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Sharpe, J.
Plaintiff seeks review by appeal from a judgment entered on a directed verdict for the defendant, based on the opening statement of plaintiff’s counsel to the jury. The facts therein stated may be summarized as follows:
The parties lived in adjoining homes in the village of Laurium, and had been friends for many years. On September 26, 1930, the defendant invited the plaintiff to accompany her on a trip she intended taking to Green Bay, and the invitation was accepted. They left their homes that afternoon to make some purchases, and, on the suggestion of defendant that she should fill up her gas tank, plaintiff offered and was permitted to pay for the gasoline which was put therein. The next morning they left for Green Bay in defendant’s car, which she was driving. Before leaving, they agreed that each should watch on her side of the car for railroad crossings. At Amasa they secured more gasoline, which was also paid for by the plaintiff. When a few miles beyond Amasa, they approached a railroad crossing. The plaintiff saw the track, looked and saw no train approaching from her side. She noticed that defendant was not slackening the speed at which she had been driving, 30 to 35 miles per hour, and, on looking to the left, she saw a train about 100 to 150 feet away approaching the crossing. The car in which they were riding was then from 50 to 60 feet from the crossing. She screamed to the defendant, “My God, there’s a train,” but defendant made no effort to stop the car, apparently trying to cross ahead of the train, and a collision occurred, in which they were both quite seriously injured.
It seems clear that, under the facts as stated, the plaintiff was not entitled to recover. She was a gratuitous passenger, and under Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, §4648), it must appear that the “gross negligence or wilful and wanton misconduct” of the defendant caused or contributed to her injury.
It is plaintiff’s claim .that, as defendant’s attention was called to the approaching train when her car was from 50 to 60 feet from the crossing, she could, by the exercise of ordinary care, have stopped her car and avoided the collision. But, as stated by counsel, the defendant apparently believed that she could cross ahead of the train.
Drivers of automobiles frequently find themselves in positions of apparent danger. A judgment must be instantly formed as to what they shall do in order to attempt to avoid it. They may not take time to deliberate as to which of two acts on their part may be most likely to insure safety. It must be assumed that what they decide upon is, in their judgment, the most advantageous to do to avoid the danger to which they and those with them are exposed. Better judgment might have dictated to defendant that she should have endeavored to stop her car before it reached the crossing, but her failure to so determine, and her act in proceeding in the belief that it was the best thing to do under the circumstances, cannot be said to be an act of gross negligence or wilful and wanton misconduct on her part. See Naudzius v. Lahr, 253 Mich. 216 (74 A. L. R. 1189, 30 N. C. C. A. 179); Oxenger v. Ward, 256 Mich. 499; Van Blaircum v. Campbell, 256 Mich. 527; Bobich v. Rogers, 258 Mich. 343; Finkler v. Zimmer, 258 Mich. 336.
The conclusion thus reached renders it unnecessary to consider the question of “joint enterprise,” also discussed by counsel.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff and defendant were married in 1924. They lived together three months. Defendant developed tuberculosis. The parties separated, and plaintiff filed a bill to annul the marriage on the ground of fraud on the part of defendant in concealing from him prior to their marriage that she had tuberculosis, had consulted a physician, been advised of her condition, had misled plaintiff by-representing she had stomach catarrh (whatever that may mean); and that her family likewise concealed defendant’s physical condition from plaintiff and he was thereby induced to marry defendant who had a dangerous, infectious, contagious, and communicable disease, and that he would not have married her had he known her condition. He further alleged the same fraud and concealment upon her part amounted to extreme cruelty, entitling him to a divorce.
Defendant filed an answer and cross-bill denying fraud on her part, and alleging plaintiff’s desertion of her. There was a settlement of the property matters of the parties. Defendant took a decree on her cross-bill, and by agreement of the parties a decree was entered that plaintiff pay to defendant the sum of $150 each and every month for a period of five years from and after January 22, 1927, and until the further order of the court. The decree provided the payments specified -be immediately cut off and terminated in the event of either the death or remarriage of defendant before the expiration of the five-year period. The decree provided that the provision made therein for defendant:
*‘ Shall become and stand as a statutory provision in lieu of dower rights, and that said plaintiff and cross-defendant, Robert W. Peden, shall in the future hold his real estate free and clear and discharged from any dower rights that the said defendant and cross-plaintiff Margaret DeVoe Peden, may have in the property owned by said plaintiff and cross-defendant, Robert W. Peden. ’ ’
The award of $150 a month for five years thus included not alone alimony but was an award in lieu of dower.
“Such awards may be joined, but, if so allowed in a lump sum, contempt for nonpayment of such sum may not be adjudged. ’ ’ Harner v. Harner, 255 Mich. 515.
This proceeding was originally instituted by attachment, whereupon defendant, in attachment, who was plaintiff in the original case, filed an answer to the same and a petition for a modification of the original decree. Under the original decree, plaintiff in the original case, who was made defendant in the attachment proceeding, may not be punished for contempt. For all that appears in the original decree, the payments conceded to have been made thereon may have been in full for alimony, and the amount unpaid the amount awarded for a release of dower interest of defendant. The order of attachment will be reversed, and plaintiff discharged, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, J.
On January 4, 1928, the plaintiff’s decedent, J ohn Szydelko, was instantly killed in an automobile accident on Chopin street in the city of Detroit. He was knocked down and run over by a truck driven by an employee of Hattie B. Smith, since deceased. A claim for damages resulting from his death was filed against Mrs. Smith’s estate. It was disallowed by the commissioners. An appeal was taken to the circuit court, where, on the trial, plaintiff received a verdict and judgment for $20,000. The defendant has appealed.
The record presents’ the following questions:
1. Is the plaintiff’s claim barred by the statute of limitations'?
The accident occurred on January 4, 1928. On January 8, 1928, Hattie B. Smith died. On January 9, 1928, Helen R. Fader was appointed special administratrix of her estate. On October 2, 1929, she was appointed general executrix. On September 4, 1931, the plaintiff filed her claim against the estate. At that time the three-year period in which to commence an action for personal injuries had expired, and her claim was barred unless the time is extended by 3 Comp. Laws 1929, § 13981, which reads as follows:
“If any person entitled to bring any of the actions before mentioned in‘this chapter, or liable to any such actions, shall die before the expiration of the time herein limited, or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be com menced by or against tbe executor or administrator of tbe deceased person or tbe claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within two yéars after granting letters testamentary or of administration, and not afterwards, if barred by the provisions of this chapter: Provided, however, that in no event shall any action be brought under the statute by an executor or administrator unless commenced within three years after the expiration of the time limited in this chapter.”
In the instant case the question arises under this statute whether, when a debtor dies after a cause of action accrues, the legislature intended the two-year limitation period to begin to run after the appointment of a special administrator or only after the issuing of letters to the general administrator or executor. The plaintiff filed her claim within two years after letters of general administration were issued, but not within two years after the appointment of the special administrator. So, in deciding whether the statute of limitations bars her claim, it is necessary to determine whether, in using the words “letters testamentary or of administration” in the statute above quoted, the legislature had in mind general administration or whether it intended to include special administration. In arriving at the legislative intent, it is helpful to refer to other probate statutes where the same words are used; for, if in other statutes they are used in relation to general administration only, it is fair to assume that they were intended to have the same meaning in this statute. In 3 Comp. Laws 1929, § 15588, which empowers the court to appoint special administrators, it is provided: ( •
“When by reason of delay in granting letters testamentary or of administration, * * * the judge of probate * * * may * * * appoint an administrator to act in collecting and taking charge of the estate of the deceased until an executor or administrator shall be appointed,” etc.
A special administrator has no powers of general administration. His time and authority are limited. Ordinarily his sole business is to conserve the estate until an executor or general administrator is appointed. In 3 Comp. Laws 1929, § 15592, it is provided :
“Upon granting letters testamentary or of administration of the estate of the deceased, the power of such special administrator shall cease; and he shall' forthwith deliver to the executor or administrator, all the goods,” etc.
In both of these sections the legislature had in mind that the appointment of a special administrator was a matter quite apart from the issuing of “letters testamentary or of administration.” It was a step preceding the issuing of letters of general administration. We think the same thing was in the legislative mind in using “letters testamentary or of administration” as a starting point for the two-year limitation period. It was not intended to include letters of special administration. On this question in 11 R. C. L. § 661, p. 456, it is stated:
“The appointment of a temporary administratrix does not constitute representation upon the estate of a decedent so as to start the statute of limitations to running against either the estate or the creditors.”
In the instant case the special administratrix was not clothed with powers of general administration. She was a temporary administratrix. She could not be sued in personal actions accruing before the death of her decedent, but might prosecute or defend such actions pending at the time of her appointment if there had been any. 3 Comp. Laws 1929, § 15589.
It is not necessary to discuss the authorities cited from other States; for, whatever may be the holdings in other jurisdictions, under the probate statutes of this State it must be held that the two-year limitation period does not begin to run until letters of general administration have been issued.
The trial court correctly held that the plaintiff’s claim was not barred by the statute.
2. Does 3 Comp. Laws 1929, § Í3981, apply to personal injury cases?
The defendant contends that it does not apply, and cites Colling v. McGregor, 144 Mich. 651, in support of its contention. That case was decided in 1906 and was based entirely on Act No. 155, Pub. Acts 1899, which act was repealed in 1915. See 3 Comp. Laws 1915, § 14465, line 10 from bottom of page 5045. It is no longer controlling. 3 Comp. Laws 1929, § 13981, applies.
3. The third question relates to the proof on the ownership of the truck.
We have carefully examined this question, and do not think it requires discussion.
Other assignments of error are not discussed in defendant’s brief, and are presumed to have been abandoned.
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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Butzel, J.
John A. Hagerman was insured against liability in the amount of $5,000 for injuries to one person and $10,000 to two or more persons arising out of one accident by defendant Detroit Automobile Inter-Insurance Exchange. On November 10,1929, his car collided with that of Neil Sandy, and severe injuries were sustained by Lena Sandy, Eleanor Sandy, William Exo, and Mrs. Exo, as well as himself. The car of Neil Sandy was also burned. Mrs. Exo and Hagerman both died as a result of the injuries. Defendant was immediately notified of the accident and sent its representative to investigate. Upon the death of Mrs. Exo, a coroner’s inquest was held. Defendant was notified but did not attend. William Exo was appointed administrator of his wife’s estate, and is also a claimant in that capacity. Defendant’s representative later discussed settlement with the injured parties or their representatives, and offered $4,500 to the entire group together if they would accept it in full settlement and divide the amount between themselves. Upon refusal of this offer, it is claimed that the adjuster stated that the company would pay the claims if they were adjusted by court proceedings. Liability was not denied at the time, but the amounts due the injured parties, or their representatives, who are the respective claimants, nevertheless remained unadjusted. Thereafter a petition was filed in the probate court for the county of Van Burén for the administration of the estate of John A. Hagerman, and a printed copy of the notice of hearing on the petition, clipped from the newspaper, was sent to defendant by the assured’s son-in-law. Defendant’s claim manager acknowledged receipt, and stated that the purpose of the petition was evidently the instituting of a lawsuit. It wrote that it did not believe it advisable to. make any effort to communicate with Exo or any of the interested parties. It also asked if Hagerman left any estate. Hagerman’s son-in- law in Ms reply stated that there was no estate “as respects real or personal property.” Defendant’s claim manager admitted that, when notice of the petition for appointment of the administrator was received, he had an idea that Exo intended to prove his claim. An administrator of the Hagerman estate was duly appointed, each of the claims was filed in the prohate court and allowed in the sum of $500 without any contest. Thereupon each of the claimants filed an appeal to the circuit court for the county of Van Burén. Plaintiff’s attorney wrote defendant asking whether it intended to defend the actions pending in the Van Burén circuit court. The administrator of the Hagerman estate also made similar inquiry by letter. Defendant replied to the attorney that it had previously received no notice whatsoever of any action pending in regard to the claims. Thereupon the claims were remanded by consent of all the parties to the probate court. The court ordered a hearing de novo and that defendant he notified by registered mail at least 10 days before the hearing. A copy of the order was served on defendant, who appeared specially in the probate court and moved that the claims he dismissed on the ground that the probate court had lost jurisdiction and the circuit court had no right to remand the cases. This motion was denied. The claims were reheard and each allowed again in the sum of $500, and claimants once more took an appeal to the circuit court for the county of Van Burén. Thereupon defendant entered its special appearance in the circuit court and moved to dismiss for want of jurisdiction. The latter motion was overruled by the circuit court. The cases were consolidated, heard before a jury, and claims against the estate allowed in the aggregate sum of $9,179.50. The judgments were thereupon remanded to the probate court for enforcement against the Hagerman estate.
Petition was filed in the probate court showing that there were no assets in the estate except the policy of insurance issued by defendant; there were no claims except those hereinbefore stated, all of which had been assigned to plaintiff, and the court made an order directing that the administrator of the Hagerman estate deliver to plaintiff herein proper assignment of any and all interest of deceased in the insurance policy issued to John A. Hagerman, and gave the assignee power to discharge any judgments obtained against defendant. Suit was brought against defendant by plaintiff individually and as assignee of all the other claimants, and judgment rendered for $9,179.50.
Defendant disclaims liability on the ground that the assured failed to immediately forward to defendant “every summons or other process that may be served upon the assured.” It further contends that the judgments were null and void, and claims that the circuit court had no right to remand the claims to the probate court for a hearing de novo, and that it follows, therefore, that the judgments rendered on appeal from such claims allowed on a hearing de novo are void.
Defendant received full notice of the accident. It sent its adjuster, attempted to make settlement, and notified claimants to reduce their claims to judgment, received notice of the petition for the appointment of the administrator, and knew its purpose was to establish the claims. No other process was served, and defendant cannot escape liability for lack of notice. It is true that it is entitled to all reasonable notice, and failure to give it would release defendant from liability. Oakland Motor Co. v. American Fidelity Co., 190 Mich. 71; Wisconsin Michigan Power Co. v. General Casualty & Surety Co., 252 Mich. 331 (76 A. L. R. 1). However, this rule is for the protection of the insurance company in order to afford it all reasonable means of promptly investigating and defending claims under the policy. Its purpose is not to entrap the unwary. Defendant took advantage of the ample opportunity it had for investigation and endeavored to adjust the claims. It further had notice of the filing of the petition for administration and knew its purpose. No other process was served, and the terms of the policy were complied with.
Defendant further claims that it was released of its liability because of the violation of the clause of the policy which states that:
“This policy shall be null and void: * * *
“If the assured shall interfere in any negotiations for settlement, or in any legal proceedings, unless and until he shall be requested to do so by the exchange.”
It contends that inasmuch as the administrator of the Hagerman estate consented to the remanding of the claims to the probate court after the circuit court had taken jurisdiction, there was such an interference as to release defendant. The administrator stood in the place of the assured and had a right to demand that defendant meet its responsibilities. He did not interfere with any legal proceedings by consenting to the remanding. If in accordance with defendant’s theory, the remanding was illegal and unauthorized by law, then at most it was a nullity. The case was remanded for the very purpose of overcoming any possible technical objection that might be claimed by defendant that it had no proper notice of the filing and hearing of the claims in the probate court and in order to afford it the opportunity of defending the claims in the probate court. Defendant asserts that there was no legal right to remand the claims. 3 Comp. Laws 1929, § 15976, provides that:
“The circuit court may reverse or affirm, in whole or in part the sentence or act appealed from, and may make such order or decree thereon as the judge of probate ought to have made, and may remit the case to the probate court for further proceedings, or may take any other order therein, as law and justice shall require.”
It is claimed that this does not permit the remanding of the case to be tried de novo by the probate court. In Re Kilbourne’s Estate, 173 Mich. 258, 260, in referring to the second paragraph of a circuit court order, the court said:
“The executor then obtained from this court an allowance of a writ of certiorari to remove the proceedings to this court. His contention is that the order of the circuit court was irregular and unauthorized, and he asks that it be set aside for the reason that the circuit court had no power to send the case back to the probate court for retrial, that, when the appeal was taken, the probate court lost jurisdiction of the issue, and that it was then the duty of the circuit court to enter such judgment therein as was proper, and cites Daly’s Appeal, 47 Mich. 443, in support thereof. The statute defining the jurisdiction of the circuit courts in appeals from probate courts is as follows:
“ 'The circuit court may reverse or affirm, in whole or in part, the sentence or act appealed from and may make such order or decree thereon as the judge of probate ought to have made, and may remit the case to the probate court for further proceedings, or may take any other order therein, as law and justice shall require.’ 1 Comp. Laws 1897, § 679 (5 How. Stat. [2d. Ed.] § 12127).
“We are inclined to agree with counsel as to the second paragraph of the circuit court order.”
It further stated also:
‘ ‘ But, if we treat this part of the order as having no force, we still have the first paragraph, which in plain terms reverses the order of the probate court.”
Even if we treat the remanding as of no force, the judgment in the instant case should be affirmed. It is true that an agreement of the parties could not confer jurisdiction of the subject-matter on the probate court. Jurisdiction may not be given by consent. Hoffman v. Security Trust Co., 256 Mich. 383, 386. In the somewhat analogous case of Realty Acceptance Corp. v. Montgomery, 284 U. S. 547 (52 Sup. Ct. 215), it was held a statute which permits the Federal circuit court of appeals to direct further proceedings by the inferior court, as the justice of the case may require, does not grant or confer the power upon the appellate court to dismiss an appeal and return the record to a district court in order to set aside the judgment and grant a new trial because of newly-discovered evidence, after the time had elapsed in which the district court itself had power to set aside the judgment. 3 Comp. Laws 1929, § 15519, gives the' probate court the right to grant rehearings within 90 days. It is claimed that the 90 days for rehearing the claims had expired in the instant case and there could not be a rehearing under the circumstances. Recognizing, without deciding, that there may be some merit in defendant’s claim that the circuit court had no authority to remand the case, nor the probate court to rehear the claims, at most the rehearing and the appeals thereafter were a nullity, and the rights of the plaintiff and defendant were not affected thereby. The claims were allowed for the same amounts by the probate court as in the first instance, and they were again appealed. The identical parties and same issues and claims were involved, defendant had ample notice of the pendency of the suits, appeared specially, and was not deprived of any opportunity to make the fullest defense possible. It was not harmed by the remanding, nor can it benefit thereby through a technical objection. The second probate hearing, even if improvidently granted, was for its benefit, but not to the extent that it can escape liability on that account.
The judgment is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe. North, Fead, and Wiest, JJ., concurred. | [
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Wiest, J.
This is an appeal by defendant from an award of property to plaintiff in a decree of divorce.
The parties were married in February, 1915, and separated in November, 1918. They have no children. At the time of the marriage defendant operated a drug store in the city of Battle Creek. He was ndt a registered pharmacist, but employed one. Plaintiff had been a nurse, and, after marriage, qualified and became a registered pharmacist. November 26, 1918, a property settlement was made, under which defendant agreed to pay plaintiff the sum of $1,400, in adjustment at that time of “all property matters, money claims and claims of every kind and nature between them by reason of their relation of husband and wife; ’ ’ $500 was paid at that time; $200 was to be paid within 90 days, and the balance in equal monthly payments of $50. Subsequent payments were made by checks but not cashed by plaintiff, with the exception of one for $50. November, 1918, plaintiff filed a bill for divorce, but later this was abandoned and dismissed. At the time of the separation defendant was drinking quite heavily, and he continued to do so and his business got into rather bad financial condition. In February, 1920, defendant purchased, on land contract, a dwelling house in the city of Battle Creek.
We now quote, with approval, the following from the opinion of the circuit judge:
“On February 15, 1922, the defendant, Alfred L. Barr, by bill of sale, turned over to Blanche D. Barr the drug store and fixtures, stating a consideration therein of $1 and other good and valuable consideration. Defendant then left town, and plaintiff has since successfully conducted said store. At the time said store was turned over to plaintiff, the inventory showed the stock to be of the value of $6,563.94, and the fixtures of the value of $3,850, or a total of $10,413.94. There were outstanding debts against said store at that time in the sum of $9,686 which plaintiff paid after she took over the store.
“At the time plaintiff took over the store, she also took possession of the home that defendant was purchasing on a contract, in which it is admitted he had an equity at that time of $1,700. Plaintiff continued to make the payments on said contract, and later secured a deed thereof in her own name.
“Since plaintiff took over the store, she has paid to defendant the sum of $4,882.29 in cash and credits on his personal debts and accounts, including the $850 owing her on said uncashed checks. * * *
“It is the claim of the plaintiff that in February, 1922, she went to defendant, Alfred L. Barr, to collect what was due her on the checks of $850 that she held against him. That he told her he didn’t have any money, but that he would give her the drug store, because the creditors were going to get it any way. That she was contemplating going to Chicago to take a job, but after they talked it over, she and Mr. Barr went to an attorney, where a bill of sale was made out to her of the stock and fixtures of said drug store, and then went to the owner of the building in which the store was located and secured a lease in plaintiff’s name. Plaintiff claims that she understood that she was to take over the store and defendant’s equity in the land contract and was to pay him therefor the value of the equity that he then had in said land contract and if she made good in the store, she was to pay him what she thought it was worth.
“Defendant claims that he turned over the store to plaintiff and she was not to pay anything on the store for a period of three years, on condition, however, that she was to keep up the payments on the house, pay the taxes, collect the rent, and keep up the defendant’s life- insurance policy for him, and she would not have to pay any interest on the purchase price of the store. That she was eventually to pay him for the store the sum of $16,000 less the current debts against the same.
“After listening to the evidence as submitted in said case, I am convinced that the plaintiff never agreed to pay defendant the sum of $16,000 less the current debts for said drug store, but that owing to the fact that defendant 'had been drinking heavily for some time and neglecting his business and was being pressed by his creditors, he was fearful that he would lose the store, and that he did as plaintiff claims, turned the store over to her, together with his interest in the land contract with the understanding that she would pay him his equity in the land contract and if she made a success of the business, she was to pay him whatever she thought the store was worth. * * *
“The evidence shows that defendant at the time he turned the business over to plaintiff was drinking heavily and the business had suffered thereby and his creditors, were pressing him for payment of their accounts; he was having trouble getting a lease of the premises, and in fact, it looked as though he might lose all he had invested in the store, as well as his equity in the land contract. The stock was inventoried at the sum of $6,563.94, the fixtures at $3,850, making a total of assets of the store in the sum of $10,413.94. Offset against this sum were the current debts which amounted to the sum of $9,686, leaving an equity in the store of $727.94 over and above any ‘good will’ that there might have been.
“Defendant’s equity in the land contract for the house is valued at the sum of $1,700 at the time it was turned over, making a total equity of defendant in said store and land contract in the sum of $2,427.94. As against this equity the evidence shows that plaintiff has paid the defendant the sum of $4,882.29, or $2,454.35 more than his entire equity in the business and land contract' was at the time he turned them over to her.
“While the evidence shows that the drug store had a fine location and when properly looked after paid a good profit, after listening to the testimony in the case, I cannot but be impressed with the fact that the business was on the verge of failure when it was turned over to plaintiff, and was turned over to her for that very reason; that defendant went away and left plaintiff to save what she could, and but for her hard work and industry, the defendant would have lost all he had invested in said business, as well as his equity in said land contract: The evidence shows that he has been amply repaid for all of this interest in said property, including any ■‘good will’ that there was in said business and he is not entitled to the relief prayed for in his cross-bill of complaint.”
Defendant, by his cross-bill, seeks a decree awarding him the dwelling house because he never assigned the land contract to plaintiff.
We think, as did the circuit judge, that plaintiff is entitled to have the dwelling house and the decree herein will operate as an assignment of the land contract to plaintiff.
The decree 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.
The plaintiff suffered an accidental injury arising out of and in the course of his employment with the defendant corporation. A falling timber hit him in the back and injured his kidneys. He was awarded compensation for total disability at the rate of $18 a week for a period not to exceed 500 weeks. About two years later, seeking evidence to support a petition to discontinue compensation, the defendant corporation ordered the plaintiff to report at the State hospital at Ann Arbor for an examination. The examination was conducted by the defendant Dr. Nesbit. It is charged by the plaintiff that while examining him Dr. Nesbit—
“Negligently, carelessly and unskilfully, damaged, injured, bruised and tore the urethra by causing an instrument or instruments which he was then and there using, to puncture the side of the penis; that as a result of said puncture, the said plaintiff is now compelled to urinate through the side of the penis instead of through the urethra,” etc.
To recover damages for this injury the plaintiff broug'ht an action at law against the doctor and the General Motors Truck Corporation. The defendant corporation filed a motion to dismiss on the ground that as to it the declaration does not state a cause of action. From a denial of this motion the defendant has appealed.
It is the defendant’s contention that the plaintiff’s action is barred by the provisions of the workmen’s compensation law (2 Comp. Laws 1929, §§ 8407 et seq.), and that the only way he can recover for his injury is by following the procedure therein prescribed. It is a question of jurisdiction. If the defendant is right in its contention, the circuit court had no jurisdiction to entertain this action at law.
To entitle the plaintiff to compensation under the act, the injury must have arisen out of and in the course of his employment. As to the original injury, that fact is conceded. This second injury occurred two years after the plaintiff’s employment had ceased. To bring it within the rule, there must appear some causal connection between it and the first injury. In this case the test is, Was the original'injury a causal factor in producing the second injury? In' considering the right of an employee to recover under the act for a subsequent injury, this court has followed the rule that it is not compensable unless it'can'be “proximately traceable” to the original injury. In Oleszek v. Ford Motor Co., 217 Mich. 318, it is said:
“Where there is a right of recovery due to the original injury and the disability at the time of the hearing is directly traceable thereto, the intervention of other and aggravating causes by which such disability has been increased, if the claimant himself is mot to blame therefor, is no bar to his recovery. ’ ’
In the instant case we cannot say the injury complained of is in any way traceable to the original injury, unless we adopt defendant’s argument that, if there had been no -injury, there would have been no - examination, and, if there had been no examination, there would have been no. second injury. But that is not what the courts mean by the use of the word “traceable.” . When used in this connection it is meant that the second injury follows as a sequence and natural result of the original injury. We are unable to discover the slightest connection between the two injuries. The first injury was to the kidneys, caused by the falling of a timber on the-plaintiff’s back. The second injury was pro duced by the doctor apparently while exploring to discover some other and different cause of disability not connected with the original injury. It was caused by the intervention of an independent agency which produced results wholly disconnected with the original injury. It did not aggravate the original injury, and therefore did not increase the plaintiff’s disability. It did not retard his recovery from the original injury. It was a new injury having no connection with or effect whatever upon the first.
It should be noted that the second injury did not occur while the doctor was treating the plaintiff or rendering the medical and surgical services which the statute requires of the employer, viz., that he shall furnish all reasonably necessary medical, surgical, and hospital service during the first 90 days after the, injury.
The second injury occurred more than two years after the first, and not while the doctor was rendering any medical or surgical services. If the injury resulted from treatment which the employer was required by the statute to render, a different situation might be presented. But that is not the case. Here the injury resulted during an examination which the employer was conducting for its own benefit.
It seems to be very clear that the injury, to recover damages for which the plaintiff has brought this suit, is not attributable in any sense to the original injury. It cannot be compensated for under the compensation law, as it did not arise out of or in the course of his employment. Therefore the trial court did not err in refusing the defendant’s motion to dismiss.
The order is affirmed, with costs to the plaintiff.
Clark, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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North, J.
Plaintiffs are owners of separate parcels of residence property fronting on Nichols street in the city of Battle Creek. From a decree denying them injunctive relief against defendants, who have undertaken to vacate a portion of this street, plaintiffs have appealed. The proceedings taken by the city commission also involve vacating an alley extending southerly from Nichols street and a small portion of Union street; but the legal aspect of the case is not affected thereby.
Nichols street is an easterly and westerly thoroughfare extending from Union street on the west" to Pine street on the east. In a little more than the westerly half of this block between Union street and Pine street the Oliver Farm Equipment Company owns the property on both sides of Nichols street, and this is the portion of the street sought to be vacated. Plaintiffs’ properties are located in the easterly portion of this block. Beginning at the easterly end of that portion of the street which defendants would vacate, the Oliver Farm Equipment Company proposed to deed to the city for street purposes a strip of land 41.25 feet in width and extending northerly one block to Shepard street. Shepard street parallels Nichols street and also extends from Union street'to Pine street. Heretofore plaintiffs’ direct route to the business part of the city was west on Nichols street to Union street. Under the proposed change the route will necessarily be west on Nichols street to the point of vacation, thence northerly one block to Shepard street, thence westerly to Union street, and from this point south on Union street to East Michigan avenue, which is the main thoroughfare leading to the business section. The change in route will compel plaintiffs to turn two additional corners and travel approximately 374 feet farther than heretofore to reach the central portion of the city.
Appellees assert that in granting the petition of the Oliver Farm Equipment Company to vacate this portion of Nichols street the proper proceedings were taken by the city commission in accordance with the city charter provisions. But plaintiffs and appellants assert the city commission cannot vacate a street or alley without first giving public notice and a public hearing at which objections to the proposed vacation may be presented. It is conceded that no notice or opportunity was afforded plaintiffs in the instant case, although a number of them were present at the meeting of the city commission when action was taken, and on this occasion some of the plaintiffs talked with the city officials. The Battle Creek city charter was adopted under Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1929, § 2228 et seq.), commonly known as the home-rule act; and section 1 of chapter 21 of the Battle Creek charter provides:
“The commission shall have full power by the affirmative vote of not less than four commissioners to lay out, establish, open, extend, widen, straighten, alter, close, vacate or abolish any street, alley or highway. ’ ’
Neither the home-rule act nor the charter of the city of Battle Creek provides for the giving of any notice of hearing incident to vacating streets or alleys. It would seem the matter of requiring notice to be given is left to the city commissioners; and in this case they did not see fit to require notice, other than that of publishing the petition in the minutes of the commission proceedings the week previous to passing the resolution by which this portion of Nichols street was ordered vacated. In a suit involving vacation of streets and alleys Chief Justice Wiest said:
“The question of eminent domain is not involved. By no stretch of imagination can it be said that the property rights of plaintiffs are taken.” Tomazewski v. Palmer Bee Co., 223 Mich. 565, 569.
“ Moreover, in the absence of some express provision of the law to the contrary, it is not requisite that notice should be given (incident to vacating streets or alleys).” Roberts v. City of Detroit, 241 Mich. 71, 79, citing authorities.
It thus appears that plaintiffs do not have cause to complain on the ground of lack of notice or hearing.
Appellants also contend that the action of the city commission in vacating this portion of Nichols street was an abuse of discretion, .and that such action was not beneficial to the general public. Instead, appellants assert the proposed change in this thoroughfare would result in great inconvenience to them in going to and returning from the business section of Battle Creek, that fire protection for their properties would be somewhat impaired, and their property values decreased. Because of this they assert they are deprived of property without due process of law. This- phase of the case was thus disposed of by the trial judge:
“In considering this question, we must remember that the streets and alley sought to be vacated are located in an industrial or manufacturing district, and not a first-class residential district. * * * The evidence further shows that the plaintiffs own no property abutting on that portion of Nichols street that is vacated by said resolution * * * (and plaintiffs) have an outlet and the vacation of that portion of Nichols street does not create a cul-de-sac, but in reality creates a new block of that portion of Nichols street on which plaintiffs’ properties abut.
“While there was some evidence introduced that there would be a special damage to the property of plaintiffs in the reduction of the value thereof, the great weight of the evidence is to the contrary, and that it will increase the value thereof rather than decrease it. The only injury that will result to plaintiffs by the closing of said street would seem to be the inconvenience that it will cause plaintiffs in traveling * * * farther .to reach the downtown district by way of East Michigan avenue, which is their most direct route. This, however, has been held in this State to be injury without damage and will not prevent the vacation of said street if there is a benefit resulting to the public generally. ’ ’ Citing Tomazewski v. Palmer Bee Co., supra.
We have recently held:
“Vacation of part of street to allow enlargement of manufacturing plant of abutting’ owner was matter of expediency and within power vested in city council.
