery and shooting implicating defendant. Defendant argues that McIntosh’s statements should not have been admitted pursuant to MRE 801(d)(2)(E) because they were not made during the course and in furtherance of the conspiracy.
Statements made by a co-conspirator after the conspiracy has ended are not admissible pursuant to MRE 801(d)(2)(E) because they were not made during the course of the conspiracy. See People v Stewart, 397 Mich 1, 8-9; 242 NW2d 760 (1976); see also, Krulewitch v United States, 336 US 440; 69 S Ct 716; 93 L Ed 790 (1949), and Grunewald v United States, 353 US 391; 77 S Ct 963; 1 L Ed 2d 931 (1957). A conspiracy may continue even after the substantive crime which was the primary object of the conspiracy is complete until financial and other arrangements among the conspirators are also complete. People v Scotts, 80 Mich App 1, 5-6; 263 NW2d 272 (1977); People v Losey, 98 Mich App 189, 199-200; 296 NW2d 601 (1980), rev’d on other grounds 413 Mich 346; 320 NW2d 49 (1982). However, subsequent acts taken to conceal the conspiracy’s crime do not show a continuation of the conspiracy. See Grunewald v United States, supra, 353 US pp 401-402:
"[A]fter the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, allowing such a conspiracy to conceal to be inferred or implied from mere overt acts of concealment would result in a great widening of the scope of conspiracy prosecutions, since it would extend the life of a conspiracy indefinitely. Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators. For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world. And again, every conspiracy will inevitably be followed by actions taken to cover. the conspirators’ traces. Sanctioning the Government’s theory would for all practical purposes wipe out the statute of limitations in conspiracy cases, as well as extend indefinitely the time within which hearsay declarations will bind co-conspirators.”
At the time Charles McIntosh made the statements at issue to Beverly Alexander, the crime which was the object of the conspiracy was complete, and the conspirators had avoided all immediate pursuit and reached a place of temporary safety. No evidence suggests that any proceeds of the crimes remained to be divided or that any other arrangements between the conspirators remained to be completed. The prosecution points to testimony indicating that Alexander subsequently concealed the clothing worn by Charles McIntosh during commission of the crimes. Alexander testified that Charles McIntosh did not tell her to hide the clothes. No evidence links defendant to the hiding of the clothes or suggests in any way that the conspirators actually agreed to take such steps to conceal their guilt. Grünewald shows that an overt act of concealment like the hiding of the clothes cannot support an inference that the conspiracy was still continuing. The statements at issue were not made during the course of the conspiracy.
Moreover, even statements made during the course of a conspiracy are not admissible pursuant to MRE 801(d)(2)(E) unless they were also made in furtherance of the conspiracy. A statement is not made in furtherance of a conspiracy unless it advances or promotes some object of the conspiracy. People v Trilck, 374 Mich 118, 122-128; 132 NW2d 134 (1965). No evidence suggests how any object of the conspiracy could have been advanced or promoted by Charles McIntosh’s giving an account of the crimes to Beverly Alexander. The trial court erred by admitting Alexander’s testimony concerning the statement at issue.
IV
Defendant argues that the trial court erred by admitting photographs of the scene of the crimes showing the body of the murder victim. Such photographs may be admitted if they are substantially necessary or instructive to show material facts or conditions but must not be admitted if they are merely calculated to excite passion or prejudice. People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973). Admission of such photographs is committed to the sound discretion of the trial judge, who must balance their probative value against their prejudicial effect. People v Eddington, 387 Mich 551, 563; 198 NW2d 297 (1972).
The photographs at issue here were not particularly gruesome or otherwise likely to excite passion or prejudice. The photographs were substantially necessary to show a material fact: the identity of the perpetrators of the crimes. Defendant’s fingerprints were found on a piece of plastic broken off the cash register drawer. The photographs show the victim’s body, coins spilled from the cash register, and the piece of plastic in close association on the floor next to the counter on which the register sat. The photographs, together with other testimony, support an inference that defendant’s fingerprints were left on the piece of plastic during the robbery rather than before the robbery. A reasonable inference from the evidence is that the fingerprints were left on the piece of plastic when it was broken off the register drawer, and the association of the piece of plastic, the coins, and the body on the floor near the register supports an inference that the piece of plastic was broken off the register drawer during the robbery. On this record, the trial court did not err by admitting the photographs.
V
In closing argument, the prosecutor told the jury that the fingerprint evidence in this case was "totally uncontradicted” and "completely unexplained”. Defendant now contends that the prosecutor’s argument was an impermissible comment on defendant’s failure to testify. See Griffin v California, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965). Generally, such argument is not improper. People v Parker, 307 Mich 372; 11 NW2d 924 (1943); People v White, 401 Mich 482, 512; 257 NW2d 912 (1977). However, the bounds of proper argument are exceeded by a prosecutor’s argument that his evidence was uncontradicted or unexplained if contradiction or explanation could only come from the defendant. People v Payne, 131 Mich 474, 480; 91 NW 739 (1902), People v White, supra, p 512; United States v Robinson, 651 F2d 1188 (CA 6, 1981); Anno: Comment or Argument by Court or Counsel that Prosecution Evidence is Uncontradicted as Amounting to Improper Reference to Accused’s Failure to Testify, 14 ALR3d 723, 730-743.
Although the prosecutor here could properly argue, for example, that the expert testimony identifying the fingerprints as those of defendant was uncontradicted, the argument made here exceeded the bounds of propriety, because only defendant could explain how, if he was innocent, his fingerprints came to be at the scene of the crimes.
Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction. | [
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Per Curiam.
Claimant, Russell Brancheau, appeals as of right the February 17, 1984, decision of the Monroe County Circuit Court which affirmed the denial of AFDC benefits to claimant by the Michigan Department of Social Services. The issue presented is whether the "lump sum” rule, 42 USC 602(a)(17), applies to all AFDC families or only to those AFDC families with earned income.
On March 5, 1982, claimant notified the DSS that he had redeemed a workers’ compensation claim for $6,100. DSS advised him that, pursuant to the application of the lump sum rule, he would be ineligible for further benefits for a period of 12 months.
Prior to the expiration of the ineligibility period, claimant reapplied for AFDC benefits, claiming that, due to changes in circumstances, his family’s financial status was markedly different. Claimant testified at the administrative hearing that within weeks after his receipt of the redemption check he was forced to move from the rent-free garage that he, his wife, and four children had previously occupied, and that he thereafter incurred a monthly rent of $325 as well as a $700 security deposit. Claimant also incurred additional medical and dental bills.
The hearing officer found that the lump sum rule should not have been applied to claimant’s case since claimant was without earned income at the time of the redemption and recommended that claimant’s case be reconsidered. The policy hearing authority disagreed and affirmed the DSS action. This decision was affirmed on appeal to the Monroe County Circuit Court.
The lump sum rule was enacted by Congress as part of the Omnibus Budget Reconciliation Act of 1981. Prior to 1981, a lump sum payment of nonrecurring income received by an AFDC family, whether they had earned income or not, was treated as income in the first month of receipt and as a resource in months thereafter. Under the new rule, the family becomes ineligible for AFDC benefits for the number of months determined by dividing the lump sum by the standard of need assigned to the family by the Department of Social Services. The effect is to cause the family to budget the lump sum income, which may include such items as an inheritance or personal injury award as well as funds received as a result of a workers’ compen sation claim, for its needs during the entire period of ineligibility. As stated in the Senate Report, the reason for the amendment of the statute was that the previous treatment of lump sum payments had "the perverse effect of encouraging the family to spend such income as quickly as possible in order to retain AFDC eligibility”. S Rep 97-139, 97th Cong, 1st Sess, 505, reprinted in 1981 U S Code Cong & Ad News, 771 (Budget Committee Report).
The dispute as to whether the lump sum rule applies only to families with earned income is the result of an apparent ambiguity in the wording of the statute, which provides as follows:
"A State plan for aid and services to needy families with children must
"(17) provide that if a person speciñed in paragraph (8)(A)(i) or (ii) receives in any month an amount of income which, together with all other income for that month not excluded under paragraph (8), exceeds the State’s standard of need applicable to the family of which he is a member—
"(A) such amount of income shall be considered income to such individual in the month received, and the family of which such person is a member shall be ineligible for aid under the plan for the whole number of months that equals (i) the sum of such amount and all other income received in such month, not excluded under paragraph (8) divided by (ii) the standard of need applicable to such family, and
"(B) any income remaining (which amount is less than the applicable monthly standard) shall be treated as income received in the first month following the period of ineligibility specified in subparagraph (A).” 42 USC 602(a)(17). (Emphasis supplied.)
Claimant points to the emphasized portion of the statute to support his claim that only families with earned income were intended to be aifected. Subsections (8)(A)(i) and (ii) indicate that state AFDC plans must:
"(8)(A) provide that, with respect to any month, in making the determination under paragraph (7), the State agency—
"(i) shall disregard all of the earned income of each dependent child receiving aid to families with dependent children who is (as determined by the State in accordance with standards prescribed by the Secretary) a full-time student or a part-time student who is not a full-time employee attending a school, college, or university, or a course of vocational or technical training designed to fit him for gainful employment;
"(ii) shall disregard from the earned income of any child or relative applying for or receiving aid to families with dependent children, or of any other individual (living in the same home as such relative and child) whose needs are taken into account in making such determination, the first $75 of the total of such earned income for such month (or such lesser amount as the Secretary may prescribe in the case of an individual not engaged in full-time employment or not employed throughout the month).”
Claimant reasons that since paragraph 17 expressly refers to paragraphs (8)(A)(i) and (ii) in defining its scope of applicability, Congress intended to limit its application only to those persons falling within the stated classifications, i.e., certain persons with earned income.
DSS, on the other hand, contends that paragraphs (8)(A)(i) and (ii) do not specify persons at all, but rather provide instructions for treating income which is earned by those persons. Reference to paragraph 8, DSS concludes, was simply a shorthand method of describing persons subject to the rule, and gives the correct formula for calculating the ineligibility period in the case of families who have earned income at the time they receive a lump sum payment. The DSS explanation, while also quite reasonable, does not provide a sufficiently persuasive basis for construing the statute as advocated.
We do find persuasive, however, the following regulation promulgated by the Department of Health & Human Services (HHS), in response to the lump sum rule.
"(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB, APTD or AABD must, as specified below:
"(3) Income and resources.
"(ii) Provide that in determining need and the amount of the assistance payment, after all policies governing the reserves and allowances and disregard or setting aside of income and resources referred to in this section have been uniformly applied:
"(D) Net income available for current use and currently available resources shall be considered; income and resources are considered available both when actually available and when the applicant or recipient has a legal interest in a liquidated sum and has the legal ability to make such sum available for support and maintenance. For AFDC when the assistance unit’s income after application of applicable disregards exceeds the State need standard for the family (unless such excess was caused by a regular and periodic extra paycheck from a recurring income source, in which case see § 233.24[d]), the family will be ineligible for aid for the number of full months derived by dividing this total income by the need standard applicable to the family starting with the month in which the income is received. Any income remaining after this calculation is treated as income received in the first month following the period of ineligibility.” 45 CFR 233.20(a)(3)(ii)(D) (1982).
This regulation clearly encompasses all AFDC families, rather than only those with earned income.
It has been held that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong”. Red Lion Broadcasting Co v Federal Communications Comm, 395 US 367, 381; 89 S Ct 1794; 23 L Ed 2d 371 (1969); Schweiker v Hogan, 457 US 569, 586; 102 S Ct 2597; 73 L Ed 2d 227 (1982). Further, in Zuber v Allen, 396 US 168, 192; 90 S Ct 314; 24 L Ed 2d 345 (1969), the United States Supreme Court held that when an agency plays a role in drafting a statute, absent a showing that it differed with Congress or that its interpretation does not further the goals of the legislation, a court should resolve ambiguity in favor of the agency’s construction. As noted in Sweeney v Murray, 732 F2d 1022 (CA 1, 1984), Richard S. Schweiker, then Secretary of the Department of Health & Human Services, the agency that proposed the lump sum rule, in testimony before the Senate Finance Committee, made no distinctions on the basis of earned income when discussing the lump sum rule. Sweeney, p 1028, n 10.
We have found no evidence which would indicate that Congress disagrees with the application of the lump sum rule as proposed by HHS or that it intended the rule to apply only to families with earned income. Thus, we agree with the observation of the Sweeney Court that "[i]n light of the statute’s language and legislative history * * * HHS’s interpretation of the scope of the lump-sum rule [is] fully consonant with legislative intent”. Sweeney, supra, p 1029. Finally, we note that this interpretation of the lump sum rule was also adopted in Faught v Heckler, 736 F2d 1235 (CA 8, 1984), and by our own sixth circuit in Walker v Adams, 741 F2d 116 (CA 6, 1984).
Claimant raises the additional argument that his period of ineligibility should be shortened pur suant to the "life threatening emergencies” exception contained in 45 CFR 233.20(a)(3)(ii)(D). This regulation provides:
"A State may shorten the period of ineligibility where it finds that a life-threatening circumstance exists, and the non-recurring income causing the period of ineligibility has been or will be expended in connection with the life-threatening circumstance. Further, until that time the non-recurring income must have been used to meet essential needs and currently the assistance unit must have no other income or resources sufficient to meet the life-threatening circumstance.”
We note that neither party fully explored the potential application of this exception. The issue was not reached by the hearing officer since he concluded that the lump sum rule did not apply in claimant’s circumstance due to the fact that he did not have earned income. Therefore, we remand this case to the Michigan Department of Social Services to allow consideration of the applicability of the "life threatening emergencies” exception to claimant’s circumstances.
Reversed and remanded. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiff filed a complaint alleging that certain political activities conducted by defendant district judge violated the Code of Judicial Conduct. The circuit court granted a temporary restraining order and a preliminary injunction ordering defendant judge to cease participating in these political activities. Defendants now appeal by leave granted.
Defendants argue that the circuit court was without jurisdiction to order injunctive relief since the Supreme Court and the Judicial Tenure Commission have the sole jurisdiction to hear complaints of violations of the Code of Judicial Conduct. The Michigan Constitution grants the Supreme Court superintending control jurisdiction through art 6, §§ 4 and 30. Under § 4, the Supreme Court may enjoin a judge from exercising the powers of the office "for the purpose of protecting the purity of the judicial processes and maintaining public confidence in the administration of justice”. In the Matter of Probert, 411 Mich 210, 230; 308 NW2d 773 (1981). The court rules indicate that the Supreme Court and the Judicial Tenure Commission have the exclusive jurisdiction to consider this type of case. GCR 1963, 930, 932.
Defendants, however, argue that the circuit court has jurisdiction to hear complaints against a municipal judge and should do so in the interest of the administration of justice. City of Berkley v Holmes, 34 Mich App 417; 191 NW2d 561 (1971). In that case, however, this Court noted:
"If the judge has abused his office, he is subject to superintending control, Const 1963, art 6, § 4, and GCR 1963, 930, or disciplinary action by the Judicial Tenure Commission, Const 1963, art 6, §30, and GCR 1963, 932.” 34 Mich App 427, fn 7.
In the instant case, plaintiff alleges only that defendant judge abused his office by violating the Code of Judicial Conduct. The circuit court was, therefore, without jurisdiction to consider this matter. The preliminary injunction and temporary restraining order are, therefore, dissolved.
Reversed. | [
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S. C. Gardner, J.
Defendant was convicted on his plea of guilty to the offense of malicious destruction of a building causing damage over $100, MCL 750.380; MSA 28.612. The offense grew out of defendant’s jailbreak from the Oakland County Jail on March 27, 1983.
At the time of the offense and the concurrent escape defendant was in the midst of his trial on a breaking and entering charge, but he was also serving the balance of an 11-month sentence for an earlier escape from the Oakland County Jail committed at the time he was first awaiting trial on the breaking and entering charge.
Defendant on December 21, 1983, was sentenced to a term of from two to four years’ imprisonment on the malicious destruction of building charge, the sentence to be consecutive to the earlier 11-month sentence for the jailbreak in late 1980 while he was, in the first instance, awaiting trial on the breaking and entering charge.
On appeal defendant raises two issues.
First, defendant contends that the consecutive sentence imposed for the malicious destruction conviction was invalid.
MCL 768.7a(l); MSA 28.1030(1)(1) provides:
"Sec. 7a. (1) A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state.” (Emphasis added.)
One of the questions underlying this issue is whether, for the purposes of the statute just recited, a county jail is a "penal or reformatory institution” within the meaning of the statute.
The people’s rapid concession (in Appellee’s Brief) that "county jails are not penal institutions” is not readily acceptable by this Court. Granted, a county jail may not be a penal institution per se. However, logic and case law developed in a different context constrains the opinion that a county jail, when utilized in the execution of a sentence, is a penal institution.
For analogy one might refer to this Court’s decision in People v Mayes, 95 Mich App 188, 189-190; 290 NW2d 119 (1980), in which the Court approved a consecutive sentence given a defendant who committed an offense while on authorized leave from a halfway house. The Court declared specifically that "a halfway house is a prison for the purposes of the escape statute”. (Emphasis added.)
In the instant case it is unimportant that the defendant was awaiting trial on other charges when he escaped on the second occasion. The important fact is that the offense which he now raises into question was committed while he was confined under sentence for the first jailbreak, and for the purposes of that earlier sentence the jail was utilized as a penal institution.
When one considers the legislative purpose of the statute any argument that a county jail is not a penal institution fades in the face of logic. In People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977), this Court had occasion to consider the second part of the consecutive sentence statute, MCL 768.7b; MSA 28.1030(2), which authorizes consecutive sentences for persons who commit subsequent felonies while felony charges are pending. Quoting from its earlier opinion in People v Bon ner, 49 Mich App 153, 158; 211 NW2d 542 (1973), the Court said:
" 'The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed. Such a purpose is laudable, rational and the statute reasonably tends to achieve that purpose.’ ” 78 Mich App 621.
Should this Court find a different legislative purpose merely because a consecutive sentence is imposed under the mandatory section of the statute, MCL 768.7a; MSA 28.1030(1)? Certainly it should not and does not. It would have made no sense for the Legislature to have intended to draw such a line of distinction between penitentiaries and jails, particularly in cases where, as in the instant case, a jail is being used as a place of confinement on a felony sentence. This use itself was specifically authorized by the Legislature. MCL 769.28; MSA 28.1097(1); People v Shirley Johnson, 74 Mich App 652, 654; 255 NW2d 4 (1977).
As stated already, the people have acknowledged that "county jails are not penal institutions” but submit that they are "reformatory institutions”. No effort is made by the people to define the latter, however. We see no necessity for drawing a distinction since, in either case, the consecutive sentence was validly imposed.
The second claim raised by defendant, that his being charged initially with jailbreak and with malicious destruction of a building in the course of the break-out violated his right to be free from double jeopardy, should not require lengthy discussion.
In the first place, the question itself is rendered moot by the dismissal, before trial, of the escape charge. Moreover, as the people argue, defendant could have been convicted of both the escape charge and the destruction charge without violating the double jeopardy principle since the offenses do not share common and co-extensive elements. See Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), and People v Seabrooks, 135 Mich App 442; 354 NW2d 374 (1984).
In Seabrooks, pp 446-447, this Court, relying on Blockburger, supra, and other cases, said:
"Where, as in this case, two separate statutes are violated, legal double jeopardy analysis focuses on whether or not each statute requires proof of a fact which the other does not, notwithstanding substantial overlap of proofs offered to establish the crimes. * * * In other words, does each of the offenses require proof of an additional or different element?” (Citations and footnote omitted.)
The Court went on to discuss "factual” double jeopardy under the Michigan Constitution, declaring that this kind of double jeopardy exists, "if, despite the violation of two separate and distinct statutes, the Legislature nevertheless intended that only a single conviction result”.
Recognizing that this discussion is both academic and gratuitous in view of the fact that defendant was neither convicted nor prosecuted on the escape charge, the court finds nevertheless that the double jeopardy argument is without merit.
Defendant’s conviction and sentence are affirmed without modification.
MCL 768.7b; MSA 28.1030(2) provides: "When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
"(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.” | [
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Beasley, J.
In a bench trial, defendant, Willie Jeffrey Hunter, was convicted of criminal sexual conduct, first degree, in violation of MCL 750.520b; MSA 28.788(2), assault with intent to murder, in violation of MCL 750.83; MSA 28.278, and felony-firearm, in violation of MCL 750.227b; MSA 28.424(2). In addition, with respect to an armed robbery charge, defendant was convicted of the lesser included offense of larceny from a person, in violation of MCL 750.357; MSA 28.589.
Defendant was sentenced to serve not less than 25 years nor more than 40 years in prison on the criminal sexual conduct, first degree, conviction, not less than 30 nor more than 50 years in prison on the assault with intent to murder conviction, not less than 6 nor more than 10 years in prison on the larceny from a person conviction, and the mandatory two years on the felony-firearm conviction. Defendant appeals as of right, raising four issues.
First, defendant claims he was denied the effective assistance of counsel. Generally, a motion for a new trial is a prerequisite to appellate review of a claim of ineffective assistance of counsel. However, in People v Cicotte, we relaxed this rule to hold that the absence of a motion for new trial or an evidentiary hearing is not fatal to appellate review where the details relating to the alleged deficiencies of the defendant’s trial counsel are sufficiently contained in the record to permit the appellate court to reach and decide the issue. Since, in the instant case, defendant did not make a motion for new trial, we limit our review of defendant’s appellate claims to the present record.
Defendant’s argument that he was denied the effective assistance of counsel is based upon three alleged errors by his trial counsel. For convenience, after detailing the applicable standard for effective assistance claims, each of the alleged errors will be dealt with separately, as was done by the parties.
The Michigan courts recognize a two-pronged test in assessing ineffective assistance of counsel claims. The first branch of the inquiry focuses on the Sixth Amendment right to counsel and requires that defense counsel perform at least as well as a lawyer with ordinary skills and training in the criminal law and must conscientiously protect his client’s interest undeflected by conflicting considerations. Second, ineffectiveness of counsel may also be shown where defense counsel makes a serious mistake but for which defendant would have had a reasonably likely chance of acquittal. In this connection, we presume trial counsel afforded his client effective representation. The burden of proving ineffectiveness of counsel is on the defendant.
In Strickland v Washington, the United States Supreme Court held that when a convicted defendant claims under the Sixth Amendment that counsel’s assistance was so defective as to require reversal, he must establish the following: (1) that counsel’s performance was deficient, a performance inquiry to determine whether counsel’s assistance was reasonable considering all the circumstances; and (2) that the deficient performance prejudiced the defense, that there is a reasonable probability that, absent the error, the fact finder would have had a reasonable doubt respecting guilt. The Court further held that, under the Sixth Amendment, ”the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result”. The reasonableness of counsel’s challenged conduct must be judged based upon the facts of the particular case, viewed at the time of counsel’s conduct.
On appeal, defendant argues that the introduction into evidence of the fact of defendant’s previous conviction of a felony denied him the effective assistance of counsel. It is not unusual for defense counsel to slip into a trial, at a presumably inauspicious time, the fact of a defendant’s previous conviction. The accepted strategy is that the trial judge will let it in anyway, that it is better brought in by defense counsel than by the prosecutor, and that defense counsel can limit its impact by the manner and time of bringing it in.
We are reluctant to substitute our judgment for that of trial counsel in matters of trial strategy. In People v Armstrong; we held, in response to a claim of ineffective assistance of counsel based on the intentional introduction at trial of defendant’s prior criminal history by defense counsel, that:
"Even the intentional introduction by defense counsel of a prior criminal record does not constitute a serious mistake of counsel depriving defendant of a fair trial or of effective assistance of counsel where the record was introduced as a trial tactic. People v Karasek, 63 Mich App 706; 234 NW2d 761 (1975).”
In the within case, the introduction by defense counsel of evidence of defendant’s prior conviction was a matter relating to trial strategy and, as such, will not support a claim of ineffective assistance of counsel.
Defendant also argues that it was ineffective assistance of counsel to fail to object to the introduction of serological evidence regarding blood types. There is a conflict in this Court concerning the admissibility of blood type evidence used solely for inclusory purposes. In the present case, however, even if it was an error to permit the admission of such evidence, the error must be considered harmless beyond a reasonable doubt. Generally, harmless error has been found where the victim has positively identified the defendant and had a sufficient opportunity to observe him at the time of the attack. The complainant herein had known defendant for several months prior to the attack and had ample opportunity to observe defendant during the attack and positively identified him to the police. Complainant’s testimony, if beleived, is sufficient evidence to convict. Thus, any error injected into defendant’s trial by the admission of the blood type evidence was harmless beyond a reasonable doubt and, thus, defense counsel’s failure to object cannot be considered a serious error.
Defendant next contends that he was denied the effective assistance of counsel by his attorney’s failure to subpoena defendant’s alibi witnesses in advance of trial. Defendant argues that his trial counsel’s failure to subpoena his alibi witnesses prior to trial and then his trial counsel’s consent to their arrest to bring them to court denied him the effective assistance of counsel and was a serious mistake which affected the outcome of the trial. Defendant’s entire argument in this connection, that such actions by his attorney amounted to ineffective assistance of counsel, borders upon the ridiculous where, as here, the witnesses did testify.
Second, defendant claims that the trial court denied him a fair trial by warning two of his alibi witnesses that there was a penalty for perjury. Relying primarily on Webb v Texas, defendant argues that the arrest of his alibi witnesses to compel their attendance, coupled with the court’s warning about perjury, served to intimidate the witnesses and denied him a fair trial.
In Webb, after the trial court singled out the only potential defense witness and, in strong and treatening terms, warned him that he would be prosecuted for perjury if he lied while testifying, that witness refused to testify. Nothing analogous to the extraordinary circumstances on which Webb was based is present here. Even after the witnesses were informed that there was a penalty for perjury, they voluntarily agreed to testify. No witness was singled out by the trial judge and threatened so that he was effectively driven off the witness stand. Thus, under the facts of this case, no error occurred.
Third, defendant claims that the trial court erred in ordering that defendant’s sentences on his assault with intent to commit murder and larceny from a person convictions should run consecutively to his sentence for felony-firearm. At defendant’s sentencing, the trial judge imposed a mandatory two-year term on defendant for his conviction for felony-firearm and ordered that defendant was to serve the mandatory two-year sentence prior to all other sentences given. Yet, defendant was convicted of felony-firearm only in connection with his commission of the offense of criminal sexual conduct, first degree.
The trial judge specifically found that defendant had not been armed when he committed the offenses of assualt with intent to murder and larceny from a person. Under MCL 750.227b; MSA 28.424(2), the Legislature ordered that the mandatory two-year prison term for felony-firearm be served prior to and consecutively with any term of imprisonment imposed for the felony. In this case, the mandatory two-year term was ordered to run prior to all other sentences, including those sentences given for offenses during which defendant did not use a firearm. Under a clear reading of the statute, it was an error to order that the sentences not underlying the possession of a firearm conviction run consecutively. Thus, the case must be remanded for resentencing.
Last, defendant claims that it was reversible error for the trial court to admit expert testimony that an examination of the complainant was consistent with forceable entry into the vagina and on the condition of complainant when she was brought to the hospital.
In this case, the examining physician testified that he performed a formal sexual assault examination on complainant and found evidence of trauma in the genital area. In addition, the doctor testified that the trauma discovered was consistent with forcible entry into the vagina by either a penis or a blunt instrument. Such evidence was proper and did not invade the province of the jury. The testimony did not violate the rules set forth in People v McGillen #2.
Defendant also argues that the trial judge erred when he relied upon testimony that the complainant would have died if she had not been treated in finding that defendant was guilty of assault with intent to commit murder. In order to be convicted of assault with intent to commit murder, it must be established beyond a reasonable doubt that the defendant tried to physically injure another person, that the defendant had the present ability to cause an injury, and that at the time he committed the assault the defendant intended to kill the complainant, under circumstances that did not justify, excuse or mitigate the crime. Thus, it was not error to admit the doctor’s testimony.
Affirmed, but remanded for resentencing pursuant to this opinion.
People v Lawson, 124 Mich App 371; 335 NW2d 43 (1983).
133 Mich App 630; 349 NW2d 167 (1984).
People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977).
People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).
People v Tranchida, 131 Mich App 446; 346 NW2d 338 (1984).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
_ US —; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Id., 80 L Ed 2d 692-693.
People v Lotter, 103 Mich App 386; 302 NW2d 879 (1981), lv den 412 Mich 852 (1981).
100 Mich App 423, 426; 298 NW2d 752 (1980), lv den 412 Mich 865 (1981).
Strickland v Washington, supra.
Compare People v Sturdivant, 91 Mich App 128; 283 NW2d 669 (1979), lv den 407 Mich 933 (1979), with People v Horton, 99 Mich App 40; 297 NW2d 857 (1980), vacated and remanded on other grounds 410 Mich 865 (1980), and People v White, 102 Mich App 156; 301 NW2d 837 (1980). See also, People v McMillen, 126 Mich App 211; 336 NW2d 895 (1983).
People v Sturdivant, supra, p 134.
People v Baker, 114 Mich App 524; 319 NW2d 597 (1982); People v McMillen, supra, p 218.
409 US 95; 93 S Ct 351; 34 L Ed 2d 330 (1972).
People v Jackson, 114 Mich App 649; 319 NW2d 613 (1982), lv granted 417 Mich 885 (1983).
See People v Sawyer, 410 Mich 531; 302 NW2d 534 (1981).
392 Mich 278; 220 NW2d 689 (1974). | [
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] |
Per Curiam.
Plaintiff instituted this suit for declaratory judgment, seeking to have a provision of a contract between plaintiff and defendant declared void. The trial court ruled in favor of plaintiff and defendant has appealed.
Pursuant to the contract, defendant supplied physicians to staff plaintiff’s emergency room. Upon termination of the contract, plaintiff advertised in various journals for replacement physicians, and among the applicants were some of the staff physicians supplied by defendant. The contractual provision which plaintiff sought to have declared unenforceable (the third paragraph of section 9) provides in substance that during the term of the contract and for a period of one year thereafter, plaintiff will not impair a relationship which exists or will exist between defendant and the physicians, and that the hospital will not make offers or contracts of employment with such physicians. The text of paragraph 9 is as follows:
"9. Offers to Personnel. The parties acknowledge the following:
"a. Hospital Personnel. The employees of the hospital have been or will be trained at great expense by the hospital, and the hospital has a compelling interest in maintaining its contractual relationships and expectancy of future contractual relationships with its employees. In addition, if the employees of the hospital were to terminate their relationship with the hospital and render services to the corporation, the corporation would be unfairly benefited, without adequate compensation to the hospital, by the investment of the hospital.
"b. Corporation Physicians. The physicians to be supplied by the corporation at the hospital have been or will be recruited, oriented and trained at great expense by the corporation, and the corporation has a compelling interest in maintaining its contractual relationship and expectancy of future contractual relationships with the physicians it supplies at the hospital. In addition, if the corporation supplied physicians were to terminate their relationships with the corporation and render services to the hospital, the hospital would be unfairly benefited, without adequate compensation to the corporation, by the investment of the corporation.
"Accordingly, each party covenants that it shall not, during the term of this agreement and any renewals thereof, and for a period of one (1) year thereafter, directly or indirectly, impair or initiate any attempt to impair the relationship or expectancy of a continuing relationship which exists or will exist between the other party and the personnel employed or the physicians retained by the other party at any time during the term of this agreement or renewals thereof, or make offers or contracts of employment or offers or contracts for services with such personnel or physicians, or with any partnership, corporation, or association through which such personnel or physicians may render services or employment to the offending, party.” (Emphasis added.)
The statute under which plaintiff argued and the trial court held the contractual provision void is as follows:
"All agreements and contracts by which any person, copartnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.” MCL 445.761; MSA 28.61.
Plaintiff argues that the contractual provision in question comes within the purview of MCL 445.761; MSA 28.61 as a promise not to engage in any "employment”. Plaintiff argues that the word "employment” as used in the statute should be given as broad an interpretation as is consistent with the common or ordinary meaning generally ascribed to it. Thus, plaintiff argues, "employ ment” includes not just the state of being employed, or an occupation, profession, trade or business, but also includes the act of employing. For example, Black’s Law Dictionary defines "employment” as follows:
"Act of employing or state of being employed; that which engages or occupies; that which consumes time or attention; also an occupation, profession, trade, post or business.” Black’s Law Dictionary (5th ed, 1979), p 471.
Defendant, on the other hand, argues that the Legislature intended to use the word "employment” more narrowly. Relying on the rule of construction known as ejusdem generis, defendant argues that the meaning ascribed to the word "employment” for purposes of the statute must only be such as to allow it to remain a logical member of the class including such words as "avocation, pursuit, trade, profession or business”. Defendant argues that to interpret "employment” more broadly would cause it "to stick out like a sore thumb” among all of the words with which it is associated in the law.
The trial court resolved the issue as follows:
"4. Although the issue is not free from doubt, I conclude that the statute does declare void the contract involved here. The statutory prohibition against contracts by which any person agrees not to engage in any employment could be interpreted narrowly, as defendant suggests, and include only those agreements in which contracting party A agrees with contracting party B that A will not engage in a given employment. In fact, I understand that defendant has such contracts with its physicians, but those contracts are not now before this court.
"5. On the other hand, the language appears to be sufficiently broad to cover as well the contracts in which contracting party A agrees with contracting party B that A will not employ (as employer) certain persons. That is exactly what the instant contract provides, and is exactly what the statute proscribes.
"6. The statute evinces a strong public policy in favor of a person’s ability to become employed. If the statute were to be interpreted as defendant urges, that policy would be frustrated, albeit in a very limited way.”
We agree with the defendant. The trial court’s broad interpretation of the word "employment” to encompass the act of employing as well as the state of being employed would in fact cause it to "stick out like a sore thumb” among the words with which it is associated in this statute. We believe that the Legislature, in choosing the term here at issue, intended to void any promise by an employee not to compete with his employer at the termination of their relationship. We do not believe that the Legislature envisioned the present situation, i.e., a mutual covenant between two employers not to interfere with the contractual relations of the other.
We recognize that the trial court’s broad interpretation of the statute would tend to further the public policy recognized by the statute. Nonetheless, we are not justified in extending an unanticipated and unintended effect to a statute simply because, in doing so, we would further a recognized public policy. Rather, it is a task of the Legislature, and not of this Court, to devise the means by which a particular public policy will be carried out. MCL 445.761; MSA 28.61, as drafted, was not intended to void the contract here in question. Thus, the judgment of the trial court is reversed.
Reversed.
The rule on construction known as "ejusdem generis” provides that where general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated. People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975). | [
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Per Curiam.
Petitioners-appellants appeal from the circuit court’s decision denying appellant adult education instructors tenure under the teacher tenure act. MCL 38.71 et seq.; MSA 15.1971 et seq. We affirm.
Background
Appellant instructors filed a petition with the State Tenure Commission seeking tenure under the teacher tenure act. The petition alleged that they had taught in the Bay City Public Schools’ adult education program during the 1976-1977 and 1977-1978 school years, the terms consisting of two 16-week semesters per year. The instructors’ teaching assignments varied from 3 to 24 hours of instruction each week. The instructors alleged that they were all certificated teachers, teaching in positions which required teacher certification, and had thus gained tenure status as a matter of law. Appellee Bay City Board of Education admitted that the instructors were all certificated teachers within the meaning of the teacher tenure act, with the exception of instructor Kochany. However, the Bay City Board of Education denied that the instructors had completed a full probationary period.
The matter was submitted to the State Tenure Commission on the pleadings and briefs by stipulation. The issue before the commission was whether certified adult education instructors employed by a controlling board to teach 32 weeks a year in positions which requried less than full-time ser vices fulfilled the two-year probationary period required by the teacher tenure act. MCL 38.81; MSA 15.1981. In a 3-2 decision rendered on November 16, 1979, the commission first found that the certified instructors met the definition of "teacher” under the tenure act. MCL 38.71; MSA 15.1971. It found that they had been employed for a "full school year” and had been assigned to positions which required certification within the meaning of the Teacher Certification Code. Since the instructors’ part-time employment each year constituted a "full school year”, the majority found that the instructors had completed the two-year probationary requirement.
On December 5, 1979, the Bay City Board of Education filed a petition for review in the Bay County Circuit Court. The Michigan Association of School Boards was granted leave to appeal as amicus curiae. The Bay City Board of Education raised the question of whether or not appellant instructors were "certificated persons employed for a full school year” within the meaning of MCL 38.71; MSA 15.1971. On the instructors’ motion to remand, the circuit court issued an order on July 27, 1981, remanding to the tenure commission to "allow the parties to make such record as the tenure commission deems necessary with respect to the issue whether certification is required by the Michigan Department of Education for Adult Education, High School Teachers”.
On remand, in a decision rendered on August 2, 1981, the tenure commission reversed its November 16, 1979, decision and ordered that appellant instructors’ petition for tenure be denied. Two members of the commission, with the third concurring separately, and two dissenting, found that certification is not required for adult education instructors. It based its decision on the statutory history of adult education programs and on the absence of any statute or regulation requiring certification for adult education instructors. The commission also concluded that since there were no provisions in the Teacher Certification Code for certifying adult education instructors, appellant instructors could not be "certificated persons” covered by the tenure act. See Shaw v Macomb Community College, 37 Mich App 96; 194 NW2d 558 (1971), aff'd 389 Mich 69; 204 NW2d 129 (1973).
On August 24, 1982, appellants filed a petition for review in the Ingham County Circuit Court, raising and briefing both the "full school year” and the "certification” issues. The court granted the State Board of Education’s application to intervene in the case and allowed the Michigan Federation of Teachers to file an amicus curiae brief in support of the instructors’ position. In its opinion of May 27, 1983, the circuit court affirmed the decision of the tenure commission denying adult education instructors tenure under the tenure act. The court agreed with the commission majority that adult education instructors were not required to be certified and that they could not be "certificated persons” covered by the tenure act. This issue being dispositive, the court did not reach the "full school year” issue.
Appellant instructors and intervenor State Board of Education both filed claims of appeal from the circuit court. The cases were consolidated on this Court’s motion. Thereafter, the Michigan Federation of Teachers was granted leave to file an amicus curiae brief. The federation represents 25,000 public employees, including a substantial number of adult education instructors. The federation argues for reversal. The Michigan Association of School Boards was also granted leave to file an amicus curiae brief. The association, whose membership includes 596 local and intermediate boards of education, argues for affirmance.
On appeal the parties again raise the "certification” and "full school year” issues. However, we do not decide the broader issue of "certification”, which would include a determination of whether or not an adult education instructor can acquire tenure if employed for a full school year, but find more narrowly that the instructors in this particular case did not meet the "full school year” requirement and did not meet the definition of "teacher” and acquire tenure under the tenure act. Thus, we affirm the circuit court’s denial of tenure to appellant adult education instructors, but base our decision on the "full school year” employment issue.
Discussion
To fall within the teacher tenure act, appellant adult education instructors must meet the tenure act’s definition of "teacher”. The tenure act defines a "teacher” as follows:
"The term 'teacher’ as used in this act shall include all certificated persons employed for a full school year by any board of education or controlling board of any public educational institution.” (Emphasis added.) MCL 38.71; MSA 15.1971.
Thus, to acquire tenure under the act, the adult education instructors must be employed for a "full school year”.
A "school year” is defined by the tenure act as follows:
"The 'school year’ shall be defined as the legal school year at the time and place where service was rendered.” (Emphasis added.) MCL 38.75; MSA 15.1975.
The School Code of 1976 provides:
"The board of a school district shall determine the length of the school term. The minimum number of days of student instruction shall be 180. * * *” MCL 380.1284; MSA 15.41284.
Appellee Bay City Board of Education employed appellant adult education instructors during the 1976-1977 and 1977-1978 school years for two 16-week semesters per year. The teaching assignments varied from 3 to 24 hours of instruction per week. Appellant instructors contend that they met the "full school year” requirement since they provided instruction throughout the academic year as defined by the Bay City Board of Education, i.e., 32 weeks per year. They argue that the two 16-week semester school year was the academic year at "the time and place where service was rendered”. MCL 38.75; MSA 15.1975. They contend that the 180-day requirement of MCL 380.1284; MSA 15.41284 applies to days of student instruction, and not to the number of days of teaching or employment required for the acquisition of tenure. Appellants further urge the Court to follow the State Tenure Commission’s determination that employment on a continuing, prearranged basis for an academic year whose length for adult education is determined by the school board satisfies the "full school year” requirement. We disagree and find that a minimum of 180 days of employment constitutes employment for a "full [legal] school year” for tenure purposes.
Appellate decisions touching on the "full school year” language of the tenure act are few. This Court in Davis v Harrison Community Schools Bd of Ed, 126 Mich App 89; 342 NW2d 528 (1983), found that the 1967 amendment, 1967 PA 216, which added the "full school year” language to the tenure act’s definition of "teacher”, MCL 38.71; MSA 15.1971, "was intended to make clear that a teacher is required to serve two full school years of probation rather than portions of two separate school years”. Davis, p 96. In Davis, the employee was a full-time teacher who began teaching after the start of the official school year, and the issue before the Court was when to begin computation of the probationary period. MCL 38.81; MSA 15.1981. In Blurton v Bloomfield Hills Bd of Ed, 60 Mich App 741; 231 NW2d 535 (1975), this Court found that the "full school year” requirement would be satisfied where an employee taught full-time for an entire school year, with only a de minimus deviation of three days. Blurton, p 744. In Cadillac Area Public Schools Bd of Ed v Ward, 134 Mich App 811; 351 NW2d 873 (1984), this Court found that a full-time employee teaching 146 days of the 183-day 1977-1978 school year, 129 days of the 1977-1978 school year, and the entire 1978-1979 school year of at least 180 days, had taught for the two school year probationary period. MCL 38.81; MSA 15.1981; Cadillac Public Schools, p 814. On these facts, the Court allowed her to "tack” her service periods to achieve the two-year period, but cautioned that more signifi cantly discontinuous or brief periods of service might not be subject to "tacking”. Id.
Although Davis and Blurton, supra, considered the "full school year” language of MCL 38.71; MSA 15.1971, and Cadillac Public Schools, supra, looked to the length of the school year when considering the two-year probationary period, none of these cases discussed the number of days required for a "full school year”. In Cadillac Public Schools, however, the Court pointed out the 1976-1977 school year was 183 days and that the teacher had "taught the entire 1978-1979 school year of at least 180 days". (Emphasis added.) 134 Mich App 814. Although not specifically addressing what constitutes a "full school year” under the tenure act, apparently the Court attached significance to the teaching of an entire 180-day period for tenure purposes.
Even though the above cited cases did not expressly decide the issue of what time period constitutes a "full school year”, our examination of the teacher tenure act convinces us that the "full school year” consists of a minimum of 180 days. Although, as pointed out by appellants, MCL 380.1284; MSA 15.41284 refers to 180 days of student instruction, not the number of teaching days or employment term length of an instructor, the tenure act defines the school year in terms of the "legal school year”. MCL 38.75; MSA 15.1975. (Emphasis added.) By statute, a school term requires a minimum of 180 days of student instruction. MCL 380.1284; MSA 15.41284.
Appellant instructors also point out that the tenure act "school year” is the "legal school year at the time and place where service was ren dered”. (Emphasis added.) MCL 38.75; MSA 15.1975. Thus, they argue, under this additional time and place language, the school year set for adult education instructors in Bay City schools consisted of 32 weeks. We disagree.
The School Code of 1976 provides that the length of the school term is set by the board of a school district. MCL 380.1284; MSA 15.41284. Nothing in that provision prevents different school districts from setting school years for periods longer than 180 days, but a school term by law must be at least 180 days. MCL 380.1284; MSA 15.41284. Thus, the additional language in the tenure act defining a legal school year as the one at the "time and place where service was rendered” could be construed as defining a school year for purposes of tenure as the legal year set by the school district, which could be 180 days or more. The tenure act requirement that a certificated person be employed for a full legal school year at the time and place service was rendered (MCL 38.71, 38.75; MSA 15.1971, 15.1975) could be read as requiring employment for over 180 days if the school year is set for a longer period in the district where the person is employed. MCL 38.1284; MSA 15.41284. However, we need not decide whether employment for a "full school year” for tenure purposes must be for more than 180 days when a longer school year is set in the district. Minimally, those seeking tenure must be employed for a school year of at least 180 days, and the adult education instructors in this case were not employed for this minimum period.
Since the adult education instructors did not meet the "full school year” criteria and are thus not "teachers” within the meaning of the tenure act, they cannot acquire tenure under the teacher tenure act. Finding this issue dispositive, we do not address the "certification” issue.
Affirmed.
The tenure commission and the parties agreed that, to acquire tenure as a teacher, an instructor must not only hold a certificate valid for the position to which he is assigned but must also be required to be certified for that position. See Justian v Jackson Intermediate School District, Op State Tenure Comm’n (Docket No. 76-48, dated November 25, 1977).
Appellant instructors do not argue that their deviation from the 180-day requirement was de minimus as in Davis, supra. Nor do they argue that their periods of employment be "tacked” to meet a "full school year” of employment similar to the Court’s action in Cadillac Public Schools, supra, where it "tacked” teaching days of less than 180 days to meet the two-year probationary period.
Although Blurton and Cadillac Public Schools, supra, looked to the number of teaching days of full-time teachers, the tenure act’s definition of "teacher” is phrased in terms of employment for a "full school year”. These different foci can create problems for tenure seekers who are employed for an entire school year but do not teach daily or teach less than a full load. In the case at bar, however, appellant instructors were neither employed nor did they teach for 180 days, so they do not pose such a problem.
Appellants also rely on Hughes v Bullock Creek School District, Op State Tenure Comm’n (Docket No. 72-9, dated November 1, 1972), for their argument that they need not teach full-time for a Í80-day school year. In Hughes, a certificated person teaching one-half the full-time normal load was granted full-time tenure. The commission noted that the instructor was regularly employed for a specific number of days per month, that a controlling board could determine or change the length of the work day, and that nothing in the tenure act required that a teacher teach every day or every hour of the day taught. However, in Hughes, the instructor taught "one-half the normal load each day” and the commission specified that she "taught for two years for 180 or more days each year”. Hughes, supra, p 2 (emphasis added). Thus, in Hughes, the instructor both taught and was employed for at least 180 days, even though she taught part-time. In contrast, appellant instructors in the instant case neither taught nor were employed for the 180-day school year. Moreover, since they did not teach nor were employed for this minimum, we do not even need to reach the question of whether part-time or nondaily teaching over a period of 180 days constitutes a full school year of employment.