“Neither advisability or purpose of vacating part of street is subject to review by court unless vacation was abuse of power or brought about by fraud.” Manufacturers Foundry Co. v. City of Holland (Syllabi), 253 Mich. 60.
Review of this record fully satisfies us that in this vacation proceeding the city commission did not abuse its power relative to vacating streets and alleys, and there is no claim made that in so doing there was fraudulent misconduct. Notwithstanding the Oliver Farm Equipment Company will be privately benefited, the record sustains the finding of the trial judge that the action of the city commission permits industrial expansion by which the municipality will generally be benefited. And further incident to this vacation proceeding, the city of Battle Creek received conveyances of parcels of property which had theretofore been used for street purposes but of which it did not have record title; and as above noted it also received from the Oliver Farm Equipment Company conveyances of the necessary land for opening a north and south highway connecting Nichols street with Shepard street. There being neither an abuse of discretion nor fraud, this court should not enjoin the course of action taken by the city commissioners.
Since the bill of complaint was filed herein it was discovered that there was an error in the description of the land which the Oliver Farm Equipment Company conveyed to the city to be used for the street extension to connect Nichols street with Shepard street. This was promptly corrected by the parties concerned, and cannot be held to affect the rights of the parties herein or the question presented on this appeal.
The decree dismissing plaintiffs’ bill of complaint is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
On July 12, 1918, John Tar, the husband of plaintiff, while employed by the defendant, suffered an accidental injury which resulted in his death. A report of the accident and a “second report of disability” were filed by the defendant with the department of labor and industry. On October 3,1918, a notice to employer of claim for injury was filed with the department. It was signed by ‘ ‘ Theresa Doland, agent for Mary Tar, widow,” and stated that “Decedent also left two minor children, Steve and Mary, * * * at Verbocz, Abaug Co., Hungary.”
The following facts appear in the opinion of the commission filed on the hearing on review:
“The alien property custodian of Washington, D. C., was informed of this case on October 11, .1918, and copies of Form 5-A, 6 and Form 5 were sent to him. ’ ’
Nothing further'was done until October 4, 1922, when, at the request of the Royal Hungarian consul general in New York, the necessary forms for submitting proofs were sent to him. The matter again rested until November 10, 1930, when notice and application for adjustment of claim, signed “John Tar, as per Mitchel Fodor, Emery Duke, plaintiffs,” was filed with the department.
Proceedings were thereafter taken, resulting in a hearing before a deputy commissioner and an award by him in favor of plaintiff of $10 per week for 300 weeks. One of the defenses made was that the claim was barred by 2 Comp. Laws 1929, § 8431, which reads in part as follows:
“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same.”
And section 8432, which provides:
“The said notice shall be in writing, and shall state in ordinary language the time, place and cause of the injury; and shall be signed by the person injured, or by a person in his behalf, or, in the event of his death, by his dependents or by a person in their behalf.”
The commission found that Theresa Doland had no authority from the plaintiff to execute the claim filed by her, and, as no other claim was filed until 12 years after the accident, there could be no recovery. In this we think it was clearly right. Baronaskas v. Copper Range Co., 238 Mich. 576.
The appeal is dismissed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, J J., concurred. | [
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Sharpe, J.
Renates Tregonning brought an action in the circuit court for the county of Gogebic on September 25, 1926, against Demetrio Castantini to recover damages for an injury sustained, due to the negligence of the defendant therein in the operation of his automobile, and had verdict and judgment on December 8, 1926, in the sum of $2,104.50. On review by writ of error, this judgment was affirmed by this court on June 22, 1928 (243 Mich. 233), and remittitur sent to the circuit court. It appears, however, that, pending the hearing in this court, the defendant died, on January 31, 1928.
At the time of the collision, Castantini was a resident of the State of Wisconsin, and continued to be until the time of his death. On March 26, 1928, Rosina Castantini, his widow, filed a petition in the county court of Iron county, in the State of Wisconsin, averring that the deceased at the time of his death owned real estate of the probable value of $8,000 and personalty of the probable value of $5,000. At a hearing thereon, Emanuel DeMeio was duly appointed administrator. Claims were thereafter presented and allowed, the final account of the administrator filed and allowed, and an order made on July 9,1930, assigning the estate and discharging the administrator.
It further appears that at the time of the accident Castantini had a policy of insurance in the Preferred Automobile Insurance Company, the defendant herein, insuring him—
“against loss and expense including the payment of any judgment arising or resulting from claims upon the assured for damages by reason of the ownership, maintenance or use”—
of the automobile which caused the accident. Inability was limited to the amount of $5,000 for one person injured or killed, or $10,000 for any one accident.
It also appears that one Prank Kanieski, who was riding with Tregonning at the time of the accident, was also injured thereby; that he also brought suit and recovered a judgment therefor. He filed a petition in the probate court for the county of Gogebic on September 17, 1929, praying for the appointment of an administrator of the estate of Demetrio Castantini, deceased. On October 15,1929, an order was entered pursuant thereto appointing the plaintiff administrator. The claims of Tregonning and Kanieski on- these judgments were thereafter presented and allowed. On March 28, 1930, plaintiff, as such administrator, brought this action to recover from the defendant company, under its policy, the amount of the claim allowed in favor of Tregonning, and, on trial before the court without a jury, had judgment in the sum of $2,602.25, from which the defendant has taken this appeal. The serious question presented is whether the probate court of Gogebic county had jurisdiction to appoint the plaintiff administrator.
The applicable statute (3 Comp. Laws 1929, § 15585) reads as follows:
“When any person shall die intestate, being an inhabitant of this State, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant,' or resident at the time of his death; if such deceased person, at the time of his death, resided in any other State or country, leaving estate to be administered in this State, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered; and the administration first legally granted shall extend to all the estate of the deceased in this State, and shall exclude the ju risdiction of the probate court of every other county.”
The term ‘ ‘ estate ’ ’ as used in this section includes all kinds of property which the deceased left at the time of his death. It seems to be the well-settled law in this State that an administrator appointed in another State cannot maintain an action in this State. Jones v. Turner, 249 Mich. 403. The jurisdiction of the probate court to appoint the plaintiff administrator was therefore dependent upon the fact that an estate in the county of Gogebic to be administered in this State was left by the deceased (a resident of Wisconsin at the time of his death). In the petition filed therefor by the plaintiff, he stated that he was interested in the estate as a creditor, having recovered a judgment against the deceased which was unsatisfied. He further stated:
“I further represent that said deceased was at the time of his death an inhabitant of the city of Hurley, in the State of Wisconsin, and that he left estate within said county of Gogebic in said State of Michigan to be administered, which said estate consists of liability to said deceased on the part of the Preferred Automobile Insurance Exchange and the Preferred Automobile Insurance Company on account of a certain .policy of public liability insurance issued by said Preferred Automobile Insurance Exchange to said deceased upon a certain Cleveland sedan automobile, liability under said policy arising by virtue of the aforesaid judgment of said petitioner against said deceased, said judgment being for damages sustained by petitioner on account of the negligent operation by deceased of the Cleveland sedan automobile covered by said policy of insurance.”
• The deceased signed a written application for insurance and the policy was issued by the defendant at its office in the city of Grand Rapids. The declaration alleges that the defendant “is a corporation organized and existing under and by virtue of the laws of the State of Michigan.” Had the deceased been living at the time the judgment in favor of Tregonning was affirmed by this court, he would have had a right of action against the defendant to recover the amount thereof. The record does not disclose that the defendant was authorized to do business in the State of Wisconsin, nor that such an action might, under the laws of that State, have been there instituted; and, had such action been brought in this State, the circuit court for the county of Kent alone would have had jurisdiction. Kammeier v. Muskegon Circuit Judge, 225 Mich. 597.
The only estate of the deceased alleged to have been left by him in the county of Gogebic consisted of the liability of the defendant to the deceased under its policy of insurance. The claim therefor could not have been maintained by the deceased in his lifetime in the county of Gogebic, and the mere fact that the judgment was secured in the circuit court in that county did not cause the liability of the defendant under its policy to become an estate to be there administered. In our opinion the petition presented conferred no jurisdiction upon the probate court to appoint the plaintiff administrator. Scholten v. Scholten, 238 Mich. 679.
It is urged that such action is not open to collateral attack. 3 Comp. Laws 1929, § 15521, reads as follows:
“Jurisdiction assumed in any case by a judge of probate, so far as it depends on the place of residence of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court, in the original case, or when the want of jurisdiction appears on the same record.”
The lack of jurisdiction clearly appeared upon the face of the petition and “may always be taken advantage of by the parties whose interests were prejudiced.” Gillett v. Needham, 37 Mich. 143, 148. See, also, General Motors Acceptance Corp. v. Ellar, 243 Mich. 603; Lamberton v. Pawloski, 248 Mich. 330.
The judgment is vacated and set aside, with costs to appellant, and the cause remanded to the circuit court, with directions to enter a judgment for the. defendant.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
North, J.
Plaintiff, by his bill of complaint, seeks to .have the validity of an alleged gift inter vivos decreed, an accounting, and injunctive relief. In the circuit court a valid gift was found and decreed. Defendant has appealed.
In October, 1929, Mr. Fred J. Weiss, plaintiff’s father, entered into a contract with the defendant by which the management and control of a large portion of his property and business affairs was turned over to defendant. The property thus in trusted to the bank included 1,500 shares of common stock in the General Motors Corporation, and it is this block of stock which is the subject-matter of the alleged gift. In November following, Mr. Fred J. Weiss was very ill and became a patient at Ford Hospital in Detroit. While there he loaned the 1,500 shares of stock in suit to his personal friend, Mr. Motherwell, to be used by the latter as marginal security in stock transactions. Shortly thereafter Mr. Motherwell returned the same number of shares of this stock to Mr. Weiss, but the stock returned was not evidenced by the same certificates as were loaned. Instead, the returned certificates had been issued in the name of Paine-Webber Company, indorsed in blank, and, being in what is commonly termed “street form,” were negotiable. At the time this stock was returned to Mr. Fred J. Weiss at the Ford Hospital there were present in the room with him, besides Mr. Motherwell, the plaintiff, the plaintiff’s wife, and Jean Lougheed, a nurse. It is plaintiff’s claim that the gift occurred in the following manner: After Mr. Motherwell had returned the stock to Mr. Weiss, Sr., he handed the certificates to his son, the plaintiff herein, saying at the time: “Roy, you take this and take care of it, put it away, it is yours, it may be handy to you some day.” A few days after the alleged gift, about November 16, 1929, plaintiff and Mr. Motherwell called upon Mr. Lloyd Kirby, the vice-president and trust officer of the Union Industrial Trust Ss Savings Bank, located in Flint, Michigan. The certificates evidencing the 1,500 shares of stock were left with Mr. Kirby. Plaintiff claims that he had previously been given to understand by Mr. Kirby that the account of Mr. Weiss, Sr., at the bank was in a somewhat precarious condition, requiring the deposit of further security; and plaintiff asserts the stock was left with the bank for that purpose. Plaintiff took no receipt or memorandum of any kind for the stock left with Mr. Kirby. Mr. Motherwell testified that on this occasion, in the presence of the plaintiff, he informed Mr. Kirby that this stock had been given to plaintiff by his father. Plaintiff gave testimony to the same effect. On the other hand, Mr. Kirby denies that he was so informed, and he also denied that the stock was deposited as collateral to the account of Mr. Fred J. Weiss. Instead, it is the contention of the defendant bank that these 1,500 shares of stock were simply returned to the bank to be held under its contract with Mr. Weiss, Sr., the stock having previously been withdrawn from the bank’s custody incident to the loan to Mr. Motherwell. After the return of the stock to the bank, it continued to hold the same and other property of Mr. Fred J. Weiss until the latter’s death, September 1, 1930. Thereafter the defendant was appointed special administrator of Mr. Weiss’ estate; and, as against plaintiff’s demand for delivery of this stock, defendant, denying plaintiff’s title thereto, and asserting it was an asset of the estate, claimed the right as administrator to retain it.
Plaintiff’s direct proof of the alleged gift is met by testimony disclosing a course of conduct on the part of the parties concerned and of numerous incidents which are quite decidedly inconsistent with plaintiff’s contention. In this connection Mr. Kirby testified that the bank account of Mr. Fred J. Weiss, Sr., was not in need of collateral security at the time plaintiff delivered the stock to the bank, and also Mr. Kirby denies emphatically that he had previously made statements of that character to plaintiff. The circuit judge accepted Mr. Kirby’s tes timony as true. In such an event it is almost beyond explanation that plaintiff, who himself was a man well experienced in business affairs, would have surrendered his personal stock to the bank for no obvious purpose and without taking a receipt of any character therefor. That Mr. Kirby at the time understood that the stock was being returned to the bank as the property of Mr. "Weiss, Sr., is strongly indicated by the fact that Mr. Kirby immediately had the stock transferred on the books of the corporation from the “street form” in which the certificates then were back into the name of Fred J. Weiss, Sr. It is also strange that during the 10 or 11 months that intervened between the time of the alleged gift and the death of Mr. Weiss, Sr., and for substantially two months thereafter, plaintiff made no claim whatever that this stock was his individual property. All during this period plaintiff knew that quarterly dividends were paid on the stock amounting to substantial sums, yet he made no claim whatever that these dividends should be turned over by the bank to him. The opinion of the circuit judge clearly indicates that he was disposed to place very little, if any, credence in the testimony of any of the witnesses who testified to being present and having personal knowledge of the alleged gift, with the possible exception of Mr. Mother-well. As to this witness, it may he noted that his hearing was very much impaired and it is somewhat difficult to believe that he would have heard the statement of Mr. Weiss, Sr., incident to the alleged gift, the latter at that time being confined to his bed, very ill, and advanced in age. We think it is also a fair inference from the record that Mr. Motherwell felt none too kindly towards Mr. Kirby, who as an officer of the bank in a way had interfered •with the further use of the 1,500 shares of stock by Mr. Motherwell as collateral, and been somewhat-instrumental in bringing about its return to Mr. Weiss. Further, this witness was disbelieved by the trial judge in that portion of his testimony wherein he contradicts the testimony of Mr. Kirby.
We have given the testimony in this record careful consideration upon review. We are much impressed with the fact that the trial judge made it very plain that upon this record he was loath to sustain the alleged gift. In our judgment, under, all the facts and circumstances disclosed, plaintiff’s claim of a gift inter vivos has not been sustained.
The decree of the circuit court is reversed; and a decree may be taken dismissing plaintiff’s bill of complaint. Defendant will have costs of both courts.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Formerly the Tuller Hotel Company, a Michigan corporation, owned and. operated the Tuller hotel in Detroit. Mr. Lew W. Tuller was president of' the corporation. The plaintiff Mrs. Narcissa Tuller is his wife. With the exception of qualifying shares held by other corporate officers, Mr. Tuller owned all the stock in the Tuller Hotel Company. In 1926 Mr. Tuller negotiated a mortgage loan of $3,500,000 on the Tuller hotel property. A trust mortgage was given wherein the defendant Detroit Trust Company was named as trustee, and bonds to the amount of the mortgage were issued and sold. Incident to securing this loan for his corporation, Mr. Tuller deeded to it a vacant lot used for parking purposes in connection with the- Tuller hotel. This lot, herein referred to as lot No. 16, was included with the other real and personal property of the corporation in the trust mortgage, hut with the provision that it might be released upon payment of $500,000 on the mortgage loan at any time the mortgagor was not in default. There is testimony that there was also an understanding between the parties who negotiated the loan that upon its consummation the corporation would redeed this lot No. 16 to Mr. Tuller. One of the vigorously contested issues in this case is whether such a deed was in fact executed and delivered by the corporation to Mr. Tuller. However, an unrecorded deed,'which was neither witnessed nor acknowledged, purporting to have been signed by the president and secretary of the Tuller Hotel Company at or about the time the trust mortgage was given, was placed in evidence. Notwithstanding this instrument was not recorded, prior to instituting the foreclosure proceedings, the plaintiff therein (the defendant Detroit Trust Company herein) had notice of the conveyance. It alleged in its bill of complaint that, after giving the trust mortgage, the Tuller Hotel Company ‘‘deeded.property described therein as lot sixteen (16) * * * to defendant Lew W. Tuller, as this plaintiff is informed and believes and charges the fact to be.” In other words, plaintiff in the foreclosure suit by its allegation admitted having knowledge or notice of the unrecorded deed. The trial judge found that this instrument reconveyed title to lot No. 16 to Mr. Tuller. Without passing upon that issue, we will assume for the purpose of this decision that the holding of the trial judge was correct.
The Tuller Hotel Company defaulted in making payments due under the trust mortgage. A receiver was appointed, foreclosure decreed, there was sale of the mortgaged premises and confirmation. At the sale the Detroit Trust Company, the trustee in the foreclosed mortgage and one of the defendants herein, purchased the property. See Detroit & Security Trust Co. v. Tuller Hotel Co., 253 Mich. 415. The redemption period expired March 4, 1931. The bill of complaint herein was filed March 2, 1931. It is the claim of the plaintiff Mrs. Narcissa Tuller that since she was not made a party to the foreclosure proceeding, and by reason of her inchoate right of dower in lot No. 16, she has a right to redeem from the mortgage, which included this lot with the other property of the Tuller Hotel Company. She does not seek to redeem from the foreclosure sale, but instead the relief she prays in part is as follows:
“That after final hearing on the merits in this cause this court order and decree that plaintiff Narcissa Tuller still possesses in [an] equity of redemption and right to redeem the mortgaged premises from the lien of the trust mortgage by reason of failure of plaintiff in such foreclosure suit to make said plaintiff a party therein and to obtain jurisdiction over her person in that proceeding.”
The bill of complaint herein also prays for an accounting “for the purpose of determining the amount of money necessary to be paid by said plaintiff so to redeem the property from such trust mortgage ; ’ ’ and further, that a receiver be appointed to take charge of and manage the Tuller hotel property. There is a further prayer for general relief. In this connection it may be noted that Mrs. Tuller alleges in her bill of complaint financial inability “to obtain the sums necessary to redeem from such mortgage except by the use of the property involved for the purpose of incumbering the same as security,” and thus securing money with which to redeem.
No specific relief is prayed in behalf of John Gillespie, receiver of the Tuller Hotel Company, who is joined as a party plaintiff, and why he is so joined is not clear.
The defendant the Detroit Trust Company (hereinafter called defendant) by answer has denied that Mrs. Tuller (hereinafter called plaintiff) is entitled to any relief, and has filed a cross-bill alleging that plaintiff’s asserted right in the Tuller hotel property which this defendant purchased on foreclosure constitutes a cloud on its title; and it prays that title to the property may be quieted in it and “that sáid Narcissa Tuller may be barred of all her claims and pretended rights in said property upon such terms as the court shall think proper.”
The circuit judge decreed plaintiff the right to redeem from the foreclosure and sale, and afforded her the statutory period within which to do so in the following portion of his decree:
“That said sale did not bar the equity of redemption possessed by plaintiff N'arcissa Tuller, and said plaintiff Narcissa Tuller is hereby given a right to redeem said property from the trust mortgage notwithstanding said foreclosure sale within six months after the signing of this decree; and that the amount required to be paid by plaintiff Narcissa Tuller for the purpose of effecting such redemption shall be such sum as shall equal the sum fixed by the foreclosure decree in cause number 174,357 as due to the trustee of such mortgage on the date of such decree, together with interest on said sum and any taxes which may have been paid by defendant Detroit Trust Co., as trustee, since the decree rendered in said foreclosure suit, with interest thereon to date of such redemption, at the rate fixed in said final decree of foreclosure from the date of such decree to the date redemption shall be made by plaintiff.”
Plaintiff’s reason for appealing is thus stated in her counsel’s brief:
“Our claim in this regard being that she should have a right to redeem from the mortgage itself and that as to her the foreclosure sale can have no effect whatsoever.”
■ Plaintiff’s contention is that the trial court could not limit her right of redemption to six months after the decree in this case; but, instead, that plaintiff’s right could be terminated only by a foreclosure to which she was a party and resale of the mortgaged premises.
With possible exceptions arising from circumstances in particular cases, the inchoate right of dower of the wife of a mortgagor vests her with the equitable right to redeem from foreclosure against his property. Moore v. Smith, 95 Mich. 71; Lamb v. Montague, 112 Mass. 352; Mackenna v. Fidelity Trust Co., 184 N. Y. 411 (77 N. E. 721, 3 L. R. A. [N. S.] 1068, 112 Am. St. Rep. 620, 6 Ann. Cas. 471); 19 C. J. p. 487; 42 C. J. p. 364. And this right is not affected by foreclosure proceedings to which she is not a party. Further, it has been held that the wife of a purchaser of mortgaged premises becomes possessed of a like right of redemption. Bigoness v. Hibbard, 267 Ill. 301 (108 N. E. 294); Northwestern Trust Co. v. Ryan, 115 Minn. 143 (132 N. W. 202); Denton v. Nanny, 8 Barb. (N. Y.) 618. In the instant case we will assume that plaintiff had a right to redeem. This obviates passing upon the controverted issues of fact and of law as to her right to redeem under the particular circumstances of this case. The question of first importance presented by this appeal is whether, under the record, the circuit judge was justified in limiting plaintiff’s right of redemption to a period of six months after decree in this case instead of decreeing to plaintiff the right to redeem from the mortgage, and, in event of her failure so to do, holding that her right of redemption could be terminated only by foreclosure and resale of the mortgaged premises. We think this holding of the circuit judge was correct.
In support of her contention to the contrary, appellant relies much upon the following decisions of this court: Grover v. Fox, 36 Mich. 461; Meigs v. McFarlan, 72 Mich. 194; and also the dissenting opinion in Gerasimos v. Wartell, 244 Mich. 588. In the first two of these cases there were obvious reasons necessitating a resale which are not applicable at all to tb,e instant case. In the Grover Case the foreclosure was by advertisement, instead of being in equity in the same court where the subsequent suit was instituted, as in this case; and in the opinion it is stated:
“The proceedings to foreclose have been found irregular, insufficient and inequitable, * * * and hence the premises should be held redeemable from the mortgage as an unforeclosed security, and not from the invalid sale.”
In the instant case there is no claim that as to the parties before the court in the foreclosure proceedings, such proceedings were irregular or insufficient, nor does plaintiff now contend that there was apything inequitable about the foreclosure or sale. Further, the bill of complaint in the Grover Case was a bill to redeem. But plaintiff here has not filed a' bill to redeem nor has she made any showing or offer that impresses us with any bona fide intention on her part to redeem even if decreed that right. On the contrary, as noted above, in her bill of complaint she confesses her inability to redeem. In the Meigs Case, supra, it should also be noted that the bill was one to redeem by one who had assigned as security his vendee’s interest in a land contract. The hold ing of the court is only to the effect that the assignee could only obtain absolute title by foreclosure and sale under the assignment as an equitable mortgage. There had been no previous sale of the premises. In Gerasimos v. Wartell, supra, our decision went only to the question of the effect of the failure to enroll or of the irregular enrollment of a decree. The question now under consideration was not involved in that case. It is true in his dissenting opinion Mr. Justice Potter said: “On a bill to redeem, the practice is to order a resale of the premises, in case the redemption moneys are not paid within the time prescribed by the decree;” but the decree in that case entered in accordance with the prevailing opinion required redemption without ordering foreclosure or sale. The obvious reason that the court was able to make this disposition of that case and which justified the trial court in so doing in this case is that the amount necessary to be paid in redemption had already been fixed in a regular proceeding, and none of the parties before the court were making complaint as to the amount so determined.
It may be said to be the common or usual practice to order resale on bill to redeem if the party seeking redemption does not pay the redemption money; but it is also true that resale will not be ordered where to do so is obviously inequitable or an idle ceremony 'because of confessed inability of the complaining party to redeem even if opportunity to do so is afforded.
“It is generally an essential part of a bill to redeem a mortgage that it offer in express terms to pay the amount due, with costs. The principle underlying this rule is that he who seeks equity must do_ equity. * * * The usual form of a judgment in a suit to redeem is that the mortgagor may. redeem upon paying the amount found due on the mortgage, within a specified time, together with costs; that upon his doing so the defendant shall discharge the mortgage and deliver up the mortgaged premises; that upon default of such payment, the complaint be dismissed with costs.” 19 R. C. L. p. 505.
Under the circumstances of this case, we think it would be highly inequitable to permit plaintiff to further harass the bondholders who have already been subjected to much delay and unusual litigation and expense incident to this foreclosure proceeding in which it now appears the bondholders will suffer a loss of at least approximately a million dollars. See Detroit & Security Trust Co. v. Tuller Hotel Co., supra. It would be inequitable to allow plaintiff, by filing a bill of complaint which technically is not a bill to redeem, to escape the requirement of a tender or a bona fide offer to pay the amount due on the foreclosed mortgage as would be required in a bill to redeem. Security Trust Co. v. Dinsmore, 186 Mich. 273. She is in a court of equity seeking relief, and of necessity must do or at least offer to do equity. Obviously her counsel fully appreciated this, for it is alleged in her bill of complaint: “Plaintiffs hereby offer to do equity in the premises and to abide by and to perform any decree of this court in that connection.” There might be a question as to the right or power of the trial court to treat plaintiff’s bill of complaint ás a bill to redeem if that were the only pleading in the case. But the scope of relief sought is widened by defendant’s cross-bill, wherein it is prayed that title to the property involved may be quieted’ in defendant and plaintiff’s alleged claim barred ‘‘upon such terms as the court shall think proper.” Thus, each of the parties is before the court seeking, equitable relief and offering to do equity, which includes accepting relief decreed to a party upon any equitable conditions imposed. The trial court would have been justified in dismissing plaintiff’s bill of complaint, on the ground that she was not entitled to any of the relief therein prayed. Notwithstanding she was possessed of a right to redeem, such dismissal would have been justified because her bill technically is not one to redeem. Plaintiff’s inchoate right of dower did not entitle her either to possession or the income from the mortgaged property. Havens v. Crandall, 51 R. I. 8 (150 Atl. 76). It follows that she was not entitled to have a receiver appointed for the purpose of taking possession of and operating the mortgaged hotel property. Further than this, the trust mortgage provided in case of default the trustee under the mortgage had the right to take possession and operate the hotel. No facts or circumstances are alleged in the bill of complaint or established by the proof which would entitle plaintiff to an accounting. While, as above stated, the trial court would have been justified in dismissing .plaintiff’s bill of complaint, instead, evidently under her prayer for general relief, plaintiff was granted a right to redeem upon payment within the time fixed of the amount equitably due defendant. Plaintiff was entitled to no more. See Northwestern Trust Co. v. Ryan, supra. Subject to the modification hereinafter made, the decree in that respect is affirmed.
The Detroit Trust Company also perfected an appeal. Besides raising other questions, this appeal challenges the right of the trial judge to grant plaintiff six months after the filing of the decree in, this case within which to redeem; and asserts error in that the defendant’s cross-bill was dismissed and the relief therein sought denied. The time within which plaintiff was decreed a right to redeem has expired pending this appeal; and therefore this phase of defendant’s appeal presents a question which has now become moot. However, there was error in decreeing dismissal of defendant’s cross-bill and denying of all relief therein sought. In its cross-bill defendant prayed that the claim of Mrs. Tuller of a right to redeem might be decreed to be barred and thus removed as a' cloud upon the title to the property which defendant• purchased at the' foreclosure sale. This relief was sought upon “such terms as the court shall think proper.” Since the court granted plaintiff: the right to redeem on equitable conditions imposed, the. decree also should have contained a provision that in the event of plaintiff’s failure to so redeem the defendant would be granted the relief prayed in its cross-bill to the extent of having plaintiff’s right of redemption, decreed foreclosed and title to the property cleared .of this claim. ...
Mr. Lew W. Tuller’s personal affairs' have been in the hands of a receiver since some time prior to the commencement of the foreclosure proceedings above mentioned. He was made a party defendant in such proceedings, but the bill of complaint did not make the receiver of Mr. Tuller’s property a party in the foreclosure case. Mr. Tuller’s receiver was made a party defendant in the instant case. He has answered and filed a cross-bill in which he seeks to have vacated and set aside the decree of foreclosure and the subsequent sale on the ground that it was not binding upon this receiver since the bill of complaint in the foreclosure proceedings did not make him a party defendant. Prom that portion of the decree in this case which denies this receiver the relief sought, he has also perfected an appeal. It appears from the record that, notwithstanding fhe receiver of Mr. Tuller’s personal affairs was not made a defendant in the foreclosure bill, the re ceiver did appear as such and filed an answer in that case. For that reason' the circuit judge in the instant case denied the receiver of Mr. Tuller the relief sought, on the ground that he voluntarily became a party to the foreclosure proceedings and was bound by the decree in that case. The circuit judge was right in so holding. A somewhat similar question was presented and decided in the recent case of Manchure v. Wayside Oil Corp., ante, 667.
Upon the filing of the bill of complaint herein, a receiver was appointed to take possession and have control and management of all the property of the Tuller Hotel Company covered by the trust mortgage and to continue the operation of the Tuller hotel ah a going concern. And upon final decree such receivership was continued. In making disposition of the instant' case we think it proper to say, although perhaps not necessary to the decision, that the trial court was in error in creating and in continuing the receivership. As above noted, plaintiff’s inchoate right of dower did not entitle her to the possession nor the income from the property over which the receivership was created. On the contrary, the trust mortgage vested the trustee upon default under the mortgage with full power to take and hold possession of the mortgaged property. There is nothing alleged in this bill of complaint which would justify the court under the circumstances of this case in taking from the trustee or the receiver appointed in the foreclosure proceedings possession of the mortgaged, property and placing it in the hands of a receiver for the benefit of either Mr. or Mrs,., Tuller or for the protection of any property right asserted by either of them,
The fotegoing disposes of all the meritorious questions presented in this appeal. However, in order that there may be no question whatever as to Mrs. Tuller having had full opportunity to redeem the property in question, and notwithstanding the allegation in her bill of complaint of her inability so to do, an additional 30 days from the time of filing this opinion will be granted her within which to redeem on the conditions-decreed by the circuit judge and payment of costs herein. In the event of such redemption, plaintiff will be entitled'to an accounting for any and all profits derived from the conduct of the hotel business since the appointment of the receiver in the foreclosure proceedings.
Except as above stated, the decree entered in the circuit court is affirmed, with costs to the Detroit Trust Company against the plaintiff Narcissa Tuller and also against Harry A. Eberline as receiver of Lew W. Tuller. In the event of Mrs. Tuller’s failure to redeem in accordance with the provisions hereinbefore contained, the Detroit Trust Company may take a decree which shall provide that Mrs. Tuller’s right of redemption is foreclosed in accordance with the prayer of the trust company’s cross-bill.
The case will be remanded to the circuit court for the discharge and final account of the receiver appointed in this cause.
Clark, C. J., and McDonald, Potter, Sharpe, Wiest, and Butzel, JJ., concurred. Fead, J., did not sit. | [
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] |
Sharpe, J.
The bill of complaint herein was filed on September 18,' 1928, to enjoin the defendants from taking forcible possession of property owned by plaintiffs on Parkinson avenue in the city of Fordson. On November 5,1928, the defendants filed an answer thereto, and by cross-bill sought specific performance of an alleged contract for the sale of said property by plaintiffs to defendants. After a hearing in open court, in which plaintiffs asked to have their bill dismissed and defendants submitted their proofs under the cross-bill, the trial court, on September 24, 1929, entered a decree dismissing both the bill of complaint and cross-bill. By stipulations filed and orders made, the time to settle the record for review in this court was extended from time to time until February 2, 1931. The printed record, consisting of but 49 pages of testimony, was filed on April 28th of that year. The brief of appellants was not filed until November 7th, and that of appellees is not on file at the time this opinion is written.
In the trial court’s opinion it was said:
“Specific performance is not always a matter of legal right. It is based more or less upon the equitable consideration and is only granted where a clear case for equitable relief is established and where it is shown that by a failure to enforce specific performance, hardships and clearly proven damages will accrue to the parties seeking the relief.”
The rule thus stated may well "be applied with greater strictness against defendants ’ claim, as here asserted, when they have permitted more than two and a half years to elapse after the entry of the decree before bringing their appeal to a hearing in this court.
The trial court found:
“It appears conclusively from the proofs in the case that plaintiffs received nothing from the defendants either in payment or otherwise and that they have nothing at this time of value from the defendants.”
A reading of the record discloses that this finding was justified by the evidence. The decree dismissing the cross-bill is affirmed. No costs are allowed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
The plaintiff is engaged in the purchase of negotiable instruments and securities. Its principal place of business is in the city of Chicago. It also has an office in the city of Detroit. This action is brought to recover on a promissory note for $5,817, executed by “Henderson Milling Co.- — Bert Henderson, Sec. & Treas.,” payable to the order of Kunkel Manufacturing Company at the Grand Rapids Savings Bank. It was dated July 8, 1930, and payable four months thereafter, with interest at 6 per cent. It was indorsed, “Kunkel Manufacturing Co. — Bert Kunkel, Pres.” This company, while named as a defendant in the declaration, did not appear in the case. Among the defenses set forth in the answer was the claim that the defendant had received no value for the note, and that the plaintiff was not a holder thereof in due course. The trial court so found, and entered a judgment for the defendant, from which the plaintiff has appealed.
It appears that the defendant, engaged in business at Grand Rapids, on July 17, 1930, executed and turned over to White & Company, “a commercial paper broker” in Detroit, a number of its promissory notes, including the one here in suit, for which it was to receive other notes acceptable to it. The names of the payees in these notes were left blank. On the next day, White & Company sent to defendant a number of notes, executed by F. K. Brown Co., which it had taken in a like deal from Kunkel Manufacturing Company, in satisfaction thereof. Defendant refused to accept these notes, and so notified White & Company. Some correspondence followed, in which White & Company assured defendant that this note would be returned by the Kunkel Manufacturing Company, to whom it had been delivered.
Mr. White testified that on August 1,1930, George Betzold, the assistant vice-president of the plaintiff and the manager of its Detroit office, called him on the telephone and told him'that he had received several notes from Kunkel and “wanted to verify the fact that those notes which he had received were negotiated through me before he discounted them or paid on them;” that, on being informed that the note in question was one of them, he told Betzold that it did not belong to Kunkel, and that he (Kunkel) had agreed to return it; that he told him that — •
“the Henderson Milling-Company had not received value as yet that was satisfactory to them, that Mr. Kunkel had no right to negotiate that note until Henderson was satisfied with the value that he was getting. ’ ’
He refreshed his recollection of this conversation and the date of it by an annotation made by him on “a daily reminder” kept by him, which he produced and which was put in evidence.
Betzold denied that any such conversation was ever had with White. He testified that he met Kunkel at a hotel in Detroit, and that Kunkel told him that he had sold equipment to the defendant and different companies, and wanted to discount the notes he had received; that, as a result thereof, a written contract was executed by the Kunkel Manufacturing Company by Bert Kunkel, president, and the plaintiff, whereby the plaintiff agreed to purchase such notes as were acceptable to it and guaranteed by the Kunkel company and pay 90 per cent, of the face value thereof, the balance of 10 per cent, to be paid when the notes were paid in full. The plaintiff was to receive a discount stated therein. This contract was accepted by the plaintiff by A. H. Rosenberg, its vice-president, under date of July 18, 1930.
Samuel J. Rosenfeld, an employee of plaintiff, testified that Kunkel called at its office in Chicago, and that the contract was executed in his presence; that negotiations were had for the purchase of negotiable paper, including the note in question, in which the Kunkel Manufacturing Company was named as payee; that, before making the purchase, plaintiff secured a report of defendant’s responsibility from R. Gr. Dun & Company; that it sent a message of inquiry by wire to the Grand Rapids Savings Bank, and received a favorable reply. This message was dated July 31, 1930, and the answer the day thereafter. He further testified that on July 26th a registered letter was sent by plaintiff to defendant, informing it, that the plaintiff had purchased the note in question, and a return card received; that plaintiff afterwards sent a letter to defendant on August 6,1930, again informing it of such purchase; that no reply to either of these letters was received by it, and that the note “was handled in the regular course of business.”
On cross-esamination he testified that the plaintiff bought several notes from Kunkel, paying him “probably $15,000 or $16,000;” that he did not remember the exact date of such purchase; ‘ ‘ our records would show on or about July 24 or 25, 1930;” that plaintiff did not get the report from R. Gr. Dun & Company until August 4, 1930. On being pressed to fix the date of purchase, he stated, “I think it was after we received an answer from the bank,” and “I say between July 24th and August 1st.”
'"We have read the testimony of White with much care. He was cross-examined at length by counsel for the plaintiff. The trial court found the fact to be that' such a conversation was had, and in our opinion such a finding was warranted.
It clearly appears that White & Company had no right to dispose of this note until the defendant had received value therefor. This fact having come to the knowledge of plaintiff through Betzold, its assistant vice-president, the burden of proof was cast upon it to show that it was a holder in due course ; that it had purchased it in good faith and for value before the notice of the infirmity of Kunkel’s title was communicated to Betzold. 2 Comp. Laws 1929, § 9301; Case v. City National Bank, 240 Mich. 419.
It is apparent that plaintiff had not purchased this note on July 26th, when it wrote defendant that it had done so. The exact date might easily have been shown by the production of its books or the check given Kunkel in payment thereof. We are satisfied, as was the trial court, that it was not purchased until after the plaintiff had received the report from it. Gr. Dun & Company on August 4th. It was not, therefore, a holder in due course and entitled to recover thereon.
The neglect of the defendant to reply to the letter of plaintiff of July 26th is adverted to by counsel. Defendant’s explanation is that it was relying on the assurance of White & Company that the note would be returned to it, and that it did not want to embarrass Kunkel in his dealings with plaintiff. The ends sought to be accomplished by defendant are not to be commended, but its failure to answer plaintiff’s letter cannot be said to be an admission of liability on its part in view of the information acquired by the plaintiff in the conversation between White and Betzold.
The conclusion thus reached renders it unnecessary to consider the other interesting questions discussed by counsel.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff, as administrator of the estate of George E. Mead, deceased, brought suit against defendants to recover damages caused by the negligent killing of plaintiff’s intestate. There was judgment for defendants and plaintiff appeals. At the time of the accident, plaintiff’s decedent was driving westerly on Sixth street in the city of Monroe at a point where it intersects the Dixie highway, a stop street. Defendant Fisk was driving south on Monroe avenue, which is the Dixie highway. Besides the driver in defendant’s automobile there was but one eyewitness. The undisputed testimony shows plaintiff’s decedent was driving westerly at approximately 35 miles an hour with his automobile, he did not stop at the stop street at its intersection with Sixth street, but proceeded without slacking his speed across that street, and the collision between the two automobiles respiting in the death of plaintiff’s decedent occurred at this intersection. Had plaintiff’s decedent observed the traffic law, stopped at the intersection, or had he been driving within the limits fixed by statute as to speed in driving automobiles (1 Comp. Laws 1929, § 4697), the accident would not have happened. Under the undisputed facts plaintiff’s decedent was guilty of contributory negligence. The trial court was correct in directing a verdict for defendants.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
On September 25, 1929, Charlton G. Eden, an employee of the plaintiff, Martin Parry Corporation, sustained an injury, causing the loss of an arm, in a collision between an automobile he was then driving and a truck, owned by the defendant Carl A. Berner and driven by his brother Charles E. Berner. This corporation was operating under the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.), with its insurance carried by the Ocean Accident & Guarantee Corporation, Ltd. A report of compensable accident was filed with the department of labor and industry and further proceedings had, resulting in a settlement agreement whereby the insurer agreed to pay Eden the sum of $18 per week for 200 weeks, which was allowed by the department. After receiving payment for 41 weeks, Eden filed a petition for a lump-sum settlement, which was granted, and an allowance of $2,862 — 159 weeks at $18 per week — was made therefor, for which a receipt, signed by him, was filed with the department.
This action was brought by the Martin Parry Corporation for the benefit of the insurance company to recover the moneys paid Eden and the sums paid by it to physicians and for hospital services and care and nursing. The plaintiff had verdict for $4,416.12. After denial-of defendants’ motions for judgment notwithstanding the verdict and for a new trial, a judgment was entered thereon, from which defendants have taken this appeal.
1. Negligence. It is urged that there was not sufficient evidence of the negligence of the defendant Charles E. Berner to justify submission of the case to the jury, and that the trial court, as a matter of law, should have found that Eden was guilty of contributory negligence.
The collision occurred on a pavement 20 feet in width on U. S. highway No. 12, a few miles east of the city of Kalamazoo. Eden was driving towards the west, and the truck came from the opposite direction. It was about the hour of 7:15 in the evening, and dark enough to necessitate the use of lights on the car and truck. They approached each other at a point where there was a decline in the road from both directions and a curve towards the north. The overhanging body of the truck struck the side of Eden’s car, and amputated his left arm, which was resting on the edge of the open window of his car. The left front wheel was broken off, allowing the axle to strike the pavement, and, as plaintiff claims,, leaving a mark thereon as it proceeded across the pavement where it finally came, to rest. The damage to the truck was slight.
It is plaintiff’s claim that the truck was not lighted; that as it reached the curve it swung over on Eden’s side of the road, and thus caused the collision. The defendants claim that the truck was lighted, and that the collision was caused by Eden’s car swinging over to the wrong side of the road at the curve. The driver of the truck testified positively that it was lighted in the usual manner. Eden testified that it had no lights on that he saw, and that, when he first observed it, “it was right on top of me.”
Dean Sanford, accompanied by Yirgilene Finley (now his wife), drove up behind the truck almost immediately after the collision. They testified that the first thing they saw was the lights on Eden’s car as it went across the highway; that they did not notice any lights on the truck; that they at once went to the relief of Eden and placed him in their car. Mrs. Sanford testified that when in the car, but not in the presence of the driver of the truck, after uttering the name of his wife and two telephone numbers, “he kept saying there weren’t any lights.” This statement was received over objection, and it is now insisted that it was not admissible. A somewhat similar question was presented in Rogers v. Railway Co., 187 Mich. 490. The applicable rule was therein stated by Mr. Justice Kuhn (p. 494):
“It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been "made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence, § 1750 et seq.”
This quotation appears with approval in Stone v. Sinclair Refining Co., 225 Mich. 344, and in People v. Giovannangeli, 231 Mich. 474, and the rule so stated was in no way changed by the holding in Sanborn v. Income Guaranty Co., 244 Mich. 99. Applying it to the facts here presented, it seems clear that the exclamations were admissible in evidence. See, also, Potter on Michigan Evidence, § 102, p. 166.
Photographs of the scene of the accident were taken the next morning. They were identified by Mrs. Sanford, who had driven back there, as “fair representations of the situation” as she saw it that night. They were received in evidence over defendants ’ objection. We think they were admissible and that the weight to be given this evidence tending to show that Eden’s car was on his side of the road at the time of the collision was for the jury.
It will serve no useful purpose to further discuss the evidence. It presented issues of fact as to the negligence of the driver of the truck and Eden’s contributory negligence, and no complaint is made as to the manner in which these questions were submitted to the jury.
2. Amount collectible. When the receipt showing payment of the amount fixed on the lump-sum settlement, $2,862, was put in evidence, counsel for the defendants objected thereto, on the ground that the present worth of the future payments should have been determined .and the plaintiff had no legal right to pay any sum in addition thereto. The statute (2 Comp. Laws 1929, § 8438) provides that in such cases “the deferred payments be commuted on the present worth thereof at five per cent, per annum to one or more lump sum payments.” Under this provision, the plaintiff was not required to pay more than the present worth of the payments due in the future, which it is conceded amounted to but $2,662.55. This excess of $199.45 was included in the verdict and judgment.
In our opinion, there was error in its inclusion. The statute provides for a determination of the present worth of the deferred payments, and th,e omission to do so was apparently an oversight on the part of the plaintiff and the. commission in fixing the amount.
Counsel for the plaintiff call attention to our holding in Eber v. Bauer, 252 Mich. 571, wherein it was held that the amount of an award cannot be litigated in a collateral proceeding where the right of subrogation is sought to be enforced. The amount of the award is not here questioned. The liability of the defendants to the plaintiff is fixed by the amount it was legally compelled to pay to Eden when the lump-sum settlement was made. The sum of $199.45 should not have been included therein.
If the plaintiff will, within 15 days after the filing of this opinion, file a remittitur of this sum ($199.45), the judgment will stand affirmed; otherwise, a new trial will be granted. The appellants will recover their costs on this’ appeal.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
Mary Sherwood Mowry, of the city of Dowagiac, executed a last will and testament on August 15, 1925. In it she made a number of bequests, among them the sum of $100 and a pair of “crushed pocket vases” to Lucy Frazee. The residue of her estate was devised and bequeathed to her only near relative, her half-sister, Grace Sherwood.
On November 27, 1926, she executed a codicil to her will, containing the following provision:
“I give and devise to my friend, Mrs. Lncy Frazee of the city of Dowagiac, my residence property known as street number 202 Orchard street, situate on the corner of Orchard and Oourtland streets, in the city of Dowagiac, Michigan, to have and to hold for her sole and separate use and benefit, absolutely and forever. I do this in grateful recognition and appreciation of her many kindly acts and ministrations to me, and because she agrees to see that I am cared for.”
On July 1, 1930, she executed a second codicil thereto, changing a bequest of $500 from the St. Joseph Michigan Children’s Aid Society to the Dowagiac Rotary Foundation.
The testatrix passed away on April 7, 1931. Objections to the probate of the will and codicils were filed by Grace Sherwood, in which mental incompetency and undue influence were alleged. The contest thereon was duly certified to the circuit court and came on for trial before the judge thereof and a jury. After the submission of proofs, the trial court directed a verdict sustaining* the validity of the will and the codicils. From a judgment entered pursuant thereto and directing that it be so certified to the probate court, the contestant has taken this appeal.
While the objections filed applied to the will and both codicils, the validity of the codicils alone is questioned upon this appeal; both on the ground of undue influence, and the second with.mental incompetency added.
The will was prepared by George M. Field's, probate judge of the county of Cass. In it she named Arthur F. Frazee, the husband of Lucy, as executor. Their home was near that of the testatrix. Some time after its execution, she desired to make a slight change in it and requested Mr. Frazee to get it from the judge of probate and gave him a written order therefor. After making the change, not here deemed material, she asked him to retain possession of it, which he did.
First Codicil. This codicil was executed when the testatrix was in a hospital in Chicago. She was on her way to Florida to spend the winter, and stopped in that city for a visit with an old friend, Mrs. Ella M. Laubender. When taken ill, she requested Mrs. Laubender to inform Mr. and Mrs. Frazee, and they at once left their home and went to Chicago. It is the claim of the contestant that under the proofs submitted the question of their exercise of undue influence over the testatrix at the time this codicil was executed should have been submitted to the jury.
The testatrix had for many years consulted with and been guided by the advice of Mr. Frazee in the handling of her business affairs. Her confidence in him is shown by her appointment of him, without his knowledge, as executor when she executed her will. She was then quite aged and somewhat infirm, and it clearly appears that Mrs. Frazee had given her much care and attention. Several times after the will was executed, she expressed a desire to remunerate her therefor, to a greater extent than she had done in her will. On several occasions she stated that she wanted Mrs. Frazee to have her home, as she felt that the contestant was well provided for without it.
Anticipating that she might desire to make a change in her will, Mr. Frazee took it with him when they went to Chicago, and the codicil was then executed in the hospital in the presence of and witnessed by Mrs. Laubender and the attending physician. Her mental capacity to execute it at that time is not questioned. Mr. and Mrs. Frazee were called as witnesses for the contestant, and Mrs. Laubender as a witness for the proponent, and examined at length as to what then occurred. Viewing their testimony in the light most favorable to support the claim of the contestant, no fair inference can be drawn therefrom that any undue influence was exercised to secure her signature thereto. See Severance v. Severance, 90 Mich. 417; In re Williams’ Estate, 185 Mich. 97; In re Cochrane’s Estate, 211 Mich. 370; In re Jackson’s Estate, 220 Mich. 565.
Second Codicil. The only alteration made in the will by this codicil was, as before stated, in changing the bequest of $500 from the St. Joseph Michigan Children’s Aid Society to the Dowagiac Rotary Foundation. The rights of the contestant under the will are in no way affected thereby, and, as the Children’s Aid Society is not here complaining, we see no reason for its consideration.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, Forth, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
In the circuit court plaintiff was decreed a divorce from the bonds of matrimony on the ground of extreme cruelty. In her appeal defendant asserts because neither party was a resident of Michigan at the time the bill was filed the court was without jurisdiction, and also that the proofs taken established that plaintiff has been guilty of misconduct touching his marriage relations and was not in court with clean hands.
We need give consideration only to the second question presented by the appeal. A careful review of the record convinces us that plaintiff both before and since the filing of his bill of complaint was guilty of misconduct by improperly associating with another married woman, who in consequence of her intimacies, with plaintiff has also instituted divorce proceedings against her husband in another jurisdiction. In behalf of plaintiff it is urged that there is no proof tending to show misconduct of this character prior to the separation of these parties. While this may be true so far as direct proof is concerned, nonetheless we think it is a fair and almost necessary inference from the testimony bearing upon plaintiff’s improper relations that misconduct of this character antedated the separation. In any event, we are convinced that it was plaintiff’s improper association with another woman that finally broke up his own home rather than the somewhat stale and none too serious acts of extreme cruelty which he urges against his wife.
The decree entered in the circuit court is set aside, and one will be entered here dismissing plaintiff’s bill of complaint. The defendant will have costs of both courts.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Per Curiam.
As part of her retirement benefits from the Detroit Police Department, appellant receives hospitalization insurance through Bankers Life Company. Upon being elected as a 36th District Court Judge, appellant sought additional hospitalization benefits through Blue Cross and Blue Shield of Michigan. As District Control Unit for the 36th District Court, the City of Detroit denied appellant the additional benefits because sections 16-9-4 and 16-9-8(f) of the city code prohibit duplicate hospitalization and surgical benefits to members of the city’s employee benefit plan, including retired subscribers. Appellant filed in Wayne County Circuit Court a "complaint for superintending control in the nature of mandamus” seeking payment of the BCBSM premiums. The circuit court correctly construed the complaint as requesting a writ of mandamus, GCR 1963, 714, and denied the writ. Appellant has brought this appeal as of right.
Appellant makes her claim of entitlement to hospitalization benefits through both Bankers Life and BCBSM on four grounds: (1) to require appellant to surrender her Bankers Life benefits would diminish a contractual obligation in violation of Const 1963, art 9, § 24, (2) Detroit ordinance 16-9-4 is in derogation of the uniform salary provision of MCL 600.8202(2); MSA 27A.8202(2), (3) denial of BCBSM benefits to appellant when 23 other 36th District Court judges receive such benefits denies appellant the equal protection of the law, and (4) the forfeiture of retirement benefits is an impermissible additional qualification to elective office, contrary to Const 1963, art 6, § 19 and MCL 168.467; MSA 6.1467.
The circuit court denied the writ of mandamus, addressing appellant’s first three arguments as summarized here: (1) Van Antwerp v Detroit, 47 Mich App 707; 210 NW2d 3 (1973), lv den 390 Mich 781 (1973), is distinguishable and apppellant has not been denied any financial benefit provided upon her retirement from the police department, (2) hospitalization insurance is a fringe benefit; there is no claim that appellant is receiving a lower salary than the other judges, and (3) there is no claim than the other judges are receiving duplicate benefits and appellant does have hospitalization insurance coverage.
Mandamus is an extraordinary remedy and lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of that duty. Oakland County Board of County Road Comm’rs v State Highway Comm, 79 Mich App 505, 509; 261 NW2d 329 (1977), lv den 402 Mich 907 (1978). In the instant case, the city has no legal duty to provide appellant with duplicate hospitalization coverage. We agree with the reasoning and result of the circuit court’s opinion insofar as it addresses three of appellant’s arguments and we find no merit in appellant’s fourth contention, that denial of duplicate coverage results in an impermissible added qualification to an elective office.
Affirmed. | [
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Per Curiam.
Plaintiff, the head apprentice teacher at Detroit’s Cass Technical High School, felt that he should be entitled to compensatory time for his long hours of work and filed a grievance against his employer. He also claimed that the employer unilaterally changed his working conditions. Defendant, plaintiff’s union, represented plaintiff through the first three steps of the grievance procedure. Plaintiff failed to appear at the hearings required under the fourth step of the grievance procedure and defendant discontinued representing plaintiff. While the original grievance was pending, plaintiff was reprimanded for his failure to follow orders at work. Defendant filed a grievance on behalf of plaintiff regarding this reprimand, but plaintiff also failed to appear at the hearing for this grievance. On April 17, 1980, the union discontinued representing plaintiff in these matters. On September 26, 1980, plaintiff filed a charge against the union with the Equal Employment Opportunity Commission. On November 6, 1980, the parties signed a settlement agreement which included a non-admissions clause. On May 15, 1981, plaintiff filed a complaint against the union in the circuit court. Plaintiff alleged that the union breached its duty of fair representation by withdrawing his grievance on April 17, 1980.
Defendant filed a motion for summary judgment. On March 1, 1984, the circuit court granted defendant’s motion for summary judgment on the ground that plaintiff’s claim was barred by a six-month period of limitations. MCL 423.216(a); MSA 17.455(16)(a). The circuit court also found that the limitations period was not tolled by the filing of the EEOC charge. In Romero v Paragon Steel Division, Portec, Inc (On Remand), 129 Mich App 566, 572-573; 341 NW2d 546 (1983), lv den 419 Mich 861 (1984), this Court considered a similar issue involving an unfair representation claim in the private sector and stated:
"The result reached by the Badon court [Badon v General Motors Corp, 679 F2d 93 (CA 6, 1982)], that the § 10(b) six-month period of limitation governs, was very recently reached by the United States Supreme Court in Del Costello v International Brotherhood of Teamsters, 462 US 151; 103 S Ct 2281; 76 L Ed 2d 476 (1983), where the Court addressed the question of what statute of limitations should be applied to hybrid § 301 — unfair representations claims. In recalling its holding in [United Parcel Service, Inc v Mitchell, 451 US 56; 101 S Ct 1559; 67 L Ed 2d 732 (1981)], that the appropriate state statute of limitations should apply to a § 301 suit brought by an employee against an employer, the Court noted that in Mitchell it did not address the contention that in suits of this kind the federal court should 'borrow’ the federal six-month limitation period contained in § 10(b). After addressing that question in Del Costello, the Supreme Court departed from its holding in Mitchell finding that 'state limitations periods for vacating arbitration awards fail to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights under § 301 and the fair representation doctrine’. Del Costello, supra, p 166. The Court then concluded that the six-month period of limitation, contained in § 10(b) of the National Labor Relations Act, 29 USC 160(b), governs claims against both the employer and the union.
"We find the reasoning and the result reached by the courts in Del Costello and Badon to be sound and we, therefore, adopt it and apply it to this case.” (Footnote omitted; emphasis in original.)
Likewise, we find the result reached by the courts in DelCostello and Badon to be sound. The circuit court therefore properly applied the six-month period of limitations found in MCL 423.216(a); MSA 17.455(16)(a).
Plaintiif next argues that if the statute should be construed as a statute of limitations, the limitations period was tolled by the filing of the EEOC charge. Michigan courts have held that a state civil action is not tolled by a prior action seeking administrative relief for the same transaction. Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 (1984); Washington v Chrysler Corp, 68 Mich 374; 242 NW2d 781 (1976).
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Per Curiam.
On February 24, 1981, Ralph Harris filed a complaint in circuit court against Citizens Insurance Co., alleging that defendant unreasonably refused to pay or unreasonably delayed in making payment of personal injury protection benefits in violation of the no-fault insurance laws. Plaintiff claimed that defendant outrageously refused payment of full benefits to which plaintiff was entitled, "with wilful and wanton disregard to the plaintiff’s health, welfare, safety and comfort, thereby subjecting plaintiff to pain, humiliation, insult, outrage, mental anxiety, embarrassment and mortification”. Harris then moved to file an amended complaint adding a second count averring the intentional infliction of emotional distress, and the trial court granted the motion notwithstanding defendant’s opposition.
Defendant subsequently moved for partial summary judgment as to Count II, the allegation of intentional infliction of emotional distress, pursuant to GCR 1963, 117.2(1). The trial court denied the motion. Defendant applied for and was granted leave to appeal from that interlocutory order.
On appeal, defendant asserts that, even assuming the factual allegations in plaintiffs amended complaint are accurate, plaintiff has failed to state a claim, other than merely for breach of contract, upon which relief can be granted. Defendant argues that the trial court erred when denying the motion for partial summary judgment because the plaintiff did not plead a separate cause of action, although designating it as such, and that the crux of plaintiff’s claim is directly related to the breach of contract. Therefore, defendant argues, plaintiffs recovery is limited to benefits provided for by the no-fault insurance act and plaintiffs claim for mental anguish or emotional distress damages is barred.
The general rule in breach of contract actions is that damages recoverable for a breach of contract are those arising naturally from the breach or those which were within the parties’ contemplation at the time of contracting. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980), Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854). In Kewin, the Michigan Supreme Court held that damages for mental (emotional) distress are not normally recoverable in breach of contract actions.
Plaintiff claims on appeal that he is not seeking damages for mental or emotional distress resulting from breach of the no-fault insurance contract. See Jerome v Michigan Mutual Auto Ins Co, 100 Mich App 685; 300 NW2d 371 (1980), and Schaible v Michigan Mutual Ins Co, 116 Mich App 116; 321 NW2d 860 (1982), holding that no damages are recoverable for mental and emotional distress for breach of a no-fault insurance contract. He argues however, that he has stated in his complaint a separate cause of action in tort, intentional infliction of emotional distress, for which damages for mental distress are recoverable.
In Partrich v Muscat, 84 Mich App 724, 729-730; 270 NW2d 506 (1978), this Court summarized the test employed in reviewing application of GCR 1963, 117.2(1):
"The standard governing this Court’s review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den, 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).”
The Court of Appeals has recognized intentional infliction of emotional distress as a separate cause of action which is not necessarily parasitic to another cause of action as an aggravating element of damages. Holmes v Allstate Ins Co, 119 Mich App 710, 714; 326 NW2d 616 (1982). This Court has adopted the Restatement definition of this tort:
"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. * * *” Restatement Torts, 2d, § 46, pp 71-72.
See Holmes, supra, p 714, and cases cited therein.
" 'It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!”
" 'The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Holmes, supra, pp 714-715, quoting Restatement Torts, 2d, § 46, Comment d, p 73.
Cognizant of these guidelines, we turn now to the plaintiffs complaint to determine whether the behavior alleged amounts to such "extreme and outrageous conduct” as would constitute a cause of action for intentional infliction of emotional distress.
In Count II of the amended complaint, it is alleged that defendant intentionally inflicted emotional distress upon plaintiff through the following acts by its agent and senior claims examiner, Richard E. Brewer:
"(a) Said Brewer requested Sid Stone, defendant’s claims representative to call their insured plaintiff * * * 'and casually inquiring as to whether or not he is doing some additional work. After he has committed himself to this, you might indicate to him the rumor that he was working for his son-in-law last summer and has been otherwise employed. Naturally we must be very delicate in this area as we do not wish to call him a liar, but it might start him to thinking and volunteering information. You might even flip on your recorder and record it * * *. Please note your recently submitted 10-40 for 1976, it is a joint filing indicating his wife’s as well as his own income which renders the report relatively useless. You might even use this as a guise for calling the insured * * *.’ [Emphasis added.]
"(b) Said Brewer also told Sid Stone * * * 'it seems to me that we’re going to be stuck with assd. For quite some time * * *.’
"(c) Brewer attempted to discontinue rehabilitation of the injured plaintiff stating that rehab has a pretty loud mouth in Lansing and could cause problems unless it is handled delicately and further states that he was glad that his tests didn’t show a preference for insurance.”
We conclude that the complained-of conduct by defendant’s employee does not, as a matter of law, rise to the level of "extreme and outrageous” conduct. The suggestions allegedly made by the claims examiner, while unprofessional, insulting and reflective of a cynical and insensitive attitude, cannot be characterized as conduct "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.” Contrast Ledsinger v Burmeister, 114 Mich App 12; 318 NW2d 558 (1982). (Complaint alleging racial slurs by merchant in course of discriminatory act of ejecting plaintiff from a public place of business held to have stated a cause of action for intentional infliction of emotional distress.)
Accordingly, we conclude that the trial court erred in denying defendant’s motion for summary judgment as to Count II of plaintiffs complaint.
Reversed. | [
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Per Curiam.
Plaintiff brought suit to recover for injuries incurred in an auto accident. A jury found damages of $4,000 for serious impairment of body function and/or permanent serious disfigurement but reduced the award by 40% due to plaintiff’s own negligence. From denial of her motion for a new trial, plaintiff appeals as of right.
Plaintiff contends that the trial court erred in instructing the jury that damages for noneconomic loss were recoverable only for periods during which plaintiff suffered serious impairment of body function. We agree. The instruction was in accordance with Rusinek v Schultz, Snyder & Steele Lumber Co, 98 Mich App 380, 385; 296 NW2d 262 (1980), rev’d on other grounds 411 Mich 502; 309 NW2d 163 (1981), reh den 412 Mich 1101 (1981), which held that serious impairment of a body function was a limitation on recovery as well as a threshold requirement. The Rusinek Court based its decision on two reasons underlying the no-fault act: (1) the problems incident to excessive litigation and (2) the problems of overcompensation of minor injuries and undercompensation of serious injuries. Rusinek, supra, was the only case available on the controlling law at the time of trial in the instant case. Thereafter a panel of this Court, strictly construing the no-fault act because it is a statute in derogation of the common law, took exception to Rusinek. Incarnati v Savage, 122 Mich App 12; 329 NW2d 790 (1982), lv gtd 418 Mich 880 (1983). We approve of the analysis in Incarnati, supra, and conclude that the instructions were improper. We reverse because the jury may well have limited plaintiffs damages pursuant to the instruction.
We address at length only one of plaintiffs remaining issues. Plaintiff has assigned error to the withdrawal from the jury of the issue of loss of earning capacity. The trial court ruled that, as a matter of law, plaintiff had not offered sufficient evidence. We affirm on the basis that damages for loss of earning capacity are not recoverable under the no-fault act. MCL 500.3135(2); MSA 24.13135(2) abolishes tort liability with certain exceptions. One exception is for damages for work loss as defined in §§ 3107 to 3110 in excess of the daily, monthly and 3-year limitations contained in those sections. It is now well established that "work loss” as used in §§ 3107 and 3107a excludes loss of earning capacity. MacDonald v State Farm Mutual Ins Co, 419 Mich 146, 150-152; 350 NW2d 233 (1984), Gerardi v Buckeye Union Ins Co, 89 Mich App 90, 93; 279 NW2d 588 (1979). We therefore conclude that "work loss” in § 3135(2)(c) also excludes loss of earning capacity.
"Loss of earning capacity” is what an injured person could have earned but for the injury. Prince v Lott, 369 Mich 606, 610; 120 NW2d 780 (1963). "Work loss” is loss of income from work an injured person would have performed if he had not been injured. MCL 500.3107(b), 500.3135(2)(c); MSA 23.13107(b), 24.13135(2)(c).
We disagree with Argenta v Shahan, 135 Mich App 477; 354 NW2d 796 (1984), which held that the plaintiff, who could not receive work loss benefits because his income exceeded the statutory allowance, could recover for loss of earning capacity in a tort action. We believe that the proper relief is damages for work loss pursuant to § 3135(2)(c) of the no-fault act.