Appellees argue, in the alternative, that even if the 180-day minimum of MCL 380.1284; MSA 15.41284 is not applicable to the tenure act, the Teacher Certification Code provides a 150-day teacher day minimum. The Teacher Certification Code enacted by the State Board of Education provides in part:
"The determination of 3 years of successful teaching specified in these rules shall be according to the following:
"(c) A y^ar of employment is a minimum of 150 teaching days and may be either an academic or a calendar year, but not more than 1 year of employment can be earned during a calendar year.
"(d) A day of employment is 1/2 or more of a teaching day, but not more than 1 day of employment can be earned during a calendar day.” 1979 AC, R 390.1103.
Thus, for purposes of teacher certification, a year of employment is a minimum of 150 teaching days. However, even if 150 half-day teaching days (instead of 180 days of employment) was the minimal requirement for a "full school year” of employment for tenure purposes, appellant instructors in this case did not teach at least halftime for 150 days or more. | [
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Per Curiam.
Defendant pled guilty to larceny in a building, MCL 750.360; MSA 28.592. Defendant was sentenced to confinement in the county jail for nine months, to be served consecutively to another sentence defendant was serving, and he appeals as of right.
Defendant argues that the sentencing court erred by imposing the consecutive sentence. MCL 768.7b; MSA 28.1030(2) provides in part:
"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
"(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.”
Defendant claims that he did not commit the crime at issue here while the disposition of a prior felony charge was pending. Defendant asserts, and the prosecution concedes, that in the prior case defendant was charged with larceny in a building and pled guilty to attempted larceny in a building. Defendant committed the crime at issue here after his plea in the prior case, while he was free on bond awaiting sentencing. Defendant argues that MCL 768.7b; MSA 28.1030(2) will not permit consecutive sentencing where the prior felony charge pending at the time of his commission of the subsequent crime did not result in his conviction of a felony. See People v Glenn Jones, 82 Mich App 403; 266 NW2d 824 (1978); but see People v Jeffrey Thompson, 117 Mich App 210; 323 NW2d 656 (1982). On this record, we need not address the questions discussed in Jones and Thompson. MCL 761.1; MSA 28.843 provides in part:
"As used in this act:
"(g) 'Felony’ means a violation of a penal law of this state for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year, or an offense expressly designated by law to be a felony.”
"This act” refers to the Code of Criminal Procedure, of which MCL 768.7b; MSA 28.1030(2) is a part. While attempted larceny in a building is a misdemeanor for most purposes, see MCL 750.360; MSA 28.592, MCL 750.503; MSA 28.771, and MCL 750.92(3); MSA 28.287(3), it is a felony for the purposes of the Code of Criminal Procedure, because it is punishable by imprisonment for more than one year. People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979); People v Reuther, 107 Mich App 349; 309 NW2d 256 (1981); People v DeLong, 128 Mich App 1; 339 NW2d 659 (1983). A consecutive sentence was therefore properly imposed.
Affirmed. | [
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Btjtzel, J.
Susie T. Lammie, executrix of the estate of Andrew Lammie, deceased, moved for a summary judgment against Williarii H. Klug on two notes signed by the latter and made payable to plaintiff’s decedent. Defendant filed an affidavit of merits, in which he claimed he became an accommodation maker with Lammie’s knowledge, and that the notes were without consideration. Jonathan A. Zahn, in an accompanying affidavit, stated that he borrowed large sums from Lammie in his lifetime; that, when he tried to obtain additional loans represented by the notes, Lammie told him that, if he would get defendant to sign two notes, Lammie would have them discounted and then loan him the money; that thereupon affiant secured defendant’s signature-to the notes and received the amount requested from Lammie; that, subsequently, affiant deeded a parcel of property to Lammie in payment of a large indebtedness, that included the amount of the notes.in question, and Lammie gave him in turn a land contract for the repurchase of the property in instalments totaling the same sum as Zahn’s prior indebtedness. A copy of the contract, attached to Zahn’s affidavit, does not include a certificate indicating that the mortgage tax has been paid, and, therefore, cannot be admitted in evidence nor given consideration as part of the affidavit (1 Comp. Laws 1929, § 364:7). Henning v. Levin, 259 Mich. 250.
An additional affidavit of the scrivener who drew the contract' corroborates Zahn’s testimony and shows that she heard the conversations between Lammie and Zahn, in accordance with which she drew the deed and contract. The affidavit also states that the notes in question were paid in the manner claimed by Zahn. The land contract belonging to Zahn is referred to again, but is inadmissible, of course, for reasons already given. The trial judge rendered a summary judgment for plaintiff.
3 Comp. Laws 1929, § 14219, provides:
“No person who shall have acted as an agent in the making or continuing of a contract with any person who may-have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.”
The inhibition of the statute does not affect the testimony of agents of the deceased, but is applicable only to that of agents of parties who may have dealt with the deceased. Hocking Valley Products Co. v. Tackett’s Estate, 219 Mich. 623. The affidavit of Zahn indicates that he was sent by Lammie to secure defendant’s signature, and thus was constituted Lammie’s agent. Possibly the record in a trial on the merits might bring out facts to the contrary, but, for the present, we must regard Zahn as Lammie’s,agent. He is so described in plaintiff’s own brief. Disregarding the land contract referred to in the affidavits, there still remain sufficient proper allegations to raise a fact issue, and summary judgment should have been denied. Cass v. Washington Finance Co., 263 Mich. 440.
Plaintiff alleges that defendant’s affidavits are insufficient, in that each merely states that, if admitted to testify, the affiant would state certain facts. Court Eule No. 30, §§ 3, 4 (1931), provides that the affidavit—
“shall not consist of conclusions but of such facts as would be admissible in evidence; and shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.”
While the affidavits .in the instant case have been inartistically drawn, Zahn’s affidavit shows sufficient compliance with the rule. Affiant positively and without any qualification swears to his conversations with Lammie in regard to securing defendant as an accommodation maker of the note, and it is apparent from the face of the affidavit that his testimony would be competent on a trial.
The judgment is reversed, with costs to the defendant, and a new trial ordered.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred. | [
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] |
Btjtzel, J.
Lots 350, 351, and 352 of Crystal Lake Subdivision adjoin one another on the north side of South boulevard in the city of Pontiac, Michigan. A descriptive plat, taken from defendant’s brief, outlines the course of dealings in which these lots were involved with substantial accuracy, and it is appended hereto for the sake of clarity. The Crystal Lake Land Company was at one time owner of all three lots. It sold lot 350 on contract to a third party not involved in this litigation. It agreed to sell and did sell and deed lot 352, and later lot 351, to Telesfor Wisniewski, a builder. In the mistaken belief that he was erecting buildings on lots 351 and 352, Wisniewski built on lots 350 and 351, although all rights and title to, the former lot were in another.
The instant suit arises out of this mistake and others that followed in consequence thereof.
Wisniewski built a stucco house on lot 351 instead of lot 352. Wisniewski sold this house and lot on a contract to Alex Kajko and wife on May 5, 1928. The contract describes the property as lot 352. He then secured a mortgage for $1,400 on June 27, 1928, from the Capitol Savings & Loan Company, which failed to make an examination of the premises. It believed that it was loaning money on the stucco house, located on lot 351, but here again the property was described as lot 352. Had the Capitol Savings & Loan Company made a proper investigation, further mistakes might have been avoided, inasmuch as it would have discovered that there was only a frame garage, in use as a dwelling, on lot 352. Wisniewski sold his equity in the land contract to Olin J. Dunlap on April 8, 1930. Neither Kajko nor Dnnlap made a proper physical examination of the premises described in the land contract and deed.
During the same year in which the stucco house was erected, Wisniewski constructed a brick building on lot 350, which he did not own, but obviously in the belief that he was building on lot 351. He secured a deed to lot 351 several months after acquiring title to lot 352, and, following the original mistake, he proceeded, on October 18,1928, to obtain a construction loan of $5,000 on lot 351 from the Standard Savings & Loan Association, which believed it was receiving a mortgage on the lot improved with the brick house. Had the Standard Savings & Loan Association made a physical examination of lot 351, it would have discovered its error. It must be charged with constructive notice of the rights of Kajko and his wife, inasmuch as they occupied the stucco house built on lot 351. Hoyt v. Gooding, 99 Mich. 71; Perkins v. Canine, 113 Mich. 72; Mason v. Mullahy, 145 Ill. 383 (34 N. E. 36).
In the following year, Wisniewski and wife deeded lot 351 to Joseph Lukasiewicz and wife. The grantees did not assume the $5,000 mortgage running to the Standard Savings & Loan Association. In the early part of 1932, Standard Savings & Loan Association discovered the series of mistakes made by all the parties, and, at an expense of $1,150.82, succeeded in acquiring title to lot 350 by first purchasing an outstanding vendee’s interest on a contract from the Crystal Lake Land Company.
The Capitol Savings & Loan Company, whose mortgage balance has been reduced to $975.79, together with Kajko and wife and Dunlap and wife, have brought the instant suit against the Standard Savings & Loan Association, Lukasiewicz and wife for a release of defendant’s liens and interests in lot 351 and the reformation of plaintiffs’ liens and interests by transferring them from lot 352 to lot 351. The record is somewhat unsatisfactory. Wisniewski and wife, who seem to have been responsible for the original mistakes that misled all of the parties, are not joined as defendants. It is indicated, though not determined by the present record, that, were plaintiffs’ liens and interests transferred unconditionally from lot 352 to 351, and no provision were made in regard to lot 352, it might result in vesting title to lot 352, free and clear from all liens, in Wisniewski, who has not been joined as a party in this suit, though he is largely responsible for- all the present difficulties. Such a result would be extremely inequitable. An adjudication affecting his rights in lot 352 cannot be made at this time, as he is not a party to the suit.
According to the testimony, the value of these lots has declined somewhat. Lot 352 is assessed at a valuation of $640; lot 351, improved with the stucco house, has an assessed valuation of $810, and is appraised at $1,100; and lot 350, with a brick house and garag-e thereon, has an assessed valuation of $3,100 and an appraised valuation of $4,000. Lukasiewicz and wife did not defend the present suit.
It is evident that the balance still due on the mortgage to Standard Savings & Loan Association, $4,601.10, is larger than the appraised value of’the property. Were plaintiffs granted the relief requested, it ’ would cause the Standard Savings & Loan Association a great loss. Plaintiffs contend that it should bear this loss, inasmuch as its mistake occurred independently of that made by plaintiffs, that it had constructive notice of plaintiffs’ claims to lot 351 from the Kajkos ’ possession of the stncco house, and if it had made a physical examination of the premises it would not have made the loan and placed itself in its present unfortunate position. On the other hand, it is argued by defendant that Dunlap and wife, who supposedly purchased the Wisniewski equity in the stucco house and lot failed to make proper investigation long after defendant made its loan.
While we are very much in accord with plaintiffs ’ claims and particularly those of Kajko and wife, we 'are also impressed with the opinion of the chancellor, who felt that, in view of the fact that mistakes were made by all concerned with the three adjoining lots, reformation should be granted only on terms equitable to all. After giving the matter very careful consideration, he concluded that there was no way in which equity might be done to all parties, and, therefore, dismissed the bill.
“Equitable relief by way of cancellation is not strictly a matter of right, but rather a remedy the granting of which rests in the sound discretion of the court.” Amster v. Stratton, 259 Mich. 683.
We, however, recognize the fact that there was no mutual mistake, and that notwithstanding the mistakes of plaintiffs, defendant failed to take constructive notice of the possession of lot 351, occupied by Kajko and wife.
We believe that justice to all parties may be achieved by reopening the case in the lower court. Wisniewski should be made a party defendant and further testimony taken as to his part in the series of mistakes made with reference to the three lots. Plaintiffs are entitled to the reformation they seek, but an attempt should be made to work out a decree by which defendant Standard Savings & Loan Association will be given a decree against Wisniewski, and, if possible, an opportunity to recoup at least in part the loss it will suffer through the removal of its mortgage lien from lot 351. This may possibly be done by declaring a lien in its favor, and allowing foreclosure, on lot 352, title to which, it seems from an inspection of the record, will be left free and clear to Wisniewski by reformation in favor of plaintiffs. If the testimony discloses circumstances which make it impossible to give the defendant security of the nature heretofore outlined, or any other relief, reformation should be granted notwithstanding in favor of the plaintiffs as against defendants.
The case is remanded for further hearing with instructions to join Wisniewski and wife as parties defendant, take further testimony, and render a decree as indicated by this opinion. As all parties are largely responsible for the mistakes that have necessitated this litigation, no costs will be allowed.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, J., took no part in this decision. | [
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Potter, J.
October 23, 1931, plaintiff filed a bill for specific performance of a written contract, a copy of which appears in the margin, and for an order directing defendant bank to convey and deliver to bim the bonds and notes which he designated. The bank filed an answer in the nature of a cross-bill naming all of the persons who executed as purchasers the contract as defendants. The answer and cross-bill of the bank denied plaintiff’s right to select the bonds and notes designated by him, because such selection by plaintiff would affect the rights of the bank and other guarantors. By way of cross-bill it asked tbe court apportion tbe bonds and notes among tbe parties to tbe agreement, in accordance with the amount of their subscriptions ; that if the court did not apportion such bonds, then the bank be authorized to sell the same, the net proceeds to be paid to the bank, and if the amount realized was insufficient to pay it the balance due, $194,000, together with interest and expenses, the deficit be charged against the subscribers to said agreement who were made cross-defendants, in proportion to their subscriptions as appearing in the agreement; that the signers of the contract as purchasers be decreed to pay thq balance due and defendant have execution therefor. Mr. Van Paris, administrator of the estate of Axel E. Michelson, deceased, filed,a motion to dismiss the proceedings, because the contract was not capable of specific performance, but was void for uncertainty and incompleteness. This is conceded, but defendant bank argues that if the contract is incomplete it should be reformed so as to make it complete. But reformation of written contracts is based upon equitable principles, making the written contract conform to the real agreement between the parties; supplying provisions which should have been inserted, or omitting therefrom provisions which were inserted. The basis of reformation is fraud or mistake. The court may not supply material stipulations omitted from a contract in the absence of fraud or mistake. It cannot perfect contracts which the parties themselves have left imperfect. It cannot make contracts for the parties. It may only interpret contracts as made. No fraud or mistake is alleged or proven in relation to the contract in question. The court is without jurisdiction to reform the contract. Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142); Leslie v. Smith, 32 Mich. 64; Nims v. Vaughn, 40 Mich. 356; Gates v. Gamble, 53 Mich. 181; Thayer v. Augustine, 55 Mich. 187 (54 Am. Rep. 361); Wardell v. Williams, 62 Mich. 50 (4 Am. St. Rep. 814); Wheaton v. Cadillac Automobile Co., 143 Mich. 21; Holcomb v. Czenkusch, 222 Mich. 376; 13 C. J. p. 525. The trial court arrived at a correct conclusion.
Decree affirmed, with-costs.
McDonald, C. J., and Clark, Sharpe, North, Wiest, and Butzel, JJ., concurred. Fead, J., did not sit.
‘ ‘ Memorandum of agreement, made this 24th day of October, 1930, by and between the Guaranty Trust Company of Detroit, a Michigan Trust Company, first party, hereinafter called the ‘trust company,’ The American State Bank, a Michigan banking corporation, second party, hereinafter called the ‘bank’ and the undersigned who are directors and stockholders, or stockholders, simply, of the Guaranty Trust Company of Detroit, third parties, hereinafter called the ‘stockholders,’
‘ ‘ Witnesseth:
‘ ‘ Whereas, it has been arranged between the trust company and the bank that the latter shall presently purchase from the former real estate mortgage bonds and notes now owned by the former aggregating $200,000 principal amount, at par plus accrued interest, with the understanding that the stockholders shall repurchase the same on or before one year from the date hereof on the terms hereinafter set forth,
“Now therefore, in consideration of the mutual undertakings of the parties, particularly such purchases by the bank from the trust company, and the repurchase undertakings by the stockholders, it is agreed as follows:
“1. The bank agrees to purchase immediately from the trust company $200,000 in amount of principal of such bonds and notes, as per list thereof hereto attached, and to pay therefor par plus accrued interest.
“2. The stockholders, subscribers hereto, severally agree to and with the bank to repurchase from it on or before one year from the date hereof the amounts of such bonds and notes respectively set opposite their signatures hereto, or their proportionate amount, on the basis of the amounts set opposite their signatures of such bonds and notes then remaining unsold or otherwise disposed of as herein contemplated, such repurchases to be at par plus accrued interest.
‘ ‘ (a) It is understood and agreed that each stockholder, subscriber hereto, may at any time purchase the amount of bonds and notes, at par plus accrued interest, equal to his proportionate undertaking hereunder, and by such purchase be relieved of any further liability hereunder, the bank in such event to give a proper written discharge.
“(b) It is understood and agreed that the trust company, shall use its best endeavors to sell or otherwise dispose of said bonds to the investing public within one year from the date hereof; and that it shall make no charge for its services in that regard; such sales shall be at par plus accrued interest (if any concessions are made by the trust company on such sales, it will itself absorb them); proceeds of such sales shall be forthwith paid over to the bank to apply in reduction of the amount invested by it in bonds and notes as aforesaid, and the several obligations of each individual stockholder shall be thereupon proportionately reduced.
"(c) It is understood that on purchase by stockholders of such bonds or notes the trust company will allow its regular concessions, and it agrees that it will itself on request pay the same.
"(d) On final settlement with each stockholder, subscriber hereto, during or at the end of said one-year period, if there is not available bonds or notes in the proper denominations to apportion to such stockholder his proportionate amount, then he shall purchase an amount in denominations available nearest his proportionate amount, and the difference, over or below, shall be adjusted in cash. If as a result of all such adjustments, there is a deficit to the bank, the trust company agrees to forthwith reimburse it.
"3. It is understood that during said one-year period, some of said bonds and notes will become due and payable, and certain bonds or notes may become in default through nonpayment of accruing interest thereon; also, that it may be advisable for the' trust company during such period to make refinancing arrangements involving certain of the issues in which are included some of said bonds or notes; and in any of such events, it is agreed that said trust company shall substitute for bonds or notes thus falling due or in default, or which may be involved in such refinancing, other like bonds or notes, interest to be adjusted at the time of such exchange.
"4. Should any stockholder, subscriber hereto, make default in his repurchase undertaking hereunder, it is understood and agreed that the bank may at any time, without notice, sell the proportionate amount of bonds or notes, of such delinquent stockholder at the best price obtainable, and charge any loss to such delinquent stockholder, who agrees to forthwith pay the same to said bank, together with interest at six per cent.
"5. It is expressly understood and agreed that repurchase of the full amount of said $200,000 of bonds and notes shall be undertaken by the stockholders, by their several subscriptions hereto, on or before the 7th day of November, 1931; otherwise, this agreement to be void and of no effect. It is expressly understood that the obligations of the stockholders, subscribers hereto, are several, and not joint, and that each is bound only for the amount by him subscribed, or his proportionate amount thereof in the event of ■ reduction of such liability by sale or other disposition of bonds as herein contemplated.
"In witness whereof, first and second parties have caused their corporate name to be hereto subscribed by their duly authorized officers, and third parties have severally subscribed their names hereto, with the amount of their repurchase subscriptions set opposite, all as of the day and year first above written.,
"Guaranty Trust Company op Detroit,
"By F. E. Quisenberry,
Its President.
American State Bank,
• “By...................,
Its President.
"Name Amount
"Frank G. Smith....................................$ 16,000
Frank E. Quisenberry............................... 3,000
Chas. Gauss ....................................... 40,000
Harold R. Martin..............•..................... 10,000
Vine LaRue Smith.................................. 10,000
Frank C. Teal...................................... 5,000
Adam W. Lind..................................... 5,000
Jno. I. Turnbull.................................... 5,000
Clarence M. Burton................................. 10,000
Chas. T. Bush...................................... 7,500
Axel E. Michelson................................... 5,000
Edmund T. Paterson................................ 2,500
Claude M. Harmon.................................. 5,000
Edward Frolieh .................................... 2,000
Conrad H. Smith.................................... 2,500
Henry Wineman, Jr................................. 3,000
Benj. F. Mortenson................................. 3,000
Wm. H. Beamer.................................... 5,000
Harold H. Moore......'............................. 2,000
Frank W. Kanter................................... 5,000
N. A. Hawkins..................................... 3,500
Frank W. Kanter......................... 7,500
J. P. Cummiskey.................................... 7,500
Rex Humphrey ..................................... 2,500
Julia M. Barker.................................... 15,000
Harold H. Moore................................... 5,000
F. H. Bessenger, Inc................................. 5,000
Robt. S. Drummond................................. 5,000
Louis F. Dahling...................:................ 1,000
G. Allan McKaig................................... 1,500
$200,000" | [
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Fead, J.
(dissenting). Plaintiff, while working for the city of Grand Rapids, was injured, and has been awarded workmen’s compensation. The city reviews the award. Plaintiff is not represented by counsel. The question is whether plaintiff was an employee of the city, within 2 Comp. Laws 1929, § 8413:
“Every person in the service of the State, or of any county, city, township, incorporated village, or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village, or school district therein, elected at the polls.”
Defendant contends plaintiff was not an employee but was a destitute person receiving aid from the city, under 2 Comp. Laws 1929, § 8229:
“That every poor person, who shall not be relieved or maintained by his relatives as provided in this act, shall be relieved and maintained by the county, in which he has gained a legal settlement, except as hereinafter provided in the case of counties in which the distinction between township, city, and county poor shall not be abolished, in which case, he shall, in such counties, be relieved and maintained by the city or township in which he has a legal settlement.”
Defendant argues that plaintiff’s work for the city was merely an incident in its administration of poor relief under the statute, and he was not an employee.
Plaintiff began to receive aid from defendant in May, 1930. His right to help and the amount of relief were determined by city investigators. He performed no labor for the city in return for what he received. In October, 1930, however, defendant instituted the scrip relief plan, under which persons receiving aid were “required” to work if they were able. They received scrip which they could exchange for goods at the city store. The rate of scrip pay was 40 cents per hour. The city determined the number of hours work per week on the basis of the needs of the applicant and his family, not on the value of the labor to the city. Plaintiff worked four hours per day at the weekly scrip pay of $9.60 until October 22,1931, when he was changed to three hours per day at $7.20 per week. He was injured June 22, 1932, while working with a wheelbarrow in a city park.
The record is scanty, but we accept counsel’s statement that the scrip relief plan was instituted with two objects, (1) to forestall and prevent unrest and possible disturbances engendered by the forced idleness of many men, and (2) to enable needy citi zens to preserve their self-respect by returning services for public aid. We also accept the assertion that jobs were “made” to provide work for as many persons as possible, and that many of the jobs were unnecessary and trivial. Of course, it must also be true that much or all of the work had some benefit to the city, utilitarian or aesthetic, although on a business basis the labor might have been deemed overpaid.
The purpose of the scrip plan of relief is laudable, and its social effect undoubtedly good, but the relationship created between the parties in its execution is governed by what they did and not by why they did it. An employer remains an employer although he runs his mill at a loss and for the purely humanitarian purpose of giving his workmen a living. Moreover, it is an open question whether the social features of the scrip plan are not better served by holding the relation to be that of employer and employee.
The question before us is a new one. The authorities disclose no similar cases and they are of help only by way of suggestion.
In this State the right of a private charitable society to exact services in return for benefits, without establishing the relation of employer and employee, was held in Blust v. Sisters of Mercy, 256 Mich. 1, in the case of a novitiate on probation to become a Sister of Mercy, on the ground that the relation was purely charitable and involved no hiring or commercialism.
Upon somewhat analogous grounds, an eagle boy scout was held not an employee, who worked in preparing a boy scout camp for regular visitors and was relieved of expense while attending camp. Stiles v. Des Moines Council, Boy Scouts, 209 Iowa, 1235 (229 N. W. 841).
The British cases hold the immunity for charitable reasons within close bounds. In Burns v. Manchester and Salford Wesleyan Mission (Ct. of App.), 99 L. T. 579 (1 B. W. C. C. 305), a person, working in a labor yard maintained by a purely charitable organization and who received board, lodging, and occasional trifling sums of money, was held not an employee. However, in Porton v. Central (Unemployed) Body for London (Ct. of App.), 78 L. J. K B. 139 ([1909] 1 K. B. 173, 100 L. T. 102, 73 J. P. 43, 25 T. L. R. 102, 2 B. W. C. C. 296), where the defendant was a corporation created by statute to provide work for the unemployed and which furnished temporary work at stated wages, the court deemed the aid neither charitable nor poor relief and, as it was wholly voluntary on both sides, held that the relation was one of employer and employee. And in MacGillivray v. Northern Counties Institute for the Blind (Scot. Ct. of Sess.), (1911) S. C. 897 (4 B. W. C. C. 429), where plaintiff worked in the industrial department of defendant, the department being maintained partly by charitable contributions, and received lodging, board, and five shillings in money per month, the court, in holding him an employee, stressed the voluntary character of the relationship, that he was not bound to go to the institute nor it to receive him.
The above cases involved private employees as defined in the workmen’s compensation acts. The definition of a public employee is even broader, because it includes one under “appointment” as-well as “contract” of hire. The courts have recognized the breadth of the definition and have not undertaken to restrict it. The following persons have been held public employees:
A taxpayer, who had the option, by law, to pay his road tax or perform labor and who elected to work it out (Town of Germantown v. Industrial Commission, 178 Wis. 642 [190 N. W. 448, 31 A. L. R. 1284]); a juror (Industrial Commission v. Rogers, 122 Ohio St. 134 [171 N. E. 35, 70 A. L. R. 1244]); a bystander, summoned by a sheriff to assist in making an arrest (County of Monterey v. Industrial Accident Commission, 199 Cal. 221 [248 Pac. 912, 47 A. L. R. 359]); a convict, working on the highway and receiving compensation, where it was optional with prisoners whether they would accept the labor or not (California Highway Commission v. Industrial Accident Commission, 200 Cal. 44 [251 Pac. 808, 49 A. L. R. 1377]). In the latter case the court noticed the social features of the privilege with reference to the rehabilitation of prisoners.
In connection with public poor relief, there are two cases which have not reached the courts. In City of Columbus v. Greenlee, Industrial Commission of Ohio, June 5, 1932, a man, working for the city under the scrip relief plan, was held not an employee. However, the laws of Ohio require an indigent to render services for the relief furnished him. In Bennett v. City of Detroit, Michigan department of labor and industry, June 15, 1931, the plaintiff who had received, aid from the city and worked to pay for it was held an employee.
Private charities make their own rules. Public poor relief is governed by law, to which we must turn to discover whether plaintiff’s services to the city were within the administration of relief of destitute persons or arose out of another relationship.
The liability of the public for the support of poor persons, did not exist at common law. It rests entirely on statute. 48 C. J. p. 432. The city of Grand Rapids had the duty to support plaintiff. Eckman v. Township of Brady, 81 Mich. 70. Except as to inmates of a county infirmary (2 Comp. Laws 1929, § 8233), we can find no statute which confers authority on a municipality to require labor as a condition to poor relief nor to compel a person obtaining aid to work. Any penalty the city might have imposed on plaintiff had he refused to work as “required” would have been extra-legal as far as the poor law is concerned. On the other hand, the city had no duty to provide work for plaintiff. It could have supported him in idleness. The net result is that both parties were free to contract for the employment.
The establishment of the scrip relief plan was voluntary on the part , of the city. It was neither required nor authorized by statute as a means of providing poor relief. Consequently it must have been instituted by virtue of the general powers of the city, not in furtherance of special duties or powers. Engagement in the plan by plaintiff was equally voluntary, because he had the option to accept or reject it without loss of legal rights.
In having full control of and dictating the rate of wages, the hours of labor, and the conditions of employment, the city was in no different position than any other employer who can make his own terms, nor plaintiff than any other employee who accepts the terms offered.
It appears plain that the scrip relief plan was not an incident to the administration of statutory support of the poor, but was a substitute for it. The employment of plaintiff by defendant was contractual, not statutory, and no other relationship between them can be found from the situation except that of employer and employee.
Award should be affirmed, without costs.
McDonald, O. J., and Potter, J., concurred with Fead, J.
Wiest, J. I am not in accord with the opinion of Mr. Justice Fead.
The workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.) has no common-law background and was originally bottomed on the idea that industry should assume liability as a part of the cost of production. It is true that the plan has been extended to encompass labor contracts in other fields, but, at first, and now, the relation must be one of contract and that of employer and employee.
Citizens needing public aid are in a sense wards of the municipality required to support them, and, if the able among them are set at work at common and unremunerative public tasks,- there does not arise a contract of hire or the relation of employer and employee, but only a helping hand in behalf of public charity invoked and extended.
“Municipalities called upon to support paupers have a right to their services and earnings to aid in their support.” 48 C. J. p. 543.
This right does not arise out of contract at all, but as a counterpart of the statutory duty to care for poor persons. Such persons are not in the employ of the municipality under the relation of master and servant, for such relation is neither contemplated nor does it in fact arise.
I am not prepared to hold that, where the statute requires a municipality to maintain the poor, the relation of master and servant under contract arises if the poor dependents are not left in idleness.
I think the award should be vacated.
The question being of public moment, there will be no costs.
Clark, Sharpe, North, and Butzel, JJ., concurred with Wiest, J. | [
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Sharpe, J.
Alanson Driver departed this life at the city of Flint on April 3, 1929. The defendant Union Industrial & Savings Bank is the successor to the Bankers Trust Company, which was appointed administrator of his estate on petition of his widow, Addie Driver, in which she stated that the heirs of said deceased were herself as widow and the other individual defendants, who were brothers, nephews, and nieces of the deceased. The plaintiff, Raymond Driver, was a son of the deceased. He had left his parents’ home in Toledo, Ohio, in 1910, when 18 years of age. He joined the navy, and was discharged therefrom in 1914. He sailed on an army transport, named the Findland, in 1917-1918. He had no correspondence with his parents thereafter. He first learned of his father’s death in March or April, 1932. He soon after came to Flint, and found that the estate had been administered, the final account of the administrator allowed, and a determination of heirs had and distribution ordered on February 20, 1930, in which he was not included.
He filed the bill of complaint herein June 25,1932, alleging that the proceedings taken for the distribution of the estate, except as to the share thereof of his mother, were in violation of the provisions of Act No. 205, Pub. Acts 1925 (3 Comp. Laws 1929, § 15624 et seq.), and praying that the administrator be required to account to him for the moneys unlawfully disbursed by it, and that the other defendants, who had been awarded interests in the real estate owned by the deceased, be required to quitclaim the same to him, or, in lieu thereof, that the decree might he recorded as a conveyance to him. From a decree dismissing his bill he has taken this appeal.
The record discloses that on February 20, 1930, the judge of probate made an order determining who were the heirs of the deceased. It recites that a petition therefor had been presented to the court. This petition does not appear in the record. The order recites that ‘ ‘ due notice of the hearing on said petition having been given as directed by said court.” At the hearing thereon it appears that the widow and all of the other heirs were at that time'either present or represented by attorneys. This order contains the following:
“The court further finds that Raymond Driver, son of Alanson Driver, deceased has not been heard from by his parents, Adeline Driver and Alanson Driver, deceased, or by other persons most likely to hear from him were he alive, since 1917. That he was on friendly terms with his parents at that time. That correspondence had been carried on between them and the correspondence on his part suddenly ceased. That he was in the service of the United States navy during the war and it is believed he was killed. That because more than seven years have elapsed he is presumed to be dead.”
This finding was based upon the testimony of the widow. We quote from the “stipulation of facts:”
“At this hearing the widow testified in part that she had had four children by Mr. Driver, that she knew three of them were dead, but did not know whether or not the fourth one was living, and that she had not heard from him since 1917, at which time he was just about to sail on the boat, Findland; that he was in the navy; that he had quit corresponding; and that she had not heard from him since. That she had written the navy department and that they could not trace him. That the O. R. C. where he carried insurance had been unable to find him and that ‘he was just about to come home on a furlough when he was ordered to sail and he says if anything happens to me mother, you will have some insurance.’ ”
This was followed by a determination that the widow and the heirs above referred to “were the legal heirs of said deceased and entitled to inherit the real estate of which said deceased died seized.” On the same day an order assigning the residue of said estate was made by the probate judge. It recites that it was made pursuant to a petition therefor and that the widow and heirs were present or represented by attorneys. This petition does not appear in the record. The order of assignment recites that it was made pursuant to a stipulation signed by all of the persons whom the court found to be entitled. No mention was made of the plaintiff therein.
Counsel for the plaintiff contend that the provisions of sections 16 and 17 of said Act No. 205 (3 Comp. Laws 1929, §§ 15639, 15640) were not complied with, and that the court was without jurisdiction to make these orders.
Section 16 provides that when a person who has been absent for seven years, and whose whereabouts are unknown, is an apparent beneficiary of a deceased person, the estate shall not be distributed until three years after the death of the decedent.
Section 17 provides that, when the question of the existence of such a beneficiary is presented to the probate court, it may, upon its own motion, frame an issue thereon and determine whether or not the apparent beneficiary is in existence, that is, living, at that time. If he determines that he is not, then the estate may be distributed notwithstanding the provisions of section 16. Unless this construction be placed upon section 17, there would seem to be no reason for its inclusion in the statute.
The proof submitted on the issue to be determined by the court must show, not only that the apparent beneficiary has—
“been absent from his or her last-known place of abode for the continuous period of seven years with his or her whereabouts unknown to those persons most likely to know thereof, and who has not been heard from by such persons during said period,”
as set forth in section 16, but must warrant a finding of presumptive death. The law does not require that testimony submitted in the probate court shall be taken by a stenographer. We have quoted from the “stipulation of facts” the testimony of plaintiff’s mother, on which the order made was based.
If she had had any idea at that time that plaintiff was then living, she, above all others, would have sought to protect his interest by casting doubt upon the presumption that he was dead, and, had she done so, the finding of the court would not have been made. A son, no matter how wayward, owes some duty to the parents who have reared him. Plaintiff’s relations with his mother were apparently at all times friendly. He kept her advised as to- Ms whereabouts for several years after he left her home in Toledo. In 1917 he embarked on what he led her to believe was a perilous voyage, as a result of which she might be entitled to insurance on his life. For 13 years thereafter she had had no word from Mm, nor had the navy department or the insurance company been .able to trace Mm. In our opinion her testimony warranted the finding of the trial court as quoted above. '
Counsel for the plaintiff contend that the provisions of section 17 requiring the framing of an issue and the appointment of a guardian ad litem were not complied with, and that the court was therefore without jurisdiction to make the order in question. While the record does not disclose that a formal issue was framed, the finding of the court shows clearly that the question which would have been presented thereby was passed upon and decided. The omission in this respect in no way affected the jurisdiction of the court, which is a court of record.
• This section also provides that when an issue is framed a guardian ad litem “to represent the possible absent beneficiary” shall be appointed. This should have been done, but under the proof submitted the rights of the plaintiff were in no way affected by the omission to do so.
In Calhoun v. Cracknell, 202 Mich. 430, where a similar question was raised, this court expressed its approval of the opinion of the trial court, in which it was said (p. 436):
“The court having jurisdiction to distribute the estate and to construe the will for the purpose, the failure to appoint a guardian ad litem for a minor could be no more than an irregularity of procedure. It is fundamental that an irregularity, not jurisdictional, even though sufficient to require the vacation of a judgment on direct attack, does not affect its force when questioned in another proceeding. If the appointment were necessary, the judgment would be, not void, but merely voidable. ’ ’
This court has many times passed upon the binding effect of orders of the probate court made in the administration of estates, and has uniformly held that review may be had only in the manner provided for in the statute. Calhoun v. Cracknell, supra; Chapin v. Chapin, 229 Mich. 515; Thompson v. Thompson, 229 Mich. 526; Raseman v. Raseman, 234 Mich. 237; Benjamin v. Fairchild, 242 Mich. 274.
It is urged that a great injustice will be done to plaintiff if he be deprived of the property to which he would be entitled as an heir of his father. It would seem, however, that under the circumstances an even greater injustice would be done by requiring the trust company, which acted as administrator of his father’s estate and made distribution of the personal estate as ordered by the probate court, to account to him for" the money paid by it pursuant to such order.
The decree is affirmed, with costs to appellee.
Clark, Wiest, and Btttzel, JJ., concurred with Sharpe, J.
Potter, J. Plaintiff filed a bill to set aside an order of the probate court determining heirship, assigning residue, accounting, and to recover property which he claims belongs to him as sole heir of his father, Alanson Driver, deceased. From a decree for defendants, plaintiff appeals. Plaintiff was absent from Flint, where his father lived and died. He had not been heard from for more than 10 years, and was supposed to be dead. He had no actual notice of his father’s death or the administration of his estate.
(1) Plaintiff’s rights are barred, if at all, by action of the probate court, in pursuance of Act No. 225, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 15624-15653), which statute is valid and exclusive.’ Scott v. McNeal, 154 U. S. 34 (14 Sup. Ct. 1108); Cunnius v. Reading School District, 198 U. S. 458 (25 Sup. Ct. 721, 3 Ann. Cas. 1121); Blinn v. Nelson, 222 U. S. 1 (32 Sup. Ct. 1, Ann. Cas. 1913 B, 555). Plain •tiff’s right to recover may he barred only by compliance with the statute, which, being in derogation of the common law, must be strictly construed and rigidly followed.
(2) The probate proceedings which are claimed to have deprived plaintiff of his interest in his father’s estate were without jurisdiction and void. Alanson Driver, plaintiff’s father, died April 3, 1929. February 20, 1930,10 months and 17 days after the father’s death, his estate had been administered, the administrator’s final account allowed, a determination of heirship had, and a distribution of the estate ordered, February 20,1930, in which plaintiff was not included. Distribution was immediately made, and defendants’ rights are based upon this order and distribution made in pursuance thereof. June 25, 1932, the bill of complaint was filed.
(3) Probate courts have general jurisdiction of testamentary and other probate matters. People, ex rel. Campau, v. Wayne Circuit Court, 11 Mich. 393 (83 Am. Dec. 754); Church v. Holcomb, 45 Mich. 29; Alexander v. Rice, 52 Mich. 451; Morford v. Dieffenbacker, 54 Mich. 593; Schlee v. Darrow’s Estate, 65 Mich. 362; Fingleton v. Kent Circuit Judge, 116 Mich. 211; Reason v. Jones, 119 Mich. 672. They were unknown to the common law, and derive all their power and authority from the statutes creating them. They must find warrant for all their acts and doings in the statute. Grady v. Hughes, 64 Mich. 540; Scholten v. Scholten, 238 Mich. 679. An absolute want of jurisdiction to perform a judicial act cannot be waived. Hull v. Hull, 149 Mich. 500; Attorney General, ex rel. Wolverine Fish Co., v. A. Booth & Co., 143 Mich. 89; Thompson v. Michigan Mutual Benefit Ass’n, 52 Mich. 522; Woodruff v. Ives, 34 Mich. 320; Attorney General, ex rel. Lock wood, v. Moliter, 26 Mich. 444; Moore v. Ellis, 18 Mich. 77; Farrand v. Bentley, 6 Mich. 281; 15 C. J. p. 844. The acts and doings of the probate court of Genesee county were not in conformity with the statute. They were directly contrary to its plain and positive provisions and prohibitions. The defect is apparent on the face of the probate proceedings, which proceedings ordering and directing the distribution of the personal property and the assignment of the real estate of plaintiff's deceased father to plaintiff’s exclusion, were in clear violation of the statute governing the same.
(4) A probate court has no power or authority to set aside its own orders and decrees. Hitchcock v. Genesee Probate Judge, 99 Mich. 128; Grady v. Hughes, supra; Holden v. Lathrop, 65 Mich. 652. But a court of equity has jurisdiction to set aside an order of the probate court made without jurisdiction or authority. Frost v. Atwood, 73 Mich. 67 (16 Am. St. Rep. 560); Lothrop v. Duffield, 134 Mich. 485; Ewing v. Lamphere, 147 Mich. 659 (118 Am. St. Rep. 563); Ombrello v. Railway Co., 252 Mich. 396.
(5) It is claimed the probate court had jurisdiction of the subject matter and the parties, and its finding and judgment is final and conclusive.
“Jurisdiction, in its fullest sense, is not restricted to the subject-matter and the parties. If the court lacks jurisdiction to render, or exceeds its jurisdiction in rendering, the particular judgment in the particular case, such judgment is subject to collateral attack, even though the court had jurisdiction of the parties and of the subject-matter. This meaning of jurisdiction is recognized by this court in Smith v. People, 2 Col. App. 99 (29 Pac. 924); Newman v. Bullock, 23 Col. 217 (47 Pac. 379); Tebbetts v. People, 31 Col. 461 (73 Pac. 869); Tegeler v. Schneider, 49 Col. 574 (114 Pac. 288); Kilker v. People, 68 Col. 174 (188 Pac. 744). The supreme court of the United States, the ultimate authority, has so ruled in Windsor v. McVeigh, 93 U. S. 274; Ex parte Rowland, 104 U. S. 604; Ex parte Lange, 18 Wall. (85 U. S.) 163. See, also, Hovey v. Elliott, 145 N. Y. 126 (39 N. E. 841, 39 L. R. A. 449 and notes), id., 167 U. S. 409 (17 Sup. Ct. 841).” People, ex rel. Arkansas V. S. B. & I. L. Co., v. Burke, 72 Col. 486 (212 Pac. 837, 30 A. L. R. 1085).
As said by the supreme court of the United States in Windsor v. McVeigh, 93 U. S. 274, 283, of the doctrine contended for, it “is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it. ’ ’
Many of the illustrative cases are collected in Hanson v. North Dakota Workmen’s Comp. Bureau, 63 N. D. 479 (248 N. W. 680). See, also, 15 C. J. p. 729; 1 Bailey on Jurisdiction, § 22; 1 Freeman on Judgments (4th Ed.), § 264.
“An illustration of the distinction between jurisdiction of the subject-matter in the technical sense, rendering a judicial determination, however erroneous, binding till impeached in some of the ways provided by law and a mere assertion or pretense of jurisdiction without any real foundation for it whatever, rendering the judicial determination in respect thereto utterly void, is found in Melia v. Simmons, 45 Wis. 334 (30 Am. Rep. 746); Frame v. Thormann, 102 Wis. 653 (79 N. W. 39); Wisconsin Trust Co. v. Wisconsin Marine & Fire Insurance Co. Bank, 105 Wis. 464 (81 N. W. 642); Harrigan v. Gilchrist, 121 Wis. 127 (99 N. W. 909); Jordan v. Railway Co., 125 Wis. 581 (104 N. W. 803,1 L. R. A. [N. S.] 885, 110 Am. St. Rep. 865, 4 Ann. Cas. 1113); Griffith v. Frazier, 8 Cranch (12 U. S.), 9; Scott v. McNeal, 154 U. S. 34 (14 Sup. Ct. 1108); Cunnius v. Reading School Dist., 198 U. S. 458 (25 Sup. Ct. 721, 3 Ann. Cas. 1121). ’ ’ Hanson v. North Dakota Workmen’s Comp. Bureau, supra.
(6) It is contended plaintiff’s rights are barred by the proceedings had in the probate court in his father’s estate to determine heirship. In such proceedings the probate court shall, if the evidence be sufficient, “find and adjudge who are, or were, the heirs, minor heirs, or legal representatives of the deceased and entitled by the laws of this State to inherit the real estate of the deceased.” 3 Comp. Laws 1929, § 15752. The statute also provides that such “finding and adjudication shall be entered on the journal of said court, and which entry, or a duly certified copy thereof, shall be prima facie evidence of the facts therein found.” 3 Comp. Laws 1929, § 15752.
A subsequent section of the statute provides such certified copy of the finding and adjudication of the probate court may be recorded in the office of the register of deeds and “shall be prima facie evidence of the fact as to who were heirs of the said deceased person at the time of his death.” 3 Comp. Laws 1929, § 15754.
Such finding and adjudication, in accordance with the statute, constitutes only prima facie evidence. Prima facie evidence under all the authorities is only evidence sufficient to establish a fact when it is not disputed or rebutted. 3 Bouvier’s Law Dictionary (Rawle’s 3d Rev.), p. 2683 and cases cited. It imports a certain result is temporarily established, but such result may be disputed or repelled. 49 C. J. p. 1346 and cases cited.
(7) The attack made upon the proceedings of the probate court is a direct attack.
“A direct attack upon a judgment is by appropriate proceedings between the parties to it seeking, for sufficient cause alleged, to have it annulled, reversed, vacated, or declared void.” Pope v. Harrison, 16 Lea (84 Tenn.), 82.
See also, VanFleet’s Collateral Attack, § 2, p. 4.
A bill in equity to set aside a judgment for fraud, mistake, or want of jurisdiction is a direct attack. VanFleet’s Collateral Attack, § 2, p. 4.
(8) The statutes provide that proceedings to determine heirship, when concluded, constitute only prima facie evidence, and such prima facie evidence may always be rebutted and repelled. There was no attempt to follow Act No. 205, Pub. Acts 1925 (3 Comp. Laws 1929, § 15624 et seq.), the only statute under which plaintiff’s rights might be barred. This act provides for the sale or disposition of the property of persons who have been absent from their last known place of abode for a continuous period of seven years, their whereabouts being unknown to those persons most likely to know, and who have not heard from such persons during such period of seven years; but under this act,
“Except for the purposes of paying taxes, special assessments, liens, insurance premiums, allowed claims for debts contracted by the absent person before his or her disappearance, or to prevent great depreciation on account of neglect, or to specifically fulfill contracts made by the absent person before his or her disappearance, no sale, mortgage, or other disposition of the property of the absent person shall be had until the lapse óf one year after the appointment and qualification of the representative of his or her estate.” 3 Comp. Laws 1929, § 15632.