We are not persuaded otherwise by the statement in Cassidy v McGovern, 415 Mich 483, 499; 330 NW2d 22 (1982), that, "[f]or economic losses beyond those for which payment was assured, the traditional tort remedy was left intact” by § 3135(2)(c). Since the section must be interpreted consistently with the definition of "work loss” later given by the Supreme Court in MacDonald, supra, p 151, the statutory remedy is more restrictive than the traditional remedy for "loss of earning capacity”.
We find no merit in the remaining issues and omit any discussion of them in light of our decision to reverse.
Reversed and remanded for new trial. | [
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Per Curiam.
The Department of Treasury appeals as of right from the trial court’s October 7, 1983, order and judgment granting plaintiffs’ motion for summary judgment._
1982 PA 269 amended § 520 of the Income Tax Act of 1967, MCL 206.520; MSA 7.557C1520). Section 520 provides for a property tax credit against state income tax owed by taxpayers. The amendment created a credit reduction formula which decreased the property tax credit by 10% for persons with an adjusted household income of over $65,000 per year and by an additional 10% for each increment of $1,000 in additional household income until the allowable property tax credit is reduced to zero for those taxpayers with household incomes in excess of $74,000.
Plaintiffs filed this suit alleging that they earned a taxable income in excess of $65,000 in 1982 and were affected by the credit reduction formula mandated by 1982 PA 269. Plaintiffs alleged that 1982 PA 269 was unconstitutional because the property tax credit reduction formula violated Const 1963, art 9, §§ 3 and 7 on the basis of due process, and the title-object clause of Const 1963, art 4, § 24.
The parties brought opposing motions for summary judgment. The trial court granted plaintiffs’ motion finding that 1982 PA 269 was unconstitutional because it violated Const 1963, art 9, § 7. The trial court also certified plaintiffs’ action as a class action and ordered defendant to insert a notice of this class action with 1983 individual income tax forms, instructional brochures, booklets and notices.
On October 25, 1983, this Court granted defendant’s motions for a stay of proceedings and immediate consideration. The only issue defendant raises in this appeal is whether 1982 PA 269 violates Const 1963, art 9, § 7. We decide that it does not, and reverse.
Const 1963, art 9, § 7 provides:
"No income tax graduated as to rate or base shall be imposed by the state or any of its subdivisions.”
The plaintiffs argue that the incremental property tax credit reduction formula mandated by 1982 PA 269 indirectly imposes a graduated income tax rate on taxpayers with annual adjusted household incomes between $65,000 and $74,000. We disagree.
The Court will not declare a statute unconstituional, or affirm a trial court’s finding of such unconstitutionality, "unless it is plain that it violates some provisions of the Constitution and the constitutionality of the act will be supported by all possible presumptions not clearly inconsistent with the language and the subject matter”. Oakland County Taxpayers’ League v Oakland County Supervisors, 355 Mich 305, 323; 94 NW2d 875 (1959). In addition to the presumption of constitutionality given to statutes, courts construe constitutional language within its "common understanding”. To do so, courts must consider the circumstances surrounding the adoption of the constitutional provision at issue as well as the purpose of the provision. Traverse City School Dist v Attorney General, 384 Mich 390, 405-406; 185 NW2d 9 (1971).
In Kuhn v Dep’t of Treasury, 15 Mich App 364; 166 NW2d 697 (1968), aff'd as modified 384 Mich 378; 183 NW2d 796 (1971), plaintiffs attacked the constitutionality of the Income Tax Act of 1967, alleging that its classification of taxpayers into three categories and its sliding scale of credit for city income and property taxes violdated Const 1963, art 9, § 7. The Court disagreed, and stated:
"Undoubtedly what the drafters and adopters of that provision in the 1963 Michigan Constitution had in mind was the graduated scheme of the federal income tax in which rates increase as taxable income does, and that power they wished to deny to the state. Neither the designation of three types of taxpayers with different applicable rates to each, nor the difference in exemptions or exclusions causes this act to run amiss of that wish and does not violate art 9, § 7. The rates of tax imposed by the act are uniformly applicable to all taxable income of every taxpayer in each class.” Kuhn, supra, 384 Mich 389.
This Court said the common understanding of art 9, § 7 was a constitutional prohibition "of a so-called 'piggyback’ income tax, i.e., one based on a taxpayer’s federal tax liability”. Kuhn v Dep’t of Treasury, 15 Mich App 370.
In Rosenbaum v Dep’t of Treasury, 77 Mich App 332; 258 NW2d 216 (1977), lv den 402 Mich 826 (1977), the plaintiffs similarly challenged the constitutionality of the property tax credit computation formula. That formula allows a credit against state income tax liability equal to 60% of the amount by which property taxes on a homestead in a taxable year exceed 3.5% of the claimant’s total annual household income. MCL 206.522; MSA 7.557(1522). Plaintiffs in Rosenbaum argued that the formual indirectly caused a graduated income tax rate because otherwise qualified taxpayers were denied the credit solely because their incomes were higher, or they were "out of formula”. This Court rejected the argument and stated:
"The city income tax credit provision, MCL 206.257; MSA 7.557(1257), permits a taxpayer to claim a credit for city income tax liability on a sliding scale with a maximum limit. Since the city income tax paid varies with the taxpayer’s income one could argue that the sliding scale credit has an impermissible effect of imposing a graduated tax rate. Both the Court of Appeals and the Supreme Court in their Kuhn opinions found the city income tax credit unobjectionable. Therefore, Kuhn cannot mean that tax credits may bear no relation to income. The city income tax credit will often bear a graduated relation to income, but once the credit is computed it is allowed as a credit without regard to a taxpayer’s income. The same is true for the property tax credit. The amount of the property tax credit is not based solely upon the taxpayer’s income, but rather upon the two independent variables of household income and property tax. Once the credit is computed it is allowed without regard to the taxpayer’s income. Therefore, it does not create either directly or indirectly a graduated tax rate or base. The logic of the Kuhn opinion requires the finding that the property tax credit provision does not violate Const 1963, art 9, § 7.” Rosenbaum, pp 335-336.
In this case, plaintiffs argue that 1982 PA 269 does violate Const 1963, art 9, § 7 because once the property credit is computed, it is allowed as a credit for taxpayers with adjusted household incomes over $65,000 on a declining sliding scale with regard to income.
While it is true that the property tax credit is allowed against income tax liability with regard to a taxpayer’s taxable income, we still find no constitutional violation. The dispositive question is whether the credit at issue indirectly creates a progressive or graduated income tax rate.
The § 520(8) property tax credit incremental reduction formula does not affect the fixed flat rate income tax liability imposed upon taxpayers with adjusted household incomes over $65,000. Their income tax liability remains the same. The only tax liability the § 520(8) formula affects, either directly or indirectly, is the property tax liability on their homestead. We reach this conclusion after carefully considering the nature of the property tax credit.
The property tax credit provisions of the income tax act create a property tax rebate program. That program is primarily designed to relate local property taxes to income or to the ability to pay those taxes rather than to the actual value of the property so taxed. The major recipients of this property tax rebate program are senior citizens, veterans, the blind and disabled, and the low-incomed. See, MCL 206.522; MSA 2.557(1522).
Those eligible for this property tax rebate under the formula, MCL 206.522; MSA 7.557(1522), Rosenbaum, supra, may receive the rebate in the form of an income tax credit. Indeed, a property taxpayer may file for this property tax rebate and receive such a rebate even if the computed rebate exceeds the amount of income taxes the property taxpayer might owe or even if the property taxpayer has no state income tax liability whatsoever. MCL 206.520(3); MSA 7.557(1520X3). The essence, then, the property tax credit is a convenient and practical means for the state to administer this property tax rebate program.
Furthermore, as was discussed in Rosenbaum, whether an income taxpayer in the $65,001 to $74,000 range receives a property tax credit at all depends upon (1) whether that taxpayer had indeed paid any property taxes, and (2) whether that income taxpayer is eligible for a credit by having paid more than $2,275 in property taxes on his or her primary residence in the tax year. Thus, income taxpayers with household incomes between $65,001 and $74,000 may not be eligible for any property tax rebate whatsoever regardless of the application of § 520(8). However, all income taxpayers in that bracket still owe income taxes on their adjusted incomes based upon the same flat rate; the same rate that applies to all personal income taxpayers in this state regardless of the amount of their adjusted incomes.
Therefore, 1982 PA 269 does not violate Const 1963, art 9, § 7.
Reversed.
"(8) For tax years commencing after December 31, 1981, a credit under this section shall' be reduced by 10% for each claimant whose household income exceeds $65,000.00, as adjusted pursuant to this section, and by an additional 10% for each increment of $1,000.00 of household income in excess of $65,000.00 or the adjusted base level.”
The $65,001 to $74,000 figures are not fixed. Also in § 520(8) of the Income Tax Act is a formula which adjusts those base levels to reflect the effects of inflation. Thus, in 1983, the incremental reduction of the property tax credit mandated by §520(8) affects householders with adjusted gross incomes exceeding $68,500. Households with incomes over $77,500 in 1983 could not receive any property tax credit. See the 1983 State of Michigan instructions for filing individual income taxes and general homestead property tax credits. | [
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Per Curiam.
Third-party defendant appellant appeals as of right from a divorce judgment entered November 22, 1982. Appellant challenges (1) the property settlement disposition of the marital home, and (2) a $30,000 ancillary judgment in favor of third-party plaintiffs Frank and Madge Szczepanski.
Carol and Stanley Smela were married on September 2, 1967. Carol Smela filed for divorce on October 30, 1979, and on July 31, 1981, Frank and Madge Szczepanski, Carol’s parents, filed a third-party complaint in the divorce proceeding seeking a judgment against the Smelas in the amount of $30,000. At the hearing, Carol Smela and the Szczepanskis testified that, in 1975 and in 1976, the Szczepanskis had loaned the Smelas $30,000 to enable the Smelas to purchase their marital home in Genesee County. While the funds were loaned without execution of any written document evidencing the debt, the witnesses testified that the parties had agreed that the loan would bear 6% interest and that payments would be made in the amount of $180 per month. Carol Smela subsequently executed a promissory note and a second mortgage acknowledging the loan. Defendant, however, testified that he understood the money to be a gift because, when he initially attempted to begin the monthly payments, Mr. Szczepanski had informed him that he should consider the money a gift. Defendant refused to sign a promissory note five years after receiving the first installment on the loan.
The trial court first decided the merits of the third-party complaint, finding that the money was a loan and not a gift and finding both Carol and Stanley Smela liable. Following a trial on the divorce action, the court awarded plaintiff the marital home encumbered by a $16,460.50 lien in favor of the defendant. The value of defendant’s interest in the home was its market value reduced by the amount of the balance owed on the mortgage (which Carol Smela was to assume and pay) and by the $30,000 judgment in favor of the Szczepanskis, the net divided in half.
While neither party challenged the jurisdiction of the trial court to adjudicate the claim of the Szczepanskis, we find that question so basic as to be dispositive.
The circuit court has no jurisdiction in a divorce proceeding to adjudicate the rights of any party other than the husband and wife. Michigan divorce statutes do not permit the courts to order conveyance of property or interests in property to third parties. The only exception is where a third party has conspired with a husband or a wife to defraud the other spouse out of his or her property rights. Yedinak v Yedinak, 383 Mich 409; 175 NW2d 706 (1970); Hoffman v Hoffman, 125 Mich App 488; 336 NW2d 34 (1983); Krueger v Krueger, 88 Mich App 722; 278 NW2d 514 (1979), lv den 406 Mich 1003 (1979); Sabourin v Sabourin, 67 Mich App 100, 104-105; 240 NW2d 284 (1976).
Moreover, while defendant never challenged the right of the Szczepanskis to join the divorce proceedings, defendant contested at trial and continues to contest on appeal his liability to the Szczepanskis for recovery of money damages. Thus, the third-party judgment cannot be affirmed on the ground that the trial court has authority to accept whatever property settlement the parties reach by stipulation. Kasper v Metropolitan Life Ins Co, 412 Mich 232; 313 NW2d 904 (1981).
We vacate the $30,000 third-party judgment against Carol and Stanley Smela. (The Szczepanskis may initiate some independent action to recover their loan and defendant may test his statute of frauds defense in a proper case.) This case is remanded to the trial court for reconsideration of the property settlement provisions of the divorce decree. We find no showing of prejudice or bias requiring the disqualification of the trial judge in this case. People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975), lv den 395 Mich 802 (1975).
Vacated in part and remanded. | [
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R. R. Lamb, J.
Defendant appeals as of right from a September 6, 1983, judgment of the trial court in favor of plaintiff on her claim for no-fault survivors’ loss benefits. The case had been submitted to the trial court on stipulated facts. We reverse.
Plaintiff, who was born on September 14, 1963, was the daughter of George R. Fredericksen, who died of injuries sustained in a motor vehicle accident on April 13, 1980. The deceased father had been divorced from plaintiff’s mother since December 6, 1972, and, at the time of his death, was obligated to pay child support for plaintiff at the rate of $55 per week plus $5 per week on arrearages. The deceased father’s obligation to pay child support was to cease when plaintiff reached 18 years of age or when she graduated from high school, which ever occurred later. Plaintiff turned 18 on September 14, 1981, and graduated from high school on June 4, 1982.
Because of the father’s death, plaintiff received social security benefits in the amount of $352.50 per month from May of 1980 until July 1, 1980, and then she received $402 per month from July 1, 1980, until July 1, 1981. Thereafter, she received $448 per month until July 3, 1982, when her social security benefits were terminated. At the time of plaintiff’s father’s death, plaintiff’s father was earning $1,429 per month in wages and did not have custody of plaintiff.
Defendant was the father’s no-fault automobile insurance carrier. On July 7, 1983, the trial court entered an order finding that plaintiff was entitled to survivor’s loss benefits from the date of the father’s death until June 4, 1982, the date of plaintiff’s graduation from high school. Her survivor’s loss benefits were to consist of lost income earnings, based upon the deceased’s wages (rather than the support obligation per court order) and employment benefits, with an adjustment for the father’s income taxes and social security benefits received by plaintiff.
On appeal, defendant maintains that the trial court’s decision improperly construed the survivors’ loss section of the no-fault act; namely, MCL 500.3108; MSA 24.13108. Plaintiff, on the other hand, contends that not only does the statute support the trial court’s decision, but to deny plaintiff benefits based upon the deceased’s wages would violate her constitutional right to receive equal protection under the law. See US Const, Am XIV, and 1963 Const, art 1, § 2.
MCL 500.3108(1); MSA 24.13108(1), provides in relevant part as follows:
"Except as provided in subsection (2), personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death * * (Emphasis supplied.)
In interpreting this provision, the Supreme Court in Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538, 570; 302 NW2d 537 (1981), reh den 411 Mich 1154 (1981), stated:
"In summary, we conclude that the Legislature intended that § 3108 survivors’ loss benefits should be calculated:
"(1) to include all demonstrable 'contributions of tangible things of economic value’ including, but not limited to, wages that would have been received as support by the surviving dependents from the deceased but for his death;
"(2) reduced by an adjustment for the income-related taxes that would have been paid by the decedent on items contributed by him to his dependents’ support;
"(3) without adjustment for the decedent’s 'personal consumption factor’.” (Emphasis supplied.)
Accordingly, the relevant inquiry is what "contributions of tangible things of economic value” would the deceased have made to plaintiffs support had he not died. The only factual evidence introduced in this case was the stipulation on which the trial court decided this case; viz., the $55 per week in child support that deceased was obligated to pay for plaintiffs support plus a small accumulated arrearage. The phrases emphasized above in § 3108 and in the Supreme Court’s opinion (i.e., that dependents would receive a benefit based upon the amount that they "would have recieved” for support) indicate that, in this case, plaintiffs survivors’ loss benefits are limited to the amount of the deceased’s support obligation.
Plaintiff argues that to restrict her recovery for survivors’ loss benefits to the father’s child support obligation would serve to discriminate against her because she is a child of a divorced decedent. We disagree.
Section 3108 provides that all dependent survivors shall receive a loss benefit equal to the amount that they would have received, up to a certain statutory limit, had the provider not been killed in an automobile accident. The children of a divorced decedent are not treated differently than the children of a decedent whose marriage was intact at the time of his death. Both the child of a divorced decedent and the child of a married decedent are entitled to receive the amount they each would have received for their respective support from the decedent had he or she not died. The statute does not set different limits on recovery for children of divorced decedents than for children of married decedents. Neither does it exclude children of divorced decedents from receiving any recovery. To the contrary, MCL 500.3110; MSA 24.13110 includes support for children of a divorced decedent by providing that a child is conclusively presumed to be a dependent of the deceased if he or she is either in the deceased’s custody or was receiving support from the deceased at the time of death.
Certainly, the fact that a child of a divorced decedent may receive less money for his or her support than would have otherwise been recieved but for his or her parents’ divorce is not a bias created by the no-fault act. Indeed, § 3108 does not establish whether or not the decedent’s child support payments are more or less in amount than the amount the decedent would have contributed in support of the child had there been no divorce. This section merely provides for an amount to be paid to the survivors based upon what the survivors "would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death”. MCL 500.3108; MSA 24.13108.
For these reasons, we conclude that § 3108 means what it says:
"[Personal protection insurance benefits are payable * * * after the date on which the deceased died, of contributions of tangible things of economic value * * * that dependents of the deceased at the time of the deceased’s death would have received for support * * * if the deceased had not suffered the accidental bodily injury causing death * * *.”
We also hold that § 3108 does not deny a child of a divorced decedent equal protection under the law.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, a question of public importance being involved.
The arrearage arose because the father had been hospitalized for two months for an ailment unrelated to the present matter.
This decision is limited by the facts stipulated to at trial. This opinion should not be read as meaning that a deceased noncustodial parent’s dependents are limited to receiving only those amounts representing the deceased’s support obligations under a judgment of divorce, judgment of separate maintenance, or some other arangement. On the contrary, had plaintiff been able to show that she "would have received” other contributions of tangible things of economic value from decedent but for his death, she could be entitled to those amounts under § 3108 as well. | [
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] |
Per Curiam.
Plaintiff appeals as of right from a circuit court order of summary judgment dismissing plaintiffs complaint for breach of an oral employment contract.
In his complaint, plaintiff alleged that he had been employed by defendant pursuant to a contract of employment entered into in April, 1976. Plaintiff averred that defendant had breached the employment contract by discharging plaintiff without cause in December, 1981. In Count I, plaintiff sought monetary damages for breach of contract. In Count II, plaintiff alleged that he was entitled to damages for mental and emotional distress.
In his deposition, plaintiff testified that in March, 1976, he met with representatives of defendant to discuss the employment of plaintiff and his wife with defendant. At the meeting in March, wages and benefits were discussed. Plaintiff questioned defendant’s representatives about job security and made a special point of inquiring about the duration of the position. Plaintiff testified that defendant’s representative "[guaranteed us that as long as the company was in operation and we done our job, that we would never have to worry about a job * * Plaintiff quoted the agent as saying, "[a]s long as you people do your job and A & T Transport is in business, you’ll never have a thing to worry about”. Plaintiff was subsequently hired as a terminal manager and dispatcher in April, 1976. The parties did not enter into a written contract. In December, 1981, plaintiff was discharged.
Defendant filed a motion for summary judgment based on the statute of frauds, MCL 566.132(a); MSA 26.922(a). The trial court granted defendant’s motion, ruling that the contract was terminable at will because it was for an indefinite period of time. The court also held that damages for mental distress are not available for breach of contract.
We first address defendant’s contention that the contract was for more than one year and therefore was void under the statute of frauds. For purposes of this appeal, we consider defendant’s motion to be one for accelerated judgment. GCR 1963, 116.1(5). Plaintiff claims that he had an oral contract under which he could only be fired for just cause as long as the company was in operation. Where an oral contract may be completed in less than one year, even though it is probable the contract will extend for a period of years, the statute of frauds is not violated. Fothergill v McKay Press, 361 Mich 666, 668; 106 NW2d 215 (1960). In the present case, the contract could have been performed within one year. The company could have terminated its operations or plaintiff could have performed so poorly that defendant would have had just cause to discharge him within one year. Rowe v Noren Pattern & Foundry Co, 91 Mich App 254, 256-257; 283 NW2d 713 (1979); Hrab v Hayes-Albion Corp, 103 Mich App 90, 94; 302 NW2d 606 (1981). To the extent that the trial court granted defendant’s motion on the basis of the statute of frauds defense, we find error.
We next address the trial court’s ruling that the contract was terminable at will because it was for an indefinite period of time. In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), the Supreme Court specifically rejected such a proposition and held that "a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term * * Toussaint, p 598. The representations relied on in Toussaint to claim an employment contract terminable for just cause only are virtually identical to those relied on by plaintiff in the present case. Defendant argues, however, that the contract in the present case is a satisfaction contract under which the employer is the sole judge of the propriety of the discharge. In Toussaint, the Supreme Court rejected such an argument and held that a promise to discharge for cause or good cause only is not a satisfaction contract. Toussaint, pp 620-621. Consequently, the trial court was in error when it found that the contract was terminable at will because it was for an indefinite period of time.
We believe, however, that the trial court properly granted summary judgment on Count II of plaintiff’s complaint. Count II of plaintiff’s complaint, whether construed as a claim for exemplary damages or damages for mental and emotional distress, does not state a claim upon which relief could be granted. GCR 1963, 117.2(1). A person discharged in breach of an employment contract may not recover mental distress damages. Valentine v General American Credit, Inc, 420 Mich 256; 362 NW2d 628 (1985). Since plaintiff has not alleged tortious conduct independent of the breach, plaintiff has not stated a claim upon which exemplary damages may be awarded. Valentine, supra, p 263; Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 420-421; 295 NW2d 50 (1980).
The trial court’s order granting summary judgment for defendant on Count II of plaintiff’s complaint is affirmed. The trial court’s order granting summary judgment for defendant on Count I of plaintiff’s complaint is reversed and this case is remanded for further proceedings not inconsistent with this opinion.
Affirmed in part; reversed in part.
The Toussaint opinion explicitly describes the basis for the contracts in that case:
"Both Toussaint and Ebling inquired regarding job security when they were hired. Toussaint testified that he was told he would be with the company 'as long as I did my job’. Ebling testified that he was told that if he was 'doing the job’ he would not be discharged. Toussaint’s testimony, like Ebling’s, made submissible to the jury whether there was an agreement for a contract of employment terminable only for cause.” 408 Mich 597. See, also, 408 Mich 597, n 5. | [
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On Rehearing
Before: D. F. Walsh, P.J., and R. M. Maher and T. Roumell, JJ.
Per Curiam.
In Moerman v Kalamazoo County Road Comm, 129 Mich App 584; 341 NW2d 829 (1983), we held that numerous errors had denied plaintiff a fair trial and we reversed the judgment of the trial court. Defendant moved for rehearing, arguing that this Court had misunderstood a factual question in the case (the position of the tree struck by the decedent’s car in relation to the shoulder of the road) and that this Court’s opinion had failed to address various arguments raised by defendant. After reconsideration, we conclude that our original opinion was wrongly decided for the reasons expressed in Judge Walsh’s dissent to that opinion. 129 Mich App 597. We therefore reverse our original ruling and affirm the judgment of the trial court._ | [
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Per Curiam.
On August 7, 1981, Delbert J. Brannstrom was fatally injured when the motorcycle he was driving collided with an automobile operated by defendant Edward E. Tippman. These appeals involve separate dramshop actions brought by the decedent’s ex-wife, Nanci Brannstrom (No. 75560), and by the decedent’s parents, James and Edith Brannstrom (No. 76825). Both complaints allege that shortly before the accident occurred the dramshop defendants illegally furnished intoxicating liquor to defendant Tippman at a time when Tippman was under the age of 21 years and was visibly intoxicated. In both cases the trial court granted the dramshop defendants’ motions for summary judgment under GCR 1963, 117.2(1). Plaintiffs appealed in both cases and the matters were consolidated.
Nanci Brannstrom originally filed an action against the dramshop defendants on behalf of the decedent’s minor children. As personal representative of the decedent’s estate, Nanci subsequently filed a wrongful death action against defendant Tippman. The trial court consolidated the cases and apparently told trial counsel that it would dismiss the suit on behalf of the children unless the wrongful death complaint on behalf of the estate was amended to add a claim against the dramshop defendants. The wrongful death complaint was amended in accordance with the court’s direction. The consolidated cases were then mediated and the award was accepted. A judgment in favor of the children was entered against the dramshop defendants in the amount of $300,000, and the action on behalf of the estate against the dramshop defendants was dismissed with prejudice.
The present actions were filed by Nanci and by the decedent’s parents in their own names in July, 1983. The trial court granted summary judgment in favor of the dramshop defendants against Nanci on December 5, 1983, and against James and Edith Brannstrom on February 22, 1984.
I
The first issue is whether the present dramshop actions are barred by the consent judgment entered in the wrongful death action on behalf of the estate. We answer that question in the negative.
The dramshop act provides in pertinent part:
"A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury.” MCL 436.22(5); MSA 18.993(5).
The wrongful death statute, MCL 600.2922; MSA 27A.2922, states in part:_
"(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.
"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, * * *.”
Defendants contend that because these actions arise out of the decedent’s death, plaintiffs’ dram-shop claims should have been brought by the personal representative as part of the wrongful death action. However, in O’Dowd v General Motors Corp, 419 Mich 597; 358 NW2d 553 (1984), the Supreme Court held that the personal representative in a wrongful death action is not a proper party to bring a dramshop action. Rather, an action for loss of companionship or support under the dramshop act must be brought by the injured parties in their own names. O’Dowd, supra, p 605, fn 20. See, also, Genesee Merchants Bank & Trust Co v Bourrie, 375 Mich 383; 134 NW2d 713 (1965). Therefore, the trial judge erred to the extent that he held that the present dramshop actions were precluded by the judgment in the prior wrongful death case.
II
The next issue is whether the decedent’s ex-wife and parents have pled claims upon which relief may be granted. A motion under GCR 1963, 117.2(1) tests the legal sufficiency of the claim and is determined by reference to the pleadings alone. The test is whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Cramer v Metropolitan Savings Ass’n (Amended Opinion), 136 Mich App 387, 397; 357 NW2d 51 (1984).
Nanci’s complaint alleged that, while she had divorced the decedent, at the time of his death they were living together as husband and wife, along with their children. Paragraph 18 alleges the following:
"That as a result of the death of Delbert J. Brannstrom, the plaintiff has been injured in her property, means of support or otherwise, which injuries include, but are not limited to, the loss of support, inheritance, society, companionship, consortium, aid and comfort of Delbert J. Brannstrom, as well as the sense of deprivation, grief, shock, and mental suffering * *
The parents’ complaint alleges the following injuries:
"That as a result of the death of their son, the plaintiffs have been injured in their property, means of support or otherwise, which injuries include, but are not limited to, the loss of the society, companionship, aid and comfort of their son, the loss of their investment in his upbringing and the loss of his services, as well as the sense of deprivation, grief, shock, and mental suffering * * *.”
Both complaints also allege that the death resulted in plaintiffs’ inability to secure repayment of loans made to the decedent.
The dramshop provision quoted above creates a cause of action in favor of a "wife, husband, parent, guardian or other person injured in person, property, means of support, or otherwise * * (Emphasis added.) The courts of this state have given a liberal construction to the words of the dramshop act, and the term "or other person” has been given a broad interpretation. LaBlue v Specker, 358 Mich 558, 568; 100 NW2d 445 (1960). In view of the liberal construction given to the dramshop act, we conclude that plaintiffs are persons entitled to bring an action under the statute and have sufficiently alleged that they were "injured in person, property, means of support, or otherwise”.
Ill
The next issue is whether plaintiffs’ inability to retain the alleged intoxicated person would bar these actions. The name and retain provision of MCL 436.22(5); MSA 18.993(5) states:
"An action against a retailer, wholesaler, or anyone covered by this act or a surety, shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”
The purpose of the provision is to prevent collusion between the plaintiff and the alleged intoxicated person. Salas v Clements, 399 Mich 103, 108-109; 247 NW2d 889 (1976). The Supreme Court and this Court have recognized that the provision should not be strictly enforced to produce "an unreasonable, unjust result, a result which is inconsistent with the purpose of the 'name and retain’ amendment * * *”. Salas, supra, p 109. Thus, compliance with the requirement has been excused where the injured plaintiff has no cause of action against the alleged intoxicated person and where circumstances suggest there is no potential for collusion. See Salas, supra; Newman v Hoholik, 138 Mich App 66; 359 NW2d 253 (1984); Schutz v Murphy, 99 Mich App 386; 297 NW2d 676 (1980).
The trial court in granting summary judgment against Nanci Brannstrom stated that she had no direct cause of action against defendant Tippman. We express no opinion on that question. Regardless of whether plaintiffs have individual causes of action against Tippman, he is a defendant in the wrongful death action arising out of the same accident, and both cases have been assigned to the same trial judge. We believe the potential for collusion in this lawsuit is negated by Tippman’s retention in the wrongful death action. We therefore hold that, in the event defendant Tipman is dismissed from these actions on the ground that plaintiffs have no causes of action against him, plaintiffs’ dramshop actions shall not be precluded because of their inability to comply with the name and retain provision as long as Tippman is retained as a defendant in the wrongful death action. We believe the present circumstances justify such an exception to the name and retain provision, and that a contrary rule would work an unreasonable and unjust result.
IV
With regard to plaintiff’s motion to strike portions of defendant Kulka’s appellate brief and supplemental brief, we grant the motion. We also grant plaintiff’s request for costs and deny the request for attorney fees incurred in bringing the motion to strike._
We conclude that summary judgment was incorrectly granted. Plaintiffs are entitled to present proofs as to the damages allegedly suffered by them.
Reversed and remanded for trial. We do not retain jurisdiction.
The estate’s wrongful death action against defendant Tippman remained pending.
Both orders were panted under GCR 1963, 117.2(1). The trial judge found that Nanci’s complaint failed to state a claim because (1) as the decedent’s ex-wife, she was not a proper plaintiff under the dramshop act, and (2) she had no cause of action against the alleged intoxicated person and therefore could not comply with the name and retain provision of the dramshop act. Summary judgment was granted against the decedent’s parents on the ground that their claim was part of the estate’s wrongful death action and was barred by the judgment in that case.
Tippman was named as a defendant in both complaints and he has not yet been dismissed from either action. | [
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Beasley, J.
Defendant, Nancy L. Keefer, appeals as of right from a divorce judgment awarded plaintiff, Byron E. Keefer, on October 6, 1983, pursuant to a written opinion filed by the trial judge on July 26, 1983. The issue on appeal is whether the property settlement was fair and, more particularly, whether the trial court’s handling of plaintiffs pension benefits was equitable.
The parties were married in 1960. Each had been married before. Three children were born of their marriage, two of whom had become adults at the time of the divorce. The youngest, then age 14, was placed in his mother’s custody and the father was ordered to pay child support, plus tuition and fees for a private school. The divorce judgment also contained the usual property settlement provisions. At the time of the divorce, plaintiff-husband was 61 and defendant-wife 47.
In April, 1981, plaintiff retired from the United States Postal Service after 31 years of service as a rural letter carrier. Also in April, 1981, plaintiff filed suit for divorce. The parties had separated around December, 1979, when defendant discovered a photograph of another woman in plaintiffs clothing. Although plaintiff denied having a relationship with the other woman, he eventually married her after the divorce.
In his opinion, the trial judge assessed fault for the break-up of the marriage against plaintiff, a fact-finding with which we are in accord.
At the time of his retirement in 1981, plaintiff received $928 per month from his pension, which sum may have been subsequently increased due to cost of living adjustments. Plaintiff did not have any other income. Defendant had worked outside the home on a part-time basis during the marriage. After the parties’ separation, she took a full-time rural letter carrier position to support herself and the parties’ minor child. Her income as a letter carrier was around $19,000 per year.
At trial, defendant offered the testimony of an expert who said that the then current value of plaintiffs pension was $93,000. This valuation was based upon a life expectancy for plaintiff of 23.5 years, a figure that he obtained from a large life insurance company. On cross-examination, he said that utilizing a life expectancy of 16.12 years, as provided under Michigan’s statutory mortality tables, the current value of plaintiff’s pension would be around $83,679.