“No distribution nor assignment to beneficiaries of the property or the proceeds thereof of the absent person shall be made in any event until after the lapse of one year after the appointment and qualification of the representative of his or her estate; nor shall such distribution or assignment be made until after the lapse of three years after the appointment and qualification of the representative of his or her estate, unless the distributee or assignee execute and deliver to the representative a surety company bond in a penal sum not less than the value of the property distributed or assigned and for such additional amount as the court may prescribe, to be approved by the probate judge” — conditioned as provided by statute. 3 Comp. Laws 1929, § 15633.
(9) 3 Comp. Laws 1929, § 15639, provides:
“Whenever any person shall die testate or intestate, leaving property in the State of Michigan to be administered, and one or some of the apparent beneficiaries of his or her estate is a person who has been absent from his or her last known place of abode for the continuous period of seven years with his or .her whereabouts unknown to those persons most likely to know thereof, and who has not been heard from by such persons during said period, no distribution or assignment of that portion of the estate which would be distributed and assigned to the absent person, if alive, shall be made until the lapse of three years after the death of the decedent.”
Section 15641, 3 Comp. Laws 1929, provides for giving notice that “on a day certain after the lapse of said period of three years an order of assignment and distribution will be made by the court of the portion of the estate aforesaid to certain persons, nam ing them and their relationship, if any, to the decedent and the proportions of their shares in the portion of the estate to be distributed. ’ ’
Section 15642, 3 Comp. Laws 1929, provides:
“The notice described in the next preceding section shall be published in some newspaper in general circulation in the county once each calendar month for four months prior to the month containing the day certain when the order is to be made, ’ ’ etc.
These statutes were not complied with. Plaintiff’s interest in his father’s estate was turned over to others, illegally, by an invalid order of the probate court, issued without jurisdiction. The distribution of the estate made by defendants was in violation of plaintiff’s rights. It was made in direct violation of statute. It amounts to taking his property without due process of law. To uphold the action of the probate court it is necessary to hold prima facie evidence conclusive evidence; the positive prohibition of the statute an implied authorization; that the probate court has full power and authority to do that which by statute it is prohibited from doing at all.
(10) The probate court had no jurisdiction to make the order of distribution. The administrators of the estate had no right to make distribution. There was no valid assignment of plaintiff’s interest in the real estate. The action of the probate court and the proceedings taken amount to a confiscation of plaintiff’s property. Decree should be reversed, with costs. Decree should be entered for plaintiff.
McDonald, C. J., and Forth and Fead, JJ., concurred with Potter, J. | [
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Fead, J.
January 14, 1931, plaintiff commenced suit against defendant, a Pennsylvania insurance company, and also brought garnishment proceedings. Garnishment summonses were served the same day. Service in the principal suit was made on January 17th on the commissioner of insurance of this State, under 3 Comp. Laws 1929, § 12315, which, provides that the company—
“Shall likewise file with the commissioner of insurance its irrevocable written stipulation, duly authenticated by the company, stipulating and agreeing that any legal process affecting such company, served on the insurance commissioner or his deputy, shall have the same effect as if personally served on the company or its authorized attorney in this State. ’ ’
January 14th, a decree of dissolution of defendant was entered in the court of common pleas of Dauphin county, Pennsylvania, upon which, by statute of that State as well as the decree, the commissioner of insurance of Pennsylvania was — ■
“vested by operation of law with title to all of the property, contracts, and rights of action of such company. ’ ’ Pennsylvania Laws, 1921, § 506, p. 808.
The commissioner of insurance of Pennsylvania, as statutory liquidator of the corporation, appeared specially and moved to dismiss the suit because of the dissolution decree. The motion was denied, and the cause proceeded to judgment on default of defendant for failure to appear.
The record does not show the disclosures, if any, of the garnishee ..defendants. The judgment is in personam, in the usual form, for the amount of damages proved.
Dissolution of a corporation is governed by the laws of the State of its charter. Mills v. Anderson, 238 Mich. 643. The foreign laws need not be formally introduced in evidence. 3 Comp. Laws 1929, § 14179. Pull faith and credit'must be given the decree of the court of common pleas in the respects: (a) That defendant corporation was dissolved by the decree; and (b) that the insurance commissioner of Pennsylvania took and holds title to the corporate property, not as an ordinary receiver, but as a quasiassignee of the corporation by force of statute, entitled of right to defend or sue in its stead in actions in other States. Relfe v. Rundle, 103 U. S. 222; Converse v. Hamilton, 224 U. S. 243 (32 Sup. Ct. 415, Ann. Cas. 1913 D, 1292); Lion Bonding & Surety Co. v. Karatz (C. C. A.), 280 Fed. 532; 14A C. J. p. 1350.
But State laws do not have extraterritorial force. Eights and remedies of property are governed by laws of the State in which it is situate. The statutory assignment will be given force in other States, but on the ground of comity, not by constitutional mandate. McKey v. Swenson, 232 Mich. 505; Martyne v. American Union Fire Ins. Co., 216 N. Y. 183 (110 N. E. 502); 23 L. R. A. 52, note.
“A statutable conveyance of property cannot strictly operate beyond the local jurisdiction. Any effect which may be given to it beyond this does not depend upon international law, but the principle of comity; and national comity does not require any government to give effect to such assignment, when it shall impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this country.” Oakey v. Bennett, 11 How. (U. S.) 33, 43, quoted in Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624, 629 (19 Sup. Ct. 545).
So, it is held that, where there is property of a foreign corporation within the State, a foreign judgment dissolving the corporation will not be permitted to compel citizens of the State to undergo the expense and inconvenience of asserting their claims in the foreign jurisdiction, but the local property will be subjected to local demands. Rodgers v. Adriatic Fire Ins. Co., 148 N. Y. 34 (42 N. E. 515); Hammond v. National Life Ass’n, 58 App. Div. 453 (69 N. Y. Supp. 585); Shloss v. Metropolitan Surety Co., 149 Iowa, 382 (128 N. W. 384); Alwart Bros. Coal Co. v. Pittsburgh Fire Ins. Co., 253 Ill. App. 361.
Plaintiff relies upon the latter authorities. The defect in its position is that, although plaintiff now disclaims purpose to enforce the judgment except upon property within this State, the judgment is in personam, and, if valid, is as enforceable elsewhere as in Michigan. Nor does the record disclose any property impounded in this State upon which the judgment could operate or be sustained as a judgment in rem.
It may be conceded that, within some limitations, the designation of the commissioner of insurance as an agent upon whom service of process may be made is irrevocable by the foreign corporation as long as it is in existence, whether it be in operation or in receivership and although it may withdraw from the State. Ennest v. Railroad Co., 176 Mich. 398 (47 L. R. A. [N. S.] 179, Ann. Cas. 1915B, 594); Mutual Reserve Fund Life Ass’n v. Phelps, 190 U. S. 147 (23 Sup. Ct. 707).
But the statute declares the effect of service on the insurance commissioner to be the same as that of personal service on the corporation. Upon dissolution, there is no one to serve, because, in law, a dissolved corporation is a dead person, so much so that, in the absence of statute and revival, even pending actions by or against it would abate. Pendleton v. Russell, 144 U. S. 640 (12 Sup. Ct. 743); 1 C. J. p. 134; 32 L. R. A. (N. S.) 446, note; 17 Ann. Cas. 225, note; 14A C. J. p. 1200.
The statutes of this State recognize the finality of dissolution by providing for continuance of domestic corporations for a term of years for the purpose of certain actions and directing the manner of service. These statutes are not made to apply to foreign corporations either by language or as a condition of admission of the latter to do business in this State. Perhaps our legislature should extend them to foreign corporations, as has been done in some other States.
The service was invalid to sustain a judgment in personam and the record does not show basis for a judgment in rem.
Judgment will he reversed, with costs, and without new trial.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
This is a suit for divorce. Plaintiff had decree. The question here is on the division of the property.
The parties own five pieces of real estate. Two are income properties, not in good condition, partly rented and there is difficulty in collecting the rents. Three are vacant lots, on one of which there is purchase price of $1,138 unpaid, the equity being $2,538. The parties also have about $2,900 in cash.
The court decreed the income properties, valued at $18,000 to $19,000, to plaintiff, and the three va cant properties, valued at about $5,000, and $2,500 in cash to defendant.
Tbe testimony is in sharp and irreconcilable conflict upon the purchase of the real estate and the saving of the money. Defendant claimed he worked steadily, gave his wife the earnings, and the properties were purchased from his money.- Plaintiff denied that defendant made regular or even reasonable contributions to household expenses, claimed she earned money as a seamstress to keep the house, educate the children, and purchase the real estate. She is corroborated by the testimony of the children, one of whom is a physician, and the other is attending college.. Neighbors and others supported to some extent the claims of the respective parties.
The division of property is quite unusual in the proportion given the plaintiff. However, the printed record strongly favors plaintiff’s claims to having acquired it through her own labors and efforts and we cannot say that the circuit judge, who saw the witnesses, erred in the distribution.
Decree affirmed.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
On March 24, 1916, Thomas J. Rees executed a last will and testament, in which he devised and bequeathed his entire estate to his wife, Alice A. Rees, “for her own use and sole benefit during her life,” and, after her decease, to pass to his two children, Burton D. Rees and Beatrice M. Hart, share and share alike. His wife was appointed executrix thereof. He died in 1917. She executed a will on July 27, 1929, leaving substantially all of her estate to William H. Keyser and his wife, Elizabeth Keyser, with whom she was living, but who were not related to her in any way. She passed away on August 11, 1929. Her husband’s will was kept by her in a safety deposit box in the Peoples Commercial & Savings Bank in Bay City, west side, until shortly before her death, when it was delivered to the judge of probate. Both wills were afterwards admitted to probate. The plaintiff is administrator of his estate with the will annexed, and the defendant is executor of hers.
This action is replevin, brought by plaintiff to recover certain bonds and certificates of stock in defendant’s possession as executor, which plaintiff claims belong to the estate of the husband. Plaintiff had judgment on trial without a jury. Defendant has appealed.
Thomas J. Rees for many years was chief engineer on a steamer on the G-reat Lakes, and at the time of his death was receiving a salary of $220 per month. It also appears that he at one time received $542 from his deceased father’s estate. He and his wife were economical and lived frugally.
Charles H. Cook, the cashier of the Peoples Commercial & Savings Bank of Bay City, west side, was sworn as a witness for the plaintiff. He produced the bank record of the account of Mr. Rees from 1912 to the date of his death, and of Mrs. Rees, continued without any formal transfer to her, thereafter. On being shown the will of Mr. Rees, he recalled that she at one time had showed it to him. He testified:
“On one occasion Mrs. Rees was indicating a desire to retrench on expenditures and I told her I thought the money was intended for her use entirely. She says, ‘No, that is not true, Mr. Cook.’ She says, ‘Mr. Rees left those funds with me in trust for the children and I am to treat them with the utmost economy and conserve them for the children. ’ * * *
“We have a record at the bank of the bonds purchased by Mr. Rees. Our records would indicate when the purchases were made and when the account was charged. I could state very positive that the purchase of all bonds, during the lifetime of Mrs. Rees, followed the collection of bonds which had matured that were already in her possession. Out of this account of Mr. Rees and out of the proceeds of the bonds which Mr. Rees left and which were collected, were purchased other bonds. I could not state what estate in bonds and securities Mr. Rees left. I assumed that these bonds were purchased out of the proceeds of the sale of bonds that Mr. Rees had left, but I don’t know that positively. I could positively identify the bonds that have been offered this afternoon as having been bought through the Peoples Commercial & Savings Bank, and the purchase price was received from the proceeds of the bonds which had been turned in by Mrs. Rees. I could not state that they were the property of Mr. Rees. I could not state whether they were property which was in the safety deposit box at the time of Mr. Rees’s death. Examining the account of Thomas J. Rees, the aggregate of the bond items that I can identify is $4,500, from 1912 to the day of his death. And I believe because of the amounts that they were bond transactions.”
Winifred Rees, the wife of Burton D. Rees, testified that Alice A. Rees at one time said to her, when talking about his illness and death, that ‘ ‘ after she paid all expenses she had $9,000 left;” and that it was in the form of bonds.
Mrs. Helen Rees, the wife of a brother of Thomas J. Rees, testified that she visited Alice A. Rees in September, 1924, and that Alice then said to her that “Mr. Rees had left the investments for her during her lifetime, and then to go to the children, Burton and Beatrice;” that—
“I could not say that she made any statements as to how much he had left. She said that she had used it for her expenses and that she wanted to save until it became $10,000 out of the income.”
William C. Grustin testified that he frequently visited Alice after her husband’s death, and that she discussed the property left to her.
“I can’t exactly speak her words although I can give her meaning, that Mr. Rees had left enough money so that she was enabled to live on the interest, and that she felt as if this money was left in trust to her for the children when she was through with it. She did not state how much he had left.”
Elma Rohrer, an old friend of the family, testified that Alice often spoke to her with reference to the property left her by her husband.
“She said she would have had about $11,000 or $12,000, only his sickness and death left her with about $9,000. She said she was holding this in bonds. * *. * Well, she said these bonds were left to her for her keep during her life, and after that it was to go to the children.”
No evidence was submitted by the defendant. Counsel for the defendant insist that—
“A rebuttable presumption of ownership, which in the absence of evidence to the contrary, the law will assume to be correct, arises from the possession of real or personal property. * * *
“In this case the only evidence to overcome this presumption offered on behalf of the plaintiff consists of claimed admissions made by the deceased, Alice A. Rees, during her lifetime; ’ ’—
that such testimony “should be scrutinized carefully,” and that, if admissible at all, it was “not sufficient to prove ownership of the property involved in the estate of Thomas J. Rees.”
In our opinion, this evidence was admissible. Counsel correctly state the rules of law applicable to such admissions, and, if decision were to rest entirely upon the proof of statements made to interested witnesses, we should hesitate before deciding the plaintiff had established title in the estate of the husband to the securities in question. But there are other facts which tend strongly to support his claim in this respect. Mr. Cook testified that the bank books disclosed that Thomas J. Rees had, during his lifetime, purchased bonds aggregating $4,500 in amount. It will be assumed that these were in the safety deposit box when he passed away. His wife continued to use this box. In it was the will of her husband. It was her duty to have delivered it to the judge of probate. 3 Comp. Laws 1929, §§ 15531, 15532. Had she done so, the estate would then have been probated and an account taken of the securities owned by him which passed to her under his will. Her neglect to do so may be attributable to a want of knowledge of the law on her part, and also to the fact that, understanding the terms of his will, she thought it unnecessary to do so, as all of his property would pass to his children on her death. Her statement to Mr. Cook, a disinterested witness, above quoted, tends strongly to support this conclusion, as does also the fact that she made no will until about two weeks before her death and while being taken care of by the parties, unrelated to her, to whom she bequeathed substantially all of her property.
We think that, under the proofs submitted by plaintiff, a prima facie case of ownership of the securities in dispute in the estate of Thomas J. Bees was made out. No evidence was submitted by the defendant. If these securities belonged to Alice A. Bees at the time of her death, it would seem that some proof should have been available tending to establish such ownership.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
Plaintiff sold a parcel of real estate on land contract to defendant Nathan Levin. Levin then sold the same premises on land contract at a higher price to defendant Robert Herndon. Herndon, claiming right to do so under the terms of his contract with Levin, made some payments to plaintiff on the Levin contract. Plaintiff filed the bill herein to foreclose the contract she had with Levin, elected to have the whole contract price under an acceleration provision, and asked, and was granted, a decree against Herndon for any deficiency upon sale. Defendant Herndon offered his contract in evidence to show there was no assumption of liability, but, upon objection by plaintiff that the tax thereon, imposed by 1 Comp. Laws 1929, § 3647, had not been paid, it was excluded.
Plaintiff’s rights, if any, against Herndon depended upon the terms of the contract between Levin and Herndon. That contract was in court, and the tax thereon could have been paid by any party to the suit needing the evidence it furnished.
Plaintiff relied upon a letter from Herndon, purporting to state provisions contained in his contract with Levin, and the court evidently considered such letter as evidence of contract rights and obligations on the part of Herndon. The excluded contract was evidence essential to plaintiff’s case. If'the Herndon contract had been set forth in plaintiff’s bill and admitted by Herndon’s answer, the court could not have considered it. Macdonald v. Betts, 246 Mich. 585.
The mentioned statute is imperative that:
“No mortgage or land contract, which is subject to the tax imposed by this act shall be released, enforced, discharged of record or received in evidence in any action or proceeding at law or in equity, nor shall any assignment of or agreement extending any such mortgage or land contract be recorded until the tax imposed thereon by this act shall have been paid as in this act provided. ’ ’
The letter relied on by plaintiff, even if considered competent evidence of the contract, does not establish an assumption of liability on the part of Herndon to pay plaintiff on the Levin contract. We quote the letter:
“We are purchasing from Nathan Levin and Yetta Levin, his wife, this property and owe them a balance of $20,000, less this payment. This $800 is to be applied $419.75 interest and $380.25 principal.
“Under my contract with Nathan and Yetta Levin I have the right to pay directly to you $800, including interest at the rate of six per cent, every six months until the first -contract of $16,000, between you and the Levins is absorbed.
“Hereafter we shall mail directly to you these payments and when the $16,000 has been paid we will expect you to accept an assignment of the Levins ’ contract.
“Following is an excerpt from the contract we have with the Levins. ‘Eight hundred dollars in semi-annual payments, including interest, same to be credited on a certain land contract existing between Florence Henning and Nathan and Yetta Levin, and the difference of $4,000, being the equity of Nathan and Yetta Levin, payable at the rate of $500 every six months and interest at the rate of six per cent, per annum. Vendors consent to permit vendees to pay direct to deedholder the payment of $800 including interest every six months until the first contract of $16,000 between deedholder and said Nathan and Yetta Levin is absorbed.’ ”
There is no analogy between acceptance of a deed subject to a mortgage which the grantee assumes and agrees to pay and a land contract, executed by a vendee upon sale by him to a purchaser, with right of the purchaser to pay the instalments due on his vendor’s contract. Such leave to pay is not an assumption of the prior contract, and, upon no principle of equity, can it be adjudged an equitable assignment of the prior contract with promise to pay the same. If plaintiff desired to hold defendant to respond for a deficiency, it was important to evidence such liability by contract. The statute barred the contract, and, with the contract out of the case, plaintiff made no case against defendant for a deficiency decree. If the contract itself could not be considered evidence, without payment of the tax, its contents could not be shown by testimony or by the letter written by defendant Herndon. To hold otherwise would permit evasion of the mandatory provisions of the statute.
The decree against Nathan Levin is affirmed, and against Robert Herndon and Robert Herndon Company reversed, with costs to appellants. A decree will be entered in this court dismissing the bill as to Robert Herndon and Robert Herndon Company.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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Fead, J.
This is an action for breach of a three-year contract of employment. The court directed a verdict for defendant on the ground that the contract was void under the statute of frauds (3 Comp. Laws 1929, § 13417), because it did not specify the period of its duration.
The contract consists of a series of letters and telegrams. -Defendant, located at Rockford, Illinois, advertised for a sales manager. Plaintiff, living and employed in Detroit, answered the advertisement. Extended correspondence ensued, and, with personal interviews, resulted in plaintiff resigning his position, arranging to sell his home in Detroit and to move to New York, and in his finally going to Rockford to enter on his employment. When he arrived at Rockford, a new and different proposition was submitted to him by defendant, which he refused to accept. Plaintiff was paid his expenses' and four days’ compensation.
Negotiations began in February, 1924. On April 22d, plaintiff was offered the New York district. On April 23d, he wrote defendant asking the amount of his drawing account and other information, stated that he did not want to leave his employment without definite assurance of a permanent connection, and suggested that defendant send him the kind of contract under which it wanted him to operate. April 30th, defendant wrote plaintiff full'details of the proposition, as to territory, commissions for plaintiff and agents, offered drawing account of $150 per week, and;
“As to length of contract, that is entirely up to you. This is a long established and going concern and we can assure you any producer a permanent connection. ’ ’
May 2d, plaintiff asked for a drawing account of $200 per week, and, after again urging the necessity of permanency in the employment, stated:
“I would therefore suggest a three-year contract, with a renewal of same at the end of such time, should I prove myself as real producer.”
May 12th, defendant telegraphed plaintiff:
“At the end of 30 days’ service with us we will be glad to increase your drawing account to $200 weekly. ’ ’
May 12th, plaintiff replied:
“Wire received and offer accepted.”
May 13th, defendant wrote plaintiff that it would notify him of the time and place to report, and,
“When we wire you the above information, you can notify your company and we will be able to use you as soon as you obtain your release.”
May 19th, defendant wired plaintiff:
“You may report to Rockford as soon as you can obtain your release please advise us early as possible definite date you can come with us.”
Plaintiff resigned his position, listed his home for sale, notified defendant, and the latter wrote him on June 10th:
“We are very glad that you will be able to report in Rockford on June 20th and we will be expecting you at that time.”
On June 21st, defendant telegraphed plaintiff:
“Impossible to see you Monday arrange to arrive Rockford Tuesday.”
The matter of a definite term of employment was an outstanding element of the negotiations. Defendant’s failure to object to plaintiff’s proposal of a three-year term, although making a counter proposal to that suggested in the same letter by plaintiff as to a drawing account, shows that the term was satisfactory to it. The term was as much a part of the tentative contract as any of the other conditions. Plaintiff accepted the whole contract set np in the letters, by his telegram of May 12th, and defendant accepted it in writing by the letter and telegrams directing plaintiff to report for the employment.
It also appears from the proposition presented to plaintiff on his arrival at Rockford that the minds of the parties had met upon the three-year term. That proposition was drafted by defendant, expressly confirmed the letters and telegrams of April 30th, May 12th (evidently meaning May 2d), May 19th, and June 10th, and, while it proposed certain modifications in the drawing account and in commissions, it made no suggestion of change as to duration of the employment.
We think the correspondence was consistent and complete upon the terms of a contract, contained ácceptances in writing by both parties, and presented a case for the jury.
Judgment will be reversed, and new trial ordered, with costs.'
Clark, C. J., and McDonald, Potter, Sharpe, North, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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McDonald, J.
The plaintiff recovered a judgment in the circuit court for the reasonable value of five pictures which she claims to have painted on order of the defendants for use in the decoration of the Hollywood theatre, then under construction in the city of Detroit, Michigan.
The plaintiff is an artist. It is her claim that she had a contract with 'the defendants to paint 11 pictures which they desired to hang on the walls of the Hollywood theatre; that after she had completed five of the paintings they refused to accept them and bought elsewhere.
The defendants deny the contract. They claim that the plaintiff expressed a desire to paint the pictures; that defendant Ben Cohen told her if she produced any that they could use they might buy one or two of them; that she presented five, none of which was satisfactory, and they refused to accept them.
The issue was tried by the court without a jury. In his,findings he determined that a contract was made with the plaintiff for the painting of 11 pictures ; that no definite price was agreed upon; and that she was entitled to a judgment for the reasonable value of the five paintings which she had completed. From the judgment entered the defendants have appealed.
It is the contention of the defendants that the plaintiff cannot recover under the pleadings and the proofs.
The declaration was upon the common counts and specially on a contract to paint 11 pictures for the defendants at an agreed price of $500 each. With applicable proofs under this declaration the plaintiff would be entitled to recover either the contract price or the reasonable value of her work. There was no evidence of contract price, but there was evidence of reasonable value, so the court held that she could recover under the common counts. He was right in so holding. Corman Co. v. L. A. Young Industries, 231 Mich. 628; Brandt v. Munz, 250 Mich. 172.
On the question of the existence of a contract between the parties, it is claimed by the defendant's that the finding of the court is against the great weight of the evidence. We do not consider this claim, because there was no motion for a new trial. There was ample evidence of a substantial character to support the court’s finding in respect to the contract. An analysis of the testimony would serve no useful purpose.
The case was tried on the theory that if the plaintiff established the contract by a preponderance of the evidence .she was entitled to the reasonable value of the paintings which she had completed and which the defendants refused to accept. Both parties produced evidence as to their value. The paintings were made for a particular purpose and of specified sizes. It was not possible to determine their market value with any reasonable degree of accuracy. Four expert witnesses on values were called and sworn, three by the plaintiff and one by the defendants. Their testimony as to the actual value of the five paintings ranged from $800 to $3,000. After hearing and considering* their testimony, the court determined $1,625 to be the reasonable value. The record shows no reason for disturbing his finding.
The judgment is affirmed, with costs to the plaintiff.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
Plaintiff brought proceedings before a circuit court commissioner to recover possession of 40 acres of land in the county of Allegan, averring in the complaint filed therein that on the 16th day of October, 1931, she was lawfully in possession thereof and that defendant entered without authority and removed certain personal property belonging to her therefrom and refused to vacate on demand therefor. She had judgment of restitution. An appeal was thereupon taken to the circuit court, where a similar judgment was entered, from which the defendant has appealed.
The proceeding was taken under the provisions of the following sections of 3 Comp. Laws 1929:
Section 14964: “No person shall make any entry into lands, tenements or other possessions, but in cases where entry is given by law; and, in such cases, he shall not enter with force, but only in a peaceable manner.
Section 14965: “When any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession shall be unlawfully held by force, the person entitled to the premises may be restored to the possession thereof, in the manner hereinafter provided.”
The sections following provide for the form of the complaint and the after proceedings, including the entry of a judgment of réstitution.
There is little dispute as to the facts. The plaintiff had been in possession of this land for a number of years. It was but a short distance from the home in which she lived. A tenant under her had occupied the house thereon for some time, but moved out the latter part of July, 1931. The defendant testified that he visited the premises on October 2, 1931, and found no person living thereon; that the door was open and some of the windows broken; that he then put a lock on the door and later moved into the house, claiming title to the property under a warranty deed he had received therefor. Plaintiff’s husband testified that when defendant was moving in he told him that he had no right to be there, and that “it would have been necessary to use personal violence to prevent him from staying.”
The provisions of this statute have been many times construed by this court. In Smith v. Detroit Loan & Building Ass’n, 115 Mich. 340 (39 L. R. A. 410, 69 Am. St. Rep. 575), it was held that “An entry which has no other force than that implied in every trespass is not within the forcible entry and detainer statute” (syllabus). Plaintiff’s right to recover possession must then rest upon the provision in section 14965, that defendant’s possession was “unlawfully held by force,” and that she was entitled to possession, and that it should be restored to her. Her right thereto was based upon a contract of purchase which she claimed to have been executed by a former owner thereof. On the offer of this contract in evidence, objection was made that the tax thereon had not been paid, as required by 1 Comp. Laws 1929, § 3647. Attention was called to our recent holding to that effect (Macdonald v. Betts, 246 Mich. 585), and it was not received.
Plaintiff’s counsel then insisted that “as a matter of law, we are not obliged to introduce this contract in evidence.” Some testimony relative thereto was, however, received over objection. In the opinion in the nature of a judgment filed and entered by the trial court, he found that the “plaintiff is a purchaser under a land contract of the property involved from Dr. Young.” No competent evidence was introduced to warrant this finding. When the objection was made, the plaintiff might then have paid the tax and have received credit for it on her contract. Macdonald v. Betts, supra. She did not choose to do so, and the trial court was in error in holding that any competent proof had been .admitted establishing her right to possession.
The judgment awarding her a writ of restitution is reversed, and the proceeding to recover possession dismissed, with costs of both courts to appellant.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
The record discloses that on January 30, 1907, the auditor general deeded to the State of Michigan the lands here in question under the provisions of the law then in force,'being Act No. 206,-Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901, the same having become State tax homestead land. On, March 3, 1911, the State conveyed this land to James Wilson Brooks, and, by mesne conveyances subsequently made, the title rested in James W. Sanderson on April 9, 1926. On June 5, 1928, a State tax deed was issued to W. A. Evans for the delinquent taxes for the year 1924. Notice to re deem therefrom was duly served on Sanderson, and no redemption had. Title thereupon became vested in Evans, who conveyed to the plaintiff on May 21, 1929.
The question here presented is whether plaintiff’s title is defective by reason of the failure of Evans to serve a' notice to redeem upon the owner and certain tax title holders at the time the land was conveyed to the State on January 30, 1907, as appears by the chain of title then existing.
The first provision in our tax law providing for the issue of State tax homestead deeds appears in the general tax law of 1893, Act No. 206, § 127. It provided that, whenever lands had become delinquent for taxes for a consecutive period of more than three years and no application had been made to redeem or purchase them, the auditor general and commissioner of the State land office, when requested to do so by the township board of the township in which they were situated, should cause an examination to be made of them, and, if it appeared that they had been abandoned by the owner, upon a certificate being filed to that effect the auditor general should transfer them by a deed to the State. Section 130 provided that all delinquent taxes thereon should be canceled, and lands on which taxes had been spread prior thereto were ordered stricken from the tax rolls, and they were thereafter known as State tax homestead lands and were subject to homestead entry as such (section 131). The title thus acquired by the State by deed to it from the auditor general must not be confused with that which passes to it on the sale of lands delinquent for taxes, and under which the auditor general may issue a State tax deed to a purchaser from which the owner may always redeem. In 1901 (Act No. 141), section 131 was amended to provide that after said lands had been so held by the State subject to such homestead entry for three years or more they should be “open to sale and purchase.” On application therefor it was made the duty of the commissioner of the State land office to examine and appraise the value thereof, and authority was given to him to sell the same at not less than the amount so fixed and to execute a deed therefor—
“which shall convey to the purchaser the same interest as is provided for a deed where said lands have been homesteaded as provided in this section. ’ ’
When held as homestead lands, they were—
“subject to the same rules and regulations now in force as to other homestead lands not inconsistent with the provisions of this act.”
It was also provided:
“And in all cases where the lands have been taken as a homestead as set forth in last foregoing proviso, all actions of ejectment or to recover possession of said lands or to set aside the title of such homesteader by any person, firm or corporation claiming the original or government title, shall be commenced within six months after this act shall take effect, and not afterwards.”
These provisions were in force at the time the land was conveyed by the auditor general to the State in 1907, and by it to Brooks in 1911.
Section 127, as amended by Act No. 107, Pub. Acts 1899, providing for a determination by the auditor general and State land commissioner of the lands to be deeded to the State and thus become tax homestead lands, and that such determination should be conclusive unless suit was instituted to vacate the same, and section 131, in which the. time limited for actions affecting the title of the homesteader was limited to six months after the act took effect, came before this court for consideration in Semer v. Auditor General, 133 Mich. 569. The court sustained the proceedings under which the deed to the State was executed, and held valid the limitation of time fixed in which the homesteader’s title might be attacked. See, also, People v. Christian, 144 Mich. 247, and Jackson, etc., R. Co. v. Solomon Lumber Co., 146 Mich. 204.
In Griffin v. Kennedy, 148 Mich. 583, an action of ejectment was brought by a party whose title was “derived from a deed executed under the State tax homestead law” against a former owner of the land who was then in possession.' The opinion, written by Mr. Justice Carpenter, discusses at length the nature of the title acquired by a- purchaser under the homestead law and the effect of the provision in Act No. 229, Pub. Acts 1897, providing for notice by a tax title purchaser and the right of redemption thereunder, which it was insisted applied to such purchases. We quote therefrom:
“I think it a conclusive answer to this argument to point out that at the time Act No. 229, Pub. Acts 1897, was passed the act under consideration in this case, viz., the act providing for the sale of State tax lands for homesteads, was already upon the statute books. It is clear, and I think it will be conceded, that the legislature did not intend by enacting said Act No. 229 to affect the disposition of State tax lands under the State tax homestead law. At the time Act No. 229 took effect, the State tax lands were then of two classes: First, those which might be sold for homesteads under the State tax homestead law; second, those which might be sold to purchasers under the general tax laws. In enacting said law, the legislature did not intend that the land in the first class should be subject to redemption in the hands of a purchaser from the State, but it did intend that land in the second class should be subject to said redemption. Whether a particular description of land belonged to the one or the other of these two classes manifestly could not be determined prior to its sale or classification. Until sold under the general tax laws, any particular description of land might become tax homestead land. It follows, therefore, that the legislature did not intend to lessen the State’s title in State tax lands generally. It intended merely to give owners the right to redeem after the State tax lands formerly owned by them were sold by the State to private purchasers under the general tax laws.”
The validity of the six months’ limitation provision was again sustained. The holding in this case was cited with approval in Downer v. Richardson, 148 Mich. 596, 602; Holmes v. Loud, 149 Mich. 410, 415; Chandler v. Clark, 151 Mich. 159, 183; Haney v. Miller, 154 Mich. 337, 340, and Beuthien v. Dillon, 160 Mich. 396, 400, 401. It was considered and reviewed at some length by Mr. Justice Steere in Grand Rapids Trust Co. v. Doctor, 222 Mich. 248, wherein the rights of a purchaser under a State tax homestead deed were involved. It was therein said (page 253) :
“Under these proceedings the former owner becomes a stranger to the title to the lands so forfeited and deeded to the State. The State takes absolute title to the same in consideration of the taxes he owed, and relieves him from any obligation to pay further taxes thereon. His rights and duties in connection with the land as owner and taxpayer are at an end. The distinction between continuing taxation and tax sales under the general tax laws, and a trans fer to the State under this special tax homestead law is clearly pointed out in the opinion of Justice Carpenter in Griffin v. Kennedy, 148 Mich. 583. Concurring in that opinion, Justice Grant, referring to former decisions, said:
“ ‘I am unwilling to east any doubt upon the many decisions of this court holding that the State acquired the absolute title to these tax lands. The original owner, after decree and sale, may in a proper proceeding attack the title for certain reasons. When the title is in the State, the original owner has no more interest in it than any stranger to that title. He may purchase the land from the State as may any other person. ’
“Vide, also, Chiodo v. Williams, 180 Mich. 367; Darrow v. Railway Co., 188 Mich. 664.”
These decisions seem conclusive that the rights of a former owner have been absolutely cut off by a deed from the State of State tax homestead lands where no attack is made upon it within six months after its execution. It has, in my opinion, been so understood by all persons dealing in titles thus acquired until doubt was cast upon it by the decision in Marshall v. Anderson, 233 Mich. 480. It was upon this decision that the trial court, reluctantly as it appears, sustained the claim of the defendant. The distinction, however, seems apparent. Mr. Justice Bird, who then spoke for the court, stated with approval the rule announced in Griffin v. Kennedy, supra, that “the former owners had been divested of title when they became homestead lands.” It appeared, however, in that case that the deed from the State to the purchaser of the tax homestead land had not been recorded, and, the equities strongly favoring the right to redeem, it was held that she had the right to do so. A careful reading of that decision will show that there was no intent to overrule the holding in the many cases above referred to in which it had been held that a new chain of title starts with the record of a deed by the State to a purchaser of State tax homestead land, and that no right exists in a former owner or mortgagee to redeem therefrom, as provided for in the case of State tax deeds.
The judgment entered is reversed and set aside, with costs, and the cause remanded with direction to enter a judgment for the plaintiff.
Clark, C. J., and McDonald, North, and Wiest, JJ., concurred with Sharpe, J. | [
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Sharpe, J.
Charles Clay Kingsley was found dead in his garage in the city of Ann Arbor on April 11, 1930, and it is conceded that his death was caused by the inhalation of carbon monoxide gas. He had at that time a policy of insurance in the defendant company, in which the plaintiff, his wife, was named as beneficiary, which provided that the company should pay double the amount of the insurance therein provided for in case of death “in direct consequence of bodily injury effected solely through external, violent and accidental means,” but which excepted from such double payment ‘ ‘ death resulting directly or indirectly from * * * poisons. ’ ’
Two doctors, called as witnesses, testified that death was due to the inhalation of the gas, and that, because thereof, it was caused by poison. The trial court so found, and directed a verdict and entered a judgment thereon for defendant, from which plaintiff has taken this appeal.
It is insisted that,' as monoxide gas is a poison, and as deceased died from the effects thereof, re covery may not be had under the double indemnity provision. When the language of a provision in such a policy is plain and easily understood, it must be construed as written therein. Eynon v. Continental Life Ins. Co., 252 Mich. 279. But this court has also held that a word limiting liability therein will be considered- as used in its ordinary popular sense. Ashley v. Agricultural Life Ins. Co., 241 Mich. 441 (58 A. L. R. 1208), and cases cited.
“Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.” Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 463 (14 Sup. Ct. 379).
In Lewis v. Ocean A. & G. Corp., 224 N. Y. 18 (120 N. E. 56, 7 A. L. R. 1129), the question presented was whether the injuries sustained, and for which recovery was sought, were “effected solely through accidental means.” Mr. Justice Cardozo, speaking for the court, said:
.“To the scientist who traces the origin of disease, there may seem to be no accident in all this. * * * But our point of view in fixing the meaning of this contract, must not be that of the scientist. It must be that of the average man. * * * This test — the one that is applied in the common speech of men— is also the test to be applied by courts.”
There are, we think, few p'ersons, except those who have received a medical education, or those who have given the matter due consideration, who would ascribe a deaths resulting from- the inhalation of monoxide gas as due to poison. In an annotation to Riley v. Inter-state Business Men’s Accident Ass’n, 184 Iowa, 1124 (169 N. W. 448), in 2 A. L. R. 57, 61, on exemptions limiting liability where death results from poison, it is said: “Cases involving exemptions from liability in case of death from inhaling gas are excluded.” In the cases there reviewed, and those annotated to Jones v. Hawkeye Commercial Men’s Ass’n, 184 Iowa, 1299 (168 N. W. 305), in 11 A. L. R. 380, 393, Hawkeye Commercial Men’s Ass’n v. Christy (C. C. A.), 294 Fed. 208, in 40 A. L. R. 46, and Zurich General Accident & Liability Ins. Co. v. Flickinger (C. C. A.), 33 Fed. (2d) 853, in 68 A. L. R. 161, it will be found that in many of them the language used in the exemptions was “by taking poison,” “by the taking of poison,” and is usually followed by the words “asphyxiation,” “gases,” or words of like import.
In Early v. Standard Life & Accident Ins. Co., 113 Mich. 58 (67 Am. St. Rep. 445), the exemption from liability was not fully stated in the quotation appearing therein. After the words “poison, contact with poisonous substances,” appears “or inhalation of gas,” clearly intimating that the insurance company did not consider the word “poison” as including asphyxiation by the inhalation of gas.
In our opinion, the natural, obvious meaning of the word “poison” — that understood by people at large — should be applied to it as used in this policy, rather than the technical one as stated by the physicians.’ We have no decisions directly in point. In 1 C. J. p. 456, it is said:
“Where the accidental inhalation of gas results in death by asphyxiation the exception of death resulting from poison is not applicable, even though the gas is of a poisonous nature.”
See, also, 14 R. C. L. p. 1251 et seq., and the cases cited in the footnotes in both publications.
In U. S. Mutual Accident Ass’n v. Newman, 84 Va. 52 (3 S. E. 805), the policy excepted liability for death caused “by the taking of poison or contact with poisonous substances.” The court said, “All the indications showed that he had been killed by the coal gas.” After stating that the terms used in such policies “are to be.understood in their plain, ordinary, and popular sense,” it was held that the trial court did not err “in refusing to instruct the jury in effect that inhaling coal gas was a taking of poison, if .they believed coal gas to be a poisonous substance, which when inhaled destroys life.”
The judgment entered in the trial court is reversed and set aside, with costs to appellant, and the cause remanded for the entry of a judgment for plaintiff for the amount due under the policy, with the costs of that court.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
A vacancy having occurred in the office of judge of the superior court of the city of Grand Eapids, the governor, on May 7, 1932, appointed Arthur F. Shaw to fill the same and to serve until his'successor should be ele'cted and qualified.
The plaintiff, Landman, who desires to be a candidate for such office, requested the defendant city commission to "call a special primary election and a special general election for the purpose of nominating and electing a successor to said Arthur F. Shaw “on the same date and at the same time as the fall primary and general election for State offices,” which request was denied.
The plaintiff, Taylor, presented a nominating petition as a candidate for such office to the city clerk for filing, which was rejected by.him. The action of these officials was based upon the advice of the city attorney, who found such confusion in the statutory requirements relating to such elections that he felt impelled to so recommend, and expressed the hope that the question might be settled by judicial decision.
Petitions for mandamus in both cases were presented to this court and orders to show cause issued, to which both defendants have made return.
The question thus presented is whether a successor to Judge Shaw shall be elected at the general election to be held in November, 1932, or at the city election in April, 1933.
The superior court of the city of Grand Rapids was created by Act No. 49, Pub. Acts 1875. The provisions of this act, with some amendments not here material, now appear in our statutes as sections 16339 to 16368, inclusive, 3 Comp. Laws 1929. It is a court of record (Attorney General, ex rel. Danhof, v. Renihan, 184 Mich. 272), with exclusive jurisdiction in certain matters and concurrent jurisdiction with the circuit court in other actions in which residents of the city are litigants. The city provides the courtroom- and the necessary equipment for the usé of the court and its clerk. It pays the salary of the clerk and the bailiff of the court. It also pays a salary to the judge in addition to that paid by the State. It will thus be seen that, while the duties imposed on the court are in most respects similar to those performed by circuit judges, it is to some ex tent supported by the city and regarded by it as a municipal court.
Act No. 199, Pub. Acts 1923 (1 Comp. Laws 1929, § 3365 et seq.), is entitled, “An act to provide for the filling of vacancies in appointive and elective public offices.” Section 4 of this act, as amended by Act No. 6, Pub. Acts 1927 (1 Comp. Laws 1929, § 3368), reads as follows:
“Whenever a vacancy shall occur in the office of a judge of a court of record, the governor shall fill such vacancy by appointment and the person appointed shall hold such office until his successor is elected and qualified. At the next general November election or biennial spring election held at least sixty days after such vacancy shall occur, a person shall be elected to fill such office and the person elected shall hold such office for the remainder of the unexpired term.”
Act No. 236, Pub. Acts 1931, added to this section the following:
“Provided, That whenever a vacancy shall occur in the office of a judge of any municipal court of record, the governor shall fill such vacancy by appointment and the person appointed shall hold such office until his successor is elected and qualified. At the next general November election held at least ninety days after such vacancy shall occur or biennial spring election or municipal election held at least sixty days after such vacancy shall occur, a person shall be elected to fill such office and the person elected shall hold such office for the remainder of the unexpired term. ’ ’
Section 2 of this act repealed all acts and parts of acts inconsistent therewith.
It cannot well be doubted that the superior court of Grand Rapids is a “municipal court of record,” and that this provision for filling a vacancy in the office of the judge of that court is applicable thereto and must be followed unless it appears that there is a special provision'in some statute inconsistent therewith and not intended to be affected thereby.
Section 16340, above referred to, reads as follows:
“The provisions of law relative to holding elections of city officers in said city, canvassing the votes and making returns thereof so far as applicable, shall regulate and apply to elections of the judge of said court.”
And section 16343:
“It shall be the duty of the common council of said city to cause an election to be held in said city to fill any vacancy in the office of the judge of said superior court, the same as is provided by the charter of said city in case of vacancies in the office of mayor thereof.”
Section 2 of title 2 of the charter of the city provides for the election of certain city officers, and, among them, “one judge of the superior court of Grand Rapids. ’ ’ Other provisions of the charter require that such officers shall be elected at a nonpartisan election to be held on the first Monday in April in each year. The nomination of candidates therefor shall be held on the day fixed by law “for the nomination of candidates for county officers to be chosen at the spring election.”
Section 4 of the act of 1923, as amended in 1931, clearly provides that the successor to Judge Shaw shall be elected at the November election in this year. The mayor of the city is to be elected at the spring election, and the provision in section 16343, in our opinion, should be construed as providing .that the election now to be held should conform to the charter provision as to the manner in which it shall be conducted (nonpartisan in its nature) rather than the time at which the same should be held.
This office was created by act of the legislature, and it has complete control over the time at which a successor to Judge Shaw shall be elected. It has spoken in no uncertain terms repealing .all inconsistent provisions in other acts, and the provision therefor must be followed by the officers of the city.
It follows that a writ of mandamus will issue commanding the defendant city commission to cause a special primary election and a special general election to be held on the same date and at the same time as the fall primary and general election for State officers for the year 1932 for the purpose of electing a judge of the superior court of the city of Grand Eapids, as prayed for in the petition of the plaintiff Landman. The conclusion reached renders it unnecessary to pass upon the question presented in the Taylor petition. No costs will be allowed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
Michael H. Moriarty, of Crystal Falls, in the county of Iron, died, intestate and unmarried, on December 30, 1923. His heirs-at-law were two brothers, James, an inmate of the Soldiers’ Home at Grand Rapids, the defendant John J., of Hudson, in Lenawee county, hereafter called the defendant, an unmarried sister, Margaret, also of Hudson, Helen L. Reidsema, Emmet Moriarty, Irene V. Moriarty, and Florence Tingsted, of Detroit, children of his deceased brother Thomas, and William Haley, of Toronto, Canada, the son of his deceased sister Mary.
John Wall was duly appointed administrator of his estate. Claims were presented and allowed.at the sum of $70,096.11. The liquid assets were not sufficient to pay them. The deceased owned at the time of his death 40 acres of land in the county of Clare, a farm in the county of Lenawee, and certain real estate in the county of Iron. , He also owned an undivided one-third interest in land known as the “Sherwood Mine,” then under lease to the Republic Iron & Steel Company.
In the fall of 1924 there was correspondence between John J. Moriarty and Helen L. Reidsema and William J. Embs, the judge of probate of the county of Iron, relative to said estate, and on November 29th the judge wrote Mrs. Reidsema that the administrator had resigned, and suggested the appointment of Thomas Conlin as his successor. This suggestion was not agreeable to her, and soon after she got into communication with the plaintiff, an attorney residing in Grand Rapids, by telephone, and a meeting of the heirs was arranged, to be held at the home of Margaret in Hudson. Mrs. Reidsema secured a power of attorney from her brother and sisters to act for them in the matter. The meeting was held on December 13, 1924, at which she and Margaret and the defendant and his son Joseph and the plaintiff were present.
As a result of his telephonic communication with Mrs. Reidsema, the plaintiff had drafted contracts for execution by the heirs, providing for his looking after their interests on a contingent basis. After discussion, which lasted for some time, an agreement was signed by the defendant, in which he (as first party) agreed to employ the plaintiff (as second party) as his attorney and agent “to protect, conserve and enforce his interests in said estate,” and to take any proceedings necessarily incidental thereto. It also contained the following:
‘ ‘ Said first party further agrees to pay to second party 25 per cent, of his share of said estate as such heir-at-law as and whenever the same or any part thereof may be received from said estate, hereby assigning to said second party one-fonrth interest of said first party to said second party, which said share of said estate shall be in full payment of any and all services rendered or to be rendered by said second party, as snch attorney or agent, for and on behalf of said first party, and said first party shall not be liable to said second party individually for any amount whatever for the services of said second party except the share hereinbefore mentioned.”
The plaintiff agreed to accept such employment on the terms and conditions set forth therein. A similar contract was entered into by Mrs. Reidsema on behalf of herself and her brother and sisters. A contract containing the same provisions as to compensation was entered into by Margaret, but it seems to have had eliminated from it a provision for the payment of expenses, which appeared in the others.
In the afternoon of that day, the plaintiff and Mrs. Reidsema were taken in an automobile to Adrian to take a train for Detroit.. When they arrived there, the plaintiff discovered that he had left his brief case, in which the contracts had been placed, in the room where the conference was held at Hudson. He requested defendant’s son, Joseph, who was then present, to send it to him at Grand Rapids by express. On returning to Hudson, Joseph found the brief case there. It is his claim that plaintiff requested him to open it and mail a blank contract which was in it to William Haley, the heir who lived in Toronto; that he and his father looked over the Haley contract, and they discovered that it provided for plaintiff’s receiving a one-fourth of his interest in the estate, whereas the agreement was that plaintiff was to receive but “25 per cent, of what he would save the estate on claims;” that they discovered that a similar provision was in the contract signed by defendant; that they kept the contract signed by him, and soon after delivered the brief case to Mrs. Reidsema in Detroit, and urged her to abstract that signed by her therefrom. She refused to do so, and forwarded the case to the plaintiff at Grand Rapids.
The plaintiff thereafter made demand upon the defendant for the delivery of the contract, which was refused. Assuming that it was in force, he attended the session of the probate court at which a successor administrator was appointed, and thereafter performed services of much value to the heirs of the deceased. The defendant declined to participate with him in his efforts to prevent the sacrifice of the property to pay the indebtedness, but attended the meeting of the probate court and otherwise interested himself in the affairs of the estate. The details of the efforts put forth by plaintiff to raise the money with which to pay the indebtedness need not be stated. It is enough to state that he accomplished this result, and that at the time the bill was filed the estate was ready for distribution under 3 Comp. Laws 1929, § 15728.
On July 16,1927, the plaintiff filed the bill of complaint herein in the circuit court for the county of Clare. He set up therein the material facts above stated; alleged that one of the descriptions of real estate (describing it) owned by the deceased was located in that county, and that the estate was ready for distribution. He set forth with some particularity the service he had performed in behalf of said heirs, and prayed that a decree be entered establishing the contract and ordering its specific performance by the defendant.
In his answer to the bill, John J. Moriarty averred that the contract in question was not read to him by the plaintiff before he executed it; that it did not express the agreement made between them, and that any services rendered by the plaintiff in behalf "of the heirs of said estate were so rendered against his express wishes and desires. He also claimed the benefit of a cross-bill, praying therein for the cancellation of the contract. He thereafter filed a motion to dismiss the bill of complaint, for the reason that the court had no jurisdiction as none of the parties resided in the county of Clare.
The administrator was made a party for the purpose of securing an injunction restraining the distribution of the estate pending the hearing. His interests as such are not involved.
Proofs were taken in open court, after which the motion to dismiss was denied and the plaintiff granted the relief prayed for in his bill of complaint. In the opinion filed, the trial court said:
‘ ‘ The evidence clearly showed that the defendant, John J. Moriarty, had "entered into a contract and power of attorney, which clearly conferred power upon the plaintiff, which was coupled with an interest in said contract and power of attorney, and hence cannot be revoked, by which defendant, John J. Moriarty, agreed to pay to the plaintiff 25 per cent, of his share of said estate as such heir-at-law and also assigned to the plaintiff said quarter of the interest of the said defendant, John J. Moriarty, and the evidence clearly showed that the contract was also in the possession of the plaintiff and that it was wrongfully taken from him by the defendants.”
It will serve no useful purpose to review the evidence submitted. The fact that the defendant, John J. Moriarty, entered into "the contract with a knowledge of its contents is established by a preponderance thereof.
While a court of equity will scrutinize with care an agreement of this kind made with an attorney, and will, if the facts warrant it, relieve from any undue advantage secured thereby, we feel satisfied that the inability of the heirs to personally protect their interests, the amount of the claims allowed, and the uncertainty of the result which the plaintiff, might accomplish, justify the enforcement of the contract in question.
The motion to dismiss was based upon the fact that, while all of the parties were residents of the State of Michigan, none of them resided in the county of Clare. Jurisdiction of the persons of all of the defendants was duly acquired. Subsection 12 of section 13997, 3 Comp. Laws 1929, reads, in part, as follows:
“Every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local, and if it is not local, in the county where one of the parties in interest resides, if either is a resident of the State; but if the subject-matter is not local, and neither party resides in the State, the suit may be brought in any county; and where it is necessary to file an information or bill in chancery, either to compel the specific performance of contract, cancellation of patents from the State, quiet title, or otherwise to affect real estate and when such real estate,may be situated in different counties, it shall be competent to file such information or bill on the equity side of the circuit court of any one of said counties in which a part of said real estate may be situated; and such court shall have complete jurisdiction in the premises as fully and effectually as if the whole of such estate were situate in the county in which suit may be commenced.”
Counsel for the defendant contend that jurisdiction is dependent upon the provision in subsection 2 of this section, which reads as follows:
“All actions founded upon wrongs, and contracts, except as herein otherwise provided, shall be commenced and tried in the county where one of the parties shall reside at the time of commencing such action. ’ ’
This suit is not brought to recover moneys due under the contract or damages for the breach thereof. It seeks restoration of the contract and specific performance thereof. Under it the defendant agreed that plaintiff should have a one-fourth interest in the property of the estate to which he would be entitled. The estate was ready for distribution. Among its assets to he distributed under section 15728 was land situate in the county of Clare. Defendant had wrongfully taken this contract from the possession of plaintiff and denied all liability thereunder. In our opinion, the nature of the relief prayed for conferred jurisdiction upon the court of that county.
The decree is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff began ejectment against defendants to recover a parcel .of land on Mackinac Island formerly owned by George T. Arnold. George T. Arnold died. His real estate was devised to his widow, Susan B. Arnold, who conveyed the premises in question to plaintiff. This is the basis of her claimed title and right to recover. Defendants claim George T. Arnold bought the premises in question for Alexander Duffina, father of plaintiff and defendant Lena Eckel; that George T. Arnold sold the premises to Alexander Duffina; payments on the land contract were made; the contract price paid; the contract was never forfeited or released; Alexander Duffina and wife continued to occupy and improve the premises during a period of 40 years; neither this real estate itself nor the contract with Alexander Duffina was inventoried among the assets of George T. Arnold, after his death; George T. Arnold parted with the title to the premises prior to his death; defendants Eckel cared for Alexander Duffina and wife in their old age and received a deed of the premises in question from Alexander Duffina in recognition of his obligation to compensate them for their services; plaintiff took the deed from Mrs. Arnold with full knowledge of the rights of Alexander Duffina, and hence is not entitled to possession as against defendants Eckel and the other defendants who claim under them. The trial court rendered judgment for defendants, and plaintiff appeals.
Ejectment is a possessory remedy (Wilkinson v. Williams, 51 Mich. 155), by which the holder of a legal title to premises may recover from one holding possession under an invalid title. King v. Carpenter, 37 Mich. 363. Plaintiff must recover upon the strength of her own title. Van Vleet v. Blackwood, 39 Mich. 728; Webber v. Pere Marquette Boom Co., 62 Mich. 626. Both parties claim title by mesne conveyances from George T. Arnold. We need go back only to the common source of title of the adverse parties in this suit. Drake v. Happ, 92 Mich. 580; Karnes v. McGregor, 43 Mich. 313; Cronin v. Gore, 38 Mich. 381.
“Ejectment in this State is a possessory action, and does not necessarily involve the title. The party having right to present possession is always entitled to recover,, and it is quite unnecessary for him to show more.” Covert v. Morrison, 49 Mich. 133.
In this case plaintiff has shown a deed from Mrs. Arnold who took under the will of George T. Arnold. She has not shown the property in question was inventoried as a part of the estate of George T. Arnold; that the contract between George T. Arnold and Alexander Duffina was inventoried as a part of the estate of George T. Arnold, or that the premises were assigned by the probate court to her incident to the administration of the estate of George T. Arnold. Defendants have shown the premises were purchased by Alexander Duffina of George T. Arnold, payments on the' contract, improvement of the premises, occupancy by Alexander Duffina for 40 years, conveyance to Mrs. Eckel by Alexander Duffina, the contract being conceded and there being proof tending to show its payment, knowledge on the part of plaintiff, and that no notice of default or of termination of the contract was served or given. We think plaintiff has not shown she is entitled as against defendants to the possession of the property.
The judgment of the trial court is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, C. J.
On February 3, 1929, Leo Feldpausch, Jr., drove an automobile of the other defendants, copartners as Feldpausch Brothers. He drove with their permission but not for them. He had with him the plaintiff, gratuitous guest. The automobile skidded on ice, and turned over, and plaintiff was injured. She had verdict and judgment. Defendants have appealed.
Liability is asserted against the partners under section 29, Act No. 302, Pnb. Acts 1915 (amended by Act No. 56, Pub. Acts 1927). This section was amended by Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, §4648). The old section 29, providing of liability of the owner of a motor vehicle driven with his express or implied consent, was “amended to read as follows.” The old section was carried into the new act with the added proviso:
“That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator' for injury, death or loss, in ease of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”
This act went into effect March 27, 1929. This suit was commenced in November, 1929, and tried in May, 1931.
There being, at common law, no right of action against the partners, owners of the automobile, it is contended that the repeal of the former statute left plaintiff without right of action against them.
The rule that where a former statute is re-enacted into a new statute it will be regarded as continuing is not applicable here because of the amendment, there being in the case neither averment nor contention of gross negligence or wilful and wanton misconduct.
A question is whether the act of 1929 is retrospective. It is wholly prospective in its language and structure. Moreover, when it became a law, plaintiff’s right of action for damages to person and prop erty under the former statute had accrued and was in her a vested right, which the new statute did not take away.
Of vested right, the following from 2 Cooley’s Constitutional Limitations (8th Ed:), p. 749:
“It would seem that a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws) it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.”
See, also, 6 R. C. L. p. 308.
In Lewis v. Railroad Co., 220 Pa. 317 (69 Atl. 821, 18 L. R. A. [N. S.] 279, 13 Ann. Cas. 1142), it is said:
“All authorities agree that the repeal of a statute does not take away the plaintiff’s cause of action under it for damages for an injury to person or property. They rest on the sound doctrine, expressed in Menges v. Dentler, 33 Pa. 495 (75 Am. Dec. 616), * * * that the law of the case at that time when it became complete is an inherent element in it; and, if changed or annulled, the law is annulled, justice denied, and the due course of law is violated. ’ ’
The above case is cited to the text of 25 R. C. L. p. 938:
“The repeal of a statute does not take away a right of action for damages which have already accrued. ’ ’
The following from 36 Cyc. pp. 1225, 1226:
“The repeal of a statute does not operate to impair or otherwise affect rights that have been vested or accrued under the statute while in force; and this rule is applicable alike to rights acquired under contracts and to rights of action to recover damages for torts.”
And from 1 Lewis’ Sutherland Statutory Construction (2d Ed.), §284:
- “A law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force do not thereby cease. It would be an act of absolute injustice to abolish with a law all the effects which it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right. It must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.”
In Ettor v. City of Tacoma, 228 U. S. 148 (33 Sup. Ct. 428), a statute gave compensation to abutting property owners for damages due to change of grade of a street. After the right to compensation had accrued, the statute was repealed, held, the claim was not affected. See, also, Bryson v. Hines (C. C. A.), 268 Fed. 290 (11 A. L. R. 1438).
This is not a case involving a mere change in remedy or procedure, and cases cited in that regard are not in point. The statute provides a rule of substantive law. Hawkins v. Ermatinger, 211 Mich. 578. The effect of the change, if given retrospective' effect, would be to deprive plaintiff and others similarly situated of right of action. This court has recognized that a common-law right of action is property and entitled to protection. Dunlap v. Railway Co., 50 Mich. 470; Devlin v. Morse, 254 Mich. 113. By the weight of authority, a statutory right of action for damage to person or property, which has accrued, is a vested right and likewise to he protected.
The rule is otherwise in respect of remedy, of mere penalties, of procedure, and of rights merely inchoate or expectant. Naudzius v. Lahr, 253 Mich. 216 (74 A. L. R. 1189, 30 N. C. C. A. 179); Bejger v. Zawadzki, 252 Mich. 14.
The trial judge, in instructing of due care by the driver of the automobile toward his guest (Hemington v. Hemington, 221 Mich. 206; Roy v. Kirn, 208 Mich. 571), sought to point out that the amount or degree of diligence and caution which is necessary to constitute due care changes with changing conditions. 45 C. J. p. 693. His remarks in that regard are criticized. Even if open to criticism, which is not conceded, the remarks were not harmful, for negligence and want of due care were admitted by the driver called for cross-examination by plaintiff, of which there is no dispute, as defendants offered no testimony in their behalf. The driver testified that he drove at high speed — from Grand Rapids to the place of the accident, 47 miles, in approximately an hour- — and that he knew that, because of ice, the road was in a dangerous condition for fast driving. He admitted, in effect, that to the usual perils of riding in an automobile, which must have been in the contemplation of the guest when she accepted the invitation, he added, unnecessarily, another, driving at high speed on a road which he recognized as unsafe for such driving.
No other question calls for discussion. We find no reversible error.
Judgment affirmed.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Gribbs, J.
Plaintiffs appeal from the trial court’s grant of summary judgment for defendant Ford Motor Company, pursuant to GCR 1963, 117.2(3), on plaintiffs’ products liability action. Defendant Firestone Tire & Rubber Company appeals from the trial court’s denial of its motion for partial summary judgment pursuant to GCR 1963, 117.2(3), on plaintiffs’ duty to warn theory. We affirm in part and reverse in part.
In May of 1977, plaintiff Robert Spencer was employed by a Union 76 automotive service station. One of his duties was to repair truck tires. An employee of Vegelheim Lumber Company brought a Ford truck to the station to have a flat tire repaired. Plaintiff repaired the tire and reassembled the tire and the multi-piece rim in a safety cage. Such cages are provided because multi-piece rims can explosively disengage. While Robert Spencer was attempting to replace the repaired tire back onto the truck, the multi-piece rim explosively disengaged and injured him. Certain parts of the tire rim assembly were unexplainedly lost, while plaintiff Robert Spencer retained other parts as evidence.
On May 16, 1980, plaintiffs filed a complaint against Ford, the vehicle manufacturer, and Firestone, the wheel manufacturer. Ford was granted summary judgment pursuant to GCR 1963, 117.2(3). The trial court ruled as a matter of law that Ford had no duty with respect to the design of the wheel rim, and that any breach of duty by Ford was not a proximate cause of plaintiffs injury.
Firestone sought partial summary judgment pursuant to GCR 1963, 117.2(3), on plaintiffs’ breach of duty to warn claim. The motion was denied by the trial court which found that an expert’s testimony about micrometers used in checking wheel rims might present a factual issue for the jury.
Plaintiffs and Firestone appeal from the trial court’s determinations and the appeals were consolidated by this Court.
Defendant Ford
Plaintiffs appeal from the trial court’s grant of summary judgment for Ford on plaintiffs’ claims of (1) negligence and breach of implied warranty as a result of Ford’s design, sale and failure to recall a defective vehicle, and (2) negligence and breach of implied warranty as a result of Ford’s failure to warn of the danger of the three-piece wheel rims.
Summary judgment was granted pursuant to GCR 1963, 117.2(3). Summary judgment under this court rule should be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pauley v Hall, 124 Mich App 255, 262; 335 NW2d 197 (1983), lv den 418 Mich 870 (1983). The trial court must be satisfied that the nonmovant’s claim cannot be supported at trial as a result of a deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).
Plaintiffs based their first negligence and breach of warranty claims on their contention that the Ford vehicle was defective and Ford was thus liable for the design, sale and failure to recall the defective vehicle. Plaintiffs contend that the vehicle was defective because the vehicle could accommodate a dangerous wheel rim. The trial court correctly pointed out that there was no evidence that Ford trucks requried multi-piece rims or were unable to accommodate less dangerous single-piece rims. Plaintiffs also admitted that the multi-piece wheel rim which explosively disengaged was not an original component of the 1965 Ford truck, but was manufactured in 1967.
"Though a vehicle manufacturer may be held liable for damages caused by defective component parts supplied by another entity, Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), this duty has not yet been extended to component parts added to a vehicle subsequent to distribution. Assuming the existence of a defect [under either a negligence or breach of implied warranty theory], plaintiff must 'trace that defect into the hands’ of the defendant. Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975). '[T]he threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer.’ Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984). Failure of a component not supplied by the manufacturer does not give rise to liability on the manufacturer’s part. Antcliff v State Employees Credit Union, 95 Mich App 224, 231-233; 290 NW2d 420 (1980), aff'd 414 Mich 624; 327 NW2d 814 (1982).” Cousineau v Ford Motor Co, 140 Mich App 19, 30-31; 363 NW2d 721 (1985).
Thus, plaintiffs’ contention that Ford should be held liable for a wheel rim component added subsequent to distribution of the Ford vehicle has no support in our case law.
Moreover, finding a vehicle defective or a vehicle manufacturer liable simply because the vehicle could accommodate dangerous or defective replacement components manufactured by another would have far-reaching undesirable results. For example, car manufacturers would be liable every time a defective tire blew up because a defective tire fit the vehicle.
Plaintiffs’ second negligence and breach of implied warranty claims, based on a failure to warn, also fail. Negligence and breach of implied warranty claims based on a failure to warn involve proof of the same elements. Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88; 273 NW2d 476 (1979). Products liability actions grounded in negligence or breach of implied warranty require a causal connection between the maufacturer’s negligence or product defect and the plaintiff’s injury, Cova v Harley Davidson Motor Co, 26 Mich App 602, 609; 182 NW2d 800 (1970), and plaintiffs failed to establish that Ford’s failure to warn of the danger of the three-piece rims was a cause of plaintiff’s injury.
Plaintiff Robert Spencer was specifically questioned about his awareness of the nature and extent of danger. He stated that he was aware of the cause of the explosive disengagement and indicated that if he had read a warning with respect to the danger he would still have followed precisely the same repair procedures. After the accident, he continued to change tires following the same procedure he had followed before the accident despite his awareness of the risk. Thus, by his own testimony, plaintiff refuted a causal connection between the lack of a warning of the danger of three-piece wheel rims and plaintiffs injury.
Thus, Ford was entitled to summary judgment on plaintiffs’ negligence and breach of implied warranty claims based on defective product and failure to warn theories.
Defendant Firestone
Plaintiffs’ complaint alleged that Firestone had a duty to warn of the danger of the multi-piece rim. Firestone argued that there was no genuine material issue of fact and moved for summary judgment pursuant to GCR 1963, 117.2(3). The trial court denied Firestone’s motion, finding that an expert’s testimony about a micrometer used to determine if a rim base was "out of round” might present a factual issue for the jury.
As discussed above with respect to defendant Ford, the dispositive issue under either a negligence or breach of implied warranty theory in this case is the lack of a causal connection between Firestone’s failure to warn and plaintiffs injury. There was no evidence presented to show that a warning would have changed plaintiffs behavior and prevented his injury. Plaintiffs own testimony revealed that a warning would have made little difference. Thus, Firestone was entitled to summary judgment on plaintiffs’ failure to warn theory.
The trial court’s finding that the testimony regarding the micrometer would present a factual issue for the jury was in error. There was no representation that out-of-roundness, as measured by a micrometer, would lead to explosive disengagement. Plaintiff was aware of the danger of disengagement and knew that the wheel rim had to be properly seated to prevent such an occurrence. He could determine whether proper seating occurred by looking at the wheel. If the rim were not properly seated, he might be able to use the micrometer to ascertain why, but this would not be relevant to his awareness to danger. For this reason, any factual issue raised with respect to the micrometer would not be material, i.e., essential to the case. Black’s Law Dictionary (4th ed), p 1128.
Affirmed in part and reversed in part.
Plaintiffs did not set forth a concert of action theory against vehicle and rim manufacturers as did the plaintiffs in Cousineau, supra.
Plaintiffs’ failure to warn argument centers on Ford’s duty to warn of the danger of the three-piece wheel rims. Although we do not discuss whether or not Ford had a duty to warn of the danger of another manufacturer’s replacement component, but dispose of plaintiffs’ claim on the lack of a causal connection, we do not imply that we accept plaintiffs’ argument that Ford had such a duty to warn. | [
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] |
Per Curiam.
Plaintiff appeals as of right from the order granting defendant’s motion for summary judgment. Defendant had been injured when he was struck by an automobile during the course of his employment. Plaintiff is the insurance company which has been paying defendant his workers’ compensation benefits since the accident on July 20, 1978. On appeal plaintiff asserts it is entitled to reimbursement for benefits paid beyond the three-year limit set forth in the no-fault statute from proceeds that defendant received from the action arising out of the automobile accident. Defendant received a settlement of $25,000 from the driver of the automobile.
The trial court granted summary judgment relying on its interpretation of Great American Ins Co v Queen, 410 Mich 73; 300 NW2d 895 (1980). It concluded that plaintiff was not entitled to reimbursement because the settlement was solely for noneconomic damages. We find that the trial court erred. This rule applies only when the workers’ compensation benefits are a substitute for no-fault benefits. MCL 500.3109(1); MSA 24.13109(1), and Queen, supra, pp 87-88. In the instant case, plaintiff is paying benefits that exceed what defendant would have obtained via no-fault coverage. As the Supreme Court said in Queen, supra, p 97:
"Thus, the payment of workers’ compensation benefits which do not substitute for no-fault benefits, because they exceed no-fault benefits in amount or duration, gives rise to a right to reimbursement from third-party tort recoveries in the same manner as the payment of workers’ compensation benefits for non-motor vehicle related injuries.”
Accordingly, defendant is required to reimburse plaintiff for any damages awarded in a tort action, as long as the amount does not exceed what was received under workers’ compensation benefits.
"The employee is thus permitted to rest content with a workers’ compensation award or to pursue his tort remedy and reimburse the employer or insurer for any amounts received under the workers’ compensation act. Because he need not repay more than he recovered in tort, the employee in effect recovers under the more generous of the two systems — tort or workers’ compensation — but not both. This was our holding in Pelkey v Elsea Realty & Investment Co, [394 Mich 485; 232 NW2d 154 (1975)].” Queen, supra, p 89.
To allow defendant to retain the monies awarded would provide him with a double recovery, as in the instant case plaintiff is paying benefits that exceed what defendant would have received under the no-fault act since the duration clearly exceeds the three-year limit. MCL 500.3107(b); MSA 24.13107(b).
"The fundamental principle underlying workers’ com pensation is full compensation for injuries sustained. Equally clear is the proposition that workers’ compensation law does not favor double recovery.” Thick v Lapeer Metal Products, 419 Mich 342, 347; 353 NW2d 464 (1984).
We cannot allow a result that provides defendant with a double recovery.
Therefore, we find that plaintiff is entitled to reimbursement for those monies paid after the three-year no-fault limit and a credit for those amounts due, not to exceed the sum defendant was awarded by the tortfeasor. As plaintiff’s other issue is only an alternative theory of recovery, we need not discuss it here.
Reversed and remanded in accordance with this decision. Costs to appellant. | [
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Per Curiam.
Defendants appeal as of right from a judgment entered on a jury award (No. 75597) and from an order granting plaintiff costs, including attorney fees, pursuant to GCR 1963, 316.7 (No. 75792).
Plaintiff was insured by defendant Citizens through defendant insurance agencies. In 1973 an accident occurred involving a person insured by Citizens and an automobile owned by one Patricia Hall, not the plaintiff herein. As a result of a series of mistakes on the part of defendants and Citizens’ attorney, Shaker Brackett, Citizens erroneously pursued a subrogation claim against plaintiff herein. Despite plaintiff’s numerous attempts to convince Citizens and Attorney Brackett that she had not been involved in the 1973 accident, a subrogation lawsuit was commenced which resulted in a default judgment in 1979. One of plaintiff’s paychecks was garnisheed before the matter was straightened out.
Plaintiff brought the present action against At torney Brackett and defendants herein. A mediation panel entered awards of $27,500 against Brackett and $27,500 against the remaining defendants. The awards were accepted by plaintiff and Brackett, but rejected by defendants herein. Following trial, the jury returned a special verdict:
"We, the jury, find in favor of the plaintiff, Patricia Hall, against the defendants, Conklin-Palmer-Blanchard Insurance Agency, Conklin-Palmer Insurance Agency, Spencer J. Palmer, Jack R. Blanchard and Richard Goglewski [sic] and assess her damages at $5,000.
"We, the jury, find in favor of the plaintiff, Patricia Hall, against Citizens Insurance Company of America and assess her damages as follows:
"a) Breach of Contract: No —; Yes $5000
"b) Malicious Prosecution: No —; Yes $2000
"c) Intentional Infliction of
Emotional Distress: No —; Yes $3500
"d) Invasion of Privacy: No —; Yes $3500
"e) Defamation: No —; Yes $1500
"0 Exemplary Damages: No —; Yes $9000”
Defendants’ motion for directed verdict, which had been held in abeyance, was subsequently denied. Plaintiff was subsequently granted costs, including attorney fees, pursuant to GCR 1963, 316.7. Defendants filed separate appeals from the judgment and from the order awarding costs, and the matters were consolidated._
I
Defendants first challenge the trial court’s denial of their motion for a directed verdict. In reviewing this issue, we must view the evidence in a light most favorable to plaintiff and determine whether a prima facie case was established. If there were material issues of fact upon which reasonable minds might differ, they were properly submitted to the jury. Taylor v Wyeth Laboratories, Inc, 139 Mich App 389; 362 NW2d 293 (1984). We address this issue with regard to each of the theories presented to the jury. The breach of contract claim applies to all defendants; the remaining counts apply only to defendant Citizens.
Breach of Contract. The jury awarded damages for breach of contract in the amounts of $5,000 against Citizens and $5,000 against defendant agencies. Defendants concede on appeal that there was evidence of a breach, but argue that a directed verdict should have been granted because there was no evidence of legally cognizable damages. Defendants contend that the jury’s verdict improperly included mental anguish and related damages, which they assert are not recoverable for breach of a commercial contract under Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980), reh den 409 Mich 1116 (1980).
It is true that under Kewin, supra, damages for mental distress are not generally recoverable in a breach of contract action absent evidence that they were within the contemplation of the parties at the time the contract was made. Although the instructions in this case can be read as permitting recovery of mental anguish and related damages on the breach of contract claim, defense counsel did not object to the instructions or request any special instruction precluding the award of such damages on the breach of contract theory. Defendants cannot now claim that the jury was improperly permitted to award such damages.
Malicious Prosecution. The jury awarded $2,000 on this count. The elements of the tort of malicious prosecution are (1) the present defendant instituted a prior legal action against the present plaintiff, (2) the prior action was terminated in favor of plaintiff, (3) defendant lacked probable cause to bring the prior action, (4) defendant acted maliciously in bringing the prior action, and (5) plaintiff suffered special injury. Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981); Pauley v Hall, 124 Mich App 255, 260-261; 335 NW2d 197 (1983), lv den 418 Mich 870 (1983).
We find that plaintiff presented sufficient proof on each of the elements of malicious prosecution to avoid a directed verdict as to this count. Citizens concedes the existence of the first two elements. With regard to the remaining elements, there was clearly sufficient evidence that Citizens lacked probable cause to proceed against plaintiff, especially in light of plaintiff’s several communications to Citizens and Attorney Brackett that she had not been involved in the accident. As to the malice element, we find that the evidence establishing a lack of probable cause also supports a reasonable inference that Citizens acted in reckless disregard of plaintiffs rights in bringing the prior action. Finally, we believe the garnishment action brought by Citizens against the plaintiff is sufficient to establish special injury in this case. We conclude that plaintiff presented a prima facie case of malicious prosecution.
Intentional Infliction of Mental Distress. The jury awarded $3,500 on this cause of action. This Court has adopted the definition found in 1 Restatement Torts, 2d, § 46, pp 71-72, which provides that the cause of action is made out by proof of "extreme and outrageous conduct [which] intentionally or recklessly causes severe emotional distress to another”. The theory refers to conduct which is " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ”. Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386, 391; 239 NW2d 380 (1976), quoting 1 Restatement Torts, 2d, § 46, Comment d, p 73. See also Rosenberg v Rosenberg Bros Special Account, 134 Mich App 342; 351 NW2d 563 (1984), and Swenson-Davis v Martel, 135 Mich App 632; 354 NW2d 288 (1984).
We agree with Citizens that plaintiff failed to establish a prima facie case of intentional infliction of mental distress. Viewing the evidence in a light most favorable to plaintiff, we do not believe that a reasonable factfinder could conclude that Citizens’ conduct met the standard described above. The trial court erred in denying the motion for a directed verdict as to this count.
Invasion of Privacy. The jury returned a verdict of $3,500 on this count. This tort was described in Lewis v Dayton-Hudson Corp, 128 Mich App 165, 168; 339 NW2d 857 (1983):
"The tort of invasion of privacy has been divided into four separate types of claims. See Prosser, Torts (4th ed), § 117, p 804. The four are: (1) intrusion upon plaintiffs seclusion or solitude, or into his private af fairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and, (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. Beaumont v Brown, 401 Mich 80, 95; 257 NW2d 522 (1977).”
According to the instructions given by the trial court, the present case involves only the first type of claim, intrusion upon plaintiffs seclusion. In order to maintain an action for intrusion, plaintiff must prove that there was:
"(1) an intrusion by defendant; (2) into a matter which plaintiff has a right to keep private; (3) by the use of a method which is objectionable to the reasonable person.” Lewis, supra, p 169, citing Earp v Detroit, 16 Mich App 271, 276-277; 167 NW2d 841 (1969).
This type of claim is analogous to trespass, except that it is unnecessary to show physical invasion onto a person’s property. Lewis, supra, p 168. See also Beaumont v Brown, 65 Mich App 455; 237 NW2d 501 (1975), rev’d on other grounds 401 Mich 80; 257 NW2d 522 (1977).
This Court agrees with Citizens that plaintiff failed to establish a prima facie case of this type of invasion of privacy. No secret or private matter was discovered by Citizens. We conclude that the elements of the intrusion form of invasion of privacy were not shown and that the trial court erred in denying the motion for a directed verdict as to this count.
Defamation. The jury returned a verdict of $1,-500 on this claim. The elements of defamation have been stated as follows:
"(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). Restatement Torts (2d), § 558.” Postill v Booth Newspapers, Inc, 118 Mich App 608, 618; 325 NW2d 511 (1982), lv den 417 Mich 1050 (1983).
Citizens concedes on appeal that plaintiff established all the elements of this tort except the existence of "special harm”. Although the terms "special harm” or "special injury” have different meanings in different contexts, we believe that, in Michigan’s law of defamation, the terms merely refer to actual harm resulting from the defamatory statement. Actual harm includes not only out-of-pocket losses, but also damages for mental and emotional suffering. See Peisner v The Detroit Free Press, Inc, 421 Mich 125; 364 NW2d 600 (1984); 3 Restatement Torts, 2d, Comments to §§620, 621, pp 316-321; MCL 600.2911; MSA 27A.2911. We find that plaintiff in the instant case presented sufficient evidence of actual damages to warrant submission of the defamation claim to the jury.
Exemplary Damages. The jury awarded $9,000 in exemplary damages. Citizens now challenges the award, contending that its effect was to grant a double recovery for plaintiff’s mental distress damages.
The form of the jury verdict makes it impossible to determine which of the substantive tort theories formed the basis of the jury’s award of exemplary damages. Defense counsel did not object to the verdict form or to the instructions on exemplary damages, and, in fact, the exemplary damages instruction was drafted and expressly approved by defense counsel. Citizens cannot now be heard to complain that the instruction unfairly permitted double compensation for plaintiffs mental distress damages. Citizens’ failure to object has waived this issue.
II
Citizens next argues that the trial judge erred in denying its motion to set off against the judgment a portion of the amount paid to plaintiff in settlement of her claim against Attorney Brackett. Citizens relies on MCL 600.2925d(b); MSA 27A.2925(4)(b), which states:
"When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
"(b) It reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater.”
Citizens concedes that there can be no setoff against the breach of contract damages but argues that the tort damages must be set off by plaintiff’s settlement with Attorney Brackett. We agree in part.
The statute plainly applies where a release is obtained by "1 of 2 or more persons liable in tort for the same injury”. The trial court found the statute inapplicable because Citizens and Brackett were not joint tortfeasors and because Citizens’ liability was, at least in part, vicarious liability for the acts of its agents. We find, however, nothing in the plain language of the statute which would limit its application to joint tortfeasors. Plaintiff’s allegations of tort applied to both Citizens and Attorney Brackett; there were no separate or severable claims against Brackett. Furthermore, we do not believe the setoff provided in § 2925d(b) is rendered inapplicable merely because a portion of Citizens’ liability may have been based on vicarious liability for the acts of Attorney Brackett. See Piper Aircraft Corp v Dumon, 421 Mich 445; 364 NW2d 647 (1984).
Plaintiff asserts that, in any event, the $9,000 exemplary damages award is not subject to setoff because it was based solely upon the specific conduct of Citizens. We agree. Although plaintiff’s theory against Citizens was based both on Citizens’ own wrongful conduct and on its vicarious liability for the acts of its agents, the exemplary damages instruction stated:
"I charge you that you are entitled to award exemplary damages to Patricia Hall, if you find that the defendant Citizens Insurance Company’s conduct was malicious or so reckless and wanton as to demonstrate a reckless disregard of the plaintiffs rights.
"Exemplary damages are additional compensation to the plaintiff for humiliation, sense of outrage and indignity resulting from the defendant’s action and not as punishment of the defendant.” (Emphasis added.)
In view of this instruction, we conclude that the exemplary damages award was based solely on Citizens’ own wrongful conduct. Since Attorney Brackett was not liable in tort for the injury underlying the exemplary damages award, the setoff provided by § 2925d(b) is inapplicable. We conclude that defendant Citizens is entitled to a setoff against the judgment except as to the breach of contract award and the exemplary damages award.
Ill
Defendants finally challenge the trial court’s award of costs, including attorney fees, under GCR 316.7. The court rule provides in pertinent part:
"7. Effect of Mediation.
"(a) If all the parties accept the panel’s evaluation, judgment will be entered in that amount, which includes all fees, costs, and interest to the date of judgment.
"(b) If any party rejects the panel’s evaluation, the case proceeds to trial in the normal fashion.
"(2) If the plaintiff accepts the evaluation but the defendant rejects it and the case proceeds to trial, the defendant must obtain a verdict in an amount which, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent below the panel’s evaluation or pay actual costs to the plaintiff.”
"Actual costs” are defined in GCR 1963, 316.8 to include reasonable attorney fees.
Defendants contend that subrule 316.7(b)(2) applies to their net position after the setoff. We do not agree. Since the rule refers to the amount of the verdict, we believe that post-trial reductions pursuant to statute, which are made by the trial judge, are not to be considered under GCR 1963, 316.7(b)(2).
We have found that the trial judge erred in failing to direct a verdict as to the intentional infliction of mental distress and invasion of privacy counts. The awards on those counts are vacated, thus reducing the total amount of the verdict by $7,000. The case is remanded to the trial judge to determine whether, in view of the reduction of the verdict on appeal, plaintiff is entitled to actual costs pursuant to GCR 1963, 316.7.
Affirmed in part, reversed in part and remanded for entry of judgment in accordance with this opinion.
Plaintiff alleged that she was insured through Conklin-PalmerBlanchard Insurance Agency or, in the alternative, by ConklinPalmer Agency. The individual defendants are partners in the agencies. The term "agencies” as used in this opinion refers collectively to the insurance agencies and the individual defendants.
The garnisheed wages were ultimately returned to plaintiff.
The complaint alleged the following:
Count I, breach of contract against Citizens and the agencies. ,
The remaining counts were against Citizens and Attorney Brackett:
Count II, abuse of process (later amended to malicious prosecution);
Count III, intentional infliction of emotional distress;
Count IV, defamation;
Count V, invasion of privacy.
Plaintiff sought consequential and exemplary damages on all counts.
Judgment was entered in favor of plaintiff and against Attorney Brackett in the amount of the mediation award.
It should be noted that, although the question of probable cause was submitted to the jury in this case, where, as here, the facts are not in dispute, the probable cause element should be decided as a matter of law. See Pauley v Hall, 124 Mich App 255, 265; 335 NW2d 197 (1983), lv den 418 Mich 870 (1983).
This is apparent because the statute concerns only persons "liable in tort”. Furthermore, no breach of contract claim was alleged against Attorney Brackett.
See Brewer v Payless Stations, Inc, 412 Mich 673, 679; 316 NW2d 702 (1982). | [
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Per Curiam.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, on December 23, 1983. Defendant was sentenced to from 84 months to 168 months in prison. Defendant appeals from his sentence to this Court as of right.
Defendant was convicted after the Michigan Supreme Court’s decision in People v Coles, 417 Mich 523; 339 NW2d 440 (1983). His sentence is therefore reviewable by this Court. Coles, supra, p 551.
At sentencing, the trial court used the Michigan Sentencing Guidelines even though their use did not become mandatory until March 1, 1984. See, Administrative Order No 1984-1, 418 Mich xxiv (1984). After some discussion about the proper point total to be used in applying the guidelines, the trial court sentenced defendant. The trial court articulated the reasons for the sentence it was imposing on the record. Defendant now contends that the trial court abused its discretion by assigning the wrong number of points for Offense Variable 2 under the robbery heading. While we can see from the record that there was a difference of opinion between defense counsel and the court about the proper number of points to be assigned, we decline to pass on that question. The only issue before us is the question of whether the trial court abused its discretion in fashioning defendant’s sentence. We note that the trial court stated on the record the reasons for the sentence imposed. We cannot say that under the circumstances of this case the conscience of the reviewing Court is shocked. Defendant’s sentence is affirmed.
Affirmed. | [
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] |
M. J. Kelly, P.J.
Defendants appeal as of right from a declaratory judgment in favor of plaintiff in which the trial court held that plaintiff is not responsible for an arbitration award of $20,000.
The material facts are set forth in a stipulation filed by the parties in circuit court. On January 31, 1974, Edmond Sanford sustained injuries in a two-car accident while riding as a passenger in a vehicle operated by Raymond Darling. The other vehicle was operated by Larry Spillers and owned by James Cummings, neither of whom were insured under a no-fault policy. Darling was insured by Auto-Owners Insurance Company and his policy included uninsured motorist protection for passengers up to the standard limit of $20,000. Sanford was covered under a policy issued by DAIIE to his wife, Rachel Sanford, which included uninsured motorist coverage also limited to $20,000.
Defendants obtained a $37,500 jury verdict against Cummings in 1979. Because of Cummings’ uncollectibility, defendants subsequently filed for arbitration against both DAIIE and Auto-Owners and an arbitration hearing was conducted on February 6, 1980. Although no record was made of that hearing, the parties stipulated in circuit court that the attorneys for both insurers had raised the issue of stacking and had argued that defendants’ total recovery must be limited to $20,000. The arbitrators, however, issued one award of $20,000 against Auto-Owners and another award of $20,-000 against DAIIE. Auto-Owners satisfied its obligation but DAIIE filed a complaint for declaratory relief in circuit court seeking a ruling that the award against DAIIE was unenforceable as contrary to the anti-stacking provision of the insurance contract. Its complaint was filed on April 1, 1980.
On February 11, 1982, the circuit court issued an order holding DAIIE’s complaint in abeyance pending the Supreme Court’s decision in DAIIE v Gavin, 416 Mich 407; 331 NW2d 418 (1982). Following the release of that decision, the trial court granted a declaratory judgment in favor of DAIIE. Defendants now appeal.
We are presented in this case with the significant procedural question of whether a party to an arbitration proceeding may challenge an arbitration award by filing a complaint for declaratory relief in circuit court. Defendants were petitioners in an arbitration proceeding questioning the limits of DAIIE’s liability for uninsured motorist coverage. Upon receiving an unfavorable ruling, DAIIE sought to challenge the award in circuit court on the ground that the arbitrators had exceeded their powers. Instead of filing a motion to vacate the award under GCR 1963, 769.9, however, DAIIE filed a complaint for declaratory judgment seeking a ruling that the award was unenforceable as a matter of law. We hold that declaratory relief is not available and we reverse the declaratory judgment in this case.
In DAIIE v Gavin, supra, the Supreme Court ruled on the merits of the predicate issue presented in this case by finding that arbitrators of a no-fault insurance claim exceed their powers when they disregard the anti-stacking language of the insurance contract from which they derive those powers. 416 Mich 445. The trial court in this case relied on Gavin in issuing its judgment declaring the award against DAIIE unenforceable.
In Gavin, however, DAIIE had challenged the arbitration award by way of a motion to vacate pursuant to GCR 1963, 769.9. For that reason, the Supreme Court in Gavin was not called upon to address whether a motion to vacate is the only avenue of relief available to a party challenging the award. Nevertheless, because the purpose of the Gavin opinion was to develop and articulate the appropriate standard for circuit court review of whether arbitrators exceed their powers, the Court did engage in a fairly extensive analysis of the role played by the judiciary with regard to no-fault arbitration awards in general. Implicit throughout Gavin is the view that circuit court intervention in arbitration disputes is by way of appellate review and is always in the context of motions to vacate, to confirm or to modify. For example, in determining whether the 20-day filing requirement was jurisdictional or procedural in nature, the court stated that GCR 1963, 769 should be read "as delineating a litigant’s right to challenge an arbitration award”. The 20-day filing requirement was thus construed as a procedural requirement guaranteeing a party’s right to obtain circuit court review of an arbitration award and that untimely motions are still reviewable in the court’s discretion upon a finding of excusable neglect. The court further noted that the process of "arbitration, by its very nature, restrains meaningful legal review in the traditional sense” and that as a result, "[i]t is only the kind of legal error that is evident without scrutiny of intermediate mental indicia which remains reviewable”. 416 Mich 429. Summarizing, the Court in Gavin stated that the "function of the judiciary in cases of statutory arbitration” will be "to correct material error”. 416 Mich 432-433.
We apprehend a similar message from the Supreme Court’s decision in Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95; 323 NW2d 1 (1982). In that case, the Supreme Court opined that "GCR 1963, 769 describes proceedings in the circuit court to confirm, enforce or vacate an arbitration award” and that "the jurisdictional basis on which the court may enter judgment on an award” is provided under MCL 600.5025; MSA 27A.5025. 414 Mich 98.
Though not directly on point, we find this Court’s decision in Downing v Allstate Insurance Co, 113 Mich App 96, 102-103; 317 NW2d 302 (1982), remanded on other grounds 414 Mich 965 (1982), (On Remand), 124 Mich App 727; 335 NW2d 139 (1983), modiñed 419 Mich 932 (1984), instructive on the issue presented here. In Downing, we held that the existence of an arbitration agreement between the insurer and the insured barred the insured’s right to maintain an independent circuit court action for breach of contract. Where a binding arbitration agreement exists, the only judicial remedy available to either party is the limited relief available under GCR 1963, 769.9.
We also believe that the only judicial relief available to a party dissatisfied with an insurance arbitration award, in this case DAIIE, is to proceed with the appropriate motion under GCR 1963, 769. Where an arbitration award is entered and the parties do not dispute the arbitrability of the issue, we hold that the circuit court’s power to nullify or correct that award is limited under GCR 1963, 769 and the statutory arbitration act, MCL 600.5001 et seq.; MSA 27A.5001 et seq. Thus, a party to an arbitration award may not proceed in circuit court with a complaint for declaratory-relief for the purpose of relitigating the same issues decided by arbitration.
Our holding is consistent with the general rules governing the availability of declaratory relief. While the right of a party to obtain declaratory relief is discretionary with the trial court and is not barred by the existence of another remedy, GCR 1963, 521.3, two requirements must be met in order to maintain such an action. An actual controversy must exist and the circuit court must have subject matter jurisdiction over the underlying controversy. GCR 1963, 521.1; Boyd v Nelson Credit Centers, Inc, 132 Mich App 774, 778-779; 348 NW2d 25 (1984). This Court has already determined that the existence of an arbitration agreement does not deprive the circuit court of the subject matter jurisdiction to resolve arbitrable issues in a declaratory action. DAIIE v Maurizio, 129 Mich App 166; 341 NW2d 262 (1983), lv den 419 Mich 877 (1984). In Maurizio, the parties had not yet obtained an arbitration award when DAIIE filed its declaratory action, essentially challenging the arbitrability of defendants’ claim. In this case, however, an arbitration award had already been entered before DAIIE filed its complaint for declaratory relief. The question that arises is whether that award extinguishes any actual controversy between the parties.
An actual controversy exists for purposes of GCR 1963, 521.1 only where a judicial decision is necessary to guide a plaintiffs future conduct. Shavers v Attorney General, 402 Mich 554, 589; 267 NW2d 72 (1978), cert den 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979); J F Cavanaugh & Co v Detroit, 126 Mich App 627, 632; 337 NW2d 605 (1983). Because the parties in this case had already submitted their dispute to an appropriate decision- making tribunal and had obtained a decision on the merits, it is incorrect to say that DAIIE needed a declaratory judgment to guide its future conduct. The arbitration panel had already ruled on the insurer’s duty and its claim of error with that arbitration determination could only have been pursued in accordance with GCR 1963, 769. To hold otherwise would, in our view, contravene the established public policy reasons behind arbitration and collateral estoppel.