In his written opinion, the trial judge dealt with plaintiff’s pension as follows:
"The one minor problem area is the pension which the plaintiff is now receiving, having opted for an early retirement. There is no question that if the plaintiff was working, the defendant would have the right to claim an interest in this pension fund, at least for the value of the pension attributable to the contributions made during the marriage of the parties. However, a different situation arises when a person is receiving benefits payable under this pension plan. The pension fund does have a value but the plaintiff is only able to receive a certain amount per month as payment under this plan. A part of this is being used for child support. It does not appear at this time that there are any assets available which could be used to offset plaintiff’s interest in the pension plan. If the parties were still married and plaintiff died, defendant would be entitled to certain benefits under this pension plan. It is the court [sic] understanding that she will lose this right after the divorce is granted. The Court is of the opinion that once the pension is in 'pay status’ a different rule applies. It may at first glance seem unfair that if a person is working, his pension plan is a part of the marital estate and an asset and the other party is entitled to a portion of this asset, whereas, if the person has retired, the pension is in 'pay status’ and the pension itself is not an asset. Only the monthly payments received from the pension are an asset. The court does approve the recommendation set forth in the Attorney-Referee findings as to the pension. However, the court does reserve alimony in favor of defendant against the plaintiff. The court does not reserve alimony in favor of the plaintiff against the defendant.”
The court then indicated that, once support payments ended, if the defendant was "in poor health or her income has decreased or she is in need, the court would, by reserving alimony, have the right to order some alimony be paid to the defendant”. The court indicated that if defendant was in need in the future, she may well be entitled to alimony payable from the pension plan.
On appeal, defendant argues that a vested, matured retirement annuity is a marital asset that should be equitably divided in the property settlement. In short, defendant wants a cash award now for her interest in plaintiffs pension.
If a pension has a reasonably ascertainable present value, it should be considered a marital asset by the court. Once a trial court has properly recognized property to be a marital asset, its divi sion is within the trial court’s discretion. The immediate reduction to present value and distribution of potential benefits is only one possible means of distribution. The trial court may also distribute pension benefits as they are received. Alimony is an appropriate vehicle, in proper cases, to put a just division of pension benefits in the hands of the non-pension-holding spouse.
In Hutchins v Hutchins, plaintiff-husband was receiving $545 per month pension as a retired state trooper (although at the time of the divorce he had become a mortician). In remanding, we directed the trial court to consider and include the value of the pension benefits as an asset, specifically saying:
"In so including it, the trial judge will fix such percentage or portion thereof, which under the existing circumstances is equitable.”[ ]
This case differs from many other divorce-pension cases in that the pension is not only vested, but plaintiff is, in fact, already receiving pension benefits. Under the circumstances of this case, it would seem fairer and better to relate defendant’s award to pension payments actually paid plaintiff during his lifetime, rather than placing a dollar figure on his pension based on his life expectancy. When, as here, payments are actually commenced, many of the "ifs, ands and huts” about the pension are eliminated.
We are inclined to agree with the trial judge that, under the facts and circumstances of this case, it is preferable to handle the pension in terms of future alimony rather than making a cash award in the property settlement.
While we cannot predict future events, it is our intention that defendant be entitled to a realistic evaluation of whether she is entitled to alimony at an appropriate future date. While we are not now in a position to predict with certainty when that will be, perhaps such a time will be when plaintiffs obligation to pay child support for the youngest child ends.
Affirmed.
For pension purposes, plaintiff was also entitled to credit for two years of military service.
Perry v Perry, 133 Mich App 453, 457; 350 NW2d 275 (1984); Ripley v Ripley, 112 Mich App 219, 229-230; 315 NW2d 576 (1982).
Hatcher v Hatcher, 129 Mich App 753, 766; 343 NW2d 498 (1983).
Boyd v Boyd, 116 Mich App 774, 782-783; 323 NW2d 553 (1982).
Perry, supra, p 460.
71 Mich App 361; 248 NW2d 272 (1976).
Hutchins, supra, p 372.
Boyd, supra, p 790. | [
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Per Curiam.
Plaintiff filed suit alleging that defendant unreasonably refused to pay no-fault benefits. Defendant brought a motion for summary judgment pursuant to GCR 117.2(3). The motion was granted by an order dated June 21,1984. Plaintiff appeals that order to this Court as of right.
Plaintiff alleges that he was injured while working for his employer, Michigan Boiler Company, at the Zug Island facility of the Great Lakes Steel Company. Plaintiff alleged he was walking from one part of the job site to another when he was struck from behind by a piece of equipment called a hi-lo. Plaintiff specifically alleged that he was on private property when the accident occurred. Deposition testimony shows that the hi-lo has four wheels, lights and an exhaust system. The horn on the hi-lo was not working at the time of the accident. The operator of the machine and a mechanic testified that the machine could be operated on a highway. The trial court ruled that the hi-lo was not a motor vehicle for the purposes of MCL 500.3101(2)(c); MSA 24.13101(2)(c). The trial court ruled that the defendant did not unreasonably deny plaintiff no-fault benefits.
The issue is whether the hi-lo was a motor vehicle within the scope of MCL 500.3101(2)(c); MSA 24.13101(2)(c). The statute states in pertinent part:
” ’Motor vehicle’ means a vehicle, including a trailer, operated or designed for operation upon a public highway by power otheV than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped, as defined in section 32b or Act No. 300 of the Public Acts of 1949.”
In Citizens Ins Co v Detloff, 89 Mich 429; 280 NW2d 555 (1979), lv den 407 Mich 864 (1979), this Court interpreted an insurance contract which incorporated the exact words of the above-quoted statute. The Court concluded that the contract covered a forklift operated on a public highway as it was being driven from one job site to another. The case is distinguishable. In Detloff the forklift was operated on a public highway. Plaintiff here did not allege the forklift was operated on a public highway. Plaintiffs claim can only succeed if the hi-lo in question is found to be a motor vehicle since it was not alleged to have been operated on a public highway.
Kelly v Inter-City Truck Lines, Inc, 121 Mich App 208; 328 NW2d 406 (1982), is also inapplicable. It is clear that the semi-trailer in question in Kelly was intended to be operated primarily on public highways.
We believe that this case is most akin to Apperson v Citizens Mutual Ins Co, 130 Mich App 799; 344 NW2d 812 (1983). In Apperson this Court ruled that a car which had been modified for racing on a track was removed from the provisions of the no-fault act because the vehicle was no longer designed primarily for use on a public highway. In this case plaintiff has not alleged that the hi-lo was primarily designed for operation on a public highway. Plaintiffs claim that it could be so operated or had been previously so operated does not change our ruling. If the hi-lo was an item designed primarily for highway use, plaintiff would have been covered. Kelly, supra. The allegations of plaintiffs complaint place him within neither of these categories. Defendant did not unreasonably deny plaintiffs claim. The trial court correctly granted summary judgment.
Affirmed. | [
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Per Curiam.
Plaintiff filed suit against defendant for alleged actions which resulted in the death of plaintiff’s decedent. Defendant brought a motion for accelerated judgment, which was denied. Defendant sought leave to appeal. Leave was granted by this Court on July 27, 1984.
Plaintiff’s original complaint, and the amended complaint filed after the motion for accelerated judgment was heard, allege that defendant negligently filled plaintiff’s decedent’s prescription. Plaintiff alleged that defendant supplied decedent with the drug Diabinese instead of the prescribed drug Dilalume. The Diabinese was incompatible with Inderal, another drug decedent was taking. Plaintiff alleged the incompatibility of the Inderal and the mistakenly supplied Diabinese resulted in the death of decedent.
Defendant brought a motion for accelerated judgment pursuant to GCR 1963, 116.1(5) claiming that plaintiff’s claim was barred by the limitation period in MCL 600.5805(4); MSA 27A.5805(4). The trial court denied the motion. The trial court ruled that the alleged negligence was not malpractice within the above statute. We disagree and reverse.
The question presented is whether MCL 600.5805(4); MSA 27A.5805(4) applies to negligence on the part of a pharmacist. Plaintiff argues that this is not a professional malpractice action; plaintiff claims it is a negligence action. Plaintiff thus reasons that MCL 600.5805(8); MSA 27A.5805(8), the period of limitation for negligence, applies and that MCL 600.5805(4); MSA 27A.5805(4) does not. The prescription was allegedly filled on January 13, 1981; decedent died on January 22, 1981. The suit was commenced on October 13, 1983. If the negligence limitation period applies, the action is timely, but if the malpractice limitation period of two years applies, the action is barred.
The complaint alleges a breach of duty which arose out of the professional relationship between defendant, a pharmacist, and the decedent, his client. Plaintiff has attempted to couch the complaint in terms of negligence; however, the complaint is clearly one for malpractice. _
The Michigan Supreme Court stated in Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928):
"Malpractice, in its ordinary sense, is the negligent performance by a physician or surgeon of the duties devolved and incumbent upon him on account of his contractual relations with his patient.”
The duty allegedly breached, from our reading of the complaint, arose out of the professional relationship between defendant and decedent. Cf., Rogers v Horvath, 65 Mich App 644; 237 NW2d 595 (1975), lv den 396 Mich 845 (1976); Pankow v Sables, 79 Mich App 326; 261 NW2d 311 (1977). A similar situation arose in Adkins v Annapolis Hospital, 116 Mich App 558; 323 NW2d 482 (1982), aff'd 420 Mich 87 (1984). In that case plaintiff unsuccessfully argued that his complaint alleged negligence but not malpractice. The Adkins panel quoted Cotton v Kambly, 101 Mich App 537, 540-541; 300 NW2d 627 (1980), lv den 411 Mich 1033 (1981), in reply:
" '[M]edical malpractice * * * has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality * * Adkins, p 564.
It is clear to us that the defendant is a member of a licensed profession. MCL 333.17711; MSA 14.15(17711). Plaintiff has alleged a failure on the part of the defendant to properly discharge his professional duties, thus causing damage to plaintiff. The key to a malpractice claim is whether it is alleged that the negligence occurred within the course of a professional relationship. The allegations of this complaint indicate that the negligence occurred within such a relationship. No matter how we read plaintiff’s complaint we must return to the conclusion that this is a malpractice claim.
MCL 600.5838; MSA 27A.5838 provides that a malpractice claim against a state licensed professional, such as the defendant, must be brought within the two-year period stated in MCL 600.5805; MSA 27A.5805. Plaintiff did not commence suit until more than two years passed. The suit was barred, and accelerated judgment should have been granted. Our conclusion is consistent with other applications of the accrual provisions of MCL 600.5838; MSA 27A.5838 and the limitation period of MCL 600.5805(4); MSA 27A.5805(4). See, Adkins v Annapolis Hospital, 420 Mich 87, 94-95; 360 NW2d 150 (1984); Sam v Balardo, 411 Mich 405; 308 NW2d 142 (1981). The limitation period of MCL 600.5805(4); MSA 27A.5805(4) applies to an action where it is alleged that a licensed pharmacist mistakenly dispenses the wrong drug, thus harming the plaintiff.
Reversed.
The pertinent allegations in the complaint stated:
"4) That defendant is a licensed pharmacy, authorized to compound and sell drugs.
"5) That plaintiff’s decedent received a prescription from a physician for Dilalume and Inderal.
"6) That plaintiff’s decedent had said prescriptions filled at defendant’s establishment.
"7) That instead of giving Dilalume as called for in the written prescription, the pharmacists, an agent, servant and employee of the defendant’s establishment, gave Diabinese, 250 mg., 2 tab, tid.
"8) That further Diabinese and Inderal are considered incompatible.
"9) That plaintiff’s decedent died on January 22, 1981, as a result of a coma and hypoglycemia and suffered great physical and mental pain and suffering from the time of the above-mentioned negligence until he died therefrom, as a result of the foregoing, and as the sole, direct and proximate result thereof, damages were sustained by the estate and heirs at law as hereinafter set forth.”
Plaintiff’s later amended complaint stated:
"4) That defendant is a licensed pharmacy, authorized to compound and sell drugs.
"5) That plaintiffs decedent received a prescription from a physician for Dilalume and Inderal.
"6) That plaintiffs decedent had said prescriptions filled at defendant’s establishment.
"7) That instead of giving Dilalume as called for in the written prescription, the pharmacists, an agent, servant and employee of the defendant’s establishment, gave Diabinese, 250 mg., 2 tab tid.
"8) That the pharmacist, mentioned in the preceding paragraph changed the prescription as given by the physician by adding the words '250’.
"9) That further, Diabinese and Inderal are considered incompatible.
"10) That plaintiffs decedent died on January 22, 1981, as a result of the coma and hypoglycemia and suffered great physical and mental pain and suffering from the time of the above mentioned negligence until he died therefrom, as a result of the foregoing, and as the sole, direct and proximate result thereof, damages were sustained by the estate and heirs-at-law as hereinafter set forth.”
Our ruling would be the same on either complaint. | [
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T. Gillespie, J.
Plaintiff appeals as of right from a grant of summary judgment in favor of defendants. Plaintiff was forced to retire at age 70 as required by the State Employees’ Retirement Act, MCL 38.19(3); MSA 3.981(19)(3). He subsequently filed suit claiming that his forced retirement violated the Elliott-Larsen Civil Rights Act. MCL 37.2101 et seq.; MSA 3.548(101) et seq. The trial court ruled that his claim was barred by the mandatory retirement provision cited above. We affirm.
The facts are undisputed. Plaintiff-appellant, George F. Klammer, had been employed by the Michigan Department of Transportation for 26 years before his forced retirement in June of 1979 when he turned 70 years old. Plaintiff had worked as an engineering aide and the MDOT acknowledged that he was industrious, alert, capable and a completely dedicated employee.
Following plaintiff’s retirement, he applied to the retirement board for a continuation of his employment. This was denied. He then filed a grievance with the Civil Service Commission charging the MDOT and the retirement board with age discrimination. This grievance was dismissed for lack of jurisdiction. Plaintiff then filed a complaint with the Michigan Civil Rights Commission alleging the same claim and it, too, was dismissed. Mr. Klammer then filed the instant action in June, 1981, in the Circuit Court for Ingham County, alleging age discrimination in violation of the Elliott-Larsen Civil Rights Act, MCL 37.2801; MSA 3.548(801). Both sides filed motions for summary judgment and defendants’ motion was granted for failure to state a claim for which relief can be granted. GCR 1963, 117.2(1).
The plaintiff in this case is admittedly industrious, alert and entirely competent. The reason for his termination is solely that he has passed the chronological age of 70 years.
The Michigan mandatory retirement provision is found in MCL 38.19(3); MSA 3.981(19X3), and provides:
"(3) On and after January 1, 1957, any member who has attained or attains age 70 years shall be separated from state service on the first day of the calendar month next succeeding the month in which the member shall have attained the age of 70 years. However, upon application of a member who has attained age 70 years, the retirement board may continue such member in service for such periods as the retirement board may determine to be necessary.”
The act was passed in 1943. At the time of passage, the act provided for elective retirement at the age of 60 and mandatory retirement at the age of 70. In 1974 the act was amended by the addition of subsection 3, partially quoted above, which continued the mandated retirement at age 70 unless the retirement board specially finds that for a certain period his or her service is "necessary”.
The relevant Elliott-Larsen Civil Rights Act provision dealing with employment is found at MCL 37.2202; MSA 3.548(202), and reads as follows:
"(1) An employer shall not:
"(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
"(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
"(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including a benefit plan or system.
"(2) This section shall not be construed to prohibit the establishment or implementaion of a bona fide retirement policy or system which is not a subterfuge to evade the purpose of this section.
"(3) This section shall not apply to the employment of an individual by his or her parent, spouse, or child.”
Section 103 of Elliott-Larsen defines age as chronological age.
The issue, of course, is whether the passage of Elliott-Larsen in 1977 impliedly repealed the compulsory retirement provision of MCL 38.19(3); MSA 3.981(19X3).
It is plaintiffs contention that Elliott-Larsen impliedly repeals the Michigan mandatory retirement provision of MCL 38.19(3); MSA 3.981(19)(3). He further contends that the declaration by the Legislature in subsection 2 of the employment provision of Elliott-Larsen, MCL 37.2202; MSA 3.548(202), should not be construed to provide an exemption for such mandatory retirement provisions. The Elliott-Larsen section reads as follows: "This section shall not be construed to prohibit the establishment or implementation of a bona fide retirement policy or system which is not a subterfuge to evade the purpose of this section.”
In forwarding this contention the plaintiff faces the hurdle of overcoming the presumption that new legislation passed by the Legislature is not presumed to impliedly repeal an older statute which apparently conflicts with it, unless the Legislature’s intent to repeal is expressed in particularly clear terms. It has long been held that, if the court can point to any other reasonable construction than the implied repeal of an older statute, it should attempt to harmonize the two. Ficano v Lucas, 133 Mich App 268, 281; 351 NW2d 198 (1983).
Elliott-Larsen was conceived to deter discrimination against older workers who are still capable. Generally, retirement under a plan which is not a subterfuge, is applied uniformly and is funded, is not considered discrimination and is socially beneficial. The reasons are several.
First, the employee usually knows and accepts as a condition of employment that he will retire under the plan. The knowledge of certainty of retirement leads to earlier and more considered planning for retirement. Employees knowing the certainty and date of their retirement tend to start delegating and training their replacements, thereby making for smoother transition.
The trauma of retirement at a specified age is less severe than it becomes at a later time when the employee must be terminated because he or she can no longer perform his or her duties.
We must assume that the Legislature sought to protect all those who exceed a chronological age (now 70) from the hardship of giving up their employment. The language of Elliott-Larsen, however, clearly excepts retirement policies and systems which apply uniformly and contain provisions for pension or other economic systems to protect the worker economically on retirement.
It should be mentioned that the statute draws no distinction between private and public employers as to these retirement provisions and, therefore, we conclude that the provisions do apply to the state and its retirement program.
The question of involuntary retirement under a benefit plan as a civil rights matter has not been addressed by Michigan courts; it has, however, been addressed by federal courts and the courts of sister states. There are significant differences in the federal civil rights law and the Elliott-Larsen Civil Rights Act so that decisions under the federal law are helpful but not decisive. The case of Loras College v Iowa Civil Rights Comm, 285 NW2d 143 (Iowa, 1979), reviews language similar to the language in MCL 37.2202; MSA 3.548(202). The court considered the exception in the Iowa statute which read, in § 601A.15: "The provisions of this chapter relating to discrimination because of sex or age shall not be construed to apply to any retirement plan or benefit system of any employer unless such plan or system is a mere subterfuge adopted for the purpose of evading the provisions of this chapter.”
The Iowa Supreme Court held:
"The exception protects the employer’s right to require the involuntary retirement of employees on the basis of their age, but only when the employer does so pursuant to a 'retirement plan or benefit system’ within the meaning of section 601A.15.
"It is important to note that, without this exception, an employer would never be permitted under the Act to retire an employee because of his age, unless such retirement is based upon the nature of the occupation. The Iowa Act (unlike its federal counterpart, 29 U.S.C. § 623 et seq., which allows discrimination on the basis of age, unless the individual is between ages forty and seventy) has no limiting age category to which it applies. The Iowa Civil Rights Act applies across the board with respect to individuals of all ages.” 285 NW2d 148.
Elliott-Larsen, like the Iowa statute, has no age limit and without the limitation of 70 years found in the Michigan mandatory retirement act, a state employee could never be retired for age.
It is our opinion that had the Legislature desired to terminate all involuntary retirement, as urged by the plaintiff, it would have expressed that thought precisely, as the fact of the existence of retirement plans was well known when Elliott-Larsen was enacted.
The second question raised by the plaintiff is whether the State Employees’ Retirement Act unconstitutionally delegates legislative authority to the retirement board where the board is authorized to retain employees past the age of 70 for such period as the board determines to be necessary.
The term "necessary” is not defined in the act, but the retirement board has historically applied one of three conditions to any extension: completion of a special project, retention until a suitable replacement can be made or retention for a short period of time to qualify the retiree for a pension.
The plantiffs situation did not fit any one of these criteria.
It is noted that the word "necessary” refers to the period of time that the board may extend the employment and not the services.
The criteria mandated by the Supreme Court for determining whether a given statute has provided sufficient standards to avoid the unlawful delegation of legislative authority were set forth in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976), here quoted from People v Turmon, 417 Mich 638, 644-645; 340 NW2d 620 (1983):
" 'While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.
" 'First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood, 274 Mich 47, 53; 264 NW 285 (1935).
" 'Second, the standard should be "as reasonably precise as the subject matter requires or permits”. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).7
" 'The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. * * *
" 'Third, if possible the statute must be construed in such a way as to "render it valid, not invalid”, as conferring "administrative, not legislative” power and as vesting "discretionary, not arbitrary, authority”. Argo Oil Corp v Atwood, supra, 53.’
"Footnote 7 amplifies the second principle:
" 'A standard cannot be considered "as reasonably precise as the subject matter requires or permits” if it does not satisfy due process requirements. See decision in State Highway Comm v Vanderkloot, 392 Mich 159, 169-178; 220 NW2d 416 (1974)’.”
The retirement board did not act arbitrarily and decided plaintiffs petition in accordance with longstanding and well-known rules.
In the context of this case, "necessary” was a sufficiently precise standard. State Highway Comm v Vanderkloot, supra, p 178.
The grant of summary judgment is affirmed. | [
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M. J. Kelly, J.
Defendant was convicted by an Eaton County Circuit Court jury on December 8, 1976, of possession of a controlled substance, heroin. MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He was sentenced to two to four years in prison and appeals of right.
On February 10, 1976, police officers assigned to the Tri-County Metro Narcotics Squad executed a search warrant for heroin, paraphernalia, and marked money suspected to be in a building occupied by defendant. The search warrant provided that the place to be searched was a "townhouse located at 4152 Seaway Drive, Eaton County, Lansing, Michigan, said townhouse being a brick front, single story, with 4152 address believed to be occupied by Randy Crocker [sic]”.
Deputy Barry Kingsley, one of several police officers who executed this warrant, testified at trial that after gaining entry to the described premises, the police officers secured the area by rounding up defendant and two other persons who were also present. Deputy Kingsley searched defendant’s person and removed from his front, left pants pocket a vial containing foil packets. The deputy then conducted a "field test” on the substance contained in one of these packets, and concluded that heroin was present. Defendant was then arrested. Deputy Kingsley testified at trial that he believed that the search warrant specified "persons within the residence” and that this' was his justification for searching defendant.
Defendant’s trial counsel did not move either before or during trial to suppress the vial and packets of heroin seized from defendant’s person. Defendant did not object to the admission of this evidence, nor did he move for a new trial.
On appeal, defendant claims that the seizure of narcotics from his person during a search conducted under the authority of a premises search warrant is illegal, and the failure of his trial counsel to move to suppress the evidence was a serious mistake that deprived him of a fair trial. Ordinarily a motion for new trial would be required as a prerequisite for a claim of ineffective assistance of counsel. Here the facts and circumstances surrounding the search were fully explored at trial and the record contains sufficient facts to reach this issue. See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Since we find that the search of defendant and the seizure of the heroin from his person was proper, it follows that defendant was not deprived of a fair trial for failure of his trial counsel to move to suppress the legally obtained evidence.
Generally, when a person is to be searched a search warrant must be obtained describing with particularity the person to be searched in such a manner that he may be identified with reasonable certainty. 68 Am Jur 2d, Searches & Seizures, §§ 79, 111, pp 733-734, 766-767, Anno: Sufficiency of description in warrant of person to be searched 49 ALR2d 1209. Case law on the requirements in a search warrant for identification requirements of persons to be searched is sparse. 49 ALR2d at 1210.
The instant search warrant, which defendant asserts was defective to justify a search of his person, described the place to be searched and stated that it was occupied by defendant, but it does not specifically authorize the seárch of defendant. This is contrary to the constitutional requirement set forth in the general rule cited above.
At the request of this Court, the Chief Assistant Prosecutor of Eaton County submitted a letter describing the Eaton County Prosecutor’s policy regarding search warrants issued for places and issued for persons. A copy of this letter was served on defendant’s counsel. The following excerpt from that letter provides an insight into how the instant search warrant was executed. The letter states:
"When structures of any sort are specified in a search warrant, our office and the Courts of this County have another policy regarding the wording of the search warrant and supporting affidavit. The policy is that anything, be it animal, vegetable, or mineral, found within the premises to be searched at the instant the warrant is executed can be searched if it can logically conceal or contain the items specified in the warrant.
"A warrant authorizing the seizure of stolen truck tires may not justify a search of mason jars found in a refrigerator, but a warrant specifying the seizure of heroin would. An item of clothing whether hung on a door knob or worn by a person may still contain heroin concealed in a pocket.
"The pockets of a person found upon the premises to be searched are just another 'drawer.’ Any other interpretation would make a person’s pockets a virtual sanctuary for drugs, weapons, or other evidence small enough to be concealed therein. This office does not claim that rectal or vaginal inspections or extraction of other bodily substances are automatically authorized by 'building’ search warrants. Nor does it claim that persons who exit the premises shortly before a search warrant is actually executed or arrive shortly thereafter are 'satellites’ of the premises and subject to search,”
Limited to the present facts we find the clothing search reasonable. It is logical that the pockets of defendant on the premises were suspect as receptacles of heroin small enough to be so concealed. We do not endorse the prosecutor’s opinion that the scope of the warrant would extend to every person found on the premises.
While the Michigan Constitution, Const 1963, art 1, § 11, and the United States Constitution, US Const, Am IV, require warrants for places to be searched and persons to be seized, the United States Supreme Court has determined that a prerequisite to searching the person is the seizure of the person. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). See also Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975).
Since we are dealing with an issue of constitutional magnitude we are careful to point out that we limit our holding to the specific facts of this case. The better procedure in this case would have been to set forth specifically that defendant was a person to be searched. We read the warrant in conjunction with the affidavit in support of the search warrant. People v Hopkins, 79 Mich App 723; 262 NW2d 675 (1977).
The affidavit indicates that an informant contacted the affiants, Lansing police officers, and informed them that defendant was selling heroin. The informant had purchased heroin in the past from defendant, and was given marked bills to transact another purchase from defendant. The purchase was made and the heroin returned to one of the Lansing police officers. The informant indicated that he obtained the heroin from defendant at the address set forth in the search warrant.
The information in the affidavit in conjunction with the warrant indicates that both the premises and defendant were considered targets for the controlled substance sought in the search warrant. Defendant was the only person named in the search warrant, in the affidavit, and as the occupant of the house to be searched. Defendant was specifically described and identified, thus negating any indication of a fishing expedition by the police. Cf. Commonwealth v Smith, — Mass —; 348 NE2d 101 (1976), cert den, 429 US 944; 97 S Ct 364; 50 L Ed 2d 314 (1976).
While it is true that a search warrant merely authorizing the search of a particular building or premises does not give the officers the right to search all persons who may be found in it, State v Fox, 283 Minn 176, 179; 168 NW2d 260, 262 (1969), cf. State v Clark, — Minn —; 250 NW2d 199, 202 (1977), the affidavit in support of the search warrant must not be read " 'in hypertechnical fashion, and * * * considerable latitude should be allowed for the drawing of reasonable inferences from their faces’ ”. Commonwealth v Smith, supra, 348 NE2d at 105-106. They "are to be approached, in hindsight, with a view toward common sense”. Id.
The instant affidavit establishes probable cause to believe that defendant was present on the premises and was involved in illegal trafficking in heroin. The search warrant in Commonwealth v Smith, supra, commanded the police to search a known occupant of the apartment and " 'any person present who may be found to have * * * [heroin] in his possession or under his control or to whom such property may have been delivered’ ”. 348 NE2d at 102. The court while upholding the search of the defendant stated:
"The affidavit in support of the search warrant for apartment number 549 revealed to the issuing clerk that the informant on whose information the affiant relied had been inside the apartment on two occasions within only ten days prior to the signing of the affidavit and had seen the occupant selling heroin in half bundles (twelve decks), to other persons present in the apartment. The affidavit further showed that periodic surveillances of the apartment by the affiant and other police officers within only the prior seven days caused them to observe persons, known to the officers as persons trafficking in heroin, enter and leave the apartment. The local clerk undoubtedly inferred that, from the nature of the neighborhood and the project in which the apartment was located, the apartment was of modest size. All of these facts could properly be appraised by the clerk in light of the fact that the application sought authorization to search for the kind of contraband which, because of its nature and the type of packaging customarily used in its transfer from one individual to another, could reasonably be inferred would be discovered on the persons of those individuals present. Further, the insidious nature of the contraband (heroin) was such as to render it more likely than not that the participants would act in secret and to the exclusion of innocent persons and possible informants.
From these asserted facts and fair inferences drawn therefrom, it was permissible to conclude that it was probable that any person in the apartment was a participant in the trafficking in heroin there. Further the inference was permissible that it was virtually impossible to predict who would be there at any given time.” 348 NE2d at 106. (Footnote omitted.)
While the Smith warrant is distinguishable in that it allowed for a search of persons on the premises, and required identifiable persons known to be on the premises to be described with particularity, we think that court’s reasoning can be extended to the instant situation where it is clear that defendant was the one under surveillance and there was probable cause for the police to search him for the controlled substance of heroin.
See generally Smith v State, 292 Ala 120; 289 So 2d 816 (1974), State v Fox, supra.
Affirmed.
Danhof, C. J., concurred. | [
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J. H. Gillis, J.
Defendants were each tried and convicted by a jury of two counts of felony murder, contrary to MCL 750.316; MSA 28.548. Both were sentenced to mandatory terms of life in prison on each count. Defendants subsequently appealed to this Court citing several instances of error. This Court reversed defendants’ convictions for felony murder in an unpublished per curiam opinion concluding that the trial court erred in failing to instruct the jury on the lesser included offense of second-degree murder. People v Montgomery, People v Page, (Docket Nos. 22809, 20618, June 16, 1976).
The case was remanded to the trial court for entry of a judgment of conviction on the lesser included offense of second-degree murder and for resentencing. However, the prosecuting attorney was given the option to retry the defendants on the first-degree felony-murder charge if he was persuaded that the interests of justice would be better served by such action.
On remand, the prosecutor opted for the entry of second-degree murder convictions for both defendants. Defendants were each resentenced by the trial court to two concurrent terms of 100 to 150 years in prison. Defendants now appeal as of right from their second-degree murder convictions.
Defendants first contend that the trial court erred in entering second-degree murder convictions following the reversal of their felony-murder convictions. Defendants argue that they were denied their right to a jury trial inasmuch as defendant Montgomery had requested jury instructions on the lesser included offense of manslaughter as well as second-degree murder.
It should be noted that defendant Page did not object to the instructions given by the court at his first trial and would normally be precluded from challenging the validity of the instructions on appeal. See People v Henry, 395 Mich 367; 236 NW2d 489 (1975). However, this Court concluded in defendants’ first appeal that the interests of justice require that defendant Page be allowed to raise the issue on appeal.
"However, there was no objection because the trial judge had already refused to follow an identical request by counsel for Page’s codefendant. In the interests of fairness, we deem that request to be sufficient to preserve this issue for Page’s benefit as well.” People v Montgomery, People v Page, supra, 415.
Therefore, defendant Page properly raises this issue on appeal.
Defendants direct us to People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), which concludes that voluntary manslaughter is a necessarily lesser included offense to the crime of murder. With murder necessarily included within the crime of felony murder, People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975), defendant Montgomery is logically correct in arguing that the denial of his request for an instruction on a necessarily lesser included offense mandates reversal and retrial. A trial court must, on request, give instructions on necessarily lesser included offenses. People v Ora Jones, 395 Mich 379; 390; 236 NW2d 461 (1975).
However, People v Van Wyck, supra, has been expressly overruled by the Supreme Court of this state. People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978).
"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.
"As we noted in People v Ora Jones, supra:
" 'The common-law definition of lesser included offenses is that the lesser must be such that it is impossi ble to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of "cognate” or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence "cognate” in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.’ 395 Mich 387. * * *
"A person who kills another with malice aforethought is guilty of common-law murder.