While DAIIE’s complaint in circuit court was titled a petition for declaratory relief rather than a motion to vacate an arbitration award, the trial court inexplicably considered the 20-day filing requirement imposed under GCR 1963, 769.9(2). The court ruled that DAIIE’s attempt to challenge the arbitration award, though untimely, was nevertheless within the discretion of the trial court under Gavin. In Gavin, however, the Supreme Court clearly conditioned the circuit court’s "discretionary power to permit a party to plead beyond established time limits upon a showing of excusable neglect”. (Emphasis added.) 416 Mich 423. DAIIE failed in this case to introduce any proofs explaining its failure to comply with the 20-day requirement and the trial court made no finding of excusable neglect. We cannot affirm the circuit court’s declaratory judgment as though it were a ruling on a motion to vacate an arbitration award.
Reversed. | [
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Per Curiam.
Mecosta-Osceola Intermediate School District appeals as of right from a decision and order of the Michigan Employment Relations Commission which rejected the decision and recommended order of a hearing referee, found that Linda Lee Byrnes was unlawfully discharged as the result of her union activity, and ordered that plaintiff be reinstated to her former position with back pay. Defendant argues that the commission’s decision was not supported by competent, material, and substantial evidence on the whole record as required by MCL 423.216(e); MSA 17.455(16)(e). Application of that standard requires this Court to conduct a qualitative and quantitative evaluation of all of the evidence and to determine whether it was such as a reasonable mind would accept as adequate to justify the conclusion reached. Em ployment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 122-124; 223 NW2d 283 (1974).
Plaintiff has the burden of proving that her discharge was motivated at least in part by anti-union bias. Employment Relations Comm v Cafana Cleaners, Inc, 73 Mich App 752, 757; 252 NW2d 536 (1977); Jeanette v Stadium Management Co, 117 Mich App 240, 244; 323 NW2d 308 (1982). It is impossible that a discharge was motivated in part by antiunion bias where the employer had no knowledge of the employee’s union activity. NLRB v Century Broadcasting Corp, 419 F2d 771, 777-778 (CA 8, 1969); Jeanette, supra, p 243.
The evidence showed that the school district employed only nine full-time bus drivers, including plaintiff, and considerable reliance was placed on this fact by the commission in inferring that defendant knew of plaintiff’s union activities. However, the small size of an employer’s staff does not support an inference that an employer knew of union activities absent supporting evidence indicating that such activities were carried on at such a time or in such a manner that the employer must have noticed them. Amyx Industries, Inc v NLRB, 457 F2d 904, 907 (CA 8, 1972); Alumbaugh Coal Corp v NLRB, 635 F2d 1380, 1384 (CA 8, 1980). Nothing in the record here indicates that plaintiff’s union organizing activities were carried out on defendant’s premises or were otherwise conducted in such a way that defendant must have been aware of her involvement.
Evidence showed that the bus superintendent was informed of a union organization meeting on the day before the accident which led to plaintiff’s suspension, but was not informed of plaintiff’s participation. Evidence also showed that the bus foreman received a complaint, after plaintiff’s sus pension but before her dismissal, from a bus driver who told him that she was being pressured to sign a union card. However, there was no testimony that plaintiffs name was mentioned in this connection or that plaintiff was the only one soliciting signatures. For example, the testimony of bus driver Alice Brockway indicated that she also was involved in union organization. Plaintiff testified that she was questioned about why bus drivers wanted a union by a school board member with whom she had a private discussion, but nothing suggested that the board member knew that plaintiff herself was involved in the union or was an organizer. The commission placed considerable reliance on a supposed friendship between the superintendent’s son and a bus driver, inferring that the bus driver must have told the superintendent’s son that plaintiff was a union organizer and that the son must have, in turn, told his father. However, the superintendent denied that any such friendship existed and the only other testimony suggesting a friendship was that of plaintiff, who said that she supposed that the superintendent’s son and the bus driver were friends because the bus driver had a business next door to the superintendent’s son’s house. This chain of inferences and suppositions is too tenuous to be given any weight. While the evidence shows that defendant knew of the union during the relevant time period, there was no evidence supporting a conclusion that defendant knew of plaintiffs involvement and organizational role in the union.
Finally, we note that the commission relied upon what it termed the "suspicious coincidence” of the accident which led to plaintiffs suspension and the union organization meeting the previous night. Unless the commission is suggesting that the accident was somehow deliberately caused by defendant, a suggestion for which there is no support in the record, we fail to see how such a coincidence is suspicious or the relevance of such a coincidence to the issues presented.
On this record, we cannot say that there was competent, material, and substantial evidence to support a conclusion that defendant knew of plaintiffs union activities before dismissing her.
Reversed. | [
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Per Curiam.
Defendants appeal as of right from an order granting plaintiffs’ motion for partial summary judgment and a permanent injunction.
The issue in this case involves an easement. Plaintiffs and defendants are owners of adjacent parcels of property in Van Burén County. Plaintiffs’ servient parcel will be referred to as parcel A; defendants’ dominant parcel, which lies directly west of parcel A, shall be referred to as parcel B; the parcel of property west of parcel B will be referred to as parcel C. Defendants own both parcel B and parcel C, but apparently bought them from different owners.
On December 22, 1971, plaintiffs granted to the owner of parcel B, defendants’ predecessor in interest, an easement across parcel A to parcel B. The easement granted parcel B a 10-foot right-of-way for the installation of water and sewer lines. The agreement makes no mention of parcel C. Defendants and plaintiffs agree that the right-of-way constituted an appurtenant easement. There is no home on parcel B, and it is presently unoccupied. We have been unable to determine why the owner of parcel B desired an easement.
Defendants’ residence is on parcel C, but defendants also own parcel B. The present controversy erupted when defendant began the installation of a sewer line across parcel A and parcel B to service defendants’ house on parcel C. Although plaintiffs objected verbally and in writing that defendants had no right to install the sewer line, the sewer line was installed.
Plaintiffs then initiated this action, and brought a motion for partial summary judgment for failure to state a valid defense pursuant to GCR 1963, 117.2(2). The trial court granted plaintiffs’ motion for partial summary judgment, and granted a permanent injunction ordering defendants to dis connect the sewer lines and preventing them from using the easement to service parcel C.
I
Defendants argue on appeal that the trial court erred in granting summary judgment because the determination of the extent of an easement, or whether a particular use constitutes a material increase in the burden, is a question of fact. Defendants further argue that the easement agreement did not limit the use of the easement to parcel B, and the service to parcel C did not materially increase the burden on parcel A.
The owner of an easement cannot materially increase the burden upon the servient estate or impose thereon a new and additional burden. Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957). The extent of the right of an easement is a question of fact. Crew’s Die Casting Corp v Davidow, 369 Mich 541, 546; 120 NW2d 238 (1963). An appurtenant easement, which is the type of easement at issue in this case, attaches to the land and is incapable of existence separate and apart from the particular land to which it is annexed. Mc-Clintic-Marshall Co v Ford Motor Co, 254 Mich 305; 236 NW 792 (1931).
The easement agreement in this case describes parcel B and grants to that parcel a right-of-way across the south 10 feet of the property belonging to plaintiffs for the installation of water and sewer lines, noting that the parcel would have no access to these lines except over parcel A. The easement agreement makes no mention of parcel C. The fact that parcel C also has no access to water and sewer lines except over parcel A does not alter the easement agreement which grants an easement only to parcel B.
Defendants argue that whether extending the easement to parcel C materially increases the burden to parcel A is a question of fact so that summary judgment was improper. Defendants correctly point out that the determination of the extent of an easement or whether a particular use constitutes a material increase are questions of fact. Crew’s Die Casting Corp v Davidow, supra, p 546. However, the initial question in this case is whether parcel C has any right to an easement. Nothing in the easement agreement entitles the owners of parceí C to benefit from the easement appurtenant to parcel B. The question of whether parcel C’s use of the easement constitutes a material increase would not arise until the future owners of parcel B decided to take advantage of the easement as well. Although defendants presently own both parcel B and parcel C, this could change in the future. The fact that only one parcel is benefiting from the easement, as contemplated by the easement agreement, is beside the point, because that is not the parcel for which the easement was intended. Judge Warshawsky properly found that as a matter of law the easement did not extend to parcel C.
II
The sewer lines have already been installed. The trial court, finding defendants had no easement, issued an injunction against defendants’ use of the easement, and ordered them to disconnect the sewer and water lines. Defendants argue on appeal that the issuance of a permanent injunction was an abuse of the trial court’s discretion, as plaintiffs have shown no irreparable harm.
When an injury is irreparable, or the interference is of a permanent or continuous character, or the remedy at law will not afford adequate relief, a bill for an injunction is an appropriate remedy. 10 Michigan Law & Practice, Easements, § 34, p 128. The granting of injunctive relief is within the sound discretion of the court, and the decision must be based on the facts of the particular case. Roy v Chevrolet Motor Car Co, 262 Mich 663, 668; 247 NW 774 (1933).
Michigan courts have granted injunctions in easement cases even harsher than that ordered in this case. In Longton v Stedman, 182 Mich 405; 148 NW 738 (1914), the Court ordered defendants to tear down the brick building they had erected which obstructed plaintiff’s easement. Although defendants argue that plaintiffs did not initiate this litigation until after the sewer had been completely installed, plaintiffs contend that they informed defendants both verbally and in writing that defendants had no right to use plaintiffs’ property, and defendants admitted this in their answer. We recognize that preventing defendants from using the sewer line already installed will cause them further expense and hardship, but plaintiffs’ advance written and verbal warnings to defendants should have put defendants on notice as to the possible consequences of beginning the installation of the sewer line.
The trial court is affirmed in all respects. | [
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Fead, J.
This is certiorari to review an award of six-cents for damages to business and six cents' for damages to fixtures in a condemnation proceeding for the widening of Woodward avenue in Detroit.
Plaintiff had a fairly large department store. It leased the building, the front part of which was taken, requiring readjustment of plaintiff’s fixtures and necessarily resulting in interruption of its business for a time.
Defendant introduced no testimony rebutting that offered by plaintiff on its claim of damage of $109,000. Some of the claim was within the ruling in Re Widening Harper Avenue, 237 Mich. 684, as being so necessarily speculative in character that the city need not introduce testimony but could rely upon its cross-examination of plaintiff’s witnesses, and the jury was not bound by the testimony of minimum and maximum estimates in fixing com pensation. On the other hand, damage to fixtures was capable of quite accurate estimate and computation. Plaintiff’s testimony thereon was definite and not necessarily speculative. The award shows that the jury wholly disregarded such testimony and found its award without sustaining evidence.
Reversed with new trial, and costs to plaintiff.
McDonald, O. J., and Clark, Potter, 'Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
Potter, J.
Plaintiff, vendee in a land contract which he claims was induced by the fraud of vend- or ’s agents, defaulted in payments thereon. Vend- or, in pursuance of the contract, gave notice of such default, election to retain the payments made on the contract, and took and now holds possession of the premises. Plaintiff sued defendants to recover the money paid by him as a part of the purchase price of the property, the declaration counting on the fraud and containing the common counts in assumpsit. From a verdict for defendants, directed by the trial court, plaintiff appeals.
When plaintiff discovered he had been defrauded, 1. He could sue in equity for rescission of the contract; 2. Tender back the property to the vendor, and sue to • recover the purchase money paid; or 3.'' Keep the property and sue the persons by whom he had been defrauded for damages. Warren v. Cole, 15 Mich. 265; Lenox v. Fuller, 39 Mich. 268; Stockham v. Cheney, 62 Mich. 10; Wegner v. Herkimer, 167 Mich. 587; Merlau v. Kalamazoo Circuit Judge, 180 Mich. 393; Bryan v. Houseman-Spitzley Corp., 213 Mich. 236.
Plaintiff had a right, if he proceeded properly, to repudiate the purchase, surrender his interest in the property to the vendors, and sue for the pur chase price. Such suit would be based upon the theory the contract was void, the money paid by him without consideration. It would disregard the contract, treat it as of no binding force, and seek to recover the money paid as paid without consideration. It would lie only against the vendors who received plaintiff’s money. Plaintiff might elect to abide by the contract, keep the property purchased, though the contract was fraudulently induced, and maintain a suit to recover damages for the fraud and deceit practiced on him. Such suit would not be based upon vendors’ profit by fraud — upon the theory that defendants had received something for which they should account — but would be a .suit based upon plaintiff’s right to recover his loss by reason of fraud inducing such loss. All persons who perpetrated or assisted in perpetrating the fraud could be joined as defendants. One class of cases is based upon repudiation of the contract, the other upon affirmance of the contract.
Plaintiff sought to surrender physically the contract of plaintiff to defendants. No attempt was made to assign the contract in writing to vendors or to transfer the interest in the lands acquired on contract by plaintiff by deed or conveyance in writing in pursuance of 3 Comp. Laws 1929, § 13411.. Plaintiff therefore had not rescinded the contract, and may not recover the money paid as a part of the purchase price on the lots. Whether plaintiff could maintain an action for damages for fraud, independent of rescission, is not before us by plaintiff’s declaration.
Judgment affirmed, with costs.
Clark, Sharpe, Fead, and Wiest, JJ., concurred with Potter, J. McDonald, C. J., and North and Butzel, JJ., concurred in the result. | [
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Clark, J.
Dora Braiker, mortgagor in a mortgage to secure an issue of bonds, conveyed to Julius Berman and David Davis by warranty deed, tbe grantees assuming and agreeing to pay the mortgage debt.
Tbe question here on tbe appeal of Davis is tbe right of tbe mortgagee and trustee to have personal decree for deficiency against him, and tbe denial of such right is based upon a purported assignment by Dora Braiker of “tbe covenant in said deed, that tbe vendees therein assume and agree to pay tbe mortgages therein set forth,” to Edward J. Strata and Gerson Cass, otherwise strangers to tbe matter.
After tbe conveyance to Davis, and (quoting from brief) — “during tbe four years that Davis managed tbe property Davis made the sinking fund deposits required by tbe mortgage. Tbe Strauss Company on August 29, 1925, December 15, 1925, and April 30, 1928, delivered Canceled bonds and coupons so paid to defendant Davis and received from him written receipts therefor,” before tbe purported assignment notices of default had been given by tbe trustee. On the facts, the case is controlled by James S. Molden Co. v. Applebaum, 263 Mich. 507. See, also, Federal Bond & Mortgage Co. v. Shapiro, 219 Mich. 13.
It might be added that tbe assignment here to strangers is nothing beyond an idle gesture. Woodcock v. Bostic, 118 N. C. 822 (24 S. E. 362).
Affirmed, with costs.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, C. J.
This is an appeal from an apportionment of damages between landlord and tenant by a jury in a condemnation suit involving' the taking of property for the widening of Woodward avenue in the city of Detroit. Defendant Earl D. Garrison was owner of the fee, and the defendant Kresge Foundation Company was his tenant under a 99-year lease, which expires April 30, 2018. The jury awarded total damages of $53,728.53, of which it apportioned $46,564.73 to the tenant, and $7,163.80 to the landlord. Claiming that the apportionment was wrong as a matter of law, the Kresge Foundation filed a motion to amend the award. The. motion was denied, the verdict confirmed, and judgment entered. The Kresge Company has appealed and asks to have the award amended by reducing the jury’s allowance to Mr. Garrison from $7,163.80 to $349.22.
Different theories 'as to apportionment of damages between the landlord and tenant were submitted to the jury. It is not claimed that the jury adopted an erroneous theory, so we are not called upon to decide which theory is correct. The claim is they adopted the appealing defendant’s theory, but, in attempting to apply it, erred in their mathematical computations and thereby reached a wrong result in awarding Mr. Garrison $7,163.80 instead of $349.22. The defendant’s cause for appeal rests entirely on this alleged mistake of the jury, and its claim of mistake rests entirely on the assumption that the jury adopted its theory of apportioning the damages. The record discloses no basis for such an assumption. There were other theories submitted to the jury. A theory was presented on behalf of Mr. Garrison, but owing to an incomplete record we are not fully informed as to'what that theory was. It was presented in a request to charge, but neither the request nor the charge as given is in the rqcord. The jury may have adopted Garrison’s theory. "We do not know. We are compelled to dispose of this question from the record, and it dis closes nothing from which we can determine how the jury made the apportionment. In denying the motion to amend, the trial court said:
“You claim that the jury made a palpable error in computing that portion of the total award. As I said, in my opinion, the court could not determine what method of computation was adopted by the jury, and the different theories being submitted by the parties to the cause, you submitted your theory, and the other party submitted a theory, I consider that the court is without discretion.
“Mr. Lee: He assumes the jury determined it on his theory. Apparently the jury did not follow his theory.
“The Court: That is my view still, and I think I have expressed it in the opinion, that two theories were submitted, and while you claim that they did not compute it in a particular manner, it is not for the court to determine what method of computation the jury followed.”
We think the coui;t correctly disposed of the question. The judgment is affirmed, with costs to defendant Garrison.
Clark, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, J.
Plaintiff, transferee of the payee of a promissory note, sued thereon. The defense being fraud and failure of consideration, the question is of plaintiff’s holding in due course. Defendant had verdict and judgment. Plaintiff has appealed.
Plaintiff wYas a holder in due course in the sum of $1,000 and interest unless the knowledge of fact of defense of one Brownian-officer of the payee and sometimes attorney for plaintiff, can ■ be held to be imputed or chargeable to plaintiff. ' Evetf if Brown were attorney or agent of plaintiff, his interest in transfer of the note was adverse to interest of plaintiff, and not imputable. The case is ruled by State Savings Bank of Ionia v. Montgomery, 126 Mich. 327. See Peoples Savings Bank of West Bay City v. Hine, 131 Mich. 181; Tapert v. Lehmann, 259 Mich. 447.
Plaintiff was' entitled to directed verdict for amount stated.
Reversed, with costs, and remanded for judgment accordingly.
McDonald, C. J., and Potter, Sharpe, North, Fead, "Wiest, and Butzel, JJ., concurred. | [
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North, J.
In this action for conversion of an automobile, plaintiff had judgment, and defendant has appealed. Appellant claims there is no evidence of conversion.
In October, 1930, one Edgar A. Dean gave a chattel mortgage on his Essex sedan to the Regal Finance Company. The mortgage was duly filed and within a week assigned by the mortgagee to the Union Investment Company, which in turn assigned it to plaintiff herein in August, 1931. Prior to the assignment to plaintiff, Dean left his automobile with the defendant for repairs and storage. The machine continued in defendant’s possession until April, 1931, at which time proceedings were taken by defendant to foreclose its lien against the car under 1 Comp. Laws 1929, § 4793. At the sale defendant purchased the car. Thereafter, on the 25th of May, 1931, defendant sold the automobile to Raymond PI. Berndt. It is this sale of the automobile which plaintiff alleges constituted conversion. This claim of conversion is based upon the fact that the transfer of title from defendant to Berndt recited that the automobile was not subject to a lien. As a matter of fact defendant knew that the automobile was subject to a chattel mortgage, but at no time has it claimed that it was freed from the • chattel mortgage lien by reason of defendant’s subsequent lien or the foreclosure thereof. It was stated by counsel for defendant in open court that Berndt knew of the outstanding chattel mortgage at the time he purchased the machine. Whether this is true or not, so far as appears from the record, Berndt is not complaining that he was deceived or defrauded incident to his purchase from defendant. Berndt was an employee of the defendant, and at least during a portion of the time after the sale to him the automobile was kept at defendant’s garage and plaintiff had knowledge of this fact. There is no claim that the chattel was secreted, nor has plaintiff’s chattel mortgage lien been impaired or invalidated. The record discloses that, since the alleged conversion, plaintiff, evidéntly asserting its right under its chattel mortgage lien, instituted a replevin suit in which it sought to repossess the automobile. In the replevin proceedings plaintiff was unsuccessful only because it failed to demand 'possession before instituting suit. So far as appears from this record plaintiff still has a valid chattel mortgage lien. Defendant’s recital in the transfer to Berndt thakthe automobile was not subject to any outstanding lien, which was probably a mere inadvertence, did not constitute conversion; nor is there any other showing in this record which establishes the alleged conversion by defendant.
The judgment entered in the circuit court is reversed, .and the case remanded with directions to enter judgment in favor of defendant in accordance herewith. Costs to appellant.
McDonald, C. J., and Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Potter, J.
Plaintiff sued defendant to recover commissions claimed to have been earned by him on premiums due and to grow due upon the conversion of term life insurance policies in defendant to ordinary life policies by Guy P. Wilson of Kalamazoo, the insured. From a judgment for defendant, plaintiff appeals.
Guy P. Wilson of Kalamazoo had term life insurance in the aggregate of $35,000 with the defendant company. Plaintiff had been its general agent in Grand Rapids. He had been superseded there as general agent by Mr. Buckner, had moved out of defendant’s office, and was maintaining offices of his own on another floor of the same building in which defendant had its offices. Wilson had written the term insurance with one Fleugel, defendant’s agent at Kalamazoo. January 6, 1932, Fleugel wrote Wilson, who was then in Florida, in relation to the conversion of these Penn Mutual policies which would lapse March 23d. Wilson got in touch with his personal representative at Kalamazoo, Mr. George W. Tuck. Tuck examined the policies, and learned from the sticker indorsements thereon plaintiff was, at the time of their issuance, defendant’s general agent at defendant’s Grand Rapids address. The letter, though addressed to plaintiff as general agent at defendant’s address, was delivered to plaintiff personally at his own address. After a controversy had arisen, defendant asked plaintiff for copies of the Tuck correspondence. Plaintiff furnished what purported to he a copy of Tuck’s letter to defendant, addressed to Elmer R. Beers, Grand Rapids National Bank Building, Grand Rapids, Michigan. Although Tuck’s letter was addressed to Beers as general agent at 818 Grand Rapids National Bank Building, which was defendant’s address, plaintiff did not answer this letter. He visited Tuck at Kalamazoo. He did not disclose he had nothing to do' with writing the original policies, was not the agent who procured them, was not defendant’s general agent, ,did not communicate with defendant’s general agent at Grand Rapids the contents of Tuck’s letter; did not deliver such letter to defendant’s general agent at defendant’s address and did not disclose to Tuck his change of address. Most of the material facts in the case were disputed. These disputes were resolved by the jury in defendant’s favor. The questions presented by appeal are whether, under the written contract between the parties, the question of who initiated the conversion of the Wilson policies was controlling, and was plaintiff guilty of interference with another agent of defendant so as to violate his contract? Appellee contends that the questions involved are whether plaintiff was the procuring cause of the converted insurance, whether he was guilty of interference within the meaning of the contract, and was plaintiff guilty of disloyalty toward defendant? No error is assigned upon the lack of testimony to carry the case to the jury or upon the admission or rejection of testimony. The sole question involved is whether there was error of law in the charge of the trial court in submitting the case to the jury. Plaintiff’s rights are governed by his contract. Morehead v. Reem, 254 Mich. 351. Plaintiff’s contract provides:
“Beers agrees that he will submit no business to company other than that which is personally solicited by him.”
In his letter to defendant’s president March 26, 1932, he says, in relation to the Wilson policies:
“I was called into the matter by means of a letter of February 18,1932, copy of which is attached, and which was entirely unsolicited.”
The copy “attached” was a pretended copy of Tuck’s letter in relation to renewal or conversion of Wilson’s policies. It omitted from the address, “general agent,” omitted the room number of defendant’s office, and said “Please have your representative call,” etc. It showed on its face it was intended for defendant’s general agent, who employed representatives, and not for plaintiff, who was not defendant’s general agent, not at 818 Grand Rapids National Bank Building, and who did not employ representatives. In National Life Ins. Co. of U. S. of A. v. National Life Ins. Co., 209 U. S. 317 (28 Sup. Ct. 541), the court quoted paragraph 4 of § 645 of the postal laws and regulations, that:
“Where disputes arise between individuals, firms, or corporations as to the use of a name or designation, matter addressed to a street, number, • or building, should he delivered according to such address.”
Tuck’s letter was not only delivered by the United States postal authorities to plaintiff in violation of the postal regulations of the United States, but it was received by Mm, and he knew it was intended for defendant’s general agent, whose room was plainly designated by number in the address.
Agency is primarily a relationship of trust and confidence. The agent represents the principal. Loyalty to the principal, the duty of full disclosure, is essential. The agent may not legally act for the principal where his interests are opposed to those of the principal. He cannot act in his own interest, is forbidden to act at all, where his interest is opposed to that of his principal. Plaintiff must have been the procuring cause of the conversion of the Wilson policies. 2 Mechem on Agency (2d Ed.), § 2435, and cases cited; Marks v. John Hancock Mutual Life Ins. Co., 201 Ill. App. 456; Leviness v. Kaplan, 99 Md. 683 (59 Atl. 127); Esterly-Hoppin Co. v. Burns, 135 Minn. 1 (159 N. W. 1069); Wichita Southern Life Ins. Co. v. Davis (Tex. Civ. App.), 206 S. W. 728.
Plaintiff procured, under the circumstances disclosed, through Tuck, Wilson’s signature for the application of the conversion of the policies. These applications were found to be defective and were rejected. Fleugel obtained the applications of Wilson on different forms, obtained payment from Wilson, submitted the payment to defendant, obtained releases from the bank at Kalamazoo, and obtained the necessary affidavits of the change of name of the Kalamazoo bank. We find no error in the manner in which the trial court submitted the disputed questions to the jury, whose findings are conclusive upon the facts as submitted.
Judgment of the trial court affirmed, with costs.
McDonald, C. J., and Clark, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
Butzel, J.
In 1913, the city of Battle Creek adopted a commission form of government, headed by a mayor and four commissioners. It had theretofore been governed by a mayor and common council. On April 5, 1932, immediately following the spring election and prior to the canvassing of the votes, the retiring commission held a regular meeting, at which Daniel E. Squier was elected city clerk for a two-year term by a unanimous vote, notwithstanding Commissioner Hoyt’s protest against the exercise of the power of appointment by a body that was about to go out of office. Commissioner Hoyt also explained that his vote for Mr. Squier was made solely for the purpose of moving for a reconsideration. Immediately following adjournment of the meeting, Mr. Squier accepted the appointment, qualified, and took the oath of office. He has continued to perform the duties of the office ever since.
On April 7, 1932, within 48 hours after the meeting and in accordance with the alleged rules of the commission, Commissioner Hoyt filed and served proper notice in writing that he would move for a reconsideration of Squier’s appointment at the next regular meeting of the city commission. On the same day, the city commission held a meeting for the purpose of canvassing the votes at the spring election. Some other business was also transacted, including the approval of the minutes of the previous meeting. Commissioner Hoyt did not attend the meeting of April 7, 1932, but was present at the regular meeting on the following Monday. The personnel of the newly-elected commission consisted of the former mayor, Commissioner Hoyt, another one of the former commissioners, and two new members. Hoyt’s written motion to reconsider the appointment of Squier was carried, and Thomas H. Thorne, who had previously and continuously served for many years as city clerk of Battle Creek, was elected for the term of two years. Thorne, claiming that he is the duly-elected city clerk, brought the present proceedings and ^ seeks by quo warranto to test the title to the office of the city clerk and to have himself declared entitled to the office. The trial judge found in favor of Thorne, the plaintiff, and Squier, the defendant, appeals. Further facts will be discussed in connection with the points raised on appeal.
The case is companion to that of North v. Wagner, post, 110, in which a similar action was brought to test the title to the office of city attorney, but no issue is made therein as to the validity of the rule of the commission permitting notice of reconsideration to be given within 48 hours. In the instant case, this rule is attacked on the ground that there was no competent evidence to show that the rule had been properly adopted. It was shown that since at least 1900, the common council and its successor, the commission, had governed itself by certain rules, including the one relating to reconsideration, which were periodically published in a city manual. The rule with regard to reconsideration appeared in the old city council manuals as Rule No. 44, and is Rule No. 28 in the new manual, providing as follows:
“A motion to reconsider a vote on any question shall not be in order after one regular meeting of the commission has intervened between the decision and motion for reconsideration, but it shall be in order for any commissioner of the prevailing side to move for a reconsideration thereof during that period, provided that he shall file with the city clerk within 48 hours of the time at which the motion to be reconsidered was passed, a notice of his intention to so move to reconsider it, and the same number of votes shall be required to reconsider any action of the commission as was required to pass or adopt the same; and provided, further, that no notice for the reconsideration shall be in order or be allowed on any item in any pay roll for labor or service.”
In the minutes of January 19, 1920, the city clerk reported that the new city manual was ready for approval by the commission. Prior to that time, on October 20, 1919, he had been authorized to com pile and have printed 1,500 manuals. At the meeting of January 19, 1920, it was moved and carried that the standing rules in the manual be held over for one week for consideration. The clerk reported that the remainder of the manual was at his office and could be looked over at any time. On March 8, 1920, it was moved and carried that the manual be adopted as submitted by the clerk, with corrections. The records do not show what corrections, if any, were made. Mr. Thorne, who was clerk at the time, testified that the manuals were not printed until July or August of 1920, and that the corrections were undoubtedly made prior to printing. While there is no testimony as to when or how this specific rule was adopted, it was shown to be one of the rules continuously used since 1900 and included in the printed manuals of the common council and commission. Also persuasive is the fact that the manual was adopted by the commission in 1920 after the standing rules therein contained had been held over for consideration for some time. A printed copy of the manual containing these rules had been kept continuously in the office of the city clerk as a part of the city records.
The old charter of the city, in section 3 of chapter 10, empowered the common council to prescribe rules for the government of its proceedings. Section 5 of chapter 8 of the new charter provides that the commission shall fix the day and hour for regular meetings of the commission and rules and regulations for its government. There is no provision prescribing the manner in which rules should be adopted, but merely a grant of authority to prescribe rules for the government of its proceedings. The minutes of the commission show that Rule No. 28 had been invoked on several occasions.
Appellant contends that there is no showing that the rules were properly adopted in accordance with the provisions of the home rule charter of Battle Creek, stipulating that by-laws and ordinances mus.t be published “for two successive weeks in at least one daily newspaper printed and published in the city, unless otherwise directed,” etc. Buies of procedure of a legislative body do not fall within the classification of ordinances and by-laws. 3 Comp. Laws 1929, § 14180, provides as follows:
“All laws, by-laws, regulations, resolutions, and ordinances of the common council, or of the board of trustees of any incorporated city or village in this State may be read in evidence in all courts of justice, * * * ' either from a record thereof, kept by the clerk or recorder of such city or village, or from a printed copy thereof, purporting to have been published by authority of the common council or board of trustees, in a newspaper published in such city or village, or from any volume of ordinances, purporting to have been printed by authority of the common council or board of trustees of such city or village; and such record, certified copy or volume shall be prima facie evidence of the existence and validity of such laws, regulations, resolutions, and ordinances, without proof of the enactment, publishing, or any other thing concerning the same.”
Similar statutes have been applied in many cases in other jurisdictions, and it has been held the burden of proof is upon those attacking the ordinance to show that it never was validly adopted. Chicago & Alton R. Co. v. Wilson, 225 Ill. 50 (80 N. E. 56, 116 Am. St. Rep. 102); City of Caruthersville v. Sickles (Mo. App.), 247 S. W. 471; Santa Rosa City R. Co. v. Railway Co., 112 Cal. 436 (38 Pac. 986). The same reasoning upon which the statute quoted heretofore is based justifies the application of the presumption of due passage to a rule of procedure printed in an authorized city manual. Also, see Whitney v. Common Council of Village of Hudson, 69 Mich. 189, 201, a case in which the facts were in no way similar, however. The court held as follows :
“Counsel for defendants insists that strict parliamentary rules should not be applied to these municipal bodies exercising legislative functions; that if they adopt or pursue a method of proceeding understood by themselves, which arrives at substantial results, their action should not be overthrown upon any technical rules or strict construction of parliamentary law. We are of the same opinion.”
It is further claimed that, even if the rule in regard to reconsideration is a valid one and its proper adoption be assumed, the appointment of the city clerk could not be reconsidered at a meeting of the commission subsequent to the next regular meeting; that there was a regular meeting on April 7, 1932, and that the reconsideration was not acted upon until the regular meeting of April 11, 1932. Chapter 8, § 5, of the city charter provides that the commission shall fix the day and hour for the regular meetings of the commission. Rule No. 1 of the standing rules provides that the regular meeting of the commission shall be held on Monday of each week at 7:30 p. m. Chapter 6, § 8, of the charter requires the commission to meet at 10:00 a. m. on the Thursday following all municipal elections for the purpose of canvassing the vote, and appellant claims that the meeting of April 7, 1932, called for this purpose, was a regular meeting.. It is our opinion that the Monday evening meetings prescribed by Rule No. 1, pursuant to the authority granted by charter, were the only meetings within the purview of No. 28 of the same rules. The fact that at times ordinary business was transacted at the meetings required by charter for the canvassing of votes gave them no standing as regular meetings.
The serious question in the case is whether there could be a reconsideration of the action taken at the meeting on April 5, 1932, appointing defendant city clerk. No steps were taken until after defendant had taken the oath of office. A person duly elected or appointed to an office ordinarily cannot be removed during his term by subsequent action of the body that has elected him, once all of the steps requisite to his election or appointment have been completed. As was stated in Marbury v. Madison, 1 Cranch (5 U. S.), 137:
“Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed.”
The same is true of an appointment by a legislative body. Conger v. Gilmer, 32 Cal. 75. There is no question about the correctness of this rule; the difficulty lies in its application, in the determination of the exact time at which the appointment becomes complete and final. The question of the right to reconsider an appointment arose in Attorney General, ex rel. Dust, v. Oakman, 126 Mich. 717, where we declared:
“The question recurs whether,-where an appointment or concurrence in an appointment is a subject of action by a deliberative body, that body may, by rules of its own, or acting under usual parliament ary rules, cast a vote upon the subject which is subject to reconsideration; for, if such course is permissible, the appointment is not complete beyond recall until the power to reconsider has been cut off by the lapse of time.”
The right to reconsider at the same meeting was recognized, and the rule as laid down has been extended to cases where a reconsideration was made at a later meeting pursuant to rules allowing such reconsideration. See People, ex rel. McMahon, v. Davis, 284 Ill. 439 (120 N. E. 326, 2. A. L. R. 1650); Witherspoon v. State, 138 Miss. 310 (103 South. 134); People, ex rel. Birch, v. Mills (N. Y.), 32 Hun, 459. In Wood v. Cutter, 138 Mass. 149, Justice Holmes, speaking for the court, said:
“It begs the question to say that the board had once definitively voted in pursuance of the instructions of the town meeting, and therefore was functus officio, and could not reconsider its vote. The vote was not definitive if it contained the usual implied condition, that it was not reconsidered in accordance with ordinary parliamentary practice, and it must be taken to have been passed subject to the usual incidents of votes.”
See, also, State v. Foster, 2 Halst. (7 N. J. Law) 101.
In United States v. Smith, 286 U. S. 6 (52 Sup. Ct. 475), a senate rule provided that, when a nomination was confirmed or rejected, the senate might reconsider its action on the same day of the vote or on either of the next two days of actual executive session of the senate, and that if the notice of confirmation or rejection had already been sent to the president before the expiration of the time for a motion for reconsideration, the motion to ■ reconsider might be accompanied by a motion to request the president to return such notification to the senate. The rule further provided that nominations confirmed or rejected hy the senate should not he returned to the president until the expiration of the time limited to reconsider, or while a motion to reconsider is pending, unless otherwise ordered by the senate. The nomination was confirmed and notification thereof transmitted to the president. The president signed the commission of appointment and a motion to reconsider was thereafter made. It was held that, under the rules, the authorized transmittal of the confirmation before the time for reconsideration had expired empowered the president to complete the appointment with his signature. The case in no way holds that the senate did not have the right to reconsider its confirmation by proper action. The case is not authority for appellant’s claim; in fact, the court stated:
“The Constitution commits to the senaté the power to make its own rules; and it is not the function of the court to say that another rule would be better. A rule designed to insure due deliberation in the performance of the vital function of advising and consenting to nominations for public office, moreover, should receive from the court the most sympathetic consideration. ’ ’
People, ex rel. Birch, v. Mills, supra, resembles the instant case in many respects. The board of supervisors of Westchester county had adopted a rule permitting reconsideration on the same day or the next day following the action sought to be reconsidered. Relator was appointed librarian and janitor, but the following day the action was reconsidered. A few days later one Kinch was appointed to the office. In denying relator’s petition for mandamus, the court said:
“The procedure was in entire accordance with the rules, and any appointment would be subject to them. They are a law to the supervisors and to all persons dealing with them. All contracts implied from a resolution are subject to the right to change it by another resolution passed in accordance with the rules of the board; otherwise a minority might bind immutably a majority temporarily absent by a resolution or other enactment. The order should be affirmed, with costs.”
Defendant cites as authorities sustaining his position State, ex rel. Burdick, v. Tyrrell, 158 Wis. 425 (149 N. W. 280); State, ex rel. Coogan, v. Barbour, 53 Conn. 76 (22 Atl. 686, 55 Am. Rep. 65); City of Kankakee v. Small, 317 Ill. 55 (147 N. E. 404); State, ex rel. Whitney, v. Van Buskirk, 11 Vroom (40 N. J. Law), 463; State v. Phillips, 79 Me. 506 (11 Atl. 274). The factual situations in these cases are in no way like that in the instant case. The opinions do not disclose any rule pursuant to which reconsideration was attempted. There is no question but that, when final action has been taken and the time for reconsideration has gone by, there may not be any reconsideration.
In this State reconsideration is permitted and the appointment does not become complete and beyond recall until the power to reconsider has been cut off by the lapse of time. Attorney General, ex rel. Dust, v. Oakman, supra.
Considerable stress is laid upon the question whether the commission in making the appointment acted in a legislative capacity. In many respects the commission resembles a board of directors in charge of a private, instead of a municipal, corporation. The commissioners vote upon the various questions presented to them.
In Attorney General, ex rel. Maybury, v. Bolger, 128 Mich. 355, the court said:
“It has been repeatedly held in other States that the power of appointment to office is not essentially an executive function, and may, therefore, in the absence of constitutional restriction, be vested in departments other than the executive. State, ex rel. Rosenstock, v. Swift, 11 Nev. 128; People, ex rel. Dunham, v. Morgan, 90 Ill. 558; People, ex rel. Waterman, v. Freeman, 80 Cal. 233 (22 Pac. 173, 13 Am. St. Rep. 122); People, ex rel. Aylett, v. Langdon, 8 Cal. 1, 16; Mayor, etc., of Baltimore v. State, ex rel. Bd. of Police, 15 Md. 376, 455 (74 Am. Dec. 572); Fox v. McDonald, 101 Ala. 51 (13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98); People, ex rel. Brown, v. Woodruff, 32 N. Y. 355, 356; Biggs v. McBride, 17 Ore. 640, 648 (21 Pac. 878, 5 L. R. A. 115); State, ex rel. Sherman, v. George, 22 Ore. 142, 151 (29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586); People, ex rel. Grinnell, v. Hoffman, 116 Ill. 587, 601, 617 (5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793); State, ex rel. Standish, v. Boucher, 3 N. D. 389 (56 N. W. 142, 21 L. R. A. 539). These cases support the rule laid down by Mr. Justice Christiancy in the Hurlbut Case.”
The court also quoted as follows from the opinion of Mr. Justice Christiancy in People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103):
“As to this mode of appointment being the exercise of a power essentially executive in its nature, it is sufficient to say that executive power cannot always be defined by any fixed standard in the abstract. What would come within the executive power in our form of government would fall within the legislative in another, and vice versa. The question here is whether, under our Constitution, it is executive or legislative; and, as the Constitution has not confided the appointment of these or the like officers to the executive authorities, and has left it to the legislative discretion whether to create such offices, and how they shall be filled, it cannot be truly said that such an appointment is any more in the nature of' the exercise of an executive than of a legislative power.”
We believe that the appointment of the defendant was not complete and beyond recall until the power to reconsider had been cut off by the time stipulated in Rule No. 28, that reconsideration was proper, and plaintiff was thereafter elected to the office.
The order of ouster is hereby affirmed, but without costs to either party.
Clark, Potter, Sharpe, and Fead, JJ., concurred with Btjtzel, J. | [
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] |
Sharpe, J.
On September 29, 1921, the defendant company entered into a written lease of the first floor and basement of premises known as 1442-1444’Park in the city of Detroit for the term of 10 years from and after November 1, 1921, from Wil liam B. Morgan. It contained the following paragraph :
“And also, that said party of the second part will at its own expense, during the continuance of this lease keep the said premises and every part thereof in as good repair, and at the expiration of the term, yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damage by the elements excepted.”
On or about July 31, 1930, the defendant vacated the premises for reasons hereafter referred to. On April 1, 1931, the plaintiff, who had succeeded to the rights of Morgan under the lease, brought this action to recover the rent claimed to be due thereunder from June 1, 1930, to and including the month of March, 1931, at $325 per month. On trial before the court and a jury he had verdict for the rent for June and July, 1930, and interest thereon. On motion for judgment notwithstanding the verdict, the trial court set the verdict aside and entered judgment for the amount claimed, $3,575, from which the defendant has appealed.
The premises were occupied by the defendant for office and show-room purposes. The building was two stories in height, the upper being used by another tenant for hotel purposes. Water pipes were laid between'the steel ceiling of the lower story and the floor above. It is the claim of the defendant, and does not seem to be disputed, that in 1928 the water began dripping from the ceiling, necessitating the placing’ of receptacles around the rooms occupied by defendant to catch it; that a portion of the steel ceiling became rotten and finally gave way, and that defendant’s employees sought, and were denied, admission by the occupant to the rooms above to ascertain the cause thereof.
It also appears that a drain pipe located along the outside wall of the building', and running from the roof to the ground, became broken, and that considerable water therefrom came into defendant’s premises.
The defendant made many complaints about these conditions to the plaintiff and to the LambrechtKelly Company, which had charge of the property for him. On June 9, 1930, it gave this firm a written notice, stating therein:
“Relative to repairs that are necessary about which you have been notified several times.
“It is absolutely essential that these repairs are made immediately to make the place tenantable. Unless same is taken care of promptly we will be forced to vacate the premises.”
On July 3, 1930, defendant’s attorneys wrote, calling their attention to the fact that notices of the condition of the premises had been given them “on innumerable occasions,” and that the defendant could not longer occupy the premises and would vacate them on August 1, 1930, which it did.
The trial court instructed the jury that under the provision in the lease above quoted no obligation rested upon the plaintiff to prevent the water dripping from the ceiling. He submitted to them the question as to whether the water from the drain pipe rendered the premises untenantable, and their verdict indicates that they so found. Their finding of liability was limited to the two months’ rent which defendant admitted it owed at the time it vacated the premises. There was proof that the drain pipe was quite promptly repaired, and his action in setting aside the verdict' and entering the judgment was doubtless based upon his finding* that this question should not have been submitted to the jury.
The question here for decision is whether the defendant, under the terms of the lease, was obligated to repair the water pipes placed between the ceiling and the floor above. Its lease entitled it to the use and occupation of the “first floor and basement” of the building. The ceiling was a part of the first floor as thus described, but the water pipes above it were not. When the defendant sought to discover the cause of the leakage, it was denied access to the rooms above by the tenant therein. It would seem to be elementary that under the provision in the lease the defendant was obligated to keep the part of the building leased by it in repair, but was not required to repair defects in any other part of the building. 36 C. J. p. 147.
In a recent case decided by this court (Everson v. Albert, 261 Mich. 182, 186), it was said:
“The situation was such that defendant could not repair the frozen water mains .or alter the condition which caused the pipes to freeze without himself being a trespasser in portions of the property not covered by his lease,- nor could he do so without tampering with the water supply of other tenants. It seems to be the rule in cases where the landlord retains possession or control over a portion of the premises that he is bound to keep the portion of the premises under his control in such condition of repair as will not interfere with the peaceable possession and enjoyment by the tenant of that portion which he has leased. ’ ’
Referring to this decision, counsel for the plaintiff says:
‘ ‘ This is good law but does not apply in the present case, for the reason that there was no portion of these premises kept under the control of the landlord. The first floor and basement was leased to the appellant, while the second floor, together with its entrances, was leased for the hotel, and the landlord had no control over the premises.”
The fact that the second story was leased to another tenant surely would not relieve the plaintiff from the duty of seeing to it that the water pipes in it were in a condition such as would not render the premises leased by the defendant in an untenantable condition.
The authorities cited and relied on by plaintiff’s counsel (Petz v. Voight Brewery Co., 116 Mich. 418 [72 Am. St. Rep. 531]; Lieberthal v. Montgomery, 121 Mich. 369; Bowen v. Clemens, 161 Mich. 493 [137 Am. St. Rep. 521]) sustain the rule that, in the absence of covenants, a landlord is not required to keep the premises leased in repair, but this rule has no application if the premises^were rendered untenantable by a condition existing in another part of the building over which the tenant had no control. If leakage was also caused by the break in the drain pipe, it was no less the duty of the plaintiff to make repair thereof on being notified of its condition.
The judgment entered notwithstanding the verdict will be set aside and a new trial granted, with costs to the defendant.
McDonald, C. J., and Potter, North, Pead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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] |
Clark, J.
Defendant is engaged in business indicated by its name. It offered and published a reward in part as follows:
“$1,000 reward.
“For evidence that will lead to the arrest and conviction of any one who shall set fire to buildings insured in this company. * * * All we want is a ‘tip’ from you and we will do the rest.”
A building of an insured, James H. Denning, was destroyed by fire. Officers and agents of defendant, being suspicious, investigated. Officers of the law also were active.
Plaintiff, as found by the trial court in a trial without a jury, gave information which led directly to the apprehension of one Ronald Spade, who confessed setting the fire.
Plaintiff sued for the reward, and had judgment. Defendant has appealed.
While there is conflict in testimony in respect of the information plaintiff actually gave, we are impressed that the finding of the trial court that plaintiff gave the information, the “tip,” which led to arrest and conviction of the offender, is sufficiently sustained by the record. See Bloomfield v. Maloney, 176 Mich. 548 (Ann. Cas. 1915B, 662), for discussion of law in such cases. No other matter calls for discussion.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, C. J.
{dissenting). The plaintiffs are husband and wife. They* brought this suit to have a deed and contract declared to be a mortgage, and to subject the property to the inchoate right of dower of the wife, who did not sign the conveyance. The plaintiff Alfonso Leonetti, a native of Italy, is a resident of Detroit, Michigan. In 1926 he made a visit to Italy and while there married. He returned to Michigan, hut was unable at that time to bring his wife with him on account of the necessary delay in securing a passport for her. It was not until October, 1929, that she was permitted to enter this country. She then joined her husband in Detroit, where they now reside. In April, 1929, before-his wife came to Detroit, he deeded a vacant lot to Tolton & Johnston, with an agreement that they would erect a brick bungalow thereon and resell to him. The building was erected and a land contract executed. The consideration was $8,190. The down payment was the deed to the lot. To provide funds for erecting the building, Tolton & Johnston mortgaged the property to the Central Trust Company of Detroit for $5,200. Alfonso Leonetti consented to the mortgage .in writing, and agreed that the mortgage lien should have priority over his vendee’s interest in the land contract. Subsequently, Win-field B. Phillips purchased the interest of the vendors, but before doing so Alfonso Leonetti executed a written declaration that the conveyance to Tolton & Johnston was intended as an absolute deed and not as a mortgage. The instruments in question were executed by Alfonso Leonetti as a single man, although he claims to have told Tolton 8¿ Johnston that he had a wife in Italy who would soon join him in Detroit. On these facts, which are here but briefly stated, the plaintiffs contend that the deed to Tolton-& Johnston, though absolute on its face, was intended to be a mortgage; that whether it be treated as a deed or as a mortgage it was void because Mary Leonetti did not join in its execution; that whether it be treated as a deed or mortgage the premises were a homestead and the instrument was void without the wife’s signature; that Mary Leonetti was a resident of the State of Michigan at the time of the conveyance and had an inchoate right of dower in the premises conveyed; and that the plaintiffs’ interest in the property has priority over the mortgage lien of the Central Trust Company. The trial court held against the plaintiffs on all ‘of these contentions, and entered a decree dismissing their bill. They have appealed.
1. The evidence shows that the deed in question was not given as security for a loan and was not intended as a mortgage. The lot conveyed was not of sufficient value to secure Tolton & Johnston for the money which they were expected to expend in improving the premises. It was intended that they would advance their own credit and mortgage the property in order to provide money for the building. Unless the deed was absolute they could not do this. That the plaintiff Alfonso Leonetti so understood the effect of the conveyance appears from the fact that when Tolton & Johnston conveyed their vend- or’s interest to Winfield Phillips, he made a written declaration that the deed was not intended as a mortgage. Apart from this, it is a fair inference from the attending circumstances that the intention and agreement of the parties was that the deed should be an absolute conveyance of Leonetti’s interest in the property with the privilege of repurchasing it after the erection of the building. The trial court correctly held that it was not a mortgage. Reid v. Dowd, 257 Mich. 492; Stahl v. Dehn, 72 Mich. 645.
2. Was Mary Leonetti a resident of the State of Michigan when the deed was executed? On the an swer to this question depends her right of dower. Mary Leonetti, being an alien, could not for that reason be barred of her dower. Nor because of non-residence would she be barred of dower in lands of which her husband died seized, but if a nonresident, her right of dower is barred by a conveyance executed by the husband alone. 3 Comp. Laws 1929, § 13088; Legare v. Semple, 32 Mich. 438.
The plaintiffs were married in Italy in 1926. The husband was a resident of the State of Michigan. When he returned to this country soon after their marriage, it was intended that his wife should follow him as soon as she was able to secure a passport. The passport was applied for and was approved May 15, 1929, but was not issued until October 12, 1929. On October 23, 1929, she joined her husband in Detroit, where they still reside. We think these facts are sufficient to show that she was a resident of Michigan at the time, the deed in question was executed on April 18, 1929.
In this State domicile and residence are treated as synonymous terms. Alfonso Leonetti’s domicile or residence was in the State of Michigan. Mary Leonetti’s domicile was in Italy, but upon marriage her domicile became merged in his and followed him to Michigan, though she was not physically present or actually lived here with him. They were temporarily separated, not from choice of either but because of the immigation laws. Their intention was to live together in Michigan on the property in question, and they carried out that intention as soon as possible after the marriage. If she had refused to come to Michigan, or if she had not intended to come and he had not intended she should come, she would not have gained a residence here by her marriage. But their relations were amicable and their separation temporary. We think the question is ruled by Gluc v. Klein, 226 Mich. 175. In that case defendant, Klein, and his wife were residents of the State of Minnesota. The wife became insane and was committed to an asylum. Mr. Klein moved to Michigan, where he established a residence. In making a conveyance of some property a question arose as to his wife’s residence. This court held that by marriage her residence was merged in that of her husband and followed him into Michigan, though by reason of her mental infirmity she was not physically present with him. So in the instant case, the wife’s residence by marriage became merged in that of her husband and followed him to Michigan, though by reason of the immigration rules she was temporarily prevented from being actually with him. This rule is well stated in 19 C. J. pp. 401-410. As a matter of fact and of law, Mary Leonetti was a resident of the State of Michigan at the time her husband executed the deed, and, therefore, is not barred of her right of dower in the premises conveyed.
3. Was the property conveyed a homestead?
“It is well-settled law in Michigan that actual residence upon a claimed homestead is not necessary to entitle the owner to its protection and preservation as such, provided the owner has an honest intention and purpose of actually establishing his home thereon, and this intention is accompanied by overt acts evidencing such plan and purpose.” Haight v. Reynolds, 257 Mich. 11, 14.
It is undisputed that Alfonso Leonetti intended this property to be his homestead, and that after his wife joined him in Detroit it was actually occupied as such. With this intention, and for this purpose he caused a home to be built on the premises. His intention accompanied by the overt act of building the home and afterwards' occupying with his family establishes it as a homestead at the time he executed the conveyance. A deed of a homestead without the wife’s signature is void.
4. Is the mortgage of the Central Trust Company superior to the interest of the plaintiffs in the property?
The consideration of the mortgage went into the construction of the building. The plaintiffs received the benefits. The recorded deed showed no interest in Mary Leonetti. It was executed by Alfonso Leonetti as a single man. In addition to knowledge obtained from the public record of title, the mortgagee had the vendee’s written consent to the giving of the mortgage and his agreement that it should have priority over his contract interest in the property. There was no showing of fraud. The mortgagee acted in perfect good faith. It had a right to rely on the public record and the unrecorded agreement of the vendee. It had no notice or knowledge of any other interest. Its mortgage is good and is superior to all other interests in the property.
A decree should be entered in this court in accordance with this opinion. | [
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McDonald, C. J.
During the robbery of a jewelry store in the city of Detroit owned and operated by Harry Leighton, one Mike Vunjak, a customer, was shot and killed. Defendant Leo Miccichi was arrested and charged with the murder. The information under which he was tried charged that he “feloniously, wilfully, and of his malice aforethought, did kill and murder one Mike Vunjak.” He was acquitted, but rearrested charged with robbery while armed growing out of the same transaction. Upon arraignment, he entered a plea of autrefois acquit and moved to quash the information on a plea of former jeopardy. The trial court denied the motion, and defendant has appealed.
“The legislature has made the crime of robbery a constituent element of murder in the first degree, where death ensues from the perpetration or attempt to perpetrate the robbery. Evidently, the legislature had in mind that robbery from the person is accompanied by violence, oftentimes by the use of deadly weapons, by wounding and maiming the victim, as well as by putting him in bodily fear. In order to protect human life and property, the lawmaking power declared robbery to be murder in the first degree where the death of a victim ensued in the perpetration of the robbery, irrespective of the fact whether the violence used was great or small. * * * The guilt of murder in the first degree attaches to the act of robbery under the statute.” State v. Mowser, 92 N. J. Law, 474 (106 Atl. 416, 4 A. L. R. 695, 700).
Eobbery is an essential ingredient of that class of first-degree murder defined in our statute, 3 Comp. Laws 1929, § 16708. The robbery and murder are held to be a single criminal act. Therefore an acquittal of either robbery or murder is a bar to the conviction for the other. So if Harry Leighton, the victim of the robbery, had been killed, and the defendant had been acquitted of his murder, such acquittal would have been a bar to his prosecution for robbery. But in perpetrating the robbery in question, the person killed was a customer who entered the store during the progress of the robbery. Whether he was shot during the robbery the evidence does not show. For aught that appears in the record, he may have been killed designedly after the robbery for the purpose of eliminating him as a witness. In other words, there is no showing that the robbery and murder, which were not directed against the same person, were the product of a single criminal act. While the facts of the killing are not shown, it is significant that the information charging the murder of which defendant was acquitted was not laid under the statute which makes killing during the perpetration of a robbery murder in the first degree. It charged first-degree murder as of the common law. It charged that defendant “feloniously, wilfully, and of his malice aforethought did kill and murder one Mike Vunjak.” It made no reference to the statute and no mention of robbery. The murder was in some way connected with the robbery, but whether it was the same transaction or a separate and distinct criminal act does not appear. For these reasons the plea of autrefois acquit is not sufficient, and should be denied..
The judgment is affirmed.
Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred with McDonald, O. J. North, J., concurred in result. Clark, J., took no part in this decision. | [
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Clark, J.
Plaintiff while employed as a section laborer by defendant suffered an accidental personal injury. Defendant’s claim agent called upon plaintiff and offered Mm nearly $700 in settlement and compromise of the claim. Plaintiff declined. Thereupon, according to the testimony of plaintiff and his witnesses, the claim agent told plaintiff that if he would return to work, as recommended by defendant’s doctor, he would be paid according to the terms of the Michigan workmen’s compensation law (2 Comp. Laws 1929, § 8407 et seq_.). Plaintiff agreed, and returned to work. Not being paid, he brought suit, a count of the declaration being, under the Federal employers’ liability act (45 USCA, §§ 51-59), and a second count upon the agreement stated. The first count was eliminated. From verdict and judgment under the second count, defendant has appealed. "Whether the agreement was made was clearly a question of fact for the jury.
The employer was not under the MicMgan workmen’s compensation law. There is evidence of express authority of the claim agent to settle the claim. In view of the circumstances, including the fact that plaintiff returned to work in pursuance of the agreement, it is clear that the jury was justified in finding-implied authority at least on the part of the claim agent to make the agreement.
The agreement merely provided a measure of damages, the compensation act, and damages were measured accordingly. Clearly the agreed measure is not uncertain, as the compensation act in this respect has not been so regarded.
Other questions are presented but call for no discussion. We find no error.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Fead, J., did not participate in this decision. | [
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McDonald, C. J.
This is an appeal from an order denying the appointment of a receiver to possess and conserve the property involved in a trust mortgage foreclosure. The plaintiff is successor trustee to the Federal Bond & Mortgage Company in a trust mortgage indenture executed prior to Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499), by defendants, Harry Lipsitz and Sophia Lipsitz, his wife, to secure a bond issue of $265,000. The mortgage contained a stipulation for the appointment of a receiver and assignment of the rents, profits, and income. All of the bonds have been sold to the general public and the proceeds paid to the mortgagors, with which they have erected an 82-room apartment building on the premises. There was default in the payment of instalments of principal, interest, and taxes, and the plaintiff trustee, as authorized by the terms of the mortgage, declared the whole balance to be due, began foreclosure, and asked for the appointment of a receiver. The trial court refused to make the appointment, and the plaintiff appealed.
Inasmuch as the mortgage was given prior to the effective date of Act No. 228, Pub. Acts 1925, the assignment of rents clause is not enforceable. The mortgagors are entitled to the rents and income of the property during foreclosure until the expiration of the equity of redemption period; and no receiver can be appointed unless waste is shown sufficient to justify the appointment. The waste must be of such a character as to endanger the security. In this case the property is being well managed by a reputable-management agency in the city of Detroit. Insurance premiums have been paid and the buildings kept in a reasonable condition of. repair. The only waste shown is in the nonpayment of taxes to the amount of approximately $18,000. Nonpayment of taxes is a species of waste, but will not justify the appointment of a receiver unless there has been a sale which might ripen into title before the mortgage sale or before equity of redemption expires. Union Guardian Trust Co. v. Rau, 255 Mich. 324.
In the instant case the bill for foreclosure was filed in February, 1932. The order denying the appointment of a receiver was entered in August, 1932. At that time there had been no tax sales. If the property is sold for taxes the owners will have a year after sale to redeem. If the foreclosure suit is prosecuted with reasonable diligence it is evident there will be no accrual of tax titles before the equity of redemption expires, and the plaintiff’s security will not be endangered. There was not a sufficient showing of waste to justify the appointment of a receiver.
The order of denial is affirmed, with costs to the defendants.
Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Fear, J., did not sit. | [
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Potter, J.
November 18, 1924, plaintiff sued defendant in circuit court, in assumpsit, Hon. Thomas J. Riley of Escanaba being then plaintiff’s local attorney. March 25, 1928, Mr. Riley died. October 1, 1928, the case was dismissed because of no progress within a year. Plaintiff had knowledge of Riley’s death in December, Í930. March 16, 1932, plaintiff petitioned the trial court to set aside the order dismissing the case for want of progress and restore it. September 19, 1932, this petition was denied. Preliminary and supplemental notices of appeal were filed in October, 1932. Tbe trial court refused to reinstate the case here sought to be reviewed because of plaintiff’s laches. The case is here under the rules of court by appeal. The remedy of plaintiff, petitioner and appellant, was and is by mandamus. Duell v. Oakland Circuit Judge, 206 Mich. 680; Barnes v. Wayne Circuit Judge, 220 Mich. 120; Robinson v. Washtenaw Circuit Judge, 242 Mich. 548. Treating an appeal as an application for a writ, of mandamus, it is claimed there was no compliance by defendant with 3 Comp. Laws 1929, § 14255, nor with 3 Comp. Laws 1929, § 13589, as construed in Barnes v. Wayne Circuit Judge, supra, and Mowat v. Walsh, 254 Mich. 302, 304, respectively. This may be admitted. In Robinson v. Washtenaw Circuit Judge, supra, where a petition was made to set aside an order dismissing a case on the ground of want of progress and to reinstate the same, the order of dismissal was made March' 1st, and the petition filed to set aside the order and reinstate the case November 27, 1926; and this court declined, on the ground of laches, to interfere by mandamus with the action of the trial court. In this case there was proof plaintiff’s local agent attended Mr. Riley’s funeral. There was testimony tending to show plaintiff was notified of his death by his widow prior to the dismissal of the case; that plaintiff’s agent visited Escanaba and talked with defendant’s'attorney about the case, in 1928. Plaintiff continued for several years to maintain a local agency in Escanaba, and Mr. Gray, of plaintiff’s home office, makes affidavit, “He is familiar with and has had principal charge of the .action commenced by said Globe Indemnity Company v. Joseph Richer in the circuit court for Delta County, Michigan.”
The trial court said:
“There seems to have been four years between the commencement of this suit and the time it was dismissed. The plaintiff certainly had plenty of time to bring it to trial. It was not brought to trial. * * * I feel that in view of this the plaintiff has been guilty of such laches that its conduct could not and should not appeal to this court. ’ ’
Nearly eight years elapsed from the time of the commencement of suit to the filing of the petition to set aside the order dismissing the case and to reinstate it. The order of dismissal came to plaintiff’s knowledge at least as early as December, 1930. The writ of mandamus is not a writ of right. Johnson v. Ionia Board of Supervisors, 202 Mich. 597; Klatt v. Wayne Circuit Judge, 212 Mich. 590. It will be granted only when the duty of the circuit judge is imperative and not discretionary. Rex v. Hughes, 3 A. & E. 425, 429 (111 Eng. Repr. 475); Rex v. Mayor of London, 3 B. & Ad. 255 (110 Eng. Repr. 96).
“The writ of mandamus is not a writ of right, and is not usually allowed to parties who have been culpably dilatory, or otherwise at fault.” Mobley v. Judge of Superior Court, 41 Mich. 31.
It may be denied on the ground of laches. Blanchard v. Church, 47 Mich. 644; Crittenden v. Reilly, 97 Mich. 637; McGrath’s Mandamus Cases, Nos. 383, 724, 726, 1086, 1414, 1415, 1494.
The writ will be denied, with costs.
McDonald, O. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, J.
Plaintiff and his assignors paid taxes under protest. He sued to recover .back, suffered adverse judgment, and has appealed.
The hoard of supervisors, in fixing the amount to be raised by tax, under “contingent account,” put in an item “appropriation $275,000.” This is the-official record. Plaintiff sought to go back of the record and to explain it and to show that $250,000 of the item was in fact levied to cover anticipated tax delinquencies. We think it not necessary to determine the admissibility of plaintiff’s offered evidence. The law was not violated with respect to rate of taxation, nor is the estimate (if such it be) of the amount of delinquencies urged to be excessive or in bad faith.
If plaintiff’s evidence be considered, the point is decided by the rule, quoting 3 Cooley on Taxation (4th Ed.), §1031:
“In fixing the amount or rate, the levying body has considerable discretion. The rate necessary to produce the amount required is largely within the discretion of levying officers, since it is uncertain what the deficiencies in the collection will amount to.”
And section 1032:
“And it is not incompetent for a municipality having power to levy a tax for a specific purpose to add an item to provide for possible deficiencies in collection.”
See 61 C. J. p. 569. Cases are cited in notes to both texts.
Plaintiff neither, made nor attempted a case on the theory of including an excessive amount for anticipated delinquencies. His case is planted on the assumption that no sum may be included for such purpose.
To consider probable amount of delinquencies in making a tax levy is a practice generally approved. Vornberg v. Dunn, 143 Ga. 111 (84 S. E. 370); Commissioners of Marion County v. Commissioners of Harvey County, 26 Kan. 181. The reason for it is obvious. The municipality must pay its debts when due. It must “bring the money into the treasury— not in part, but the whole — at the proper time” (quoting from Village of Hyde Park v. Ingalls, 87 Ill. 11, 13).
Theoretically, of course, no one should pay more than his ratable proportion of a tax. But because of the imperfect human element such perfection in actual practice is not attainable. Taxation is not equal. The just suffer for the wrongs of the unjust. The strong must carry the weak.
The budget had many items all to be met in full. And it was to meet them in full that the supervisors included the item in question. As the action of the supervisors was right'in principle and taken in good faith, and is not urged to be excessive, it must be permitted to stand.
The second ground of protest is:
“Included in said tax levied by Kent county is an item of $160,000 to repay a loan made in 1932 in anticipation of collection of taxes, 1932. As a matter of fact only $100,000 had been borrowed at the time the tax was levied, and the sum was wrongfully assessed, and the county tax in the sum of $60,000 is illegal and void.”
As to which we adopt the opinion of the trial judge:
“As to the second item of $60,000, this item is found as a part of $160,000 in the item under contingent account ‘to repay loan made in 1932 in anticipation of collection of taxes, 1932.’ This appropriation was voted October 28, 1932, as part of the budget. On the same day a resolution was adopted making the same an irrevocable appropriation to pay snch loan, and further authorizing a loan of $100,000 as part thereof. By this action the board determined the necessity of borrowing such sum. No loan could be made nor money borrowed until such appropriation was made. This is required by section 1, subdivision 1, of Act No. 26, Pub. Acts 1931:
“ ‘Any such governmental unit may within the six-months’ period preceding the end of any fiscal year, borrow money in anticipation of the collection of taxes for the next succeeding fiscal year: Provided, That an irrevocable appropriation has been made to repay such loan from the receipts of such taxes. Such loan shall be payable within four months after such taxes first become due and shall not exceed twenty-five per cent, of the tax levy for the then fiscal year: Provided further, That any such loan made after October one, Nine-_ teen Hundred Thirty-three, shall not exceed ten per cent, of such tax' levy. ’
“This section clearly requires appropriations to be made before the money is borrowed. Later, and on December 7, 1932, a further resolution was adopted authorizing the finance committee to secure an advancement from the city treasurer of Grand Rapids, of the remaining $60,000 out of the tax collection, and to pay the city four per cent, for the use of the same. This sum was received by the county treasurer December 30, 1932, and deducted by the city treasurer January 13, 1933, on which day he paid over to the county treasurer the county taxes he had collected up to January 9, 1933, as required. The county gave its separate check to cover the four per cent, interest. It is the claim, therefore, of the plaintiff that the sum of $60,000 was never borrowed and cannot be made part of the tax levy. If we were to add that this was not a loan it may nevertheless be conceded that so far as the cash in the county’s hands was concerned it was exactly the same as if a note had been given to a bank December 30th, and a check given in payment thereof January 13th. That, however, is not the point in question. We are unable to find any authority, and doubt if any can be found, that would hold that because $100,000 was borrowed November 1, 1932, and the remaining $60,000 not until December 30,1932, that the $60,000 cannot be held legal. If in the sound judgment and discretion of officers of the county it can conduct its affairs for a time and save the interest on $60,000 for two months, as must be conceded was saved in this case, I do not believe that it can be said that having done this you cannot include it as part of the tax levy. To so hold would be to find from the official records that on October 28th when an irrevocable appropriation was made, the board of supervisors on that day had in mind and knew that the $60,000 was not to be borrowed until December 30th. The board by its resolution determined that $160,000 would be required to finance the county during the balance of 1932. We cannot go behind that determination of judgment. The proceedings authorizing the levy were legal. Subsequent records show it was carried out. Plaintiff admits upon the record that if the total sum borrowed November 1st had been $160,000 rather than $100,000 he would have no complaint and could not claim that any part of the same was illegal. This admission is hardly consistent with his present claim. It therefore follows that as to the second item of $60,000 plaintiff cannot prevail. A judgment of no cause of action may, therefore, be entered.”
Affirmed.
This opinion was written by Justice Clark before his retirement and is concurred in by the other members of the court. | [
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Weadock, J.
This is an appeal from the superior court of Grand Rapids where a woman of 52 seeks a divorce from a husband of 55 after living together for 26 years, each accusing' the other of extreme cruelty. It is needless to specify the particular facts. Each of the parties had considerable illness and much of their trouble may have been caused by that fact. They had no living children, and, like many childless marriages, it was an unhappy one. No serious criminal acts are charged by either.
On account of their unhappiness the husband sought relief in amateur photography, and the wife found her only consolation in her church relations, and the amenities of her lodge, in which she had attained the post of worthy matron. Marriage is a status in which the State is interested in enforcing, when necessary, the rights of each of the parties, and the protection of the public. It is fortunate in this case that there are no children to be injuriously affected.
This court in the recent case of Ritzer v. Ritzer, 243 Mich. 406, has clearly expressed the power and duty of the State and the marriage obligations of the parties. Justice Cooley in Hoff v. Hoff, 48 Mich. 281, said:
“A proper administration of justice does not require that courts shall occupy their time * * *' in giving equitable relief to parties who have no equities. And it is as true of divorce cases as of any others that a party must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent, not to the guilty. ’ ’
Justice Campbell in the case of Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182), rendering the opinion of "the court, said:
“The law does not permit courts to sever the marriage bond, and to break up households merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility, but the grievance, of whatever kind, must be of the most aggravated nature to justify a divorce.”
We think that in the instant case the circuit court was right, in view of the record, in finding the situation of these parties intolerable. It would serve no useful purpose to state the mutual charges of the parties against each other. The judge who heard the case made an equitable decision on the questions of property and alimony. The wife should have a home and the title should be perfected by payment by the husband of the balance due on the contract for its purchase and the taxes now due. The wife has no means of her own and no income. The husband has a good business and can readily meet the requirements of the case.
The decree is affirmed, with costs to appellee.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Bittzel, JJ., concurred. | [
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Sharpe, J.
The bill of complaint herein was filed
to foreclose a mortgage executed on December 1, 1924, by the defendants Joseph Wetsman and Bessie Wetsman, his wife, and Harry Seller and Minnie Selzer, his wife, to “the Guaranty Trust Company of Detroit,” mortgagee, to secure the payment of 164 bonds, amounting in all to the sum of $120,000. In it the plaintiff alleges that the mortgage was executed and delivered to the “Guaranty Trust Company of Detroit, trustee,” and that by an order of the court the plaintiff was “duly appointed suc•cessor-trustee under said mortgage.” A copy of the mortgage was annexed thereto. The appointment of a receiver was prayed for.
The trial court, basing decision on our holding in Union Guardian Trust Co. v. Rau, 255 Mich. 324, denied the motion therefor. Plaintiff has appealed.
The mortgage did not run to the mortgagee as trustee, nor do we find any provision in it creating such a relation. Nusbaum v. Shapero, 249 Mich. 252, is not applicable to the facts here presented.
Order affirmed. Costs to appellees.
Clark, North, and Wiest, JJ., concurred with Sharpe, J.
McDonald, C. J. This bill was filed by the plaintiff as successor-trustee to the Guaranty Trust Company of Detroit, to foreclose a real estate mortgage given by defendants Wetsman and Selzer on December 1,'1924, to secure a bond issue of $120,000, and for the appointment of a receiver to prevent waste. As holder of a second mortgage, the Guardian National Bank of Commerce of Detroit was made a party defendant. On the mortgaged premises there is a building known as the “Orlando Hotel.” The mortgage provides that in the event of default the mortgagee shall become entitled to the rents and profits, accrued and to accrue, that the mortgagors shall pay all taxes before any penalty or forfeiture attaches; that the mortgagors shall keep the premises insured; that they shall refrain from waste and keep the premises in good repair. The mortgage also authorizes the trustee to collect the interest and principal on the bonds, of which there are $99,333.18 in amount now outstanding, and, in the event of default, to institute foreclosure proceedings.
It is alleged in the bill that the mortgagors are in default; that they have paid nothing on the mortgage since July, 1930; that they have neglected to pay the city, county, and State taxes for the years 1929,1930, and 1931, aggregating, without penalties, in excess of $11,600; that for the 1929 city taxes the premises have been sold to one Faust of Cleveland, Ohio; that they have neglected and refused to pay the insurance premiums amounting to $1,358.51, and that they have failed to keep the premises in good repair and fit for rental.
It is the plaintiff’s contention that the mortgagors’ default in respect to these matters constitutes waste and entitles it to the appointment of a receiver to collect the rents and to preserve the property for the protection of the bondholders.
It is the defendants ’ contention that the provision in the mortgage assigning the rents and profits is unenforceable and invalid inasmuch as the mortgage was executed prior to the effective date of Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499); that the matters relied on by the plaintiff as constituting waste are not sufficient for that purpose, and, in view of the facts and circumstances, the court was without authority to appoint a receiver.
On the hearing the court refused to appoint a receiver, and from the order entered the plaintiff has appealed.
Prior to 1843, it was the practice for courts of equity in this State to appoint a receiver of mortgaged premises on a showing that the premises were not sufficient security for the mortgage debt and that the mortgagor was insolvent. In 1843 there was enacted the so-called ejectment statute (3 Comp. Laws 1929, § 14956), which, the court held, secured to the mortgagor possession of the premises and the rents and profits therefrom until foreclosure proceedings were completed. See Wagar v. Stone, 36 Mich. 364.
Under this statute, it was held that a provision in the mortgage providing that on default the mortgagee should be entitled to the rents and profits and the appointment of a receiver of the mortgaged premises was invalid and unenforceable. Hazeltine v. Granger, 44 Mich. 503.
In 1925, the policy of the law in respect to the appointment of receivers for mortgaged premises was changed by legislative enactment, Act No. 228; Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499.) This act applies to trust mortgages, and is authority for the appointment of a receiver when the mortgage contains an assignment of the rents and profits to the trustee for the benefit of bondholders. However, this statute does not apply in the instant case, because it did not become effective until after the present mortgage was executed. We must, therefore, loolc elsewhere for authority to appoint a receiver in this case. We find it in Nusbaum v. Shapero, 249 Mich. 252.
In that case it was held that, regardless of the statute of 1925, the courts had authority to appoint a receiver for trust mortgage premises when the circumstances called for equitable relief, such as physical waste, failure to pay taxes, and to keep the premises insured; whereby the security is endangered or destroyed. Similar conditions to those upon which in Nusbaum v. Shapero the court upheld the appointment of a receiver are present in the instant case. There are facts showing the failure to pay taxes, for which the premises have been sold at tax sale, thus threatening the loss of the property and destruction of the security. There are facts showing failure to keep the building insured and to keep it in a condition of repair fit for rental. In other words, the mortgagors have collected the rents, put the proceeds in their pockets, paid nothing on the mortgage debt, paid no insurance premiums, paid no taxes, and have not kept the premises in repair. These acts of the mortgagors impair and threaten to destroy the value of the security and call for equitable relief to preserve and protect the interests of the bondholders.
The trial court seems to have based his refusal to appoint a receiver on the holding of this court in Union Guardian Trust Co. v. Rau, 255 Mich. 324. That case involved a straight mortgage. This is a trust mortgage. In that case it was held that the acts complained of were not sufficient to constitute waste, but it was not held that, even as to straight mortgages, receivers would not be appointed for physical waste or where the security is about to be lost on sale of the premises for taxes.
The instant case is ruled by Nusbaum v. Shapero, supra. The order should be reversed, and the cause remanded for the appointment of a receiver in accordance with the prayer of the plaintiff’s bill. The plaintiff should have costs. | [
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] |
Wiest, J.
Plaintiff asserts that defendant circuit judge is disqualified to preside at his pending retrial on a criminal charge and seeks our writ of mandamus directing that the trial be' had before some other judge. The alleged disqualification is based upon remarks by the judge in passing sentence upon plaintiff herein under his former conviction. That conviction was reversed and a new trial ordered. People v. Kolowich, 262 Mich. 137. In passing sentence the judge took occasion to reply to petitions presented in behalf of Mr. Kolowich in-, voking judicial clemency on the ground that his acts were wdthout felonious intent. The judge expressed belief in the guilt of Mr. Kolowich, inclusive of his felonious intent, and because of his former standing lectured him severely.
We said in Crowley, Milner & Co. v. Macomb Circuit Judge, 239 Mich. 605, quoting syllabus:
“If prejudice or bias is the reason alleged for disqualifying a judge, there must be prejudice or bias in fact, and it can never be based solely upon a decision in the due course of judicial proceedings.”
We accept the statement of the circuit judge that he has no bias or prejudice and can accord defendant a fair trial. Unless the fact of prejudice or bias is established or the necessities of justice to the defendant require it, a change of judge is an unjustifiable wrong to the public for it works delay, entails expense, and endangers the prosecution.
In Be McHugh, 152 Mich. 505, 510, it was said:
“The only reason offered for such disqualification was that the judge had criticized a jury in a former trial for acquitting the respondent in that case on the ground of insanity. The respondents asserted that their defense in this case was insanity, and therefore the judge was disqualified. If this be so, then any judge, who, under the circumstances of one case, condemns the verdict of a jury, rendered on account of insanity, is disqualified.forever thereafter from trying a case where insanity may be the defense. The motion itself was little short of contempt of court.”
In Heflin v. State, 88 Ga. 151 (14 S. E. 112, 30 Am. St. Rep. 147), it was said:
“There is certainly no law which renders it a disqualification per se to try an indictment for perjury, that judge is the same who presided at the trial in which the alleged perjury was committed, and also at the trial of another witness who testified in the first case. It can make no difference that the judge had thus become convinced of Heflin’s guilt, because the opinion of the presiding judge as to the guilt or innocence of the prisoner, however that opinion may have been formed, does not unfit him for discharging his judicial duties with the most complete fairness and impartiality. These duties are exactly the same whether the accused is guilty or innocent, and upon that question the judge has no deciding power and is not permitted to intimate to the jury his opinion. That all his functions may be duly exercised irrespective of his own opinions is taken by the law for true; this is shown by the fact that he is required to hear all the evidence as it is delivered to the jury, and after so doing, to instruct the jury upon the law applicable to the same. It could hardly be expected that from hearing all the evidence he would not form some opinion of his own as to the actual guilt or innocence of the person on trial, but the law cares not for this, and is not so absurd as to make it work a disqualification to preside throughout the trial. If he can hear the evidence once without disqualifying himself, we see not why he may not do so twice or thrice.”
In State v. Tawney, 81 Kan. 162 (105 Pac. 218,135 Am. St. Rep. 355), it was held, quoting syllabus:
“The fact that the court, in approving a verdict and pronouncing’ sentence at a former trial of defendant upon the same charge, expressed an opinion of defendant’s guilt, does not of itself indicate prejudice.”
In that case it was alleged the court had expressed the opinion that the defendant was guilty of the crime charged against him. The trial judge stated:
“That is absolutely true. I did think so, and I told him so when I sentenced him. If I had not thought so, I would not have sentenced him.”
In State v. Kagi, 105 Kan. 536 (185 Pac. 62), it was stated:
• “The fact that the judge may believe the accused guilty of the crime charged is not sufficient to show prejudice, for two reasons: he is not the trier of the facts; and his legal training and experience enable him to pass upon the admissibility of evidence and to give the proper instructions regardless of his own belief as to the guilt or innocence of the accused.”
In State v. Cole, 136 Kan. 381 (15 Pac. [2d] 452), it was said:
“The question is not whether the trial court believes the defendant guilty, but whether he can give him a fair trial. The court does not weigh the evidence. It is the duty of the court to rule on the admissibility of evidence and to instruct the jury. He can do this fairly even though he does think the defendant guilty. It is only when such prejudice is shown as prevents the trial court from performing these duties fairly that the defendant is entitled to a change of judges. It is the duty of the trial judge when challenged in this manner to search his conscience as to this condition. The ruling of the court on that question of fact will not be disturbed unless there is other evidence of prejudice which overcomes the finding of the court.”
It was said in State v. Bohan, 19 Kan. 28, 52:
“The law provides, that ‘when the defendant appears for judgment he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him;’ and in answer to the inquiry last stated, the defendant often replies that he is innocent, and has been wrongfully convicted. In answer, the trial judge frequently comments upon the trial, the manner the party has been defended, and the evidence introduced in the case, and frequently remarks very similar to those stated by the trial judge to have been spoken by bim on the occasion of the first sentence of the appellant, are made use of. We are aware of no authorities which go to. the extent that statements, thus made, amount to prejudice or ill-will. To thus hold in this case, would lead to absurd consequences.”
In that case it 'was alleged that the trial judge lectured the defendant at the time of sentence and stated that he was guilty of the offense of which he had been convicted, and—
“ ‘that he had committed a willful, deliberate, and malicious murder; that there was no excuse or justification; * * * that if the verdict had been in the first degree, he would have sustained it.’ ”
The writ is denied.
Weadock, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. McDonald, C. J., did not sit. | [
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McDonald, C. J.
This action was brought by the plaintiff to recover the balance due on a conditional sales contract. He sold to the defendant furniture, dishes, and other personal property used in two apartment houses, together with a lease of the premises. A title-retaining contract was executed, and the lease assigned with the written consent of the landlord. The lease provided for a lien on the personal property to secure payment of the rent. Defendant made a down payment of $1,500, and went into possession of the property. Thereafter he secured an extension of the lease from the landlord, and, with his written consent, sold and assigned .it together with the contract to one Harry Barsky. Neither defendant nor Barsky made any further payments on the contract. Barsky defaulted in payment of the rent, and the landlord took possession of the property under the chattel mortgage clause of the lease. The plaintiff sued defendant 'Feldman to recover the balance due on the contract. At the conclusion of the trial the court found against the plaintiff, and entered a judgment of no cause of action, on the theory that, as a condition precedent to the commencement of suit, plaintiff was required to tender a bill of sale of the personal property and a proper assignment of the lease. The plaintiff has appealed.
The court erred in entering the judgment in favor of the defendant. If the defendant had performed the contract he would have been entitled to a bill of sale. He made no payment other than the $1,500 at the time of the execution of the contract. When he failed in his payments, the plaintiff might retake the property, which he had a right to do under the contract, or he could sue to recover the unpaid purchase price. He chose the latter course, and by so doing elected to make the sale absolute and pass title to the defendant. Forgan v. Blythe, 258 Mich. 689; Young v. Phillips, 203 Mich. 566.
Nothing further could be accomplished by tendering a bill of sale. It was not a condition precedent to the commencement of a suit.
The assignment of the lease which the plaintiff gave on execution of the contract was in accordance with the agreement between the parties. The defendant was entitled to nothing more. The only condition was that he should pay the rent and keep up his payments on the contract. Moreover, before the commencement of this suit the landlord had terminated the lease because of the defendant’s failure to pay the rent. And, of course, with defendant’s forfeiture, the plaintiff’s interest in the lease was terminated. He had nothing to assign. But he had given the assignment agreed upon and nothing further was required of him. The tender of a bill of sale and assignment of the lease before beginning suit would have been a useless formality.
The judgment is reversed, and, as the amount due on the purchase price is not in dispute, the cause is remanded to the circuit court for the entry of a judgment in favor of the plaintiff. The plaintiff will have costs.
Clark, Potter, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. | [
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McDonald, C. J.
(dissenting in part). Tbis is an appeal from a judgment obtained by tbe plaintiff in an action to recover damages for personal injuries alleged to have been caused by the negligent operation of a crane while unloading heavy steel I-beams from one of defendant’s cars in its yard at Flint, Michigan.
The case has been tried three times. The judgment entered in the first trial was reversed by this court in 253 Mich. 144. The second was a mistrial. The third from which the present appeal was taken resulted in a verdict and judgment in favor of the plaintiff for $20,000. As the case presents some questions not in the former record it will be necessary to briefly restate the facts in their connection with the new matters now involved.
The beams were bought by Mr. Rogers, State highway commissioner, for use in the construction of a bridge. They were consigned to him at Flint and were delivered in defendant’s yard. It was an interstate shipment. The plaintiff was in the trucking business, and on the day he was injured was employed by the bridge contractor to unload the beams and haul them to the site of the bridge. For the purpose of unloading heavy materials, the defendant maintains without cost to the shippers or their consignees a crane which is always operated and controlled by one of its employees. At the time of the accident the plaintiff and Mr. Rockefeller, his employee, were on the car assisting in the unloading. The crane was operated by Tom Lewis, an employee of the defendant. In the use of the crane to lift an object straight up, it is necessary that the fulcrum or lifting power be directly over the object to be lifted. If the fulcrum is to one side when the beam is lifted, it swings in that direction. These beams were to be lifted straight up, and, when raised to a sufficiently safe height, swung over the side of the car and deposited on. timbers on the ground. At the end of the cable on the crane are huge clamps which are attached to the object to be lifted. The man on the load who attaches them is called the hooker-on. At the time of the accident, one of the beams had been hooked on and a signal given to lift it straight np. As the fulcrum was not directly over the beam it did not lift straight up, but swung in the direction of the plaintiff, struck him, and inflicted the injuries for which he brought this suit.
It is the plaintiff’s claim that, when the signal was given to lift the beam straight up, it was the duty of the operator to place the fulcrum in position to accomplish that result, and that his neglect of duty in that respect constituted actionable negligence for which the defendant, whose servant he was, is liable. The plaintiff says that on his part he was free from negligence, but if he were not, that fact would not bar his recovery because the defendant was guilty of subsequent negligence, a claim that we will state in greater detail when we reach a discussion of that question.
The defendant denies any negligence on its part, but says if it were negligent such negligence cannot be made the basis of recovery because the plaintiff was also negligent, and his negligence continued up to the very instant of the accident concurring with the defendant’s negligence, if any existed, in causing the Injury. The defendant also claims that as this shipment was interstate, subject to the rules and regulations of the official classification by the interstate commerce commission, which have the force and effect of Federal statutes, and which require the owner to unload, a judgment against the defendant is inconsistent with such rules and regulations, and imposes an undue burden upon interstate commerce in violation of the commerce clause of the Constitution of the United' States (article 1, § 8, subd. 3), and denies to defendant equal protection of the laws (14th Amendment); that the requirement imposing the duty of unloading on the plaintiff could not be assumed by the carrier, whose responsibility ceased when the shipment was delivered in its yard at the usual place for unloading, and that thereafter any assistance rendered the plaintiff by its employee was as a mere volunteer, as the agent and servant of the owner for whose negligence the defendant cannot be held liable.
These defenses were urged by the defendant in a request for a directed verdict and again on a motion for a new trial. The errors relied on for reversal relate to the refusal of the court to grant the motion for a directed verdict, to the refusal of requests to charge, and to certain statements in the charge as given.
1. Did the court err in refusing to direct a verdict in favor of the defendant?
It is not necessary to discuss the claims in regard to the negligence of the defendant and the contributory negligence of the plaintiff. In the former appeal, on substantially the same evidence, we held that they were questions for the jury. In this case the trial court was right in refusing to treat them as questions of law.
It was also decided on the former appeal that the operator of the crane in assisting to unload the beams was the servant of the defendant, for whose negligence, if any, defendant would be liable. In the present record there appears for the first time the fact that the shipment was interstate and the plaintiff was required by interstate commerce rules which have the effect of Federal statutes to unload, from which the defendant argues that the operator of the crane at the time of the accident was not doing anything required of the railroad company but was doing the plaintiff’s work and was the plaintiff’s agent and servant.
We agree with the defendant that, in furnishing the crane and operator, the railroad company was not discharging any duty or contract as carrier. It did not and could not lawfully contract to unload the shipment. The rules and regulations of the interstate commerce commission prohibit it. They have the force and effect of Federal statutes and cannot be waived by the carrier. Falmouth Cooperative Marketing Ass’n v. Railroad Co., 237 Mich. 406.
But there is nothing in the rules prohibiting the carrier from loaning a crane for that purpose. In doing so it stood in the same relation to the plaintiff as any third party in no way connected with the shipment.
In the instant case there was no waiver of the rule. Both parties recognized it. The defendant did not assume the duty to unload. It merely loaned an appliance and an operator to assist in unloading heavy materials. In view of these facts, notwithstanding the shipment was interstate commerce, the doctrine of loaned servant applies and should rule our decision.
Whose work the operator was doing is an important test in determining whose servant he was, but it is not the only test, for though he was doing work for the plaintiff he was not the plaintiff’s servant unless plaintiff had the exclusive right to direct and control him in doing the work. A person may loan a servant to another to do a particular work, but unless he puts the servant under the direction and control of the other in the performance of that work, he remains liable for his negligent acts. The question, then, is With whom was the power of control! It is clear that the plaintiff had no control over the servant as to his method of operating the crane, and it was the manner of operating it that caused the injury. The only control the plaintiff had was to tell the operator in which direction the beams were to be lifted and where they were to be placed. He could not tell him how to operate the crane. The operator did that according to the directions he had received from the defendant, his general master. Over the act which caused the injury the plaintiff had no control. The work of operating the crane was the defendant’s, work.
On this question counsel for the respective parties cite cases sustaining their several contentions. All of the cases are in harmony as to the law on the doctrine of loaned servants. They differ only in its application to the different facts in particular cases. The defendant cites and relies on Rau v. Railroad Co., 311 Pa. 510 (167 Atl. 230). In that case the plaintiff’s husband was employed by Mr. Sordoni, a contractor, and at the time of the injury was assisting in the unloading of limestone from defendant’s cars. His injury which resulted in death was caused by the negligent operation of a crane furnished by the carrier. The court held that the operator of the crane was the servant of the decedent’s employer, but based decision on these facts, which we quote from the opinion:
‘‘ The car unloading on the day of the accident was the seventh or eighth car that had been so unloaded. To facilitate their work, and entirely for their own convenience, Sordoni’s men had removed the bucket or clamshell, normally a part of the hoisting appa ratus; it was therefore necessary for them to reattach it before the crane could be returned to the appellant; while making this adjustment, the fatal accident occurred. The boom had been swung over the point where the clamshell lay and, before the attachment could be made, the boom fell on Rau.”
In view of these facts it is surprising that anyone should claim that the carrier was responsible for the negligent act of the operator of the crane. The accident happened after the work of unloading was completed and while Sordoni’s men were working on the crane to restore it to the same condition it was in when the carrier loaned it to them. If they had not assumed control of the crane by altering it for their own convenience the accident would not have occurred.* These facts very clearly distinguish the case from the one we are considering.
The defendant also cites Denton v. Railroad Co., 284 U. S. 305 (52 Sup. Ct. 141). In that case a United States railway postal clerk was injured by the negligence of one Hunter, a porter in the service of the defendant railway company, but who, at the time of the accident, was assisting in loading mail into one of the defendant’s mail cars. The question was whether in loading’ the mail Hunter was the servant of the railroad company or of the Federal government.
The Federal statute requires railroad companies to carry mail in the manner prescribed by regulations of the postmaster general. One of these regulations requires the carriers to furnish men to assist in loading mail under the direction of a postal'clerk, and further provides that no mail shall be loaded in a car unless there is a postal clerk on duty to receive and care for it. It is very plain that the clerk in charge of the car was intended to have absolute control of the loading. He was charged with the responsibility of seeing that all of the mail was received and cared for, a duty which he could not delegate to another and which he could not discharge without having supervision and control of the men who were doing the loading. _ In these circumstances the court held that, in doing the work from which the accident resulted, Hunter was the servant of the government and not of the carriers. No other conclusion was intelligently possible.
In the present" case we think the trial court did not err in refusing to hold as a matter of law that the operator of the crane was the agent and servant of the plaintiff in doing the work which resulted in his injury. And that is the decisive question on plaintiff’s right to recover. The shipment was interstate commerce, but that is not controlling, because the judgment is not based on an agreement to unload and the carrier did not assume that burden in violation of the rules of the interstate commerce commission.
2. Was there evidence to warrant the court in submitting the question of subsequent negligence to the jury?
The evidence was ample. Mr. Lewis, operator of the crane, testified that he was the only man who could move the fulcrum, that when he applied the power to lift the beam he knew where the plaintiff was standing. “I could see him; I was looking at him, watching him. * * * I could have seen the fulcrum if I had looked. * * * I don’t think this accident would have happened if I had retarded the fulcrum until it was directly over the beam to be lifted.”