" 'Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.’ People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971).
"Provocation may mitigate the degree of the offense to manslaughter:
" 'But if the act of killing, though intentional, be committed under the influence of passion or in the heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.’ Maher v People, 10 Mich 212, 219 (1862).
"The absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter.” People v Van Wyck, supra, at 268-269.
While manslaughter is not a necessarily lesser included offense within the crime of murder, it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.
Therefore, in determining whether or not a trial court has erred in refusing to give a requested manslaughter instruction in a murder case, we must view the evidence presented at trial and determine if the evidence would sustain a manslaughter conviction.
In the instant matter, no evidence was produced to indicate that the killings were committed without malice aforethought. Defendants allege no mitigating circumstances but steadfastly contend that they did not participate in the killings. The record is void of any evidence which would support a reduction of the charges in the instant case from murder to manslaughter.
Accordingly, we rule that the trial court did not err in refusing to instruct the jury on the crime of manslaughter at the first trial.
The trial court obviously erred in failing to instruct the jury on the lesser included offense of second-degree murder. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975).
However, failure to so instruct does not entitle the defendants to a new trial. Numerous Michigan Supreme Court cases have ruled that the proper procedure to follow under such circumstances is to remand the case for entry of a conviction for second-degree murder and resentencing. These cases grant the prosecutor the option to accept the reduction from first-degree murder to second-degree murder or, upon proper notice, to have a retrial on the first-degree murder charge. See People v Dancer, 396 Mich 802; 238 NW2d 29 (1976), People v Livingston, 396 Mich 818; 238 NW2d 360 (1976), People v Bills, 396 Mich 819; 238 NW2d 803 (1976), People v Dates, 396 Mich 820; 238 NW2d 360 (1976), People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976), People v Aaron, 396 Mich 843; 239 NW2d 602 (1976), People v Watson, 396 Mich 870 (1976), People v Delvin Jones, 397 Mich 871 (1976), and People v Crawl, 401 Mich 1; 256 NW2d 86 (1977).
Hence, the trial court did not err in entering second-degree murder convictions against the defendants.
Defendants next contend that the trial judge was biased and should have been disqualified from resentencing defendants.
An actual showing of personal prejudice is required before a trial judge will be disqualified. People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975).
Defendants base this claim upon statements made by the judge after defendants’ convictions for first-degree murder had been overturned by this Court. The judge was quoted by a local newspaper as saying that the reversals were "hard to take”. Defendants argue that these comments, coupled with the duration of the prison terms imposed upon them (100 to 150 years), indicate that the judge was biased and unable to fairly sentence the defendants on remand.
The trial judge stated that he was not biased against defendants due to their success on appeal. He also indicated at the first trial and at the resentencing that the crimes of which defendants were convicted were some of the most horrible criminal acts he had ever been exposed to.
It should also be noted that a codefendant who pled guilty and turned state’s evidence received 75 to 125 years in prison. The disparity between defendants’ sentences and that of the codefendant can be readily explained by the fact that, he cooperated with the police.
The record reveals no showing of bias on the part of the trial judge. Accordingly, we find no error in respect to this issue.
Defendants next contend that the trial court erred in failing to grant defendants’ motion for change of venue.
A motion for a change in venue is addressed to the sound discretion of the trial court, and error will be found only where there is a showing of abuse of discretion. People v Anderson, 62 Mich App 475, 484; 233 NW2d 620 (1975), People v Stockard, 48 Mich App 680, 684; 211 NW2d 62 (1973), aff'd, 391 Mich 481 (1974), People v Garland, 44 Mich App 243, 248-250; 205 NW2d 195 (1972), rev’d on other grounds, 393 Mich 215 (1974), People v Collins, 43 Mich App 259, 262-263; 204 NW2d 290 (1972), lv den, 391 Mich 798 (1974).
A review of the record reveals no such abuse of discretion in the instant case.
Defendants finally contend that the trial court erred in failing to allow their respective appellate attorneys to review the presentence report used by the trial court when it resentenced the defendants for second-degree murder.
We disagree. Defendants’ respective attorneys were present at sentencing and made no request to examine the presentence report. No motions were filed with the trial court concerning the presentence report before appeal as required by the Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975):
"In Simpson and Cotton [two defendants in Guilty Plea Cases], the defendants assert that the judge considered inaccurate information in sentencing them. Such claims should, before appeal, first be presented to the trial court by motion to vacate sentence, supported by appropriate affidavits indicating that the sentencing judge had before him and may have considered inaccurate information. Upon such a showing, the sentencing court shall hear the defendant’s claims and shall make such disposition, including vacation of sentence and resentencing, as may be warranted.” (Emphasis supplied.)
Therefore, defendants have failed to properly preserve this issue for our consideration on appeal.
Affirmed.
Every defendant on trial for first-degree murder is entitled to have the jury instructed on second-degree murder even if no request for such an instruction is made. See People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Hence, People v Henry, 395 Mich 367; 236 NW2d 489 (1975), would only apply to defendant Page’s failure to request an instruction on manslaughter. | [
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V. J. Brennan, J.
Defendant George N. Hall was convicted by a jury in Ingham County Circuit Court on a multiple count information which consisted of three counts of murder, three counts of felony murder, one count of assault with a dangerous weapon with intent to commit murder and one count of assault with intent to rob while being armed. He was tried jointly with codefendant Leo McGill on September 15-18, 22-25 and October 6- 9, 13-16, 20 and 22-24, 1975. McGill was found not guilty on every count. Defendant was found guilty on all eight counts. On December 1, 1975, defendant was sentenced to a term of life imprisonment on each of the eight counts. Defendant appeals as a matter of right under GCR 1963, 806.1.
Little dispute exists about the events leading up to defendant’s conviction. Early in the morning of January 30, 1975, defendant was a participant in a card game at the home of John Fowler in East Lansing, Michigan. At about 3 a.m. defendant and Lawrence Chappell became involved in an altercation. Testimony at trial indicated that defendant produced a knife and threatened Chappell with violence. Eventually the parties returned to their card game and defendant left the building at 5 a.m. At that time only Lawrence Chappell, Charles Bovinette, N. A. Gaulden and John Fowler remained at Fowler’s residence. Half an hour later, defendant went to the home of Karen Lawson and demanded the return of firearms he had left with her.
Testimony regarding the actual murders was produced by N. A. Gaulden, the lone survivor of the incident. At about 6 a.m., defendant and another man identified as Leo McGill returned to the home where the card game was being played. Defendant was refused his request to rejoin the game because he had no money. Defendant responded, "Never mind, it doesn’t matter. We are taking all the money anyhow.” At this point, defendant and codefendant McGill drew guns and ordered everybody to the floor. Gaulden then heard shots and saw Charles Bovinette fall, although he could not determine who had fired the shots. Next, he saw defendant shoot at Lawrence Chappell.
Defendant then told Gaulden to give him his money. After complying, he was ordered to lie on the floor. He then heard several, shots and was struck twice by bullets, once in the side and once in the back. Shortly afterward, Gaulden called the police. On arrival, they found John Fowler and Lawrence Chappell dead. Charles Bovinette died on February 4, 1975.
On appeal, defendant raises several allegations of error. We will address those which merit discussion.
Defendant first contends that the trial court committed reversible error by permitting defendant to stand trial on three counts of premeditated murder and three counts of felony murder and by sentencing defendant to six life sentences where defendant is alleged to have killed only three people.
Defendant was found guilty of the following crimes: (1) separate convictions for the premeditated murder and felony murder of John E. Fowler, contrary to MCL 750.316; MSA 28.548; (2) separate convictions for the premeditated murder and felony murder of Lawrence Chappell, contrary to MCL 750.316; MSA 28.548; (3) separate convictions for the second-degree murder and felony murder of Charles Bovinette, contrary to MCL 750.317; MSA 28.549 and MCL 750.316; MSA 28.548; (4) separate convictions for assault with intent to commit the crime of murder and assault with intent to rob while armed of N. A. Gaulden, contrary to MCL 750.89; MSA 28.284 and MCL 750.83; MSA 28.278. The propriety of convicting and sentencing defendant on the two assault counts is not contested on this appeal. However, concerning the murder counts, defendant was convicted and sentenced to six life terms. for the commission of only three criminal acts. He challenges this penalty on grounds of double punishment.
We would note first that the prosecution need not have been forced to elect between the two theories of first-degree murder. People v Cabassa, 249 Mich 543, 545; 229 NW 442 (1930). In Cabassa, the Michigan Supreme Court noted:
" 'When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be confounded in making his defense, and the people ought not to be compelled to elect.’ ” People v Cabassa, supra at 545.
See also People v Allan, 263 Mich 182, 201-202; 248 NW 589 (1933), People v Andrus, 331 Mich 535, 540-541; 50 NW2d 310 (1951), People v Loncar, 4 Mich App 281, 287; 144 NW2d 801 (1966). In short, we find no error in the court’s not requiring election by the prosecutor between premeditated murder and felony murder. No such election is required.
Nonetheless, even the prosecution concedes that defendant’s six murder convictions and sentences resulted from three separate acts. We find defendant was subjected to double punishment and hold that three of the convictions and sentences must be vacated. See People v Stewart (On Rehearing), 400 Mich 540, 547-550; 256 NW2d 31 (1977), People v Martin, 398 Mich 303, 307-311, 313-314; 247 NW2d 303 (1976). See also People v Crown, 75 Mich App 206, 215-216; 254 NWD2d 843 (1977). In Crown, we vacated one of two life sentences imposed upon defendant where he had been convicted of both a felony murder and premeditated murder of a single victim. Following the procedures used there, the life sentences imposed for the felony murders of John E. Fowler and Lawrence Chappell are vacated. Similarly, the life sentence imposed for the second-degree murder of Charles Bovinette is vacated. See People v Anderson, 62 Mich App 475, 482-483; 233 NW2d 620 (1975). Thus three life sentences may stand.
Defendant next claims the trial court committed reversible error by refusing to admit evidence relating to the defense of diminished capacity and by refusing to instruct the jury on this defense when evidence of diminished capacity was admitted. The contention is erroneous; the trial court did admit certain evidence regarding this defense and also gave an appropriate instruction although not specifically labelled "diminished capacity”.
Review of this record leads us to conclude that defendant was not prejudiced by the trial court’s ruling. We find defendant was able to present evidence of diminished capacity by means of the testimony of Dr. Arnold Werner. This witness testified that defendant exhibited some amnesia, had not slept much prior to the murders and had suffered a blow to the head at some time. This testimony was extensive enough to provide the jurors with sufficient evidence to consider whether defendant’s specific intent was negated by diminished capacity. Other testimony provides only cumulative information to that provided by Dr. Werner. The jury had the benefit of all relevant evidence relating to the defense. We find no basis for reversal here.
Moreover, the following summation of defendant’s argument was made to the jury by the trial court:
"It is defendant Hall’s position that because of exces sive use of alcohol coupled with lack of sleep and use of amphetamines that he was unable to formulate the speciñc intent to kill and rob. Furthermore, that he contends that he received certain blows to the head which complicated his thinking process.” (Emphasis added.)
In addition to instructing the jury as to the intent required for each crime charged, the court noted the following:
"When a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.”
In addition, both attorneys referred to the "concussion” theory in their closing argument. Therefore, we feel that the trial court adequately apprised the jury as to defendant’s diminished capacity defense. People v Fields, 64 Mich App 166, 172-173; 235 NW2d 95 (1975), lv den, 397 Mich 861 (1976). Further, we note that the jury rejected defendant’s claims of insanity and intoxication, both of which would appear to have more merit than defendant’s diminished capacity defense.
On defendant’s remaining allegations of error, we only comment briefly. We do not find the trial court committed reversible error by admitting evidence of a prior altercation between defendant and Lawrence Chappell which occurred some months before the killing. We find such evidence admissible in order to explain the cause of the scuffle between the same two persons two hours before the killings. Such testimony tended to show motive or intent in a case where the states of mind were crucial. MCL 768.27; MSA 28.1050. Further, the probative value of such evidence outweighed its prejudicial impact. Such evidence was also rele vant to the res gestae of the crime. People v McPherson, 38 Mich App 534, 543-544; 197 NW2d 173 (1972). Finally, on review of the record, we find that no prejudice resulted from admission of evidence of this prior altercation.
Nor did the trial court commit reversible error by excluding evidence that John Fowler and Lawrence Chappell had previously appeared at poker games while armed with revolvers. We sustain the trial court’s holding that proper foundation supporting a claim of self-defense by defendant had not been laid at the point when this character evidence was offered, thereby precluding its introduction. People v Knott, 59 Mich App 105, 108-109; 228 NW2d 838 (1975), citing People v Cellura, 288 Mich 54; 284 NW 643 (1939). See also People v Van Camp, 356 Mich 593, 600; 97 NW2d 726 (1959). Evidence clearly existed indicating defendant as the aggressor and eliminating any possible self-defense theory. Evidence of the victims’ propensity toward carrying guns was properly excluded.
The trial court did not abuse its discretion by admitting into evidence photographs depicting the bodies of the victims. Admission of such photographs is within the discretion of the trial judge so long as they are not offered with the sole intention of inflaming the jury. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). Our finding in this regard is unaffected by the fact that defendant was willing to stipulate to the location of the bodies. People v Green, 74 Mich App 351, 357-358; 253 NW2d 763 (1977). We find no improper intent or undue prejudice to defendant by the court’s decision to admit the evidence.
Finally, we find no reversible prejudice to defendant by the prosecution’s comment in rebuttal regarding possible future consequences should defendant be found not guilty by reason of insanity. The present rule in Michigan is that neither prosecution nor defense counsel may comment during trial upon the possible finding of not guilty by reason of insanity. People v Szczytko, 390 Mich 278, 284-290; 212 NW2d 211 (1973). However, where, as here, the prosecution’s remarks were in response to defense counsel’s comment concerning the same subject, no reversible error occurs when the comments were brief and not prejudicial. People v Blake, 58 Mich App 685, 689; 228 NW2d 519 (1975).
Affirmed but with an order to vacate the three life sentences specified earlier in this opinion.
Quinn, P. J., did not participate. | [
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N. J. Kaufman, J.
Defendant was convicted of one count of possession with intent to deliver marijuana and one count of possession with intent to deliver phencyclidine, in accordance with MCL 335.341(1); MSA 18.1070(41X1). Sentenced to three years probation (the first 90 days to be spent in jail) and assessed $500 in costs, defendant appeals, raising numerous issues.
On January 16, 1975, Muskegon police officer Paul R. Lodholtz swore that an unidentified informant, who had allegedly relayed reliable information in previous undisclosed cases, had told him that he had seen a large quantity of marijuana at 2144 Apple Avenue in Muskegon. The informant had also allegedly observed two kinds of mescaline pills. On the basis of that information, a search warrant was issued.
That same day, a search was conducted. The police found 153 ounces of marijuana and 184 phencyclidine pills. A ledger book and triple beam scale were also found. Defendant’s name was on the back of the scale. No mescaline was found.
Prior to trial, defense counsel argued a suppression motion. It was denied and the case was ordered to trial.
On the day of the trial, prior to the selection of the jury, defense counsel objected to the fact that all 46 proposed exhibits were exposed to view on a table in the courtroom. The trial court ordered the table removed until the jury was selected.
Prior to selection of the jury, the prosecution moved to indorse Gloria Thurkettle as a witness, arguing that she was formerly a codefendant and allegedly an occupant of 2144 Apple Avenue. Over objection by defense counsel, the trial court granted the motion.
After the jury was selected, the table with the exhibits was returned to the courtroom. Defense counsel renewed his objection to the display as prejudicial. The trial court, noting that the exhibits were covered, denied the renewed objection.
During trial, Gloria Thurkettle was called as a witness by the prosecution. She refused to testify on Fifth Amendment grounds. The trial court ordered Ms. Thurkettle imprisoned until she decided to testify, citing her behavior as contemptuous.
At the conclusion of the prosecution’s case, defense counsel moved for a directed verdict. The motion was denied.
Prior to instructing the jury, the trial court noted defense counsel’s objection to its refusal to give a requested instruction on nonexclusive possession of the premises at 2144 Apple Avenue, pursuant to People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972).
The trial court instructed the jury, in part, as follows:
"If you find the Defendant guilty of Count I, your foreman or forelady will state, we, the jury, find the Defendant guilty as charged on Count I.
"If you find the Defendant not guilty on Count I, your foreman or forelady will state, we, the jury, find the Defendant not guilty on Count I.
"As to Count II, if you find the Defendant guilty of Count II, your foreman or forelady will rise and state, we, the jury, find the Defendant guilty as charged on Count II.
"If you find the Defendant not guilty on Count II, your foreman or forelady will rise and state, we, the jury, find the Defendant not guilty on Count II.
"Then, if necessary you may go to the matter of a lesser included offense.
"First possession of marijuana, and second the possession of PCP or phencyclidine.
"It is actually a matter of course that if you find the Defendant guilty of Count I that is as far as you need to go.
"If you find the Defendant guilty of Count II that is as far as you need to go.
"If you find the Defendant not guilty of either one or both Counts I and II, then you may proceed to the lesser included offenses, and report your verdict on those.”
On appeal, defendant contends that the trial court’s instructions coerced the jury into determining defendant’s guilt or innocence on the principal charge before proceeding to consider his culpability on lesser included offenses.
To determine the validity of defendant’s contention, it is necessary to remember that coercion in deliberation instructions may be either express or implied and that this Court has treated the two types in wholly different manners.
The issue of express coercion was settled by People v Ray, 43 Mich App 45; 204 NW2d 38 (1972). In that case, the jury broke from deliberations and asked for guidance on the deliberation procedure. In response to a juror’s question, "If we insist — if someone insists upon taking a vote on the first charge, do we have to keep voting on that charge?”, the trial court answered, "Well you have to either keep voting on the first charge until you either all find him not guilty, or all find him guilty”.
This Court reversed, explaining:
"While the trial court was certainly required to say something to the jury when it requested assistance in conducting its deliberations, the requirement of unanimous agreement on defendant’s innocence of the greater charge before discussion of the lesser charges is permitted is coercive, unduly restrictive and reversible.” 43 Mich App at 50.
The problem of implied coercion has been harder to solve. Initially, it must be asked whether implied coercion should be encouraged. Although one opinion, the majority in People v Ronald L Johnson, 74 Mich App 250; 253 NW2d 722 (1977), suggests its desirability, this Court on three occa sions has specifically discouraged impliedly coercive instructions. See People v Embry, 68 Mich App 667; 243 NW2d 711 (1976), People v Waldron, 64 Mich App 648; 236 NW2d 732 (1975), People v Freeman, 57 Mich App 90; 225 NW2d 171 (1974).
Any concern over implied coercion, however, must be tempered by the knowledge that due to the limitations of the spoken word, it is inevitable that some ordering of offenses will occur. One offense will always come first.
Thus, armed with the realization that no implicit coercion is an unattainable goal, but condemning the concept of implicit coercion, this Court has formulated two ways to deal with the problem.
One method is to subjectively examine instructions on a case-by-case basis to determine the potential for implicit coercion. In People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974), the trial court instructed:
" 'If you find that he did commit the act * * * of rape * * * beyond a reasonable doubt, * * * then, he is guilty of the crime charged. Before you can go or consider the lesser included offenses, you must first then determine that he did not commit that crime. If you consider that and fínd and are satisfied from your deliberations that he did not commit the crime as charged, then you can consider the lesser included offenses and only then. That would be the assault with intent to commit rape, assault and battery, or simple assault. If you are not satisfied beyond a reasonable doubt that he committed any of those acts, then, the verdict would be not guilty.’ (Emphasis added.)” 54 Mich App at 394.
This Court reversed, first noting that the prosecution "[t]acitly conced[ed] that the instruction given in this case is basically identical to that given in Ray”. 54 Mich App at 395. As to the purpose of People v Ray, supra, this Court explained:
"Ray seeks to prevent those jurors opposed to a defendant’s conviction on a higher charge from being coerced into voting for conviction by an instruction requiring acquittal of that higher charge before lesser offenses can even be considered. For example, if the jury is considering the charge of assault with intent to commit rape, and juror A is opposed to conviction, he may be coerced into changing his vote to guilty by the prospect that the lesser included offenses of assault and battery and simple assault will not even be considered unless all the remaining 11 jurors agree to acquit the defendant of assault with intent to commit rape.” 54 Mich App at 396.
Of course, the problem occurs when the instruction does not define the phrase "acquittal of the higher charge”, affirmatively (in terms of a finding of not guilty), but rather defines it negatively (in terms of not finding defendant guilty of the higher charge). The negative way is thus ambiguous to the extent that it is unclear whether the jurors realize their options if they are deadlocked on the higher charge.
To solve the difficulty with the ambiguous type of instruction cited above, this Court has adopted the second method alluded to earlier. Consistently, this Court has read People v Ray, supra, literally. This procedure, aptly dubbed "a sterile 'magic language’ approach” by Judge T. M. Burns, in his dissent to People v Ronald L Johnson, supra, "tends to disregard the effect of improper instructions by simply scanning them for the word 'unanimous’ ”. 74 Mich App at 258.
We agree with the Johnson dissent that the "magic language approach” has not proven to be a workable test. Under its rubric fall cases where the trial court did affirmatively try to avoid the possibility of coercion, e.g., People v Morton, 77 Mich App 240; 258 NW2d 193 (1977), People v Don Francisco Lopez, 65 Mich App 653; 237 NW2d 599 (1975); but, there are other cases where the "magic language” test was manipulated to reach a desired result, e.g, People v Waldron, 64 Mich App 648; 236 NW2d 732 (1975), People v Walker, 58 Mich App 519; 228 NW2d 443 (1975). Most significantly, the test has never substantively analyzed the most common yet vexing instruction, "If you do not find defendant guilty, then you may consider lesser-included offenses”.
Generally, it would be best if trial courts added an admonition, as in People v Morton, supra, that it is not imposing any order of deliberation on the jury. However, we need not formulate any such rule of law in this case because we find that the assailed instructions are substantially similar to those found reversibly erroneous in People v Summers, 73 Mich App 411; 251 NW2d 311 (1977). Therefore, we reverse defendant’s conviction and remand for a new trial. Accord: People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976).
To avoid unnecessary errors on retrial, where warranted, we will consider defendant’s other claims of error.
Defendant contends that the trial court improperly denied defendant’s motions to quash the information, suppress the evidence, or, in the alternative, release the name of the informant who provided the police with the information used to obtain a search warrant for the defendant’s residence. People v Davis, 72 Mich App 21; 248 NW2d 690 (1976), and People v Kinnebrew, 75 Mich App 81; 254 NW2d 662 (1977), dispose of defendant’s argument.
Here, defendant did not claim that the informant had exculpatory evidence, as was the case in People v Stander, 73 Mich App 617; 251 NW2d 258 (1976), where this Court reversed the trial court’s prohibition against having the informant’s identity revealed. Rather, defendant’s sole reason for requesting the production of the informant was to challenge the truth of the information supplied to the police and used to obtain the search warrant. Under Davis, supra and Kinnebrew, supra, the informant need not be produced under such circumstances.
Defendant also argues that the trial court erred by allowing into evidence a large number of tablets containing ephedrine, a substance not proscribed under the Controlled Substances Act, MCL 335.301 et seq.; MSA 18.1070(1) et seq. With this contention, we agree.
Without passing directly on the issue of whether the evidence constitutes proper "similar acts” testimony, it is sufficient to note that the probative value of the evidence does not outweigh the attendant prejudice to defendant. People v McCarver, 72 Mich App 311, 318-319; 249 NW2d 403 (1976). See generally, People v Wilkins; 82 Mich App 260; 266 NW2d 781 (1978).
Similarly, the admission of marijuana paraphernalia and photographs which depicted the paraphernalia was error on the part of the trial court. Generally, evidence regarding the use of marijuana does not have a sufficient nexus to a charge of possession with intent to deliver to render it admissible. As noted in Wilkins, supra, at n 4:
"The result of admitting such evidence without the requisite connection with the charged offense is to admit precisely the kind of evidence condemned in the cases quoted at the beginning of this discussion, i.e., evidence relevant only to the defendant’s propensity to commit the offense. McCormick, Evidence (2d ed), § 190, at 453, Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv L Rev 988, 1007 (1938).”
The prosecution did not make the required showing of "special circumstances of the prior bad act which tend to prove [defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act.]” People v Wilkins, supra, 82 Mich App at 267.
Defendant’s other objections as to the admissibility of certain exhibits are without merit.
Defendant also complains that the trial court erred by allowing the jury to observe the prosecution’s proposed exhibits — particularly a large quantity of orange tablets later ruled inadmissible —before a determination as to their admissibility had been made. On retrial, the trial court is directed to People v Brisco, 15 Mich App 428, 429; 166 NW2d 475 (1968), where this Court concluded:
"[i]t has been ruled in Michigan that evidence exhibited to the jury but not offered or introduced is to all intents and purposes considered as evidence. People v Rozewicz, 228 Mich 231 [199 NW 632 (1924)]. Also, see 46 ALR2d 1423. The use of evidence in court inadmissible by direct offer, cannot be condoned — entry through the back door cannot be allowed where entry through the front door has been refused.”
In this case, the prejudice to defendant is obvious. See People v McCarver, supra.
Defendant additionally contends that he was denied a fair trial when the prosecutor called defendant’s former codefendant who then refused to testify, on Fifth Amendment grounds. As noted earlier, the trial court found no basis for a Fifth Amendment claim, and, in fact, ordered her imprisoned until she decided to testify.
We do not reach the merits of this issue except as it relates to a retrial. In People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977), the Supreme Court held it improper for any attorney to call a witness knowing that the witness will claim a valid privilege not to testify. We will not decide the validity of Ms. Thurkettle’s privilege in dictum; we certainly will not extend the holding of People v Giacalone, supra, to all claims of privilege, in dictum. However, we assume that the prosecutor’s decision regarding the necessity of Ms. Thurkettle’s testimony on retrial will be made with People v Giacalone, supra, in mind.
Defendant’s contention that the charge of possession with intent to deliver a controlled substance should be reduced to mere possession because the intent element was based on "an inference on an inference” is without merit.
Defendant further complains that the trial court committed reversible error by refusing to give a requested instruction on non-exclusive possession of the premises. Defendant requested that the following instruction be given:
"I charge you that mere residency, standing alone, is not sufficient to prove possession of all the articles within the residence unless use and access to the premises is exclusive and undivided. Where more than one person has access to a residence, there must be facts which show the possession of the articles therein on an individual basis.”
The trial court denied the request.
It is evident that the requested instruction, particularly the first sentence, is a misstatement of law. As such, the trial court did not err by refusing to so charge.
However, defendant argues that his theory of the case was embodied in the requested charge. Therefore, defendant contends that failure to give defendant’s theory constitutes reversible error.
We acknowledge with approval the long line of Michigan cases that hold that a defendant is entitled to an instruction on his theory of the case, provided there is evidence on the record to support that theory. See e.g., People v Reed, 393 Mich 342; 224 NW2d 867 (1975), People v Cummins, 47 Mich 334; 11 NW 184 (1882). However, we decline to extend that line of reasoning to this case for two reasons.
First, trial courts need not be required to divine from requests for incorrect legal instructions that, in actuality, the defendant really wished to have his theory of the case presented to the jury. It is not too much to have a defendant’s trial counsel make a proper request, given the stringent requirements imposed upon trial courts to grant such requests. Second, to give the instruction as requested by defense counsel would, in effect, give the defense theory the imprimatur of law. Clearly, neither the prosecution nor the defendant should be given an advantage by the way the request for a theory-of-the-case instruction is phrased. The trial court did not err by refusing defendant’s proposed instruction — even if it is treated as a request for an instruction on defendant’s theory.
Finally, defendant argues that the trial court erred by denying his motion for a directed verdict at the close of the prosecutor’s case, and that there was insufficient evidence to support the verdict of guilty. We will treat each contention separately, as a resolution in defendant’s favor as to the first contention would bar a retrial. People v Killingsworth, 80 Mich App 45, 51-52; 263 NW2d 278 (1977).
In People v Garcia, 398 Mich 250, 256; 247 NW2d 547 (1976), the Supreme Court set forth the test to be used in reviewing a claim that a directed verdict was improperly refused:
"An appellate court tests the correctness of the denial of such motion by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty of murder in the first degree. People v Vail, 393 Mich 460; 227 NW2d 535 (1975). People v Abernathy, 253 Mich 583; 235 NW 261 (1931). To the extent that the case of People v Qualls, 9 Mich App 689; 158 NW2d 60 (1968), holds to the contrary, it is expressly overruled.” (Emphasis in original.)
Applying the Garcia standard here, we find that the trial court properly denied the motion. The prosecution presented evidence tending to prove that defendant (1) unlawfully possessed a controlled substance with (2) intent to deliver it. People v Mumford, 60 Mich App 279; 230 NW2d 395 (1975).
First, a police officer testified that he found a large quantity of illegal drugs (including marijuana and PCP) in a house which the defendant rented and resided in. Second, the extremely large quantity of drugs created a reasonable inference that defendant intended to sell at least some of them to other parties. People v Kirchoff, 74 Mich App 641; 254 NW2d 793 (1977). Therefore, since the prosecutor presented evidence to support each element of the crime charged, a prima facie case was established, sufficient to preclude a directed verdict.
We need not reach the sufficiency question as we find that a new trial is unavoidable. However, since defendant’s strategy seems to rely on the oft-quoted notation in People v Davenport, supra, regarding the prosecution’s burden in circumstantial evidence cases, we will discuss the issue in terms of the standard this Court will apply in sufficiency of evidence cases.
In People v Edgar, 75 Mich App 467, 470-474; 255 NW2d 648 (1977), this Court discussed, at length, the problems engendered by a literal interpretation of Davenport. It noted:
"* * * for reasons outlined below, we decline to apply the [Davenport] test literally.
"First, we believe that the implied distrust of circumstantial evidence is not warranted. Whether the evidence is 'direct’ or 'circumstantial’, we would not allow a conviction if we felt that the evidence was not sufficient to prove guilt beyond a reasonable doubt. To the extent that the rule requires the prosecution to disprove all negative theories, the test could never be met, even by direct evidence. Even with eye-witness testimony there are always innocent theories which are not specifically disproven. There will always be a chance that an eye-witness is honestly mistaken about identification.
"Second, there is a tendency to classify evidence as 'direct’ if the desired inference is compelling and to call it 'circumstantial’ if the inference is merely the most likely of several alternatives. One consequence is that the Davenport rule is not applied in all circumstantial evidence cases.” 75 Mich App at 472.
After further discussion, this Court concluded that:
"* * * the [Davenport] rule is defective to the extent that it treats circumstantial evidence differently than direct evidence and to the extent that it requires the prosecution to specifically disprove all innocent theories. It should be sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce.” (Emphasis in original.) 75 Mich App at 473-474.
We agree with the direction of Edgar's criticism of the Davenport test. Therefore, defendant’s trial strategy should be formulated, acknowledging the following standard of appellate review: Would the evidence presented by the prosecution justify a reasonable person in concluding that all elements of the crime were established beyond a reasonable doubt?
As noted earlier, because of reversibly erroneous jury instructions, this case must be reversed and remanded for a new trial.
Reversed and remanded.
"A persuasive argument has been made that trial judges should be given greater latitude when they are giving jury instructions. Wright, Adequacy of Instructions to the Jury: I, 53 Mich L Rev 505 (1955), Wright, Adequacy of Instructions to the Jury: II, 53 Mich L Rev 813 (1955), See also, Wright, The Invasion of Jury: Temperature of the War, 27 Temple L Q 137 (1953), Wright, Instructions to the Jury: Summary Without Comment, 1954 Wash Univ L Q 177. The heart of Wright’s presentation is the conclusion that the judges’ responsibility must be matched by commensurate authority; if the judges are held accountable for fully instructing the jury, then they should not be limited in ways that render such instruction impossible. 53 Mich L Rev 813, 846-847.” People v Ronald L Johnson, 74 Mich App 250, 255-256, n 2; 253 NW2d 722 (1977).