Subsequent negligence follows contributory negligence. Assuming that the plaintiff negligently placed himself in a position of peril on the car as defendant claims, if the operator of the crane saw him and knew he was in a dangerous position and could have stopped the movement of the crane instantly, as he said he - could have, and thus have avoided the injury, he was guilty of subsequent negligence in failing to do so. It was a question for the jury. But the defendant says that the plaintiff’s contributory negligence continued up to the instant of the accident, that the operator of the crane realized the plaintiff’s danger and warned him, and that plaintiff’s failure thereafter to get into a safe place and watch the movement of the beam was negligence which concurred with defendant’s negligence in causing the accident. If there was proximate concurrent negligence there could be no subsequent negligence. Defendant was entitled to have its theory of concurrent negligence submitted to the jury. A proper request for that purpose was offered but the court refused to submit it. This was error for which the judgment must be reversed and a new trial granted.
On a new trial, testimony as to the accident that happened while Mr. Lewis was operating the crane a week before the occasion in question should be excluded. It has no bearing on this issue.
The failure of the court to instruct the jury on the present worth of the plaintiff’s future damages will probably not arise on a new trial, and needs no further comment in this opinion.
No other questions require discussion.
The judgment should be reversed and a new trial granted, with costs to the defendant.
North, J. More than a year after our former decision in this case (253 Mich. 144) plaintiff filed an amended declaration. Subsequently defendant’s an swer to the amended declaration was filed including notice of special defenses. Under such notice defendant brought into the case for the first time the defense that it was a carrier engaged in interstate commerce and subject to the interstate commerce act. Notwithstanding this change in the pleadings, the trial judge held as a matter of law, as in the earlier trial, that Lewis, the operator of the crane, was the employee of the defendant railway company, and that it was therefore chargeable with Lewis’ negligence, if any. While it was a perplexingly close question, in our former opinion we approved the holding of the trial judge. On this appeal the question is presented whether such holding is affected by the change in the record disclosing that the defendant was engaged in interstate commerce and subject to the regulations imposed thereon.
The shipment of the I-beams involved in this law suit was in carload lots and at carload rates. Such shipment is subject to the following interstate commerce regulation:
“Owners are required to load into or on cará freight for forwarding by rail carriers and to unload from cars freight received by rail carriers carried at carload ratings.” Interstate Commerce Regulations & Tariffs, Rule No. 27, § A.
The contract for carriage of an interstate carrier must be in accord with the rules and regulations governing interstate commerce. Pennsylvania R. Co. v. Marcelletti, 256 Mich. 411 (78 A. L. R. 923).
“The tariffs and schedules filed with the interstate commerce commission become a part of the contract and as such binding on the parties. To hold otherwise would open wide the door for unjust discrimination. * * * The relations of the shipper and carrier are contractual. * * * In order to prevent discrimination the law has provided that certain things shall be done in all shipments. Neither the shipper nor the carrier can deviate from them without discrimination which is the important thing inhibited.” Thomas Canning Co. v. Southern Pacific Co., 219 Mich. 388, 396; 223 Mich. 154.
“In an action for damages to horses shipped by express from one State to another, the contract under which they were shipped is to be construed in harmony with the Federal transportation act, under the regulations, rates, and rules promulgated pursuant thereto by the interstate commerce commission, which, so far as applicable, became part of the contract. ’ ’ Shier v. American Railway Express Co. (syllabus), 234 Mich. 505.
Thus, in the instant case, the contract between the shipper and carrier places the obligation of unloading the carload lot upon the shipper or consignee. Had the parties contracted that the carrier without additional charge should unload the shipment, it would have been a violation of interstate commerce regulations and subjected them to the penalty provided. Thus, as a matter of law, as well as a matter of contract, in this interstate shipment the duty of unloading devolved solely upon the consignee. When plaintiff contracted to truck these I-beams from the place of delivery by the carrier to the bridge site, he stepped into the place of the consignee, who was charged with the duty of unloading. At his option he might or might not take advantage of the conveniences afforded by the carrier in unloading the shipment. While in no way obligated to do so, in the instant case the defendant had provided at Flint a Gantric crane, the use of which, together with an operator, was tendered to shippers to aid them in unloading heavy articles. To hold that the defendant railroad company in so doing was discharging a part of its duty or its contract as a carrier would be to hold that it was acting-in violation of interstate commerce regulations. The record in this case will not sustain a conclusion that the carrier contracted to unload this shipment. Instead, in the face of the interstate regulation, the only justifiable conclusion is that the defendant carrier loaned this unloading device and its employee in operating the same to the consignee, in whose place plaintiff was acting in receiving the shipment.
Since our former decision, the Supreme Court of the United States decided the similar case of Denton v. Railroad Co., 284 U. S. 305 (52 Sup. Ct. 141). In that case the contract with the railroad company for carrying mails provided that the railroad company should furnish men necessary to handle the mails, “to load them into and receive them from the doors of railway post office cars,” etc. A porter employed by the railroad company carrying mails assisted in the discharge of that portion of the railroad company’s contract. Through his negligence Denton was injured. The porter was held to have been acting as the agent of the United States government and not in the discharge of his duties as an employee of the railroad company, and hence such company was not responsible for his negligence. It was there said:
“When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former. This rule is elementary and finds support in a large number of decisions, a few only of which need be cited.”
Numerous cases are cited, including Standard Oil Co. v. Anderson, 212 U. S. 215 (29 Sup. Ct. 252), which, latter case is extensively quoted, and, together with Driscoll v. Towle, 181 Mass. 416 (63 N. E. 922), is distinguished from the case before the court in the following language:
“In each of these cases the facts plainly demonstrated that the work was that of the general master, and that in doing it, the servant had not passed under the direction and control of the person for whom the immediate work was being>done, the latter being looked to not for commands, but for information. ’ ’
The following is approvingly quoted from the Standard Oil Case:
“To determine whether a given case falls within one class or the other, we must inquire whose is the work being performed.”
Applying this test to the instant case, there is no dispute that under the contract for interstate carriage the duty of unloading the I-beams was that of the consignee and not of the carrier.
In another decision involving an interstate carload shipment it was recently held:
“Upon delivery of the cars at the usual place of delivery of carload shipments of livestock, it was the duty of the plaintiff to take charge of them, unload and look after them; and such assistance in unloading and looking after them as may have been rendered by the employees of the delivering carrier was purely voluntary, and such employee while so engaged was the agent of the owner, and not of the railroad.” Columbus & G. R. Co. v. Owens, 153 Miss. 628, 631 (121 South. 265, 62 A. L. R. 521).
Under the record now before the court it must be held, in view of the interstate commerce regula tion, that the railroad company was not responsible for damages resulting from the negligence of its employee, who was loaned to the consignee to aid in unloading this shipment of I-beams.
Judgment is reversed, without a new trial. The case is remanded to the circuit court for entry of the judgment in accordance herewith.
Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred with North, J. Clark, J., took no part in this decision. | [
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North, J.
Plaintiff has filed a judgment creditor’s bill in which it seeks to have set aside certain instruments by which the defendant Frederick C. Boyce has divested himself of property rights subsequent to the accrual of his indebtedness to plaintiff. The suit is upon the theory that these transactions were without adequate consideration moving to defendant Frederick C. Boyce and in fraud of his creditors, particularly in fraud of plaintiff’s rights. See 3 Comp. Laws 1929, § 13392 et seq., and § 14617. After hearing in open court a decree was entered dismissing the bill of complaint, and plaintiff has appealed.
Unless otherwise indicated, Frederick C. Boyce will hereinafter be referred to as the defendant. This litigation involves two transactions wherein the defendant transferred property rights-to his father, Henry Boyce, who is now deceased and whose estate is made party defendant. The litigation also challenges the validity of another transaction, in which the defendant claims to have assigned all his interest in his father’s estate to defendant David Clarke Cox.
We have carefully reviewed the testimony touching the two transactions by which defendant transferred property interests to his father. In each instance we find, as did the trial judge, that there was ample consideration. For each transfer the father gave his note. The original notes or renewals thereof were payable to Mrs. Marne Lund, who was defendant’s mother-in-law, and to whom he was indebted for upwards of $8,000. These notes were presented as claims and allowed against the estate of Henry Boyce, deceased. An appeal was taken from such allowance, but at the time the instant case was submitted in circuit court the appeal had not been heard. Notwithstanding defendant’s indebted ness to plaintiff antedated the transactions above noted, since there was adequate consideration moving to defendant, plaintiff cannot complain. Stripped of detail, these transactions resulted in a preference being given by Frederick Royce to Mrs. Lund as one of his creditors. This he had a right to do. Hartford Accident & Indemnity Co. v. Jirasek, 254 Mich. 131.
On the hearing of this phase of the case plaintiff attempted to establish its claim that the signatures of Henry Royce on the notes held by Mrs. Lund were forgeries. The record abundantly sustains the circuit judge in holding these signatures genuine.
The remaining claim asserted.by plaintiff is that Frederick Royce’s assignment of his interest in his father’s estate to David Clarke Cox should be set aside because of lack of adequate consideration and because it was in fraud of plaintiff’s rights as a creditor of Frederick Royce. Mr. Cox was made a party defendant herein, but his default was taken for failure to appear. He was a witness for defendant, who claims that he agreed with Mr. Cox that the latter should advance the funds necessary to pay Henry Royce’s hospital expenses during his last illness, and in consideration thereof Frederick Royce would assign whatever interest he had in his father’s estate to Mr. Cox. The undisputed testimony is that $336 was so advanced by Mr. Cox. Mr. Henry Royce died on the 7th of May, 1929. Shortly after his death the above amount of $336 was repaid to Mr. Cox by the administratrix of Henry Royce’s estate. The check of the administratrix to Mr. Cox fixed the date of payment. There is testimony of doubtful credence that, at the time the $336 was paid to Mr. Cox, he thereupon turned over this amount and enough more to total $500 to Frederick Royce. Whether or not such, is the actual fact is of little consequence; because, assuming Mr. Cox did so advance or turn over to Frederick Boyce $500, we are fully satisfied from the record the transaction was nothing more than a loan which the parties assumed would be repaid to Mr. Cox out of defendant’s share of his father’s estate. But prior to such loan, and on May 9, 1927, plaintiff had caused a levy to be made upon Frederick Boyce’s interest in the real estate here involved. It is of no consequence that two days before plaintiff levied upon this property, and upon the day of his father’s death, Frederick Boyce assigned his interest in his father’s estate to Mr. Cox, because such assignment unquestionably was given to secure repayment to Mr. Cox of such sums as he advanced to pay the hospital expense incident to Mr. Henry Boyce’s last illness. The advancements so made were repaid in full to Mr. Cox by the administratrix. He cashed the check. The loan or advancement he may have made at that time to Frederick Boyce was subsequent to and subject to plaintiff’s levy on Frederick Boyce’s one-third interest in the real estate inherited from his father.
The decree entered in the circuit court in chancery will be modified in accordance herewith. Appellant will have costs of both courts against defendants Frederick E. Boyce and Maria Lund Boyce.
McDonald, C. J., and Clark, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wibst, J.
The parties to this suit were divorced in June, 1929. The decree followed an agreement of the parties and ordered defendant to assign to plaintiff a policy of insurance and pay her $105 per month as long as she remained unmarried, and recited the provision to be in lieu of dower. Defendant was and is now an officer in the U. S. army, has remarried, has a wife and baby to support, and, in October, 1932, he filed a petition to have the monthly allowance reduced on account of his inability to pay by reason of reduction in salary,;., new family obligations, and debts. The court reduced the allówánce; to $90 per month, and both parties have appealed.
Plaintiff contends that the allowance, being in accord with the agreement of the parties and not specified as alimony in the decree but in lieu of dower, and no fraud being claimed, the court was without power to make any change, and the modification violates the constitutional provision against impairment of obligations of contracts.
Defendant had no real estate. The agreement designated the monthly payments to be alimony. The monthly allowance was in fact alimony. The court, in adjudging alimony, could employ the agreement, and later, under power reserved by statute, modify the decree to comport with change in circumstances of the parties. 3 Comp. Laws 1929, § 12748.
As said in Camp v. Camp, 158 Mich. 221:
“It is immaterial whether the decree for alimony and the support of children is incorporated in the decree by the consent of the parties, or by a determination of the court. When once incorporated in the decree the court obtains jurisdiction to revise it at any time thereafter.”
See, also, Aldrich v. Aldrich, 166 Mich. 248; Kelly v. Kelly, 194 Mich. 94; Skinner v. Skinner, 205 Mich. 243; Davis v. Davis, 262 Mich. 391.
It was not necessary to state reservation of the power of modification in the decree. Exercise of the power was no violation of the mandate against impairment of obligations of contracts. The decree obligated defendant, and the decree was subject to modification.
Defendant seeks further reduction. This we cannot grant. Defendant’s present circumstances are of his own making in face of the original decree, except as to the reduction in his salary, and he still receives a salary of $422.12 per month.
He. claims that his present indebtedness amounts to fifty-five or more hundred dollars, all of -which he borrowed and used in paying the alimony of $105 per month, and claims that he is not able to live as his army position requires and pay $105 per month;
The decree is affirmed, with costs to plaintiff.
McDonald, C.' J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., did not sit. | [
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] |
Retaxation oe Costs.
Per Curiam.
This is an appeal from taxation of costs. The judgment in the circuit court was sum mary upon a claim against the estate of a deceased person. Upon appeal the judgment was reversed. Caswell v. Stearns, 257 Mich. 461.
The estate appealed, and its representatives gave a bond for $75,000, and, under Court Rule No. 5, have taxed $750, the cost of procuring the bond.
Rule "No. 5, § 7, provides:
'“Whenever a bond is required by law in any action or proceeding, the reasonable cost of procuring such bond.shall be part of the taxable costs of the case, unless otherwise ordered by the court. ’ ’
'This rule is to be strictly construed, and relates only to bonds required by law. The bond was not required by law, and only operated in stay of certification of the judgment to the probate court. No execution could have been issued. But it is contended that, by reason of the demand of plaintiff and action in support thereof, it was necessary to give the bond and plaintiff is now estopped from questioning taxation of the cost. Whether the bond was given because of unreasonable demand by plaintiff or agreement of the parties does not bring it within a bond required by law. The item for premium on the bond is disallowed.
The item of $10 for motion fee is approved.
There can be no allowance for cost of copying records in the probate court, and the item of $90 is •reduced to $36, the cost of transcript of testimony.
The costs are retaxed in accord with this opinion.
Plaintiff, in this appeal, will recover $10, costs. | [
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39
] |
Sharpe, J.
The defendants; husband and wife, were the owners and operators of an amusement park at Walled Lake, in Oakland county, in -which were installed a bath house, dance hall, refreshment stand, and a water toboggan slide. On September 8, 1929, Wayne C. Peppier, then 18 years of age, went to the park, accompanied by three other young men, paid the fee for the use of,, and selected, one of the sleds, and proceeded to slide down the toboggan. He made a number of trips. On his last one, when near the bottom, he was thrown off the sled and slid the rest of the way down, sustaining quite severe injuries. These two actions, which were tried together, were brought, one by his father, Henry L. Peppier, as his guardian, to recover the damages due to such injury, and the other by his father individually to recover the expense he was put to for doctors, nurses, hospital expenses, etc., incident thereto. The plaintiff had verdicts and judgments, of which defendants seek review by appeal.
The serious question presented is whether the injury the young man sustained was attributable to any negligence on the part of the defendants. He testified:
“On September 8, 1929, I had an accident. On this particular occasion I brought my sled as usual and placed it in the track and on various times before we had tried different methods of going down sitting down or sitting down backwards, and on this particular occasion I was standing or rather sitting in a hunched position backwards with my hands on the sled, I had hold of the sled completely and I started off the slide, I was riding backwards. I was in a hunched position down on my hands and heels. I had my weight on my feet but I was hanging on to the sled with my hands, hanging on to these handles I described. As I got around three-quarters of the way down or close to the bottom I felt a terrific jerk and the sled just jerked out of xny hands and I conld no longer keep it in my hands or maintain my balance and I was thrown off onto the slide, or np in the air first and I landed on the slide and I sprawled all over the slide the rest of the way down. * * * I was thrown the rest of the way down the track, I landed hitting my knee and the back part of my body and my arm and burned my shoulder. As it struck I don’t know where the sled went, but I went down the rest of the slide on my body and landed in the water below.”
He further testified that his head was cut open in two places and his knee badly cut. It appears that a piece of metal was taken out of the back of his leg. Two of the young men who had accompanied Wayne to the park were called as witnesses in his behalf. They both testified that the front end of the sled did not rise up until Wayne was near the bottom, when the sled is no longer attached to the ráils. One of them came down the slide just before, and the other right after, Wayne came, and neither- of them met with an accident in doing so. There was an abundance of proof that others used the slide after Wayne was injured, some of them using the same sled on which he was riding at the time of his injury.
It will serve no useful purpose to refer to other testimony. It is clearly apparent that the injury suffered by the young man was not due to any defect in the slide or in the sled on which he was riding. The metal removed from his leg was not detached from the rails or the sled. No presumption of negligence arises from his injury alone.
Prom a careful reading of the record, we cannot escape the conviction that his fall from the sled was caused by the manner in which' he was riding on it. It had printed thereon in large letters: “Standing forbidden.”
The judgments in both cases are reversed and set aside, with costs to appellants, and the causes remanded, with directions to enter judgments for the. defendants. The conclusion reached renders it unnecessary to consider the other errors relied on by the appellants.
Clark, C. J., and McDonald, Potter, Fead, Wiest, and Butzel, JJ., concurred. North, J., did not sit. | [
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] |
Sharpe, J.
In the declaration, filed herein on November 4, 1931, the plaintiff claimed the right to recover certain payments past due on a land contract assigned to him and for taxes paid on the land described therein. A copy of the contract and assignment was attached thereto. The defendants answered, denying all the material allegations in the declaration.
On December 29, 1931, the plaintiff moved for summary judgment. His affidavit therefor reads as follows:
“Theodore R. MacClure, being duly sworn, deposes and says, as follows: That he is the plaintiff in the above entitled cause, and that there is justly and truly due and owing to him over and above all legal set-offs, the sum of $918.12 for instalments of principal and interest accrued on the land contract referred to in the declaration filed herein and for taxes paid on the premises described in said contract, by the plaintiff on behalf of the defendants; and deponent further says that he has good reason to believe and does believe that there is no defense to said cause of action. ’ ’
Notice of the motion was served on the defendants’ attorney. He did not appear at the hearing, and a judgment for plaintiff for $918.12 was entered on January 2, 1932. The defendants have appealed therefrom.
That the affidavit on which the judgment was based did not comply with the requirements of Court Rule No. 30 is apparent. But one of these defects need be alluded to. Plaintiff’s claim was founded upon payments due under the contract assigned to him and taxes paid pursuant thereto. To establish this claim, he must first prove that such a contract was entered into by the defendants. This might have been done by attaching to the affidavit the original contract or a verified or certified copy thereof. A reference to that attached to the declaration was not sufficient. It did not purport to be the original, nor was it verified or certified. Neither did it contain the certificate of the county treasurer that the specific tax thereon had been paid, as required by 1 Comp. Laws 1929, § 3642, and without it the contract could not be enforced or received in evidence. Section 3647; Nelson v. Breitenwischer, 194 Mich. 30.
The failure of the defendants’ attorney to appear and contest the motion was not a waiver of the necessity of .plaintiff’s compliance with the statute and rule. Macdonald v. Betts, 246 Mich. 585. His neglect to do so is, however, sufficient cause for refusing to allow him costs on this appeal.
The judgment is reversed, but without costs, and a new trial ordered.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
This appeal, in the nature of mandamus, brings to decision the question of the right of plaintiff to' have an examination of defendant under Court Rule No. 41, upon taking* out a summons in an action for tort, and before filing a declaration.
The rule provides:
“Section 1. Any party to an action or suit may cause to be taken by deposition according to the practice regulating the taking of depositions, at any time after action commenced and before' trial, the testimony of any other party, or any person who has verified a pleading of another party, which is material and necessary in the prosecution or defense of the action or suit. * * *
“Sec. 3. The notice of taking such deposition shall include a statement as to the matters upon which such persons are to be examined. Such notice shall operate as an order.
‘ ‘ Sec. 4. Any question as to the right to take the testimony of such party, * * * may be raised by a motion to vacate or modify the notice. Such motion may be supported by affidavits and opposed by counter-affidavits. ’ ’
The notice served upon defendant contained a statement of the matters upon which discovery was desired. The action was commenced by summons, the notice under the rule was given before the declaration was filed and plaintiff claimed that discovery was essential in order to prepare a declaration.
The action was brought to recover damages occasioned by the death of plaintiff’s decedent, while employed by defendant in sawing wood with a buzz saw. Defendant moved the court to vacate the notice. This the court refused to, do, holding that the right was within the rule, but the examination should he restricted to the matter set forth in the notice.
The rule is new in this jurisdiction, and, in substance, appears to have been taken from the civil practice act of the State of New York, with some change in phraseology. See New York Civil Practice (5th Ed.), art. 29, § 288 et seq.
The question of whether there can he such an examination in an action for tort has been the subject of much controversy among the appellate divisions of the supreme court in the State of New York.
In Middleton v. Boardman, 210 App. Div. 467 (206 N. Y. Supp. 725), on account of this diversity of opinion, leave to appeal to the court of appeals was granted. In the court of appeals, 240 N. Y. 552 (148 N. E. 701), the appeal was dismissed on the ground that the answer to the question rested in the discretion of the supreme court, and, therefore, could not be reviewed. This holding did not at all clear up the point.
In Schonhous v. Weiner, 138 Misc. Rep. 759 (246 N. Y. Supp. 73), the perplexity, occasioned by our rule, is mentioned, and the conflicting authorities in New York State cited.
In Middleton v. Boardman, supra, it was held that the examination of the adverse party before trial was not limited because the action was in tort. See, also, to the same effect, Schonhous v. Weiner, supra; Palmer v. Hampton, 129 Misc. Rep. 417 (220 N. Y. Supp. 768). But, contra, see Shaw v. Samley Realty Co., Inc., 201 App. Div. 433 (194 N. Y. Supp. 531), and cases there cited.
In Maher v. Orange & Rockland Elec. Co., 141 Misc. Rep. 573 (252 N. Y. Supp. 459), it was held, quoting syllabus:
“Plaintiff suing electric company for injuries resulting in death caused by electric company’s negli genee in construction and maintenance of poles and wires held entitled to examine defendant before trial. ’ ’
In Lockwoood v. Merchants’ Despatch Transp. Co., 142 Misc. Rep. 470 (254 N. Y. Supp. 573), an action was brought to recover damages for negligence causing the death of plaintiff’s decedent. It was claimed that plaintiff was not familiar with the apparatus, machinery, and safety devices involved in the work in which the decedent was engaged, or with the conditions under which he worked, and plaintiff asked for an examination in order to enable the framing of a complaint. The court stated:
“There is authority, under the present practice,' as there was under the old practice, to have an examination before trial in a proper case, in order to frame a complaint. Such an examination, however, will be permitted only where the plaintiff desires it for the purpose of stating, with sufficient definiteness and certainty, a good complaint.”
In Noble v. Copake Lake Pure Ice & Water Corp., 129 Misc. Rep. 445 (222 N. Y. Supp. 367), it was held, quoting syllabus:
“Examination of defendant before trial, under civil practice act, §§ 288, 291, may be had before issues have been joined, if court can see what the issues are. ’ ’
In Smith v. Wooding, 177 N. C. 546 (94 S. E. 404, L. R. A. 1918C, 588), the question was whether defendant could be examined under the statute for the purpose of enabling the other party to file his pleading, or whether the provision of the statute should be confined, in its operation, to evidence merely to be used or not at the trial and to be taken after the pleadings are filed, or, at least, after the complaint has been filed showing what is the cause of action'. It was held, quoting syllabus:
“The plaintiff in an action for injuries by alleged neglect of a physician may, under Bevisal 1905, § 866, providing that an examination of a defendant may be had at any time before the trial, have an examination of defendant to aid him in filing his complaint, where he alleges that he knows the facts generally and substantially, but that defendant has the precise knowledge necessary for proper proceedings.”
The rule permits an examination, after commencement of suit by summons and before filing the declaration, and applies to actions in tort.
The order refusing vacation of the notice is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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McDonald, J.
(dissenting). This bill was filed to secure the cancellation and discharge of a real estate mortgage on the ground that it was given under circumstances that constitute duress, or, if not duress, under an agreement' that renders it illegal and void.
The undisputed facts are that the defendants caused the arrest of the plaintiff’s husband, Arthur Wilhelm, on a charge of obtaining money under false pretenses. ’ After he had been confined in jail for 55 days, a settlement was made in which the plaintiff gave the defendant, King Auto Finance Company, her note for $16,000 secured by a mortgage on her home in the city of Hamtramck. When the settlement was completed, Wilhelm was released, and a few days later, on motion of the prosecuting attorney, the criminal proceedings were dismissed by order of the circuit judge.
The disputed facts relate to an alleged agreement in which the plaintiff claims she was promised, as an inducement for giving the mortgage, that her husband would be released from jail and further prosecution would be stifled. The defendants deny that they made such a promise, but admit they agreed to use their influence with the prosecuting attorney to secure his release and to stop the criminal proceedings.
On the hearing the circuit judge found that the plaintiff was not entitled to the relief prayed for, and entered a decree dismissing her bill. She has appealed.
The issue as to the facts is plain. The plaintiff says that she gave the mortgage because of a definite promise from Mr. John, defendants’ attorney, who conducted the negotiations for them, that he would secure the release of her husband and have the criminal proceedings against him dismissed. If the plaintiff’s version of the transaction is true, she is entitled to have the mortgage canceled and discharged of record. Buck v. First National Bank, 27 Mich. 293; Wisner v. Bardwell, 38 Mich. 278; Meech v. Lee, 82 Mich. 274; Miller v. Minor Lumber Co., 98 Mich. 163 (39 Am. St. Rep. 524); Benedict v. Roome, 106 Mich. 378; Koons v. Vauconsant, 129 Mich. 260 (95 Am. St. Rep. 438); National Surety Co. v. McLeod, 240 Mich. 360.
The defendants ’ version of the transaction differs from that of the plaintiff only as to the extent of the promise. It is their claim that Mr. John, who was acting for them, did not promise the plaintiff to secure her husband’s release and to get the criminal proceedings dismissed; but that he did promise to use his influence .to bring about that result.
Mr. Trombley, the assistant prosecuting attorney, testified that very shortly after- Arthur Wilhelm was arrested Mr. John inquired of him if the prosecuting attorney would consent to drop the criminal proceedings if a settlement was made. He told him “to go ahead and make the negotiation and if they were successful notify the office and have Mr. Beecher/ make a request to the circuit court asking these proceedings be dropped.” Mr. Beecher was an officer of the defendant company.
The fact that Mr. John made this inquiry of the assistant prosecriting attorney indicates that he intended to use the information in negotiating a settlement. Tie did use it. When asked if they were going to get Wilhelm released, he said: “Why, I have every reason .to believe that is going to happen; I believe that it will, but I will call Trombley.” That his belief in being able to get him released was well founded is shown by the fact that immediately after the settlement was completed he telephoned Trombley, and Wilhelm was released at once.
But whichever version of the transaction we accept, there is no doubt that the plaintiff executed the mortgage in question with the understanding and in the belief that it would secure her husband’s release from jail and stop the criminal proceedings pending against him. Whether she got that understanding from defendants’ positive promise to bring it about or from their promise to use their influence to that end does not matter. The legal effect is the same. The agreement that Mr. John would use his influence to get the officers to release Wilhelm from confinement in the jail and from further prosecution was illegal and furnished no consideration for the mortgage.
“It has been held that agreements to use influence, or tending to encourage the use of influence, with the prosecuting attorney in respect to criminal prosecutions are illegal.” Aycock v. Gill, 183 N. C. 271 (111 S. E. 342, 24 A. L. R. 1449), and cases cited.
A similar agreement was involved in Buck v. First National Bank, supra. In that case a party had robbed the bank and was under arrest charged with the crime. Certain relatives gave their promissory notes to make the bank good on its loss. In an action on the notes these relatives claimed that they were void because given in consideration of a promise that the accused would not be prosecuted. The bank denied that such was the consideration, but admitted it had agreed to 'petition the court for leniency in sentence. Speaking strongly in condemnation of such an agreement, Mr. Justice Cooley, writing for the court, said:
‘ ‘ One party was to give a pecuniary consideration, and the equivalent was, that another would sign, or promise to sign, or be more likely to sign, a petition, for the mitigation of a criminal punishment. It is too plain for argument that such a transaction is not only wanting in the requisites of a legal contract, but that in its tendency it is immoral and pernicious.”
Other cases in point might be cited from this court .and from other jurisdictions, but to do so would unnecessarily extend this opinion. The rule announced in Buck v. First National Bank has been consistently followed by our court, and is decisive of the instant case.
In disposing of the issue the trial court correctly determined the facts, but erred in his application of the law. The plaintiff is entitled to the relief prayed for in her bill,
The decree should be reversed,. and one entered here in accordance with this opinion. The plaintiff should have costs of both courts.
Potter and Sharpe, JJ., concurred with McDonald, J.
North, J. I think the decree entered in the circuit court should be affirmed, and that sufficient reasons therefor are set forth in the following portion of the opinion filed by the circuit judge:
-“The court is of the opinion that the transaction in question is not subject to being voided for the reason that the defendants’ mortgage was obtained by duress. There does not seem to the court to have been any bad faith in what was done with relation to Wilhelm. He undoubtedly was guilty, and he and his family undoubtedly sought to make restitution with a view to having the proceedings dropped. The acceptance of restitution was in no sense improper, and no fraud or deceit was practiced upon the court or upon the court officials. The judge and the prosecutor both knew what had been done. If, in their judgment, it was proper to drop the proceedings, the public has been protected, as far as the law contemplates. If the law were as contended for by the plaintiff, it would be impossible for any injured and defrauded plaintiff to make a settlement which could not be subsequently repudiated in a proceeding like this. I do not believe that justice demands such a rule.
“There is another reason why Eleanor Wilhelm’s bill lacks equity. She herself was a party, as indorser, on the original obligations. In making a new mortgage, she was securing a discharge of her own previous obligations. It is probable that she might have defended in an action on the original obligations by pleading coverture, but the fact remains there was a consideration moving to her in their extinguishment. ’ ’
To the above might be added that notwithstanding plaintiff through counsel secured possession of the notes of herself and husband in lieu of which the mortgage here in suit was given, neither at the time of filing her bill of complaint nor at any time since has she tendered a return of all of the notes thus secured by her from the defendants. The least that could be asked of plaintiff as a condition of granting her equitable relief would be the return to defendants of all of the chattel mortgage notes which she secured from them by giving the mortgage which she now seeks to have canceled. Because of her failure to do equity she is denied the relief sought, and the decree entered in the circuit court is affirmed, with costs to appellees.
Clark, C. J., and Fead, Wiest, and Butzel, JJ., concurred with North, J. | [
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Potter, J.
Hammer & Reed, Inc., entered into a contract to build a schoolbouse in Buffalo, New York. Defendant was surety on the bond of Hammer & Reed, Inc., given to secure tbe performance of its contract. The bond, signed by defendant, among its conditions provided:
“That if the principal shall faithfully perform the contract on Ms part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the board from all costs and damage which it may suggest by reason of failure so to do, and shall fully reimburse and repay the board all outlay and expense which the board may incur in making good any such default, and shall pay all persons who have contracts directly with the principal for labor or materials, then this obligation shall be null and void, otherwise it. shall remain in full force and effect.”
The bond also contained a provision:
“That any person, copartnership, association or corporation furnishing material or rendering services in or about the execution of such contract may maintain an action to recover the same against the obligors in this bond as though such person, copartnership, association or corporation were named therein; but such action shall be brought within one year after the cause of action accrues.”
Plaintiff was an electrical contractor for building of electrical transformers at an agreed price of $1,449. Hammer & Eeed was already indebted to plaintiff in the amount of $200 before entering into this contract. Hammer & Eeed made default in the performance of the contract, and the city of Buffalo took over and completed the building. Plaintiff, June 7,1929, as a condition precedent to the delivery of the electrical equipment in question, required Hammer & Eeed to assign to them the money due and to become due from the board of education of Buffalo on their contract in the amount of $1,649. The board of education of the city of Buffalo paid to plaintiff, under this assignment, $849, and this suit was brought against the sureties of the bond of Hammer & Eeed to recover the balance due. Plaintiff recovered judgment against defendant in the sum. of $800 with interest at 5 per cent, from August 17, 1931. Defendant appeals.
Defendant raises three questions:
First. That plaintiff was not a party to the bond sued upon and therefore cannot maintain this suit. We have already recited the conditions of the bond which was given in accordance with the provision of chapter 140, art. 33-A, of the New York Statutes of 1910, as amended by chap. 786 of the Laws of 1917. This statute, as construed in Fosmire v. National Surety Co., 229 N. Y. 44 (127 N. E. 472); and Strong v. American Fence Const. Co., 245 N. Y. 48 (156 N. E. 92); and Maltby & Sons Co. v. Wade, 131 Misc. Rep. 143 (227 N. Y. Supp. 90), indicates the statute was passed for the purpose of enabling persons standing in the position of plaintiff to maintain suit. We think it has a right to so maintain it.
Second. Defendant claims the plaintiff, not having commenced suit within one year from the time of furnishing the electrical generators, may not recover. Hammer & Reed did not complete its contract; the contract was completed by someone else. November 17, 1930, defendant American Surety Company, by its manager, wrote plaintiff: “As soon as the contract has been completed the entire matter will be cleaned up at once.” December 15, 1930, Stanley & Gridley of Buffalo, attorneys for defendant, wrote to plaintiff: “This matter has been delayed due to the necessity of the surety company’s completing the contract and we are not [now] awaiting receipt of final inspection certificate. As soon as this is. in hand we anticipate being able to check up your account and arrange for its disposition.” August 10, 1931, these attorneys wrote plaintiff: “We are ready to dispose of your claim upon payment of the sum of $600 in full set tlement thereof against Hammer & Reed, Inc., and of all liability of the American Surety Company of New York therefor. Upon receipt of your advices we will be glad to forward check.” So far as the statute of limitations is concerned, we think these negotiations sufficient to constitute a waiver, and plaintiff has a right to maintain this suit.
TMrcl. Before Hammer & Reed defaulted in the performance of their contract and its completion had been taken over by the city, they had paid plaintiff $200. This plaintiff applied upon its old account of $200 which was due from Hammer & Reed to them. Defendant claims this money, having been paid to plaintiff from the contract for the performance of which it became surety, it is entitled to have this amount applied upon the $800, and if plaintiff is entitled to recover, judgment should be limited to $600. Similar contentions in People, for use of Hirth, v. Powers, 108 Mich. 339, and Vosburgh v. Middleditch, 214 Mich. 489, were ruled adversely to defendant’s claim.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
In July, 1926, the plaintiff was employed at the Ionia State hospital as farm superintendent at a salary of $100 per month. The position of garden superintendent being then vacant, plaintiff was requested by the medical superintendent and the steward to also perform such duty. It is his claim that he consented to do so on the understanding that he should receive the salary formerly paid to the incumbent, $85 per month, in addition to that he. was getting, and that he performed such services for 17 months, and was entitled to receive therefor the sum of $1,445. On July 24, 1928, he presented a claim therefor, duly verified by him, to the defendant State administrative board for allowance, and, after hearings had before the committee on claims of said board and report made, it was disallowed. He then filed a petition in this court, seeking a mandamus to compel said board “to audit and allow” such claim.
In response to an order to show cause, which had been issued, the defendants denied many of the allegations in the petition which plaintiff deemed material, and, on his petition therefor, the matter was referred to the circuit court for the county of Ionia to take proofs and report findings to this court. The proofs taken and the findings of fact thereon have been forwarded to this court, and briefs have been filed by counsel.
In his findings of fact the trial court said that soon after the garden superintendent quit his employment, the plaintiff was severally “asked and directed” “by both the medical superintendent and the steward” to perform the additional duties of garden superintendent.
“While neither of these officials either expressly promised or refused to promise him additional compensation for such additional work and responsibility, they led him to believe that he would receive such reasonable compensation and left him in expectation thereof. Under those conditions he accepted the extra position and its additional duties and performed the same for 17 months.”
He further found that in the spring of 1928 the medical superintendent again requested plaintiff to continue to act in both capacities and “assured him that if he did and made good that season he would do all that he could to induce the hospital commission to award him additional compensation.”
The findings concluded:
“I further find that in the performance of such duties plaintiff was required to and did devote additional time, thought, and effort for which he had not received adequate reward, and further, that his services as garden superintendent were fairly and reasonably worth at least $50 per month in addition to his salary of $100 per month as farm superintendent.”
In their brief counsel for plaintiff say:
‘ ‘ The question here is, Can the State of Michigan, after having employed plaintiff under an agreement to pay him for his services, arbitrarily refuse payment and leave plaintiff without any redress.”
The findings do not justify the statement that the plaintiff was employed by the State “under an agreement to pay him for his services.” He was doubtless led to believe that the medical superintendent and steward would recommend that he be paid “additional compensation.” The findings do not state that any amount was fixed therefor, and the conclusion of the trial court states that the additional service rendered was fairly worth $50 per month. It is this amount, and not that stated in the claim filed with the defendants, that plaintiff’s counsel now ask should be ordered to be paid.
In Klatt v. Wayne Circuit Judge, 212 Mich. 590, 599, it was said :
“It has' been held by us that mandamus proceedings do not adjudicate rights, but are a mode of enforcing existing rights.”
Assuming, but not deciding, that it was the duty of the defendant board to audit the claim presented to it by the plaintiff, and, if it found the same to be a legal charge against the State, to allow it and direct its payment, it seems clear that such action on its part may not be enforced under the facts here presented. Mandamus in such a case should not issue unless there is a clear legal duty on the part of the defendants to act and a clear legal right in the plaintiff to enforce the discharge of that duty. Smith v. Wagner, 234 Mich. 428.
Under the record as here presented, the petition for the writ of mandamus will be dismissed. No costs wi„ll be allowed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
This is an appeal from a judgment in favor of the defendant in a suit on the following written guaranty signed by the defendant:
“Whereas, W. Shanhouse Sons, manufacturers, Rockford, Illinois, have sold merchandise to I. Gndelsky & Sons Company, located at Muskegon, Michigan, and are extending* credit favors to said company.
“Therefore, in consideration of such credit favors, I, Israel Gudelsky, hereby guarantee and hold myself personally responsible to W. Shanhouse Sons for the account of I. Gudelsky & Sons Company in an amount not to exceed the sum of $1,000.
“This guarantee covers debts thus far contracted not to exceed the sum of $1,000 and in the event that the debts thus far contracted do not amount to $1,000 this guarantee applies to future bills of merchandise to be contracted by said company, the bills contracted and the future bills together not to exceed the sum of $1,000.”
Plaintiff claims the right to recover on the theory that the instrument sued upon is a special continuing guaranty covering subsequent indebtedness to the amount of $1,000. The language of the guaranty will not admit of such a construction.' It plainly states that it does not apply to future indebtedness unless the debts due at the time it was given do not amount to $1,000. It is conceded that the debts at that time amounted to $2,511.51, of which amount the defendant guaranteed to pay $1,000. The record shows that at' the time of suit the entire indebtedness existing when, the guaranty was given had been paid; and that the plaintiff is ■here seeking to recover a balance due on future credits. For this defendant is not liable.
The judgment is affirmed, with' costs to the defendant.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, JC
A petition for the dissolution of the Hurd Lumber & Woodwork Company, a Michigan corporation, was filed in the circuit court of Wayne county. On November 30, 1928, a decree dissolving the corporation was entered and a receiver was appointed. Notice of dissolution was filed with the secretary of State on December 7th following. The order appointing the receiver granted to him “full power to operate the business of said company and to preserve its assets under the direction and orders of this court.” On or about May 21, 1929, the receiver entered into a contract with the Hamer Homes Corporation to furnish certain materials to be used in constructing a dwelling house for the defendants Theodore F. W. Meyer and Mary B. Meyer, his wife. The last materials were furnished September 27, 1929. Neither the contractor nor the owners paid for the materials so furnished, and plaintiff, claiming to have taken the necessary steps, alleges it has a mechanic’s lien upon the property which lien it seeks by this proceeding to foreclose. The bill of complaint was filed March 24,1930. From a decree for plaintiff, defendants have appealed.
Title to the property is held jointly in the names of Mr. and Mrs. Meyer, and defendant Equitable Trust Company has a mortgage lien. The receiver in closing up the affairs of the Hurd Lumber & Woodwork Company continued to carry on its business until December 30,1931, and it is conceded that during this period he did not make an annual report to the secretary of State or pay an annual franchise fee. It is strenuously urged by appellants, because of the receiver’s failure to comply with the statute requiring annual reports and the payment’ of an annual franchise fee, that plaintiff’s corporate powers were suspended, that it could not acquire rights under a mechanic’s lien, and that it cannot maintain this bill for foreclosure of such alleged lien. (See 2 Comp. Laws 1929, §§ 10127, 10128.)
As above noted, the corporation was decreed “dissolved” November 30, 1928, and the notice of such dissolution was promptly filed with the secretary of State. The power granted to the receiver “to operate the business” was evidently only such as the court considered reasonably necessary to the advantageous winding up of the corporate business. The right to so continue the business for one year incident to the dissolution of the corporation is granted by statute (3 Comp. Laws 1929, § 15315). Notwithstanding such continuation of its former business, the corporate existence was terminated by the decree of November 30,1928, and the subsequent filing of notice thereof with the secretary of State. It would be anomalous to say that, notwithstanding such termination of the corporate existence, the receiver must continue to pay for the corporation the annual franchise fee. The court ordered the business continued only to enable the receiver to take the necessary steps to realize on the corporation’s assets, pay its creditors, and to distribute the surplus, if any, to the stockholders. The annual franchise fee is a charge by the State made against a going corporation for the right and privilege it has of doing business in this State, and is not chargeable incident to closing up the affairs of a dissolved corporation. Jones v. Winthrop Sav. Bank, 66 Me. 242; Johnson v. Johnson Bros., 108 Me. 272 (80 Atl. 741, Ann. Cas. 1913A, 1303); Commonwealth v. Lancaster Savings Bank, 123 Mass. 493; Greenfield Sav. Bank v. Commonwealth, 211 Mass. 207 (97 N. E. 927); Mather’s Sons’ Co.’s Case, 52 N. J. Eq. 607 (30 Atl. 321); State v. Bradford Sav. Bank, 71 Vt. 234 (44 Atl. 349); Keeney v. Dominion Coal Co., 225 Fed. 625; State of Ohio v. Harris (C. C. A.), 229 Fed. 892. The above eases and many others were cited by Mr. Justice Fead in Re Detroit Properties Corp., 254 Mich. 523, wherein we held that the receiver in charge of a corporation continuing its business, the purpose being “to protect and preserve its franchises and privileges, ’ ’ should fide an annual report and pay the annual franchise fee. The obvious distinction between that case and the instant case is that the receiver in the former was carrying on the corporate business for the express purpose of preserving and perpetuating its franchise; while here the corporation has been dissolved and its franchise terminated. After dissolution, the receiver of the corporation obviously cannot continue to conduct its corporate business, because' there is no such corporation in contemplation of law; and all the subsequent acts incident to closing up its affairs are much akin to the administration of the estate of a deceased person and are carried on under the direction and control of the court. After the appointment of a receiver of a dissolved corporation, he acts as a trustee and is vested with title to all the corporate property. The statute provides:
“Upon giving bond and qualifying, as the court may direct, such permanent receiver shall be vested with all the estate, real and personal, of such corporation and shall be trustee thereof for the benefit of its creditors and stockholders, and shall have all the powers, authority and remedies of an assignee for an insolvent debtor, and also power to continue the business of such corporation for such period not exceeding one year as the court shall permit.” 3 Comp. Laws 1929, § 15315.
While engaged in closing up the affairs of the dissolved corporation, the receiver is acting as a trustee and officer of the court; and, as before stated, is not required to file the annual report or to pay the annual franchise fee.. However, decision herein should not be construed as applicable to or decisive of liability to pay annual franchise fees in a receivership originally instituted for dissolution of a corporation but which receivership, instead of proceeding to dissolution, ultimately results in restoring the corporation to its stockholders as a going concern. That question is not here for adjudication.
Since preparation of the foregoing portion of this opinion, decision has been rendered by the United States Supreme Court in Michigan v. Michigan Trust Co., 286 U. S. 334 (52 Sup. Ct. 512), and therein the distinction between a receivership instituted for the perpetuation and preservation of the corporate business, as in the Detroit Properties Case, supra, and a receivership for the dissolution of the corporation, as in the instant case, is clearly recognized, and the conclusion reached is in full accord with our decisions.
Appellants assert that plaintiff failed to comply with the statute requiring service of a copy of the statement or claim of lien. The property against which this lien is asserted is located in Oakland county. Mr. and Mrs. Meyer were residents of Wayne county. Upon being credibly informed that the owners did not reside in Oakland county, plaintiff’s agent posted the claim of lien upon the premises. Personal service was not made upon the owners. There is testimony fairly indicating that Mr. Meyer during the time the building was in the process of construction usually visited the place each Saturday, and that Mrs. Meyer went to the property once in every two or three days. Also, an architect employed by Mr. and Mrs. Meyer was on the premises once in every two or three days for a period of one to three hours, engaged in inspecting the building. However, there is no dispute about the fact that neither of the owners resided in Oakland county, and that Mr. Meyer’s regular employment was not in that county. The record does not disclose that the architect was an “agent having in charge” the premises, so that good service could have been made upon him under the statute. Under the circumstances disclosed by this record plaintiff’s agent complied with the statute (3 Comp. Laws 1929, § 13106) by posting a copy of the claim of lien in a conspicuous place on the premises involved. There is no merit to appellants’ contention that, because the joint ownership of this property was vested in two persons, Mr. and Mrs. Meyer, therefore two notices should have been posted instead of one.
Appellants further claim that the amount of the lien decreed by the circuit judge is excessive. The Equitable Trust Company had charge of disbursing the funds secured by its mortgage on this property. On December 31,1929, it paid plaintiff $1,000 upon a certificate of the architect which recited the total amount of plaintiff’s claim as $2,222.62, thus leaving a balance of $1,222.62. In fact, the total amount of plaintiff’s bill was $2,778.28 but it seems plaintiff agreed with tbe principal contractor that it would discount the amount of its claim 20 per cent, providing it was paid within four months. Payment was not so made. Appellants now contend that plaintiff should be bound by its recital indorsed upon the architect’s certificate that the balance of its claim was $1,222.62 instead of $1,778.28. At the time of receiving the $1,000 plaintiff signed the following indorsement on the architect’s certificate:
“We have received of the Central Triist Company, $1,000 as per the above certificate and have accepted the same agreeing that the above statement and its appended notes are correct and in accordance with our agreements.”
At the time plaintiff entered into the conditional agreement to discount its bill, it had a valid lien for the full amount of its claim which lien was binding on each of these defendants. Plaintiff’s agreement to accept less than the full amount due it in discharge of its account was not binding because it was without consideration. Johnson v. Bratton, 112 Mich. 319. The trust company was in no way prejudiced by applying $1,000 out of the mortgage money which it had in its hands on this account because it has a mortgage lien to secure repayment, and there is no showing in this record that the mortgagee is not secure in obtaining payment to it either from the property or the mortgagors of the full amount of the mortgage debt. The condition upon which plaintiff agreed to discount its bill was not met, and plaintiff should not be bound thereby.
The decree of the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff entered into a contract in writing with defendant as follows:
“Agreement made this 1st day of November, A. D. 1926, between Chas. E. Choiniere hereinafter called the ‘employer,’ and Joseph Doe, of the city of Lincoln Park, hereinafter called ‘the employee.’
“The above employer agrees to let out on contract, to the above-mentioned Mr. Joseph Doe called the party of the second part. Properties to be moved namely, frame house from lot No. 65, Capital avenue and place on lot No. 576 Pagel avenue and brick house on lot No. 620 Pagel avenue.
“The above houses to be moved and placed up in as good condition as they are at present. For the remuneration of $900.
(Signed) “Charles E. Ci-ioiniere.
“ “Joseph Doe.
“Witness:
(Signed) “E. R. Cooke.”
Plaintiff alleges this contract was subsequently modified, and, as modified, was fully performed, and in its performance he used a large amount of timber and blocking which was left on defendant’s premises and which defendant converted to his own use. Plaintiff brought suit to recover compensation for the performance of the contract and damages for the conversion of the timber and blocking. From a judgment for plaintiff, defendant appeals. After the written contract was entered into, plaintiff alleges it'was discovered the brick house which was to be removed was not a brick veneer house as represented to him, but a solid brick house wherein the walls were improperly and insecurely tied in, and, it being impossible to move the structure without causing damage, defendant was informed of the situation, whereupon it was agreed plaintiff was to move the same for thersame consideration but at the risk of the defendant.
Plaintiff alleges upon the completion of the contract, as modified, by him, the defendant gave a check to apply thereon, the payment of which was subsequently stopped. Plaintiff claims the timbers and blocking used in moving the house were left on the job, and defendant refused to let plaintiff have the same, defendant claiming he was seeking to force plaintiff to settle by retaining the blocking. Defendant claims plaintiff agreed to move the houses for a fixed sum and to place them on their foundations in the new location in good condition; that plaintiff has not performed the contract, and is therefore not entitled to recover. Defendant claims he has not refused to let plaintiff have the timbers and blocking used in moving the house, and hence has not converted the same to his own use, and is not liable for conversion.
It is well settled that a written contract may be modified by parol and when sued upon the declaration must count upon the contract as modified or amended; and in order to entitle the plaintiff to recover the contract, as modified or amended, must be proven and established by a preponderance of the evidence.
In this case the dispute between the parties involves questions of fact. The case was properly submitted. We find no error in its submission. Its verdict is conclusive upon us.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Per Curiam.
Defendant appeals as of right from the entry of default judgment entered against him in a suit brought by plaintiff for the collection of attorney fees. Plaintiff is a duly licensed attorney and was a close personal friend of defendant. Plaintiff represented defendant in a number of legal matters from 1978 to 1982. Plaintiff filed suit to recover attorney fees in the amount of $43,122, inter alia. Defendant retained another attorney, Mr. Sharp, to represent him in the instant suit. Sharp and plaintiff set up an appointment for all three men to discuss the matter. Defendant was unable to attend the scheduled meeting as he was snowbound in another state, and he requested rescheduling. That afternoon plaintiff proceeded to obtain a default judgment against defendant.
On appeal, defendant contends that it was reversible error for the trial court not to give him seven days notice before entering the default judgment against him as his attorney’s actions were sufficient to constitute an appearance, that plaintiff committed fraud in obtaining the default judgment, that the award should be set aside due to plaintiff’s obtaining a prior award for $3,000 in legal fees and that it was an abuse of discretion for the trial court not to vacate the default judgment.
For defendant to be entitled to his written seven days notice prior to the entry of default judgment, it is necessary that he have appeared. GCR 1963, 520.2(2). If defendant was required to have this notice, its omission constitutes a denial of due process. Vaillencourt v Vaillencourt, 93 Mich App 344; 287 NW2d 230 (1979). However, what constitutes an appearance is not defined in a Michigan court rule or statute:
"This Court has held that 'appear’ as it is used in default proceedings should be taken 'in its generic sense’ as any act of a party acknowledging jurisdiction of a court or invoking court action on his behalf, Rhodes v Rhodes, 3 Mich App 396, 401; 142 NW2d 508 (1966), quoting from 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 658.
"Two requirements must be met to render an act adequate to support the inference that it is an appearance: (1) knowledge of the pending proceedings and (2) an intention to appear. Rhodes, supra, 6 CJS, Appearances, § 18, p 24. CJS restates the rule broadly:
" '[A]ny action on the part of defendant, except to object to the jurisdiction over his person which recognizes the case as in court, will constitute a general appearance.’ 6 CJS, Appearances, § 19, p 24.” Deeb v Berri, 118 Mich App 556, 563-564; 325 NW2d 493 (1982).
No Michigan case has considered whether written and oral communications between opposing counsel constitutes an appearance for purposes of the default rules. Other courts have held that correspondence between opposing counsel regarding an extension of time in which to file an answer was a sufficient appearance to require notice before entering a default, Simonson v Sittner, 82 NW2d 78 (ND, 1957), and that a defendant attending a meeting for the purposes of negotiating a settlement was also sufficient to constitute an appearance. Svard v Barfield, 291 NW2d 434 (ND, 1980).
In the instant case we find that defendant’s attorney communicated with plaintiff for the pur pose of negotiating a settlement, wrote a letter seeking an extension of time for filing an answer, and even attended the scheduled meeting. We find this to be consistent with the policy expressed in Deeb, supra, as defendant’s attorney was aware of the proceedings and demonstrated an intention to appear.
"In interpreting the federal counterpart to Michigan’s notice requirement, one court observed:
" 'The notice requirement contained in [FRCP] 55(b)(2) is, however, a device intended to protect those parties who, although delaying in a formal sense by failing to file pleadings within the twenty-day period, have otherwise indicated to the moving party a clear purpose to defend the suit.’ H F Livermore Corp v Aktiengesellschaft Gebruder Loepfe, 139 US App DC 256, 258; 432 F2d 689, 691 (1970).” Deeb, supra, p 563.
Accordingly, we reverse the trial court’s decision and vacate the default judgment due to defendant’s lack of notice.
Defendant has raised alternate grounds for vacating the default judgment; however, we need not discuss these issues in light of our resolution of the foregoing.
We agree with defendant’s contention that any monies awarded plaintiff should take into account the $3,000 already awarded to plaintiff in our unpublished decision of In the Matter of the Estate of Helen L Wirsing, Deceased, Docket No. 74119, decided November 8, 1984. We find that the instant case involves additional claims separate and distinct from the claim against Wirsing’s mother’s estate and therefore the award of $3,000 to plaintiff for services rendered to the estate does not satisfy the claims brought against defendant for other legal services. However, we do instruct the trial court to account for the $3,000 award if plaintiff should ultimately prevail.
Reversed and remanded with instructions. Costs to appellant. | [
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Per Curiam:.
On March 18, 1976, plaintiff was injured in a work-related accident while in the employ of defendant N. G. Gilbert Corporation. Plaintiff petitioned for differential benefits from defendant Second Injury Fund, claiming total and permanent disability due to incurable insanity or imbecility under MCL 418.361(2)(f); MSA 17.237(361X2)©, now MCL 418.361(3)©; MSA 17.237(361)(3)(f). After a hearing held December 10 and 19, 1979, a hearing officer found plaintiff to be permanently and totally disabled and ordered benefits to be paid on the basis of a weekly wage of $427.66. This decision was appealed to the Work ers’ Compensation Appeal Board which, on January 19, 1983, affirmed the finding of disability but modified the award to reflect weekly pay of $316. Defendants’ application for leave to appeal to this Court was denied June 6, 1983. Defendants then filed a delayed application for leave to appeal to the Supreme Court. On July 30, 1984, in lieu of granting leave, the Supreme Court remanded the case to this Court for consideration as on leave granted. 419 Mich 899.
The plaintiff was injured at age 23 when he fell while clearing limbs from power lines during a severe ice storm. He developed a subdural hematoma, requiring brain surgery. It was undisputed that, as a result of his injuries, plaintiff developed a seizure disorder involving frequent seizures, some severe. At the time of the hearing, plaintiff testified that he was taking anti-convulsive medication three times a day but was still experiencing seizures at the rate of at least one every two weeks.
The plaintiff presented himself as an angry, depressed, suicidal individual who suffered from organic brain syndrome resulting in problems with recall, attention and concentration, leading to frequent irritability and confusion. This picture was supported by the testimony of plaintiff’s mother and sister, who testified that plaintiff had undergone a dramatic personality change, and by Dr. Joel Dryer, a psychiatrist.
The defense presented the theory that the plaintiff was suffering only from epilepsy, and was otherwise normal. This view was supported by Dr. Graydon Forrer, a psychiatrist, and Michael Sachs, a psychologist. There was also evidence that the plaintiff was active, golfing, hunting and weightlifting frequently. He handled his own financial affairs and had a driver’s license.
The WCAB opinion reviewed the law and evidence and concluded:
"The record is consistent with a total disability from the severe psychomotor seizure disorder, complicated by an emotional overlay and permanent brain damage productive of behavioral-judgmental changes amounting to significant intellectual impairment. We find that it equated with a severe cognitive dysfunction affecting the quality of plaintiff’s personal nonvocational life in significant activity comparable to the loss of two members or the sight of both eyes. Redfern [v Sparks-Withington Co, 403 Mich 63; 268 NW2d 28 (1978)]. Plaintiff has proven by a preponderance of the evidence that he is entitled to permanent and total disability benefits for incurable imbecility under * * * the Act.”
This Court’s review of a WCAB decision is limited to reviewing questions of law, determining whether there is any fraud, and deciding whether there is any competent evidence in the record to support the board’s findings of fact. MCL 418.861; MSA 17.237(861), Fuchs v General Motors Corp, 118 Mich App 547, 552; 325 NW2d 489 (1982), lv den 417 Mich 1077 (1983). Defendants contend that the WCAB erred as a matter of law in holding that plaintiffs epilepsy is equivalent to imbecility. We disagree with defendants’ characterization of the WCAB opinion, being persuaded that the appeal board found the requisite intellectual impairment apart from plaintiff’s epilepsy. In this regard, we note that the WCAB stated that epilepsy did not necessarily constitute mental illness or give rise to social dysfunction, citing Redfern, supra, p 84, fin 20. We are convinced that the board made the same distinction with respect to epilepsy and cognitive dysfunction.
Defendants argue that an imbecile is an individual with an IQ between 20 and 50 and a mental age of 6 to 7 years, although conceding that the term is no longer used by the medical community. They further state that such a definition is consistent with the legislative purpose of providing benefits to persons who are totally and permanently disabled and unable to return to any employment. In Redfern, however, the Court explicitly rejected the test enunciated in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971), lv den 385 Mich 784 (1971), which allowed compensation for permanent disability only when the employee’s mental condition precluded gainful employment. The Redfern Court stated that the focus of the inquiry should be the effect on the worker’s quality of life, not his or her wage-earning capacity. Noting that definitions of insanity appropriate to other purposes were not necessarily appropriate to workers’ compensation cases, the Court stated that it was seeking "definitions of insanity and imbecility that serve the policies of the Worker’s Disability Compensation Act”. Redfern, supra, p 77. Accordingly, we cannot accept defendants’ definition based on medical usage but must abide by that given by the Supreme Court in Redfern. The WCAB properly applied the Redfern definition of imbecility.
There is competent evidence supporting the WCAB’s finding of permanent brain damage producing behavioral-judgmental changes that amounted to significant intellectual impairment. Defendants do not argue that fraud occurred. Therefore, we uphold the appeal board decision.
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Per Curiam.
Plaintiffs appeal as of right from the Oakland County Circuit Court’s November 1, 1983, order denying their motion for class certification and granting defendants’ motions for accelerated judgment.
This action was brought by 39 named plaintiffs, individually and as class representatives, for damages arising out of plaintiffs’ purchase of tax-shel tered annuity policies from defendant American Bankers Life Assurance Company of Florida, and its agents, Richard Pawlowski, Danny G. DeWolf, and John D. Martin Sloan. The circuit court denied plaintiffs’ motion for class certification and granted defendants’ motions for accelerated judgment on the ground that none of the individual plaintiffs’ claims exceeded $10,000, and therefore the court lacked subject-matter jurisdiction.
Defendant American Bankers is a Florida insurance company authorized to do business in Michigan. American Bankers, through its various agents, offered for sale certain tax-sheltered annuity policies (TSAs). The P-1-7400, a type of annuity policy sold by American Bankers in Michigan, was marketed primarily to Michigan school employees. Under this type of policy, the school employee’s premium was deducted from his salary by the school system and paid to the insurer. Plaintiffs, 39 Michigan school employees, purchased TSAs from American Bankers, through its agents, defendants Pawlowski, DeWolf, Sloan and Daniels.
On April 14, 1982, plaintiffs filed this action in Oakland County Circuit Court seeking actual and punitive damages for common-law fraud and deceit, violations of the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., and breach of fiduciary responsibility. The basis for the three counts is that American Bankers, through its agents, misrepresented the contents and benefits of the company’s policies. Plaintiffs allege that defendant agents made false, deceptive, and misleading representations about the TSAs and also made significant omissions of important information. Plaintiffs claim that, as a result of these misrepresentations and omissions, plaintiffs invested and subsequently lost significant portions of their investments.
Plaintiffs’ complaint contains an allegation of a representative class, claiming that the TSAs offered for sale by defendants were purchased by "a very substantial number of school employees in the State of Michigan, which plaintiffs believe may number in excess of 1,000 persons”. Plaintiffs sought class certification pursuant to former GCR 1963, 208.1(3), asserting that the questions of law and fact were common to all persons sought to be represented.
On November 1, 1983, the trial judge issued an opinion and order denying class certification and granting accelerated judgment to defendants on the ground that no individual plaintiff had alleged an amount in controversy in excess of $10,000. The trial judge found that the alleged fraudulent misrepresentations formed the basis for plaintiffs’ claims of fraud, breach of fiduciary duty, and MCPA violations. Relying on Grigg v Michigan Nat’l Bank, 405 Mich 148; 274 NW2d 752 (1979), and Freeman v State-Wide Carpet Distributors, Inc, 365 Mich 313; 112 NW2d 439 (1961), the court held that permitting plaintiffs to proceed on a representative basis would not promote the "convenient administration of justice”.
Plaintiffs appeal as of right, arguing that class certification is proper as to their claims of common-law fraud and MCPA violations. Defendants contend that the trial court properly denied plaintiffs’ request for class certification and further contend that the circuit court correctly granted accelerated judgment because, even if a class is certified, the plaintiffs’ claims should not be aggregated and therefore the action is not within the circuit court’s subject-matter jurisdiction.
I
Did The Circuit Court Correctly Deny Class Certification Under GCR 1963, 208.1(3)?
Plaintiffs seek to maintain a "spurious” class action, which may be maintained only if the requirements of GCR 1963, 208.1(3) are met. The rule provides:
".1 Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, 1 or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is
"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”
In Grigg v Michigan Nat’l Bank, supra, p 167, the Supreme Court delineated the requirements which must be satisfied in order for an action to proceed on a representative basis under rule 208.1(3):
"1. There must be an identifiable class;
"2. The number of persons in the class must be so large that it would be impracticable to bring them all before the court;
"3. The person or persons seeking to represent the class must be members thereof;
"4. The interests of the class must be adequately represented;
"5. The right or rights sought to be enforced must be several;
"6. There must be a common question of law or fact affecting the several rights, and
"7. A common relief must be sought.”
In addition, the Supreme Court recognized one further requirement which must be met: certification of a class action must promote the "convenient administration of justice” which the Supreme Court deemed "an outgrowth of the equitable heritage of class actions and the realization that there are practical limitations on the judiciary’s capability to resolve disputes”. Grigg, supra, p 184.
In Grigg, the Supreme Court cited Freeman v State-Wide Carpet Distributors, Inc, supra, as an example of the Court’s application of the "convenient administration of justice” standard. Freeman involved several hundred plaintiffs who brought an action against a carpet seller and a bank, alleging that the defendants had engaged in a fraudulent scheme to sell inferior carpeting at exorbitant prices. The plaintiffs alleged that they were fraudulently induced to purchase inferior carpeting from the defendant seller and to finance the purchases through the defendant bank. They sought rescission of the contracts and promissory notes, return of their payments, and injunctive and monetary relief. The Supreme Court held that the plaintiffs could not join together in one action under MCL 608.1; MSA 27.591 (former joinder rule) or bring a classs action under Court Rule No. 16 (1945) (Michigan’s first class action court rule). The Supreme Court reasoned:
"In the case at bar the bill of complaint embraces separate causes of action arising out of several hundred transactions apparently occurring over a period of many months and perhaps several years. Presumably some of the misrepresentations alleged therein were made to some plaintiffs and not to others and some plaintiffs reasonably may have relied on them and others may not. It is evident that the circumstances of the execution of the purchase contracts and the promissory notes varied considerably so that some plaintiffs may have grounds for rescission not available to others. In short, the very substantial disparity of issues of law and facts between the multiple plaintiffs’ claims would render any judicial proceeding in which all were sought to be adjudicated simultaneously, incomprehensible to the litigants, their counsel and the chancellor as well.
"The rule [Court Rule No. 16 (1945)] requires that, where the right sought to be enforced in a class action is not joint or common, or secondary, but there are involved instead several rights (as there are here), the object of the action must be adjudication of claims affecting specific property or there must be 'a common question of law or fact affecting the several rights and a common relief must be sought. Plaintiffs suggest that there is a common question of law relating to defendant bank’s status as a holder in due course and that a common question of fact exists because some or all of the plaintiffs relied upon certain television advertising used by the defendants and defendants otherwise followed a uniform pattern of conduct in their dealings with plaintiffs. Although the bank’s status as a holder of various promissory notes may be involved in each of the plaintiffs’ claims and although each plaintiff was subjected to the same advertising or other uniform pattern of conduct, the defendants’ liability to each plaintiff will depend upon speciñc facts which, by the nature of these transactions, cannot be common to all plaintiffs or to any substantial number of them.” 365 Mich 320-321. (Emphasis added.)
In the present case the circuit court expressly held that plaintiffs were unable to meet the "convenient administration of justice” requirement of Grigg, supra. The court found that, as in Freeman, major practical problems would arise if the case were allowed to proceed on a representative basis. On appeal, plaintiffs contend that Freeman is factually distinguishable and is not applicable to an action based on the MCPA. Defendants assert that Freeman is controlling and that the circuit court correcty denied plaintiffs’ request for class certification. We address these contentions below with regard to both the common-law fraud count and the MCPA count.
A. Common-Law Fraud
Courts have generally disfavored consumer class actions based on fraud because the typical consumer fraud case involves misrepresentations made to a large number of consumers at various times and in separate transactions. Since the separate transactions, although possibly similar, require different elements of proof and create different defenses, a class action is frequently impracticable. See generally, Anno: Consumer class actions based on fraud or misrepresentation, 53 ALR3d 534.
The elements which a plaintiff must prove to recover for fraudulent misrepresentation were stated in Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919);
"The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.”
We believe the circuit court correctly held that class certification in this case would not promote the convenient administration of justice. Each plaintiff entered into a separate transaction with defendant American Bankers. The alleged misrepresentations were made at different times and places, and by different agents. Proof of the reliance element will vary from plaintiff to plaintiff, and defendants will assert varying defenses, depending on the facts and circumstances surrounding each transaction. Therefore, the circuit court would essentially be required to try each plaintiff’s case. As in Freeman, the disparity of issues of law and fact renders plaintiffs’ common-law fraud action impracticable to try on a class action basis.
Plaintiffs argue that their allegation of a "common marketing scheme” employed by defendant American Bankers distinguishes this case from Freeman. We do not believe, however, that this allegation is any different from the Freeman plaintiffs’ allegation of a "uniform pattern of conduct”. The Freeman Court made clear that "although each plaintiff was subjected to the same advertising or other uniform pattern of conduct, the defendants’ liability to each plaintiff will depend upon specific facts which, by the nature of these transactions, cannot be common to all plaintiffs or to any substantial number of them”. Freeman, supra, p 321.
Plaintiffs also assert that this Court should not follow Freeman because it was decided prior to United States Fidelity & Guaranty Co v Black, 412 Mich 99; 313 NW2d 77 (1981), in which the Supreme Court recognized the tort of innocent misrepresentation. We do not agree. Plaintiffs’ complaint does not allege the tort of innocent misrepresentation. Furthermore, although the innocent misrepresentation rule eliminates the elements of scienter and intention that the misrepresentation be acted upon, it preserves the requirements of affirmative representation, reliance, and causation. Black, supra, pp 116-119. Even if plaintiffs’ complaint alleged innocent misrepresentation, the concerns of Freeman would still be present.
Plaintiffs finally contend that this Court should not follow Freeman because of its "ancient vintage”. We do not believe, however, that the market place has changed so drastically that this Court should distinguish Freeman.
B. Michigan Consumer Protection Act
Section 3(1) of the MCPA, MCL 445.903; MSA 19.418(3), prohibits certain unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce. Section 11, MCL 445.911; MSA 19.418(11), specifically provides for a class action to redress violations of § 3:
"(3) A person who suffers loss as a result of a violation of this act may bring a class action on behalf of persons residing or injured in this state for the actual damages caused by any of the following:
"(a) A method, act, or practice in trade or commerce defined as unlawful under section 3.”
Plaintiffs have alleged several violations of § 3 of the MCPA. The trial court found that the alleged fraudulent misrepresentations formed the basis of the MCPA cause of action as well as the common- law fraud claim, and thus treated both counts the same in deciding the class certification issue. Plaintiffs argue on appeal that the MCPA creates a statutory cause of action which is not synonymous with common-law fraud, and that the elements of proof under the MCPA make that cause of action more amenable to class action treatment. In other words, plaintiffs argue that Freeman should not be applied to the MCPA count because violations of the MCPA will be easier to prove on a representative basis than would be a common-law fraud claim.
Many states have construed their various consumer protection acts as creating a cause of action separate from common-law fraud. See e.g., Murry v Western American Mortgage Co, 124 Ariz 387; 604 P2d 651 (Ariz App, 1979); State ex rel Danforth v Independent Dodge, Inc, 494 SW2d 362 (Mo App, 1973). We observe, however, that the great majority of the specifically prohibited practices enumerated in the MCPA, including those relied on by plaintiffs in the present case, involve fraudulent misrepresentations. Therefore, we believe the issue must be decided with reference to the common-law tort of fraud. See Mayhall v A H Pond Co, Inc, 129 Mich App 178, 182-183; 341 NW2d 268 (1983).
While the elements of proof of MCPA violations are not necessarily tantamount to those of common-law fraud, it does not follow that the principles of Grigg and Freeman are inapplicable to a class action alleging violations of the MCPA. Clearly, there are types of consumer-fraud actions which would create common questions of law and fact sufficient for an MCPA class action to provide a fair and efficient method of adjudication. While MCPA violations may, in some cases, be more amenable to proof on a class-wide basis than would be a common-law fraud action, we emphasize that each plaintiff in the instant case will be required to prove his individual right to recovery and his damages. We find nothing in the record to suggest that this case is particularly amenable to class action proofs. Plaintiffs’ complaint alleges representations made at different times and places, over several years, to different people by four different agents. Since each plaintiff entered into a separate transaction, the claims and defenses asserted will vary depending on the facts and circumstances surrounding each transaction. Defendant American Bankers argues in its appellate brief that, although an answer has not been filed, it would dispute a number of plaintiffs’ allegations. Further, the affidavits executed by plaintiffs demonstrate that there is a disparity of issues.
Plaintiffs contend that failure to certify the class will effectively prevent them from obtaining any redress for the alleged wrongs committed by defendents. However, § 11(2) of the MCPA provides an incentive for an individual plaintiff to pursue a claim in district court. Section 11(2) permits a person who suffers a loss as a result of a violation of the MCPA to bring an action to recover actual damages or $250, whichever is greater, together with reasonable attorney fees. Therefore, contrary to plaintiffs’ argument that an individual action for fraudulent misrepresentation in the sale of insurance is not worth the cost, the individual plaintiffs are provided an adequate remedy under § 11(2).
We conclude that the trial court did not err in denying class certification for both the common-law fraud and the MCPA counts.
II
Did the Trial Court err in Granting Acceler ated Judgment in Favor of Defendants on the Ground That no Individual Defendant had Alleged an Amount in Controversy Exceeding $10,000?
We have found that plaintiffs’ motion for class certification was correctly denied. The separate claims of the individual plaintiffs may therefore not be aggregated to establish the jurisdictional amount of $10,000. Boyd v Nelson Credit Centers, Inc, 132 Mich App 774; 348 NW2d 25 (1984). We therefore find that the circuit court correctly granted accelerated judgment in favor of defendants and dismissed the action without prejudice to plaintiffs’ right to bring an action in district court.
Affirmed.
Lewis B. Daniels was apparently never served.
The class certification issue was decided under former rule 208. The rule was amended on December 29, 1982, effective April 1, 1983. The Supreme Court’s order dated December 29, 1982, states that the new rule applies to class action suits filed on or after April 1, 1983, "and shall be applied to class actions pending on that date if the court finds that to do so would be feasible and would not be unfair to any party”. The trial judge elected to apply the former court rule.
Some courts have permitted consumer class actions based on fraud. See e.g., Metowski v Traid Corp, 28 Cal App 3d 332; 104 Cal Rptr 599 (1972); Vasquez v Superior Court of San Joaquin, 4 Cal 3d 800; 94 Cal Rptr 796; 484 P2d 964; 53 ALR3d 513 (1971). | [
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Butzel, J.
Harold Miller and wife, plaintiffs, are the owners of 69 acres of land in Washtenaw county. The northerly portion of their land adjoins on the west a corn field located on the southerly part of a 50-acre farm owned by Ernest Zahn, defendant herein. There were some natural depressions in defendant’s land through which he claims surface water was diverted to plaintiffs’ land. Defendant was anxious to drain the surface water more rapidly from his corn field, and sought permission to build a tile drain and join it to one on plaintiffs ’ property, that was the upper drain of a long interconnecting tile drain serving five farms. One of the owners of the farms objected, on the ground that the interconnecting tile would not accommodate the increased volume of water. Defendant, however, proceeded to build two tile drains that emptied on plaintiffs’ farm. They allege that it so increased the volume of water as to cause damage to their lands, and also overloaded the interconnecting tile drain. Defendant contends that the large amount of water on plaintiffs ’ lands is attributable to unusually heavy rains, and not to an increased volume of water from the drains. Plaintiffs further claim that the land defendant seeks to drain by means of tile consists of marshy soil which he has attempted to recondition for raising corn. A number of witnesses testified that the flow of water was increased by the tile drains on defendant’s land and caused a large accumulation of water on plaintiffs’ land.
It is unnecessary to cite authorities to show that when surface water, even if flowing in natural depressions over a farm, is collected in a tile instead of partly percolating the ground, the volume of water carried through the tile not only will be greatly increased, but the flowage will be greatly accelerated through the outlet of the drains, so as to.damage the adjoining lands into which the drains empty. The testimony was somewhat conflicting. The judge not only heard the testimony, but, with the consent of the parties, visited the premises, and found that plaintiffs were entitled to the relief prayed for. The record sustains the judge’s findings. The very effect of the tile drain was to cause the flow of more water 'with greater velocity than theretofore. A dominant tenant “cannot collect and concentrate such waters and pour them through an artificial ditch in unusual quantities upon his adjacent proprietor.” Gregory v. Bush, 64 Mich. 37 (8 Am. St. Rep. 797).
See, also, Yerex v. Eineder, 86 Mich. 24 (24 Am. St. Rep. 113); Osten v. Jerome, 93 Mich. 196, 202; Launstein v. Launstein, 150 Mich. 524 (121 Am. St. Rep. 635).
Plaintiffs are entitled to the relief prayed for, and the decree of the lower court is affirmed, with costs to plaintiffs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred. | [
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Potter, J.
January 4, 1933, defendant, St. John’s Greek Catholic Church of Detroit, petitioned to set aside a mortgage sale held in pursuance of decree of the trial court reversed in 260 Mich. 331. Plaintiffs answered, alleging the validity of the sale and its confirmation. Plaintiffs in Horbal v. St. John’s Greek Catholic Church, 260 Mich. 331, sought by bill to foreclose two mortgages in one suit. A decree of foreclosure as to both was entered by the trial court. On appeal, one of the mortgages sought to be foreclosed was found to be null and void. The decree entered by the trial court was reversed and, a new decree entered by this court. The sale of the mortgaged premises was based upon a decree which no longer exists, which was reversed, vacated, and held for naught. It is claimed by plaintiffs the sale was valid, though based upon an invalid decree which was reversed, because the decree of reversal did not hold the first mortgage being foreclosed void. After 20 days from the entry of a final decree, if no appeal is taken and no petition for rehearing filed, chancery cases may be enrolled (3 Comp. Laws 1929, § 14520); and, when enrolled, a certified copy of a decree affecting real estate may be recorded in the office of the register of deeds (3 Comp. Laws 1929; § 14522). Enrollment imports verity. It establishes the final, conclusive, unimpeachable character of the decree. It is conclusive evidence of its validity. There can be no enroll ment of a decree appealed from or if petition for rehearing is pending. If an appeal is taken in a foreclosure ease without giving a bond, there can be no enrollment. There was no stay of proceedings (3 Comp. Laws 1929, § 15511) and hence a party making a sale pending appeal took his chances upon the decree being upheld or reversed.
In Pinel v. Pinel, 172 Mich. 611, it was held the plaintiff might proceed with foreclosure on his original decree at his peril.
In Gerasimos v. Wartell, 244 Mich. 588, it is said:
“The action of the clerk on appeal in attaching together and certifying the papers on file is, in effect, an enrollment of the decree. ’ ’
A valid sale cannot be based upon a void decree. A decree when reversed is no decree. The action of the clerk on appeal in attaching together and certifying the papers on file to the Supreme Court is not in fact an enrollment of the decree under facts such as are involved in this case. It does not import verity. ■ Instead of being conclusive evidence the decree of the trial court is final, conclusive, and unappealed from, it is conclusive evidence the decree may not be held to be final and conclusive, because appealed from, and that, if a sale of lands is made pending the disposition of such appeal, it will be held good if the decree of the lower court is affirmed — that is, held to be final and conclusive — but bad if such decree is reversed or set aside — held not to be final and conclusive. The statute, 3 Comp. Laws 1929, §15511, in declaring an appeal from a decree of foreclosure shall not operate to stay proceedings thereon unless a bond is given, does not attempt to hold such sales valid. It only says to the moving party you may act on the decree already entered, but take your chances. This case is to be distinguished from Walker v. Schultz, 175 Mich. 280, and similar cases. In that case the decree under which the sale was made was valid. In this case the decree was void. That case concerned irregularities in the sale. This case involves a sale under an invalid decree. In that case it was held the irregularities were sufficient to vitiate the sale made, but held the bill to set aside the sale would be considered as a bill to redeem, and if the premises were not redeemed, “the premises can be again sold as in foreclosure.” Here there is no valid, binding, and conclusive decree back of the sale. The decree upon which it was based was set aside. When the decree on which the sale was based was ■reversed and set aside, the sale based thereon was without jurisdictional foundation, and, in effect, no sale. Possession taken under a sale held void can confer no rights. The decree of the trial court is reversed with costs. The sale made is held void. The ease- will be remanded for further proceeding in the circuit court.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant for hitting him with his automobile. Plaintiff claimed defendant was negligent in driving recklessly at an excessive rate of speed, on the wrong side of the street, in violation of the ordinance of the city of Detroit, at night, with defective headlights, without signaling plaintiff with his horn. There was judgment for plaintiff. Defendant appeals, claiming plaintiff was guilty of contributory negligence, the verdict was contrary to the preponderance of the evidence, and against the great weight of the evidence.
The case was tried before the circuit judge without a jury. There was ample testimony to support the judgment. We cannot say the verdict was contrary to the preponderance of the evidence or against the great weight of the evidence.
Defendant insists plaintiff was guilty of contributory negligence, having been struck after he had crossed the center portion of the highway, by defendant’s automobile, which should have been on the opposite side of the highway.
It is possible the plaintiff might have seen defendant’s automobile if he had looked in the direction from which it came, but the fact he did not see defendant’s automobile, driving on the wrong side of the street, until at about the time it struck him, is not contributory negligence as a matter of law.
The case was closely tried. The question of plaintiff’s contributory negligence was a question upon which the facts were in dispute. Primarily the determination of those facts was for the trial court who saw the witnesses and heard their testimony. We find no error.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant on all the common counts in assumpsit for rent due under a lease of real estate in Detroit, by which defendant covenanted:
“To 'pay the lessor as rental for said premises the sum of $516.67 May 1, 1930, and a like sum in advance on the first day of 'each calendar month thereafter during the term of this lease. * * *
“In addition to the foregoing rents, the said lessee does hereby agree to pay upon the 15th day of July- and the first day of December of each and every year, 25 per cent, of all taxes, of every nature and description, which may be assessed against the premises known and described as 116 Michigan avenue. Said instalments shall be deemed rent reserved under this lease.”
It is undisputed that there was due from defendant, rent for November, 1931, $516.67; interest upon that sum from November 1, 1931, to January 2, 1932, at 5 per cent., $4.30; 25 per cent, of the taxes assessed against the property, $997.85; interest thereon from the date that the same was due to the date of judgment, $23.12; total, $1,541.94. Judgment was rendered for plaintiff for $1,562.08. Subsequently plaintiff filed a remittitur in the circuit court for $20.14, reducing the judgment rendered to $1,541.94. Defendant appealed, claiming plaintiff should have paid the taxes and billed defendant for his proportionate part thereof. This is answered by the covenant of the.lease above quoted. No penalties are included in the judgment. No interest above 5 per cent, is charged to defendant. Defendant contends there can be no recovery under the common counts in assumpsit with no special count and no count for use and occupation in the declaration. In so far as the amounts involved in the judgment are concerned, plaintiff had fully performed the contract on his part, and all that remained for defendant to do was to pay the money due from him to plaintiff. Under such circumstances, even though the cause of action is grounded upon a special contract, performance relieves the plaintiff of declaring specially upon the contract, and an action upon the common counts in assumpsit will lie to recover the amount equitably clue from defendant to plaintiff. Begole v. McKenzie, 26 Mich. 470; McGraw v. Sturgeon, 29 Mich. 426; Thomas v. Caulkett, 57 Mich. 392 (58 Am. Rep. 369); Nugent v. Teachout, 67 Mich. 571; Flint & P. M. R. Co. v. Wayne Circuit Judge, 108 Mich. 80; White v. Taylor, 113 Mich. 543; Nicol v. Fitch, 115 Mich. 15 (69 Am. St. Rep. 542); Snelling v. Brown, 167 Mich. 202; Sharrar v. Nestle, 222 Mich. 538; American Cigar Co. v. Shewitz, 224 Mich. 556; 1 Green’s Practice (3d Ed.), p. 415; 5 C. J. p. 1381. We discover no error.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff is the owner of property on Ohio boulevard, so-called, in the city of Detroit, and by her bill of complaint seeks to have the city enjoined from collecting an unpaid instalment of a paving tax. She bases her right to relief on the provision in the Detroit city charter which provides that the cost of paving boulevards shall be paid by the city at large rather than being assessed against abutting property as in the case of ordinary streets and avenues. Prom the decree granting the relief sought defendant has appealed.
Since this case was disposed of in the circuit decision was rendered in this court in Houseman v. City of Detroit, 257 Mich. 557. One of the plaintiffs in that case (Oscar E. Frost) owned property fronting on Ohio boulevard in the same addition and locality as the plaintiff’s lot involved in the instant case. A review of this record fails to disclose any facts in consequence of which this case can be distinguished from the Frost Case which presented the identical question. Decision herein is controlled by Houseman v. City of Detroit, supra.
The decree of the circuit court is reversed, with costs to appellant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
In the probate of the estate of Frank S. Beckton, the defendant, probate judge of the county of St. Clair, on August 30, 1929, ordered Thomas Scupholm, the executor thereof, to pay to Lorena Beckton, his widow, the sum of $200 in cash and the sum of $25 per week from the date of the decedent’s death until the further order of the court as and for a widow’s allowance. The widow died on June 27, 1930. At that time there remained unpaid under the court’s order the sum of $1,559.60. The plaintiff was duly appointed administrator with the will annexed of her estate, and made demand upon Scupliolm as executor for the payment thereof to him, and such demand was refused. He thereupon filed a petition in the probate court, praying for an order authorizing and empowering him to commence suit against the executor and the sureties on his official bond to recover such amount. An order to show cause was granted and return thereto made by the executor. In it he stated:
“That on several occasions during the term of said order, of widow’s allowance, the said Lorena Beckton has requested me to keep the property in said estate up, and protect the same, and that if she got hard up, or needed the allowance, she would call upon me for the same. And that by reason of her request, said allowances were not paid in full.”
He further stated that, prior to the death of the widow, there had come into his hands as executor the sum of $5,653.23, and that he had disbursed for obligations of the estate, including that paid the widow, the sum of $5,336.52, leaving a balance in his hands of but $407.10, and that, if the court determines that the claim of the plaintiff is a valid one against the estate, it will be necessary to sell real estate to satisfy it.
• The defendant, probate judge, declined to make such an order, whereupon plaintiff petitioned the circuit court for the county of St. Clair for a writ of mandamus to compel such action on his part. From an order dismissing such petition, plaintiff has taken this appeal.
It is apparent to us that plaintiff has mistaken his remedy. The executor, in his return to the order to show cause, stated that “if the said claim, referred to in said citation is a valid claim against said estate, and this court so determines, an order will be required authorizing the sale of real estate to pay said claim. ’ ’
The issue thus presented was whether the amount due the widow at her death was a valid claim against her husband’s estate. We think the executor was clearly right in insisting that this question should be determined before payment thereof should be made by him, and plaintiff’s remedy was by petition to the probate court to require him to make such payment. He had no personal interest in the matter, and had an abundance of property (real estate) in his hands as executor to satisfy the claim, if ordered by the court to pay it.
Irrespective of the question as to whether the exercise of discretion by the probate judge was reviewable by mandamus, which counsel discuss, we have no hesitation in holding that, if it was, there was no showing of abuse of it on his part.
To avoid further litigation, as the matter is discussed in the briefs of counsel, we feel impelled to pass upon the legal question presented. Under 3 Comp. Laws 1929, § 15553, the judge of probate may make such reasonable allowance as may be judged necessary for the maintenance of the widow during the progress of the settlement of the estate. Her right thereto became vested when the order for payment was made, and on her death passed to her legal representative. 24 C. J. p. 258. The authorities cited sustain this holding. See, also, 1 Woerner on Administration (3d Ed.), §§86 to 92, inclusive.
The order of the''circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant to recover damages alleged to have been suffered by reason of his wife’s injury at a highway intersection collision between an automobile driven by George McKelvey, in which plaintiff’s wife, Hazel McKelvey, was riding, and that driven by defendant on September 3, 1929. George McKelvey was driving in a westerly direction on the Muskegon-Cedar Springs highway, and at the intersection of Walker road his car was struck by that driven by defendant, causing the injuries to plaintiff’s wife, resulting in the damages which plaintiff sues for. The negligence of defendant complained of is that he did not have his automobile under control, operated his automobile at an excessive rate of speed, and defendant, having ample space to do so, did not turn his automobile to the left and rear of that in which plaintiff’s wife was riding, so as to avoid injury. There was judgment for plaintiff, and defendant appeals.
By appropriate assignments of error defendant raises several questions, contending he was-not negligent, the driver of the car in which plaintiff’s wife was riding was guilty of contributory negligence, the charge of the court was argumentative and prejudicial, and the unsolicited comments, voluntary interruptions, and explanations of the testimony by the trial court precluded defendant from having a fair trial. The trial court did not hold defendant negligent, but held the question of defendant’s negligence was for the jury.
Defendant had the right of way. The intersection was a stop crossing, so far as the driver of the car in which plaintiff’s wife was riding is concerned. Defendant says he could have stopped his car within a distance of 60 feet, and he saw the driver of the car in which plaintiff’s wife was riding was not going to stop when he was 100 feet away from the intersection. He did not stop his car. The question of defendant’s negligence was for the jury.
Defendant was driving on a through trunk line highway. The driver of the car in which plaintiff’s wife was riding was driving upon an intersecting highway. It was the duty of drivers of automobiles on this intersecting highway to stop their vehicles before crossing or attempting to cross the through or trunk line highway. The driver of the car in which plaintiff’s wife was riding knew this. He was 61 years old, had driven an automobile for several years, and as he approached this trunk line highway he was aware of its character, of his duty to stop, and saw the stop sign. It was broad daylight, the sun was shining, and he saw defendant’s car coming at a greater rate of speed than he was driving or had been driving, although he says he did not observe the speed of defendant’s car carefully. Defendant claims the driver of the car in Which plaintiff’s wife was riding did not stop his automobile, but the driver says he did stop his car momentarily, and started ahead, at low speed, trying to get across the trunk line highway fast enough so the other automobile would not strike him; that he had made up his mind he had time to get across when he started across, so that, as far as the driver of this automobile is concerned, he knew this intersection was a place of danger, knew the defendant had the right of wayjsaw defendant approaching the intersection with his automobile, knew it was a stop highway, knew he had brought his car momentarily to a stop, put his car in low gear, knew he would not be able to accelerate rapidly, and with full knowledge of the conditions, took a chance on getting across without being hit. He took a chance in the face of known danger. His negligence is imputable to plaintiff’s wife, who was riding with him. Without such negligence upon the part of this driver, the injury would not have occurred. We think his contributory negligence bars recovery. This renders unimportant a discussion of the other assignments of error.
Judgment reversed, and remanded, with direction to enter judgment for defendant, with costs of both courts.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff was injured in an accident by an automobile owned by defendant Jane McDonald and driven by defendant Robley Huber. She recovered a judgment in the circuit court for $7,000 against defendants. The defendant insurance company had insured defendant McDonald against liability for accidents of the kind suffered by plaintiff to the extent of $10,000. After judgment rendered, against the principal defendants, an execution was issued against them and returned unsatisfied. Garnishment proceedings were instituted against the insurance company, which disclosed that, after the accident, it denied liability on its policy of insurance and settled with the defendants for $150 and the cost of defending the suit, and was thereby discharged from liability; whereupon plaintiff filed a bill in the nature of a bill in aid of execution to set aside this settlement on the ground that by it the principal defendants attempted to fraudulently transfer assets arising from the insurance company’s liability on the insurance policy beyond the reach of plaintiff as a creditor, and that this settlement and release of liability was void because in violation of the fraudulent debtor’s act. It is claimed by defendant insurance company the plaintiff can have no greater rights than defendant Jane McDonald, had, and inasmuch as defendant Jane McDonald settled with the insurance company and released it from liability, the plaintiff cannot recover. This is not the law. If the defendant McDonald was a party to a fraudulent settlement, made for an inadequate consideration, with the insurance company, by which it was sought to beat plaintiff out of her ability to realize upon the judgment which she recovered, defendant McDonald might not, on account of her fraud, be able to maintain a suit to set aside this release and transfer of a chose in action fraudulently conveyed away to beat plaintiff, on the general theory the law leaves parties to a fraudulent transaction where it finds them, and will not lend its aid to assist them out of a position in which they have fraudulently placed themselves; but this is the reason plaintiff may recover, upon the theory defendant McDonald fraudulently transferred this chose in action by releasing the insurance company from liability. Defendant McDonald could not take advantage of her own fraud, but plaintiff, in an action of this kind, may reach assets fraudulently con veyed by reason of defendant McDonald’s fraud. This is the important question involved.
A creditor is defined by the uniform fraudulent conveyance act as a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent. 3 Comp. Laws 1929, § 13392. Plaintiff was a creditor. The fact that plaintiff’s claim arose out of a tort does not prevent her being a creditor. Schaible v. Ardner, 98 Mich. 70; Dutcher v. Van Duine, 242 Mich. 477. Defendants were apparently insolvent. Execution against them had been issued and returned unsatisfied. Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent, if the conveyance is made or the obligation incurred without a fair consideration (3 Comp. Laws 1929, § 13395); and every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors (3 Comp. Laws 1929, § 13398).
The assignment by defendant of the chose in action which she had against the insurance company arising from its liability on the insurance policy issued to her was not conveyed to the insurance company upon a fair consideration within the meaning of 3 Comp. Laws 1929, § 13394, and therefore plaintiff is entitled to have the conveyance set aside or obligation annulled to the extent necessary to satisfy her claim. 3 Comp. Laws 1929, § 13400. We think the trial court arrived at a correct conclusion.
Decree affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. North, J., did not sit. | [
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-5,
29,
-25,
14,
-11,
20,
-2,
31,
2,
-10,
6,
34,
-18,
9,
38,
-11,
43,
12,
-12,
19,
7,
0,
56
] |
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