It is arguable that the emphasized instruction in People v Harmon, 54 Mich App 393, 394; 221 NW2d 176 (1974), may be read in both ways.
Grano, 1976 Annual Survey of Michigan Law: Criminal Procedure, 23 Wayne L Rev 517, 605, is not troubled by that seeming ambiguity. He writes that excess concern over ambiguous deliberation instructions:
"* * * rests on the untested assumption that jurors will interpret the instruction as absolutely precluding further discussion unless all agree to verdict on the most serious charge. Absent empirical data suggesting that nuances in jury instructions really have a practical effect, courts perhaps should be more reluctant to reverse otherwise validly obtained convictions.” (Footnote omitted.)
However, since it is the defendant who receives the "benefit of the doubt” in Anglo-American jurisprudential theory, we must conclude that, "absent empirical data suggesting” that ambiguous instructions do not result in unwarranted implied coercion, our concern in this area remains warranted.
People v Morton, 77 Mich App 240; 258 NW2d 193 (1977), People v Ronald L Johnson, 74 Mich App 250; 253 NW2d 722 (1977), People v Shears, 73 Mich App 683; 252 NW2d 563 (1977), People v Jacobson, 72 Mich App 489; 250 NW2d 105 (1976), People v Erwin, 70 Mich App 60; 245 NW2d 173 (1976), People v Ross, 69 Mich App 705; 245 NW2d 335 (1976), People v Embry, 68 Mich App 667; 243 NW2d 711 (1976), People v Don Francisco Lopez, 65 Mich App 653; 237 NW2d 599 (1975), People v Waldron, 64 Mich App 648; 236 NW2d 732 (1975), People v Bankston, 61 Mich App 275; 232 NW2d 381 (1975), People v Walker, 58 Mich App 519; 228 NW2d 443 (1975), People v Britt, 57 Mich App 375; 225 NW2d 771 (1975), People v Szymarek, 57 Mich App 354; 225 NW2d 765 (1975), People v Freeman, 57 Mich App 90; 225 NW2d 171 (1974), People v Robert Hall, 56 Mich App 10; 223 NW2d 340 (1974), People v Bates, 55 Mich App 1; 222 NW2d 6 (1974), People v James, 51 Mich App 777; 216 NW2d 473 (1974).
It is significant to note that opinions soon began to advance the proposition that Michigan law is settled as to this issue. What is troublesome is the fact that in the first cases cited in support of the literal interpretation of Ray, People v Robert Hall, supra, People v Bates, supra, People v James, supra, the assailed instructions of their respective trial courts were not preserved.
People v Summers, 73 Mich App 411, 413-414, n 1; 251 NW2d 311 (1977):
"The portion of the charge objected to was:
" 'Now, I think this is the first jury case in which all of you have ever served. It may be helpful to say a word about your verdict. Of course, in a criminal case such as this in Michigan the verdict must be unanimous, all 12 of you must agree as one and a verdict is announced by the foreman of the jury, so when you retire I think it might be best first as an order of business to pick your own foreman. There are, as I stated, four possible verdicts in this case. First, of course, you must consider the primary charge of assault with intent to rob while armed, decide whether the Defendant is guilty of that or not guilty. If you find him not guilty of that charge, consider the included offense of attempted armed robbery, and if you find that he is not guilty of that, then you must consider the second included offense of felonious assault. If you find the Defendant not guilty of that, the Defendant is not guilty, but you must consider in order these three charges, the primary offense of assault with intent to commit robbery while armed. If you find him guilty of that, you need not consider the other included offenses, just that one offense.
" T hope that is clear, I will go over it again so it sticks in your mind. First consider the primary charge of assault with intent to commit robbery while armed. If you find him not guilty of that, then consider the first included offense of attempted armed robbery. If you find him not guilty of that, consider the second included offense of felonious assault. If he is not guilty of that, he is not guilty. I hope that is clear.’ (Emphasis supplied.)”
It should be noted that the citations to People v Davis, 72 Mich App 21; 248 NW2d 690 (1976), and People v Kinnebrew, 75 Mich App 81; 254 NW2d 662 (1977), do not represent our unqualified endorsement of their holdings.
We remain concerned that a literal application of those decisions impinges on the appellate power of review. Under Davis and Kinnebrew, the trial court need only acquaint itself with the knowledge that the informant (on whose representations rests the underlying validity of the search warrant) had of the charged offense. See People v Stander, 73 Mich App 617; 251 NW2d 258 (1976). If the trial court finds that the informant would not testify in favor of the defendant, the informant need not be produced.
Of course, this does not solve the problem where a defendant raises the question of whether an "informant” exists at all. Unless the trial court is convinced that the affiant is lying, People v Kinnebrew, supra, at 88, it will deny the request for production.
Our standard of review of the trial court’s verdict in that type of one-on-one credibility battle is the familiar abuse-of-discretion test. If, under that standard, we give weight to the trial court in matters of credibility, in effect, we relinquish our function of review to the trial court. If we do not force the trial court to create a record comprised of more than its subjective reaction to the testimony of both sides, we tacitly accede to whatever decision it makes.
The substance which appeared to be marijuana, despite the fact that it was never chemically analyzed, may be admitted if qualified in the same manner as at the first trial, People v Kirchoff, 74 Mich App 641, 647; 254 NW2d 793 (1977).
The photographs of the narcotics were cumulative at the first trial but their admissibility is nevertheless subject to the discretion of the trial court. People v Spillman, 399 Mich 313; 249 NW2d 73 (1976), People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976), People v Ranes, 58 Mich App 268; 227 NW2d 312 (1975).
The "intent” element was based not on the fact that defendant resided where the drugs were found and the inference that defendant therefore possessed them but rather that the quantity of narcotics involved allowed for the inference that defendant intended to deliver them. People v Mumford, 60 Mich App 279; 230 NW2d 395 (1975).
"[W]here the people’s case is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with defendant’s innocence of the crime charged.” People v Davenport, 39 Mich App 252, 257-258; 197 NW2d 521 (1972). | [
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] |
Bashara, P. J.
This is an appeal by plaintiff from a directed verdict granted to defendant at the conclusion of plaintiffs proofs. On a theory of products liability, plaintiff sought recovery for the death of her husband, who was killed when the forklift truck he was operating for his employer overturned, crushing his skull with the overhead, protective guard.
No one witnessed the occurrence. Decedent reported to his job and was instructed to drive a forklift to another plant on his employer’s property. Moments after he left, other employees, in route over the same roadway to the same location, discovered decedent pinned under the overhead guard of the forklift. As it then appeared, the forklift had traveled off the roadway, struck a concrete-filled post, and turned over onto its side.
The forklift was manufactured by defendant and sold with other forklift vehicles to the decedent’s employer by one of defendant’s dealers. Plaintiff alleged that defendant was negligent in the design of the forklift, that the defective design constituted a breach of warranty, and that defendant was liable under the doctrine of strict liability in tort. Design defect allegations were predicated principally upon the absence of driver restraints on the vehicle, such as seat belts or a protective enclosure.
At trial, plaintiff’s expert witness testified at length about the inadequacy of the static stability tests utilized by the forklift manufacturers generally. His opinion was that dynamic stability tests were essential to ascertain the true handling characteristics of forklift vehicles so that proper design technology could be developed.
He also testified as to the risks of injury created by the absence of some driver restraint apparatus in forklifts equipped with an overhead guard. He opined that, given the unstable handling qualities of a forklift and the concomitant high probability of rollovers, some form of driver restraint system was necessary for a properly designed forklift. Notably, on cross-examination, the expert witness was unable to specify any industry standard, legislative enactment, or government regulation requiring the installation of a driver restraint device on forklifts or establishing dynamic stability testing requirements.
The trial court concluded there was no evidence to show that defendant was negligent in failing to adhere to some standard for testing or designing its forklifts. Further, the trial court found the evidence presented did not establish that any defect in the forklift was causally related to the decedent’s death.
Plaintiff claims that the question of whether the forklift was defectively designed should have been submitted to the jury. She urges that the expert testimony, stating that a driver restraint device would have prevented the decedent’s death, is itself sufficient to raise a question of fact as to the defective design.
Our discussion of this case may be narrowed by making a number of observations. This Court has recognized that the requisite elements for a cause of action based upon strict liability in tort are congruent to those for breach of warranty. Williams v The Detroit Edison Co, 63 Mich App 559, 567; 234 NW2d 702, 707 (1975), lv den 395 Mich 800 (1975). See also Johnson v Chrysler Corp, 74 Mich App 532, 535-536; 254 NW2d 569, 571-572 (1977), lv den 400 Mich 861 (1977). Therefore, the strict liability count is a mere redundancy, since recovery is equally available by the action for breach of warranty.
Further, we have carefully reviewed the evidence presented by plaintiff on the claim of negligence and defective design, especially the exten sive testimony of plaintiffs expert witness. That evidence showed that forklifts are, by their nature, unstable vehicles. There is nothing to show how the vehicles’ stability may be enhanced, given the design characteristics mandated by the vehicles’ intended uses. Merely because an injury results from the use of a machine does not ipso facto mean that the machine is defective. Manufacturers are not required to make mechanical devices "accident-proof ”. Parsonson v Construction Equipment Co, 386 Mich 61, 64-65; 191 NW2d 465, 466 (1971).
At the commencement of this discussion, we deem it important to emphasize that this litigation does not involve a claim that the fatal injury resulted from some machine part that malfunctioned as a result of a defect in its manufacture. The responsibility of the trier of fact for finding a defect and injury causation as a matter of fact is well-established in that context. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). See also Kupkowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975).
When courts are confronted with claims of product design defects, there is a geometric increase in the complexity of the issues. Product design choices are multi-faceted, or as one legal writer has termed it, polycentric. That is, design choices involve such considerations as the intended use and utility of the product, cost constraints dictated by the marketplace and the manufacturer’s competitive position, safety standards established by the industry or government regulation and the feasibility of alternative designs, to name only a few. To the extent that another coordinate branch of government has not determined the degree to which public policy shall govern design choices, the task devolves upon the judiciary.
Considering the nature of the design process, we find that adjudication must necessarily play a limited role in setting design standards. Without some extrajudicially established guidelines, the adjudicatory standard-setting process would resort to an assessment of conflicting expert testimony by those not possessed of the requisite expertise to adequately evaluate the interrelated and interdependent design choice criteria. Additionally, this evaluation would be made within an atmosphere susceptible to influence by sympathy for an injured plaintiff, instead of an abstract concern for the desirable effect that public policy should play in governing a manufacturer’s design choices. Inevitably, this would lead to varying standards from jury to jury or trial court to trial court.
We are merely recognizing from the foregoing considerations that triers of fact are not formulators of public policy and that trial courts are inappropriate for the task in the area of product design choices. This is not to say that plaintiffs have no means by which they can seek recovery for injuries resulting from the conscious design choices of manufacturers where extrajudicial design guidelines are absent.
There remains a duty of manufacturers to provide adequate warnings to potential users of their products of the latent risks of injury created by their selection of product design. See Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959). The adequacy of the warning under the particular circumstances of a given case, is a question for resolution by the trier of fact. Id.
Consequently, we conclude that for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect products liability litigation, evidence of the following must be presented:
(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or
(2) That the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.
In determining the propriety of the directed verdict in this case, we must review the evidence presented in a light most favorable to the plaintiff. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46, 49 (1975). From our review of the plaintiffs evidence, we conclude that no question was raised as to any fact that would impose liability upon defendant. The evidence raised neither a question of design conformity with established standards nor a risk of injury that would not be readily perceived by decedent, who plaintiffs proofs showed was an experienced forklift operator, familiar with the machine’s intrinsic characteristics.
We are no longer on the frontier of products liability litigation. The time has approached when we must begin to refine the role of the judiciary in such controversies with deference to its limitations and cognizance of the importance of participation by our coordinate governmental branches. This case has presented such an opportunity. Because of the result reached, we need not consider the other issues raised by plaintiff.
Affirmed. Costs to defendant.
J. H. Gillis, J., concurred.
See Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum L Rev 1531 (1973), Henderson, Design Defect Litigation Revisited, 61 Cornell L Rev 541 (1976), Henderson, Expanding the Negligence Concept: Retreat from the Rule of Law, 51 Ind L J 467 (1976).
The role of the adjudication process, as it pertains to affecting the design choices of manufacturers, is perceptively explicated in Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum L Rev 1531 (1973).
Henderson, supra n 2, at 1558. While Professor Henderson’s thesis has its opponents, none have analyzed the problem as perceptively, and Professor Henderson has been quick to provide a persuasive response to the more cogent criticisms of his position. Compare Twerski, Weinstein, Donaher & Piehler, The Use and Abuse of Warnings in Products Liability-Design Defect Litigation Comes of Age, 61 Cornell L Rev 495 (1976), .with Henderson, Design Defect Litigation Revisited, 61 Cornell L Rev 541 (1976).
The problem presented in design defect cases where extrajudicial standards are absent may be analogized to ascertaining what Justice Levin has referred to as the "general standard of care”. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). A divergence from the ordinary negligence case occurs, because the term "reasonable care”, in the context of design defect litigation, is dependent upon determinants entailing complex technology and economic market structure. Absent extrajudicial guidelines, there remains no foundation from which a general standard of care can be ascertained. The establishment of such standards where the void exists is more ideally suited to the functions of the two other branches of government. See Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum L Rev 1531, 1569-77 (1973).
These principles, while delimiting the extent of a manufacturer’s liability for conscious design choices, are not mutually exclusive. Either one or both may be shown by the evidence, and the existence of either one or both, in conjunction with the requisite showing of injury causation, will establish liability.
Decedent’s foreman testified that decedent had been operating forklifts for at least three years. He also testified that every forklift operator, including decedent, had to pass a qualifications examination before being permitted to operate a forklift. This was the only position requiring such an examination.
The safety director for decedent’s employer testified that a similar accident happened about a year before this occurrence. As a consequence, pertinent job safety manuals were reviewed with all operators to emphasize the need for caution in operating the forklifts.
Plaintiff testified that decedent had been operating forklifts for approximately four to five years.
Significant steps were taken to develop this aspect of our law 62 years ago in the case of MacPherson v Buick Motor Co, 217 NY 382; 111 NE 1050 (1916). | [
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M. J. Kelly, J.
On September 13, 1973, Thomas Bushman and Kay Bushman filed a complaint against Burns Clinic Medical Center, P. C., and John Hall, M. D., for damages for medical malpractice and breach of warranty. On December 3, 1973, the Emmet County Circuit Court granted defendant’s motion for an accelerated judgment based upon the expiration of the statute of limitations. MCL 600.5805, 600.5838; MSA 27A.5805, 27A.5838. This Court reversed that decision, Bushman v Burns Clinic Medical Center, P. C., (Docket No. 19333, decided December 4, 1974 [unreported]), and remanded the case for trial.
Plaintiffs were represented by new counsel at trial. In his opening statement to the jury, plaintiffs’ counsel informed the court that plaintiffs were limiting their cause of action to money damages for mental distress, anxiety, discomfort, and the accompanying physical, mental, and financial effects caused by an unwanted pregnancy. He remarked that those claims were included in the original five-count complaint. During trial plaintiffs did not introduce any proofs on a number of other damage allegations found in the original complaint, but proceeded with a claim narrowed to the issue of damages incurred for wrongful pregnancy as distinguished from wrongful birth.
On February 4, 1977, judgment of no cause for action in favor of defendants was entered upon a January 26, 1977, jury verdict. Plaintiffs appeal of right.
This case involves a vasectomy performed on plaintiff husband by defendant doctor. The vasectomy was ineffective since plaintiff wife later became pregnant with their fifth child. The child was and is in good health.
The particular factual situation presents us with what appears to be a case of first impression. One central issue is controlling and dispositive of this appeal, requiring reversal and remand for a new trial because of erroneous instructions and arguments to the jury. The defense theory approved by the trial court was that any damages incurred by the plaintiffs should be offset by the benefits received from having the blessing of a healthy child.
The trial court relied on Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971), lv den, 385 Mich 753 (1971). But reliance on Troppi is misplaced. Aside from damages incurred in a wrongful pregnancy, the plaintiffs in Troppi were seeking the economic costs of rearing their eighth child. The child was conceived after the mother had taken a drug, provided to her by a pharmacist, represented to be a contraceptive. It actually was a mild tranquilizer.
Plaintiffs in the present case abandoned damage allegations for the economic cost of raising their child, prior to the commencement of trial. We are aware that the Troppi Court did conclude that damages incurred during pregnancy should not be separated from damages for the economic costs of rearing a child. The Court stated:
"Since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, we do not think it would be sound to attempt to separate those segments of damage from the economic costs of an unplanned child in applying the 'same interest’ rule. Accordingly, the benefits of the unplanned child may be weighed against all the elements of claimed damage.” 31 Mich App at 255.
The following discussion of case law and public policy leads us to the conclusion that the "benefits rule” set forth in Troppi should not apply to an action narrowly confined to damages for wrongful pregnancy and not wrongful life. To the extent this is inconsistent with Troppi, we stand in disagreement.
Case law in the various jurisdictions is divided on whether or not to allow recovery for wrongful life and make a physician liable for an unplanned child because of his negligent sterilization treatment. A recent New York case noted: "Causes of action for 'wrongful life’ have consistently met with judicial disapproval not only in New York State but in other jurisdictions as well”. Karlsons v Guerinot, 57 App Div 2d 73, 79; 394 NYS2d 933, 937 (1977). See Clegg v Chase, 89 Misc 2d 510; 391 NYS2d 966 (1977), Terrell v Garcia, 496 SW2d 124 (Tex Civ App, 1973), cert den 415 US 927; 94 S Ct 1434; 39 L Ed 2d 484 (1974), criticizing Troppi v Scarf, supra.
The Clegg court did note that "there are many well reasoned authorities to the contrary” allowing damages for wrongful life. Citing Martineau v Nelson, 247 NW2d 409 (Minn, 1976), Custodio v Bauer, 251 Cal App 2d 303; 59 Cal Rptr 463; 27 ALR2d 884 (1967). See also Troppi v Scarf, supra, Terrell v Garcia, supra, at 128 (Cadena, J., dissenting), Hays v Hall, 477 SW2d 402 (Tex Civ App, 1972), rev’d on other grounds, 488 SW2d 412 (Tex, 1972). See generally Anno: Medical Malpractice, and Measure and Element of Damages, in Connection with Sterilization or Birth Control Procedures, 27 ALR3d 906, Anno: Tort Liability for Wrongfully Causing One to be Born, 22 ALR3d 1441. Various jurisdictions have denied recovery in a wrongful life action when a normal healthy child has been delivered without harm to the mother on the grounds that the benefits of raising a child make the granting of any damages contrary to public policy. 27 ALR3d at 916. Michigan has determined that there is no public policy reason to deny recovery, but has limited recovery by offsetting any benefits received. Troppi v Scarf, supra.
Plaintiffs in the instant case claim to have been damaged by the tortious conduct of the defendant doctor in performing a vasectomy negligently. Since the plaintiffs have narrowed their claim of damages to wrongful pregnancy, they have framed an action wherein the policy reasons for denying recovery and offsetting any benefits are far less convincing than in the cases denying recovery for wrongful life.
In Coleman v Garrison, 327 A2d 757 (Del Super, 1974), aff'd 349 A2d 8 (Del, 1975), a Delaware court held that there should be no cause of action for damages for wrongful life, but nevertheless found sufficient reason to allow a cause of action for wrongful pregnancy. The court stated:
"It is the view of this Court that there should be no cause of action so established as to allow damages for 'wrongful life.’ The preciousness of human life should not be held to vary with the circumstances surrounding birth. To make such a determination would, indeed, raise the unfortunate prospect of ruling, as a matter of law, that under certain circumstances a child would not be worth the trouble and expense necessary to bring him into the world. It is not difficult to understand the reluctance of many distinguished jurists to find that the birth of a child is an injury for which plaintiff should deserve an award of damages.
"That is not to say, however, that the plaintiff has not suffered a recognizable injury where avoidable pregnancy has resulted from faulty medical procedure. To the contrary, a ruling that no recognizable cause of action could exist under such circumstances would leave the medical profession virtually immune from liability for improper treatment of patients justifiable [sic] seeking to avoid pregnancy.
"A more appropriate resolution of the difficulties presented, and the one hereby adopted, is to view the action as one for 'wrongful pregnancy’ rather than one for 'wrongful life’ thereby limiting the scope of the injury to the very real expenses, and obvious difficulties attending the unexpected pregnancy of a woman.
"Limitation of the cause of action in such a manner is valid since to do otherwise, would be to invite unduly speculative and ethically questionable assessments of such matters as the emotional affect of a birth on siblings as well as parents, and the emotional as well as pecuniary costs of raising an unplanned and, perhaps, an unwanted child in varying family environments. Speculative damages are, quite simply, not recoverable in this State. See Laskowski v Wallis, 205 A.2d 825 (Del. Supr. 1964); Henne v Balick, 1 Storey 369, 146 A.2d 394 (Del. Supr. 1958).” 327 A2d at 761.
In Michigan, while we recognize an action to allow damages for "wrongful life” offset by the benefits received by the plaintiffs from that life, the question is: should those benefits offset the potential damages for "wrongful pregnancy”? The Coleman case, although not binding on this Court, does suggest that we should treat damages for "wrongful pregnancy” differently than for "wrongful life”. We do not feel constrained by the Troppi Court to follow the "benefits rule” under the instant facts since Troppi was primarily concerned with damages sought for "wrongful life”. We adopt the following findings by the Coleman court as applicable in the present case:
"In summary, this Court finds that the plaintiffs may be allowed provable damages only for the following:
1. The pain, suffering and discomfort of [plaintiff wife] as a result of her last pregnancy; and
2. The cost of a [vasectomy]; and
3. The loss to [plaintiff husband] of the comfort, companionship, services and consortium of [plaintiff wife]; however, the loss of consortium is limited to the loss arising from pregnancy and immediately after birth; and
4. The medical expenses incurred by [plaintiffs] as a result of the * * * pregnancy.” 327 A2d at 761-762.
Further support can be found in Custodio v Bauer, supra, a California case wherein plaintiffs sought to recover damages resulting from the pregnancy of the plaintiff wife following the failure of a sterilization operation. In reversing a dismissal entered against the plaintiff, the Custodio court held in part that if the plaintiffs established a violation of duty by the defendants they should be awarded damages for the expenses incurred in undergoing the operation. Furthermore, if the plaintiffs could show "physical complications and mental, physical and nervous pain and suffering which the operation was designed to prevent, they should be able to recover”. The court noted that "mental suffering attendant to the unexpected pregnancy because of the complications which may or may not result, the complications that do result, and the delivery of a child are all foreseeable consequences of the failure of the operation”.
In West v Underwood, 132 NJL 325; 40 A2d 610 (1945), plaintiffs brought an action against defendants for negligently failing to sterilize the plaintiff wife at the time of performing a Caesarean operation. The court noted that there were proofs supporting the allegations. The court ruled that if this were so "[pjlaintiffs were entitled to recover for all pain and suffering, mental and physical, together with loss of services and 'any other loss or damage proximately resulting from such negligence’ ”. See also Betancourt v Gaylor, 136 NJ Super 69, 75; 344 A2d 336, 339 (1975), Anonymous v Hospital, 33 Conn Supp 126; 366 A2d 204 (1976).
A jury could not be expected to place the value of a child’s life to his parents as less than damages incurred during an unwanted pregnancy. To expand the scope of Troppi to the instant facts would, in effect, outlaw a cause of action for wrongful pregnancy. Again we quote from Coleman, supra:
"[A] ruling that no recognizable cause of action could exist under such circumstances would leave the medical profession virtually immune from liability for improper treatment of patients justifiable [sic] seeking to avoid pregnancy.” 327 A2d at 761.
Damages may be established without speculation and conjecture. Cf. Coleman v Garrison, supra, at 761, Terrell v Garcia, supra, at 127-128. In the main the damages for wrongful pregnancy have been established prior to the child’s birth, and, thus, any benefits received by the plaintiffs from raising a child are logically severable from damages already incurred. As the Troppi Court noted, "[t]he benefits rule allows flexibility in the case-by-case adjudication of the enormously varied claims which the widespread use of oral contraceptives portends”. 31 Mich App at 256.
The dissent favors the tactic of the defense in the trial of this case which was supported by the trial court’s interpretation of Troppi v Scarf, supra. That benefit rule emerged from Restatement Torts, § 920, p 616 which provides:
" 'Where the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable.’ Restatement, Torts, § 920, p 616.” Troppi v Scarf, supra, at 254.
We believe the last phrase of the quote from the Restatement is applicable here. To allow the defense to shield itself behind the love and affection of the plaintiffs for their healthy and lovable fifth child is less than equitable if indeed the plaintiffs’ claims are in fact true. That is, that the physician was negligent, that the plaintiff mother, a polio victim as. a child, had considerable and extreme difficulty with four previous deliveries, that she had a crippling condition of the spine, a significant difference in leg length, a distorted pelvis and had been subjected to extensive labor anywhere from 45 to 50 hours during delivery. Testimony indicates that plaintiff mother was placed under psychiatric care, threatening suicide shortly after her pregnancy was confirmed. Under these circumstances the damages claimed seem reasonably and equitably severable. The real damages are not child centered and the plaintiffs should not be forced to make fictional claims to suit the convenience of the defendants. "The result we reach today is at best a mortal attempt to do justice in an imperfect world.” Sherlock v Stillwater Clinic, 260 NW2d 169 (Minn, 1977).
Of course, our ruling does not establish that plaintiffs will ultimately be entitled to damages. Issues of contributory negligence and proximate cause, as well as damages, must await jury determination on proper instruction.
We reverse and remand for a new trial consistent with this opinion.
T. M. Burns, J., concurred.
In Green v Sudakin, 81 Mich App 545, 549; 265 NW2d 411 (1978), this Court recognized mental anguish as an element for breach of contract to perform a tubal ligation. We believe the reasoning in that case is applicable here:
"The Court concluded that the contract was highly personal in nature, and that no reasonable person could doubt that mental pain and suffering were within the contemplation of the parties in the event that the physician failed to perform the agreed-upon operation.”
In a recent Minnesota case, Sherlock v Stillwater Clinic, 260 NW2d 169 (Minn, 1977), the Minnesota Supreme Court recognized a cause of action for "wrongful conception” wherein "compensable damages may be recovered for the birth of a normal, healthy child proximately caused by a negligently performed sterilization operation.” In that case as in the case at bar reversal was mandated for errors in submission of the damages issues to the jury. That decision presents an excellent overview of the emerging case law on medical malpractice cases for failure to effectuate birth control measures consisting of operations to be performed on both husband and wife.
From any aspect these cases are distasteful and any solution is a selection of the lesser evil. | [
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] |
Per Curiam.
Defendant pled guilty to possession of cocaine with intent to deliver, MCL 333.7214(a)(iv); MSA 14.15(7214)(a)(iv), MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv). In exchange for defendant’s plea, the prosecutor agreed to recommend probation.
At the guilty-plea hearing, in the course of the following exchange, defendant was informed that the trial court was in no way bound by the prosecutor’s recommendation:
’’The Court: All right. Mr. Gezon, has there been a plea agreement in this case?
”Mr. Gezon; Yes, your Honor. The people, if the defendant pleads guilty to the information, will recommend that the sentence include probation and restitution in an amount of $1,050. It should be understood by the defendant, clearly, that the people’s recommendation does not bind the court in any way.
’’The Court: Absolutely not. You understand, Mr. Crabtree, I will listen to the recommendation, but I am certainly not bound by it, I can sentence you anywhere up to 20 years.
”Mr. Drew: Your Honor, I have been over that point at very great length with my client.
"The Court: You understand that I may sentence you for up to 20 years in prison?
"The Defendant: Yes, sir.”
The trial court declined to follow the prosecutor’s recommendation and sentenced defendant to from 2 to 20 years.
Defendant contends that he is entitled to withdraw his plea on the ground that the trial court failed to follow the prosecutor’s recommendation.
The Court of Appeals is currently divided over this issue. One group of cases is in agreement with defendant’s position. See People v Hagewood, 88 Mich App 35, 38; 276 NW2d 585 (1979), People v Briggs, 94 Mich App 723, 726; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980), People v Black, 103 Mich App 109; 302 NW2d 612 (1981), People v Bahlhorn, 105 Mich App 118; 306 NW2d 416 (1981), People v Schirle, 105 Mich App 381; 306 NW2d 520 (1981), and People v Newsum, 105 Mich App 755; 307 NW2d 412 (1981). On the other hand, another line of cases puts forth .the proposition that withdrawal need not be permitted where the defendant has been informed by the trial court, prior to acceptance of the plea, that the court is not bound by the prosecutor’s recommendation. See People v Davis, 74 Mich App 624; 254 NW2d 335 (1977), People v Armstrong, 99 Mich App 137; 297 NW2d 637 (1980), People v Yates, 99 Mich App 396; 297 NW2d 680 (1980), People v King, 104 Mich App 459; 304 NW2d 605 (1981), People v Lee Johnson, 105 Mich App 614; 307 NW2d 385 (1981), and People v Shovan, 112 Mich App 438; 316 NW2d 449 (1982). We believe that the latter group of cases reflect the more enlightened view. Accordingly, we affirm defendant’s conviction, since the record shows that when he pled guilty he was fully informed by the trial court that it was in no way bound by the prosecutor’s recommendation. We feel that a defendant who receives such a warning has sufficient notice of the limited value of such a recommendation to enable him to appreciate the consequences of his decision.
We note that our position is in conflict with § 3.3(b) of the ABA Project on Standards for Criminal Justice, Standards Relating to the Administration of Criminal Justice (hereinafter ABA Standards), Pleas of Guilty (1968), and § 4.1(c) of the ABA Standards, Function of the Trial Judge (1968), which provide that withdrawal should be permitted when the court decides not to follow the recommendation, and not merely when the court decides that it might not follow the recommendation.
However, we also observe that those standards have been superseded by new standards approved by the ABA on February 12, 1979. Section 14-3.3(g) of the new ABA Standards, Pleas of Guilty (1979), now provides:
"In cases where defendant offers to plead guilty and the judge decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge shall so advise the defendant and permit withdrawal of the tender of the plea. In cases where a defendant pleads guilty pursuant to a plea agreement and the court, following entry of the plea, decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea shall be allowed if:
"(i) prior to entry of the plea the judge concurs, whether tentatively or fully, in the proposed charge or sentence concessions; or
"(ii) the guilty plea is entered upon the express condition, approved by the judge, that the plea can be withdrawn if the charge or sentence concessions are subsequently rejected by the court.
"In all other cases where a defendant pleads guilty pursuant to a plea agreement and the judge decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea may be permitted in the discretion of the judge.”
We approve of this revision and therefore adopt it, with one further refinement, as the proper standard of review. In addition to the two situations in which the ABA Standards mandate permission to withdraw, we believe that a defendant also must be allowed to withdraw his plea unless he has received an express warning from the trial court that it is in no way bound by the prosecutor’s recommendation prior to acceptance of the plea. In the instant case, defendant received such a warning. Moreover, the trial court did not concur in the sentence concession, and the plea was not entered upon the express condition that it could be withdrawn if the sentence concession were rejected. Consequently, defendant was not entitled to withdraw his plea.
Affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from a judgment of no cause of action in favor of defendant Michigan State Highway Commission entered following a bench trial in Wayne County Circuit Court.
Plaintiff’s claim arose out of an automobile accident occurring on August 28, 1972, in Detroit. On that day, plaintiff was traveling southbound on the 1-75 expressway enroute to Seaworld in Aurora, Ohio, in the company of her husband, Thaddeus Kurczewski, and their two daughters, Robyn and Shawn. Traveling in the opposite direction was Mary Kim Robbins in a vehicle owned by Russel Frank. As the cars approached one another, the left rear tire of the Robbins’ vehicle came off, bounced over the median, and smashed into the windshield or hood of plaintiff’s Pinto. The Pinto then shot out to the right across the expressway and up an embankment. As the vehicle approached the Mack Avenue overpass it passed to the right of the first few pillars but collided with and spun around the fourth pillar, coming to a rest between the fourth and fifth pillars. Thaddeus and Robyn Kurczewski died in the accident, while plaintiff and Shawn Kurczewski, although injured, survived.
Plaintiff commenced suit, individually and on behalf of her surviving daughter and the estates of her decedents, in Wayne County against Mary Kim Robbins and Russel Frank. A separate action was brought against the state highway commission in the Michigan Court of Claims. Plaintiff’s theory against the commission was that it acted negligently and in violation of MCL 691.1402; MSA 3.996(102) by failing to erect a guardrail along the side of the expressway approaching the underpass. Plaintiff contended that a properly installed guardrail would have prevented the vehicle’s impact with the overpass pillars.
Prior to trial, a consent judgment was entered between plaintiff and defendant Frank. The remaining claims were consolidated and tried on October 1-5, 1979. The trial court, in a written opinion, found in favor of plaintiff with regard to defendant Robbins and awarded a total verdict in the amount of $1,182,000. In ruling against plaintiff with regard to the highway commission, the court concluded that, although a guardrail should have been installed at the accident site, the commission’s negligence in failing to do so was not a proximate cause of the accident.
Plaintiff’s first claim on appeal is that the trial court erred in admitting into evidence the highway commission’s exhibits Nos. 11 and 12 despite plaintiff’s objection that the documents had not been produced by the commission before trial pursuant to plaintiff’s subpoena duces tecum. Plaintiff asserts that the error was particularly prejudicial because exhibit No. 11 was specifically referred to in the trial court’s opinion.
Approximately two weeks before trial, plaintiff served the highway commission with a subpoena duces tecum which requested, in part:
"1. All standards, directives, memoranda, or whatever else pertains to the use of guardrails in advance of overpass bridge piers in urban areas. These documents should cover the period when the road was designed until the time of the accident.
"2. All standards, directives, policies, etc., that pertain to roadside safety improvement programs in urban areas in Michigan that were in effect from the time of design until the accident.”
During the course of trial it became evident that the commission at best had complied minimally with the discovery order. The trial court conducted an evidentiary hearing to determine the extent and reasons for the noncompliance. Dwight A. Bell, a supervising engineer in the commission’s design division who had attempted to produce the materials, explained that the commission was divided into seven separate divisions and that there was no central file from which the requested documents could be culled. However, when it later became apparent that there were additional documents uncovered by Bell that had been withheld, defense counsel revealed that there was a less reasonable explanation for the failure to comply with the discovery order. Counsel indicated, quite candidly, that he believed plaintiff to already possess the material since plaintiffs expert witness had been "foraging through [the commission’s] files for years”. At the conclusion of the evidentiary hearing, the trial court recessed the proceedings and instructed the counsel to get together and agree to the furnishing of the additional materials. When trial resumed the parties, who had appar ently resolved the discovery dispute, stipulated to the admission of a variety of plaintiffs exhibits.
One of the documents that had been withheld was a report referred to at trial as NCHRP Report 118, and entitled "Location, Selection, and Maintenance of Highway Traffic Barriers”. The document was a report of traffic safety research sponsored by the American Association of State Highway Officials conducted in cooperation with the Federal Highway Administration. The report, released in 1971, was pertinent during trial since it contained formulas for computing the length of highway guardrails. The report represented itself as the "state-of-the-art” in engineering judgment and highway experience. Defendant highway commission’s exhibits Nos. 11 and 12 were excerpts from the report. Plaintiff objected during trial to their introduction because of the commission’s noncompliance with the discovery order. The trial court declined to exclude the exhibits, observing that plaintiff had used another portion of the report during her case.
GCR 1963, 313.2(2) provides a variety of remedies for a party’s failure to respond to discovery orders. The court may order disputed facts established, prohibit the offending party from supporting or opposing a particular claim or defense, strike portions of pleadings, stay proceedings until compliance is had or enter a dismissal or default judgment. If the discovery order is not for a mental, physical, or blood examination, the offending person may be considered in contempt of court. We believe these remedies are broad enough to have permitted the trial court to exclude the exhibits in question had the court believed that to be an appropriate remedy. However, the imposition of sanctions for failure to comply with a discovery order is a matter of trial court discretion. Cf. Philips Industries, Inc v Smith, 90 Mich App 237, 246; 282 NW2d 788 (1979). In this case, the trial court’s refusal to exclude the documents did not constitute an abuse of discretion.
It is apparent that plaintiff had access to a copy of the report prior to its use by the defense, inasmuch as plaintiff offered as evidence a separate portion of the report as her exhibit No. 77. The fact that plaintiffs counsel was familiar with the document is attested to by his failure to request a continuance of trial when exclusion was denied. The report was, without question, relevant to issues raised during trial. Because plaintiff was not prejudiced by the highway commission’s failure to produce the material, the trial court’s decision can only be viewed as a proper exercise of discretion. Our ruling in this regard should not be read as approval of defendant’s actions. If defendant had valid objections to the scope of plaintiff’s discovery, it should have voiced those objections rather than unilaterally deciding that certain materials could be withheld. While it was not necessary to exclude defendant’s exhibits Nos. 11 and 12, other sanctions against the commission, had they been requested by plaintiff and considered by the trial court, may well have been fitting.
Plaintiff next argues that the trial court erred by giving weight to evidence regarding the lack of other accidents at the scene. The rule in Michigan has long been that evidence of the absence of previous accidents should not be admitted to prove absence of negligence. Grubaugh v City of St Johns, 82 Mich App 282, 287; 266 NW2d 791 (1978). Here, the evidence was admitted during plaintiffs own examination of an investigating police officer. During the course of the questioning, plaintiffs counsel suspected that the officer had confused the case with another, and he proceeded to inquire about accidents in the area. The following colloquy then took place:
”Q. Did you have any single car accidents on the pier like that? Or, other piers along 1-75, single car accidents at the pier?
“A. Not to my knowledge.
"Q. You didn’t have any?
'A. No; I didn’t.”
Plaintiff did not request that use of the testimony be limited by the court to the question of the officer’s possible confusion with other accidents. Subsequently, defense witness Dwight Bell testified, over plaintiffs objection, that he knew of no complaints regarding the need for a guardrail at the location. The trial court’s written opinion took note of both witnesses’ testimony on this point.
In view of the fact that the officer’s testimony was elicited by plaintiffs counsel, who took no steps to minimize its consideration, appellate review of this claim is precluded. MRE 103(a). Further, the testimony of Mr. Bell, although objected to, did not constitute direct evidence of an absence of accidents. Bell testified only that he knew of no complaints with respect to the overpass. Finally, any possible error from admission of the testimony was harmless. It is apparent from a reading of the trial court’s opinion that the evidence was insignificant with regard the court’s ultimate reason for finding the highway commission to be free from liability. The court did conclude that the commission was negligent in failing to erect a guardrail but determined that the breach of duty was not a proximate cause of plaintiffs damages since a guardrail of reasonable length would not have prevented plaintiffs vehicle from striking the overpass piers. Thus, the court did not use the disputed evidence to find a lack of negligence.
Plaintiffs final argument is that the trial court erred in finding that the failure to install a guardrail was not a proximate cause of the injuries sustained. The question of proximate causation is a factual issue. Kangas v New York Life Ins Co, 223 Mich 238, 244-245; 193 NW 867 (1923), Michigan Sugar Co v Employers Mutual Liability Ins Co of Wisconsin, 107 Mich App 9, 14; 308 NW2d 684 (1981), Stremler v Dep’t of State Highways, 58 Mich App 620, 629; 228 NW2d 492 (1975). It must be remembered that in reviewing factual determinations this Court applies the "clearly erroneous” standard. GCR 1963, 517.1 provides in part:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the fact specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. * * * Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”
A finding of fact is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
As noted above, the basis for plaintiff’s claim against the highway commission was that the commission failed to maintain the highway in reasonable repair so that it was reasonably safe and convenient for public travel. MCL 691.1402; MSA 3.996(102). Plaintiff and defendant highway commission each presented expert witnesses who testified to the changes in highway safety design from the time the road in question was built (circa 1960) through the time of the accident. Plaintiff’s expert, Duane F. Dunlap, testified that at the time of the accident there was an existing standard for guardrail lengths that required a guardrail of 225 feet. Dunlap stated that, in his opinion, the particular site required a minimum guardrail length of 250 feet. He also pointed out that the highway commission’s own 1960 Design Manual mandated that such a guardrail be at least 150 feet in length. Dunlap further cited a 1964 study by the Highway Research Board of the National Academy of Sciences that he claimed called for a minimum guardrail length of 200 feet. Dunlap contended that defendant’s 1970 standard plan for beam guardrails also called for a minimum length of 200 feet.
Dwight Bell, testifying for the highway commission, disputed Dunlap’s conclusions. While Bell conceded that there should have been a guardrail at the location, he asserted that a minimum length of 50 feet would have been appropriate. Nonetheless, Bell also referred to the disputed NCHRP Report 118, which contained a formula that called for an 89.1-foot guardrail for the conditions at the overpass. Bell specifically disagreed with Dunlap’s references to other guidelines. He stated that the 1960 Design Manual, as cited by Dunlap, applied only to guardrails at fills and gorges and that the 1964 study of the Highway Research Board applied to guardrails at embankments, meaning fills from lower ground to the highway. Finally, Bell pointed out that the 1970 standard design used by Dunlap was not an actual standard of the commission and, in any event, was applicable only to rural highways.
The trial court concluded that the highway commission had failed to comply with the statutory duty to keep the highway in reasonable repair by failing to install a guardrail. However, the court also determined that the area would have been in reasonable repair had the commission erected a guardrail of 50 feet in length. The basis for this finding was that until 1973 there was no nationwide "state-of-the-art” standard calling for longer guardrails and that the standard accepted within Michigan at the time of the accident suggested just a 50-foot guardrail. Reviewing the whole of the evidence, and in particular the testimony of witnesses Dunlap and Bell, we are not left with a firm and definite conviction that the trial court erred in this regard. Tuttle, supra.
The trial court also found that "any guardrail less than 140 feet would not have prevented this accident”. We interpret this to mean that, based on the path traveled by plaintiffs vehicle from the road to the overpass piers, a barrier of less than that length would not have prevented the impact with the piers. This finding was fully supported by the record, which included a photograph of the accident site showing the tire tracks left by plain tiffs vehicle. We cannot conclude that this latter finding was clearly erroneous.
"Proximate cause” has been defined as " 'that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, without which such injury would not have occurred * * Michigan Sugar Co, supra, 14, quoting Weissert v City of Escanaba, 298 Mich 443, 452; 299 NW 139 (1941). In the instant case, the highway commission’s breach of duty consisted of failing to maintain a guardrail of at least 50 feet in length. That breach of duty did not produce plaintiffs injuries. Stated conversely, it cannot be said that without the breach of duty plaintiffs injuries would not have occurred. The highway commission’s neglect was not a proximate cause of the accident, based on the trial court’s findings, which we affirm, regarding the sequence of the accident and the standards for highway maintenance in effect at the time of the accident. The trial court did not err in returning a verdict of no cause of action in favor of defendant highway commission.
Affirmed.
MCL 691.1402; MSA 3.996(102) provides:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.”
We find plaintiff’s contention that the trial court, in discussing the causation issue, confused the initial cause of the accident (i.e., — the impact of the tire on plaintiff’s auto) with proximate cause of plaintiff’s injuries to be without merit. The trial court recognized that the damages in this case were indivisible, that is, the damages from the direct impact of the tire could not be separated from those attributable to the impact with the piers. Although the highway commission could only be culpable for the latter damages under plaintiff’s theory of the accident because of the indivisible quality of plaintiff’s injuries, had the commission been found liable, its liability would have been joint and several with that of Ms. Robbins for the entire damages. See, e.g., Watts v Smith, 375 Mich 120, 125; 134 NW2d 194 (1965), Maddux v Donaldson, 362 Mich 425; 108 NW2d 33 (1961). | [
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Per Curiam.
The plaintiff, Opal C. Hamlin, was injured from exposure to a. toxic chemical used in making glue. This chemical, known as Toluene Diisocyanate (TDI), was used in the manufacturing process of Michigan Seat Company’s plant where plaintiff was employed. The result was that plaintiff suffered a sensitized condition which caused severe reaction from even small exposure. The company offered plaintiff work with Jackson Canvas Company, a wholly owned subsidiary of the defendant, at benefits equal to those which she had been receiving at defendant’s plant. TDI was not used at the Jackson Canvas Company plant. The plaintiff refused the proffered employment solely because Jackson Canvas Company was not a union plant. It was shown that plaintiff was capable of performing the proffered work. Since her refusal to accept the proffered work was unrelated to her capacity to perform, she was denied benefits from the date of her refusal. Kolenko v United States Rubber Products, Inc, 285 Mich 159, 162; 280 NW 148 (1938), Frammolino v Richmond Products Co, 79 Mich App 18; 260 NW2d 908 (1977). She appealed to the Workers’ Compensation Appeal Board (WCAB), which denied her benefits because she refused work which she was capable of performing. She has appealed to this Court.
In absence of fraud, this Court’s review of the WCAB decision is limited to the issue of whether the board applied the correct legal standard. Mansfield v Enterprise Brass Works Corp, 97 Mich App 736, 740; 295 NW2d 851 (1980).
At issue is the "favored work” doctrine. This is a doctrine allowing the defendant-employer to mitigate weekly benefits by offering a disabled employee work which he is capable of performing in a disabled state. The result is that the disability award is reduced by the present and future earning capacity of the employee so employed in the "favored work”.
The set-off provision reads as follows:
"The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.” MCL 418.371(1); MSA 17.237(371)(1). (Emphasis added.)
The "favored work” doctrine developed to fill the obvious statutory hole left by this section. See Sims v R D Brooks, Inc, 389 Mich 91, 94; 204 NW2d 139 (1973).
In order to invoke the doctrine, the defendant-employer has the burden of proving that a specific and definite offer of employment was made and that the employee was capable of performing the work offered. Ayoub v Ford Motor Co, 101 Mich App 740, 745; 300 NW2d 508 (1980), Kolenko, supra, Sims, supra, 94. Once having met these criteria, a refusal by an employee to accept favored work for other than health reasons or. a refusal to make a good-faith effort to perform the favored work will terminate benefits payable to the employee. Christiansen v Eaton, Yale & Towne, Inc, 89 Mich App 440, 444; 280 NW2d 463 (1978), Brown v Premier Manufacturing Co, 77 Mich App 573, 577; 259 NW2d 143 (1977).
The Michigan Supreme Court has ruled that subsequent events, independent of the original injury, even though not the fault of the employer, will not justify the denial, reduction, or suspension of disability benefits because they cannot be attributed to the employee. Powell v Casco Nelmor Corp, 406 Mich 332, 353; 279 NW2d 769 (1979), Todd v Hudson Motor Car Co, 328 Mich 283, 286-287; 43 NW2d 854 (1950), Lynch v Briggs Manufacturing Co, 329 Mich 168, 172; 45 NW2d 20 (1950).
Where independent, supervening events, unrelated to the employee’s capacity to perform, are involved, a present earning capacity of the employee must be established. MCL 418.371(1); MSA 17.237(371)(1). However, if the intervening event is one related to the employee’s capacity to perform, the employee is entitled to restitution of his benefits. Powell, supra, 354.
The general rule is that an injured employée who refuses an offer of employment for "favored work” which the employee is capable of performing is not entitled to workers’ compensation benefits. Bower v Whitehall Leather Co, 93 Mich App 257; 286 NW2d 877 (1979). A unilateral decision to refrain from employment for reasons other than capability of performance may terminate benefits under the Worker’s Disability Compensation Act. Frammolino, supra, 27.
Had plaintiff Hamlin accepted the offered employment with Jackson Canvas Company, she then could have determined the difference, if any, between her present earning capacity and her preinjury earning capacity. This course of action would not have barred a reinstitution of benefits had she been fired or laid off unreasonably. Pigue v General Motors Corp, 317 Mich 311; 26 NW2d 900 (1947).
Nor does this result exceed a state’s authority to regulate an employee’s rights under § 7 of the National Labor Relations Act, 29 USC 157. Although such authority to regulate is very limited under the act, the fair and efficient administration of Michigan’s workers’ compensation system is of such local concern as to take such action outside of the act, absent a strong and compelling congressional mandate to preempt. See San Diego Building Trades Council v Garmon, 359 US 236, 244; 79 S Ct 773; 3 L Ed 2d 775 (1959), Silkwood v Kerr-McGee Corp, 637 F2d 743, 746 (CA 10, 1980), cert den — US —; 102 S Ct 132; 70 L Ed 2d 9 (1981). No such mandate exists.
For the reasons stated in this opinion, we find that the Workers’ Compensation Appeal Board applied the correct legal standard to the case at bar and that sufficient facts exist to support the result. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861).
Affirmed. Costs to appellees. | [
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Per Curiam.
On March 3, 1980, defendant pled guilty in the same proceeding to the offense of armed robbery which occurred on June 13, 1979, and to the offense of breaking and entering an occupied dwelling with intent to commit larceny which occurred on January 7, 1980. The armed robbery was scheduled for trial on March 3, 1980, however, no trial date had as yet been set for the breaking and entering charge. The trial court handled the plea-taking proceeding for both offenses simultaneously. Defendant was sentenced on March 12, 1980, to serve prison sentences of 18 months to 15 years in each case, to run concurrently. He appeals as of right, being represented by different appellate counsel for each conviction.
In his appeal of the armed robbery plea conviction defendant presents one issue, this being whether the trial court erred in not informing defendant that he might be charged as a habitual offender, that there was a mandatory minimum prison sentence for armed robbery and that he could not be placed on probation. The prosecutor filed a brief in the appeal from this conviction.
As to the breaking and entering plea conviction, defendant raises three issues. One issue alleges reversible error because the trial court did not advise defendant of a mandatory minimum sentence or that he could not be placed on probation for armed robbery. Second, the court erred in failing to place the sentence agreement on the record at the time of plea taking. Last, defendant was denied effective assistance of counsel by failure of counsel to move for an extension of time to allow defendant to plead to a reduced charge. The prosecutor did not file a brief in the appeal from this conviction.
Armed Robbery, No. 51411
There was no showing that defendant has been charged as a habitual offender, therefore there was no reversible error. People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977).
There is no dispute that the trial court complied with the sentence agreement of 18 months minimum and 15 years maximum, to run concurrently with the sentence for the breaking and entering conviction.
GCR 1963, 785.7(1)(d) requires the trial court to advise the defendant of the mandatory minimum prison sentence, if any, for the offense. In People v McKnight, 72 Mich App 282; 249 NW2d 392 (1976), lv den 399 Mich 848 (1977), it was held that it is not necessary to advise a defendant of any minimum sentence before accepting a plea of guilty to an offense punishable by imprisonment for life or any term of years. In People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), this Court held that there is no mandatory minimum sentence for armed robbery. Additionally, the defendant argues that the trial judge committed reversible error by failing to inform him that armed robbery was not probationable. The Court in Freeman found that error was committed but it did not require reversal because the defendant knew that he was going to serve a prison sentence as a result of the sentence agreement.
In People v Jones, 410 Mich 407; 301 NW2d 822 (1981), defendant Jones pled guilty to two counts of armed robbery after being informed the court would not impose a sentence of more than 10 to 15 years. The trial judge did not tell the defendant that he could not be put on probation for armed robbery nor did the judge tell the defendant that the maximum possible sentence was life imprisonment. Defendants Grant, in the companion cases, had pled guilty to armed robbery. Following a sentence bargain, they were advised of neither the maximum sentence nor the mandatory minimum. In reversing defendant Jones’s conviction and affirming the Court of Appeals reversal of the Grants’ convictions, the Supreme Court placed emphasis on the failure to tell the defendants that the maximum sentence for armed robbery is life imprisonment. We affirm the armed robbery conviction herein.
Breaking and Entering, No. 51511
Based on the reasons stated in affirming the armed robbery conviction, we are not convinced the trial court erred by not advising the defendant of a mandatory minimum sentence or that he could not be placed on probation for armed robbery.
GCR 1963, 785.7(4) states:
"Additional Inquiries and Statements by the Court. Upon completing the colloquy with the defendant, the court shall,
"(b) state whether the court has agreed upon the possibility of a plea or the possible sentence with the prosecutor or the defendant or anyone acting in the interests of either, and, if so, that to which the court has agreed.”
The plea transcript is totally silent as to whether or not there had been a plea or sentence agreement. The transcript does indicate negotiations wherein the prosecutor agreed to accept a plea of guilty to attempted breaking and entering of an occupied dwelling. However, February 28, 1980, was the final conference cutoff date for acceptance of that offer.
Prior to the sentence being pronounced, the sentence transcript clearly indicates that at the time of the plea taking there was a sentence agreement to a minimum term of 18 months with a recommendation that the defendant be sent to the Michigan Training Unit. We do not consider error on this point to be of a nature requiring reversal.
As to the remaining issue, the record does not support defendant’s argument of ineffective assistance of counsel.
Affirmed. | [
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Per Curiam.
Defendant appeals from a circuit court order abating child support and canceling arrearages owed by plaintiff under a judgment of divorce.
The judgment was entered on March 20, 1975. Custody of two minor children was awarded to the plaintiff mother. Defendant father was ordered to pay child support in the amount of $40 per child per week. Immediately prior to the entry of the judgment, plaintiff and defendant were each earning approximately $19,000 per year.
On June 10, 1977, the judgment was modified to provide that defendant be given custody of the children. Plaintiff was ordered to pay child support in the amount of $22 per child per week. On April 27, 1978, the judgment was modified again to provide that plaintiff pay support in the amount of $25 per child per week, retroactive to November 25, 1977. On August 2, 1979, the judgment was modified for a third time. This time the court canceled arrearages which had accrued under the judgment and relieved the plaintiff of her child support obligation as of June 16, 1979. Defendant’s motion for rehearing was granted on November 9, 1979.
At the rehearing, plaintiff mother testified that she was employed with the Pontiac Board of Education at a salary of $19,000 per year. Plaintiff stated that her monthly rent for an apartment amounted to $395 and that her debts were "way, way above what [she could] handle”. She also indicated that she had health problems due to an injury from a car accident in 1978. Plaintiff then drove a 1979 automobile.
Defendant father testified that he was employed as the Assistant Superintendent of Inkster Public Schools and earned approximately $31,000 per year. Defendant had remarried since the divorce and his wife was a physician who earned approximately $50,000 per year. Defendant testified that he was then living in a house purchased for $120,-000, of which $90,000 was still owing. Defendant and his new wife also owned a 1977 Oldsmobile and a 1979 Cougar. Payments were being made on both of these vehicles.
At the conclusion of the hearing, the court reaffirmed the order which relieved plaintiff of her support obligation and canceled arrearages owed by plaintiff. The court found that a change in circumstances had occurred based on defendant’s increase in earnings and his second wife’s earnings of $50,000. The court also noted defendant’s $120,-000 residence and the two automobiles owned by defendant and his new wife.
In rendering its decision the court stated:
"There has been a change in circumstances as far as his [defendant’s] earnings are concerned. The records reflect that his present earnings are approximately $30,000 a year and his present wife’s earnings are $50,000 a year. That makes a joint income of approximately $80,000 a year.
"They have purchased a home two years ago which he testified to in the amount of $120,000.
"Both he and his wife have a 1977 Oldsmobile and a 1979 Cougar.
"I think that in view of the defendant’s present income and the circumstances under which he resides that the plaintiff should not be required to contribute toward the support of the two minor children.”
Defendant argues on appeal that the trial court abused its discretion in ruling that the plaintiff should be relieved of her obligation to contribute toward the support of the two minor children solely because of the defendant’s increase in income and generally improved financial status resulting partially from his remarriage. We agree and remand for a new hearing.
Both parents are obligated to support a minor child. MCL 722.3; MSA 25.244(3). When granting a divorce, a court has the jurisdiction to award custody of minors to either party and "may require either parent to pay such allowance as may be deemed proper for the support of each child * * MCL 552.17a; MSA 25.97(1). The court, therefore, may fashion a child support order based upon the relative ability of each parent to pay. Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976), Watkins v Springsteen, 102 Mich App 451; 301 NW2d 892 (1980).
The party petitioning for a modification of an order for child support bears the burden of establishing a change in circumstances that would justify an alteration of the divorce judgment. McCarthy v McCarthy, 74 Mich App 105, 108; 253 NW2d 672 (1977). An increase in the custodial parent’s income and the general improvement in that parent’s financial status by virtue of a favorable remarriage is not, in itself, a sufficient change in circumstances to relieve the noncustodial parent totally of the obligation to contribute to the support of the children. See McCarthy v McCarthy, supra, 108-109. In determining whether there has been a change in circumstances all relevant factors must be considered. McCarthy v McCarthy, supra, 109, Cymbal v Cymbal, 43 Mich App 566-567; 204 NW2d 235 (1972).
Whether the noncustodial parent, in this case the plaintiff wife, should be relieved, either totally or partially, of her child support obligation depends primarily upon her own financial status, her employment or employability, her health and any other factor or factors which bear upon her earning capacity. The plaintiff wife, however, should not be relieved entirely of her obligation to support the children solely because the defendant husband may happen, for whatever reason, to be financially able to support the children without assistance.
This is not to say that the trial court is precluded from considering the defendant husband’s financial status, including any improvement therein which may have resulted from his remarriage. On the contrary, the court should consider any change in the relative capacity of each party to contribute to the support of the children. While the defendant’s second wife is under no obligation to support the children of the first marriage, her financial contributions in the new household alleviate, to some extent at least, the defendant’s support obligations there. The defendant’s remar riage, therefore, is one of the factors which the trial court may consider in determining the share of child support that each party should contribute.
Reversed and remanded for a new hearing consistent with this opinion. We do not retain jurisdiction.
In Charlton v Charlton, supra, the Supreme Court affirmed the support provisions of a judgment of divorce which ordered a defendant husband to pay three quarters and the plaintiff wife to pay one quarter of the $60 support requirement because of the 3 to 1 ratio of defendant’s income to plaintiffs income. In Watkins v Springsteen, supra, the Court ruled that, although the plaintiff wife’s improved financial condition was not a legally significant ground for total termination of the defendant husband’s child support obligation, it was a relevant factor in determining whether a change of circumstances had occurred which was sufficient to require an abatement pro tanto of a previously ordered support payment.
In McCarthy v McCarthy, supra, the Court found error in a modification of a support order which increased the amount of support payable by the noncustodial parent based totally on that parent’s increase in salary. The Court ruled that all relevant factors must be considered in determining whether there has been a change in circumstances. See also Cymbal v Cymbal, supra, and Stros v Stros, 25 Mich App 154, 156; 181 NW2d 26 (1970). | [
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] |
To vacate an order dismissing certiorari directed to drain commissioners of Wayne and Macomb Counties.
Denied September 14, 1897, on the ground that the notice was not served seasonably on the commissioner for Macomb, nor ■was he a party named in the writ. | [
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4
] |
To compel respondent to turn over to his successor, goods taken by him during his term of office under an attachment.
Granted November 15, 1889.
Held, that it is the duty of the ex-sheriff who has attached property in his custody, after execution has been issued, to expose such property to the sheriff when requested, in order that it may be taken in execution and sold to satisfy the same; that if he has valid charges he should make out his bill and present it to the clerk or other taxing officer for taxation, or if they are not statutory fees, he should apply to the court for such allowance upon motion and notice to the parties interested. He has no right arbitrarily to fix his own price, and retain the property until paid.
Held, also, that the right of an ex-sheriff to execute process until the service upon him of the clerk’s certificate required by How. Stat., Sec! 59J, showing that his successor has qualified and given the security required by law, exists only as to such process as he has in his hands, and which he is required by How. Stat., Sec. 599, to deliver to his successor upon service of such certificate. | [
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] |
To compel respondent to vacate an order allowing an alias writ of replevin.
Granted February 25, 1891, with costs.
In November, 1889, the first writ was issued out of the Clare circuit, at the instance of one Hall for the recovery of a quail tity of logs in a lake upon which relator’s property abutted. When the demand was made, and when the sheriff seized the logs, relator disclaimed any interest in or claim upon said logs, or right to possession thereof, and denied having either actual or constructive possession, but insisted that the logs could and should be removed from the lake across other lands, and not through or over relator’s lands; that the sheriff afterwards made return of the sei’vice, reciting the seizure, the giving of bond by plaintiff, and the delivery of the logs to said plaintiff; that afterwards, on January 12‘, 1891, after the cause had been at issue since December 26, 1889, and had been noticed for trial for several terms of court, plaintiff moved the court for an alias writ, setting forth that the return was incorrect in that the logs had not been delivered to plaintiff, and asking that the sheriff be allowed to file an amended return.
The amended return was allowed and afterwards filed, and showed that relator had refused to allow the logs to be taken across his premises; and that in consequence the sheriff was unable “to deliver the logs out of the lake to plaintiff,” whereupon plaintiff took out the alias .writ.
Relator insisted that the only issue between himself and plaintiff in the replevin suit was the right of plaintiff to take the logs, hy a short cut, over relator’s lands to the railroad, and that after issue joined and such a lapse of time plaintiff was. not entitled to the alias writ. Citing, Pierce vs. Rehfus, 35 M., 53; Montgomery vs. Merrill, 36 M., 97; Gray vs. Circuit Judge, 49 M., 628 (531); Low vs. Ct. J., 61 M., 35 (722). | [
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To vacate an order denying a motion to dismiss an appeal from the Probate Court.
Denied March 2, 1888.
The grounds of the motion to dismiss were, (1) that the appeal was made in the name of the administrator and the administrator had declined to join therein; (2) that the application was made before the expiration of the time within which the administrator was allowed to appeal. The other objections relate to defects in the bond.
Held, that the statute authorizing heirs-at-law to appeal from the allowance of a claim against an estate, where the administrator declines and fails so to do, authorizes them to defend the proceedings in the Circuit Court, and to control and maintain said defense; that a bond given by heirs on appeal running to claimants alone, but conditioned to pay all damages and costs to claimant and to the estate, is sufficient to confer jurisdiction to allow the appeal; and that if a bond given on appeal from the Probate Court is defective, the remedy is not by dismissing the appeal in the first instance, absolutely, but conditionally in case a new bond shall not be filed within a reasonable time, fixed by the court, under How. Stat., Sec. 7771. | [
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] |
To compel an allowance of' relator’s account as a physician, under 3 How. Stat., Sec. 1681 a.
Granted February 3, 1892, with costs. | [
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To compel respondent to impanel a new jury in proceedings under the drain law, on the discharge of the original jury, because unable to agree.
Granted June 17, 1892, without costs. | [
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] |
To require the respondent board to re-admit relator to his seat and to recognize him as a member of that board, the Common Council of the city having adopted a resolution removing relator and several others from their positions as school inspectors.
Granted October 29, 1878.
Held, that the power given to the Common Council to remove officers does not reach any but city officers, and that school inspectors are not city officers. | [
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To vacate an order requiring plaintiff, in an action for alienating his wife’s affections and crim. con. to furnish to defendant a bill of particulars of tbe places and acts alleged to have been committed in the counts for crim. con.
Order to show cause denied December 30, 1895. | [
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To vacate an order in an ejectment case, brought against relator, denying the motion, (1) for leave to move for a new trial, and (2) for a new trial.
Granted April 19, 1876.
The judgment was entered for plaintiff August 26, 1872. Additional and further finding at request of defendant filed June 5, 1874. Writ of error sued out July 15, 1874. Judgment affirmed January 8, 1875. Remittitur filed January 28, 1875. The motion upon which the order complained of was granted was made September 19, 1875; heard January 14, 1876, and decided February 4, 1876.
Held, that the time for taking a new trial as a matter of right, should date from the day that judgment could have been taken on the completed finding. | [
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] |
To compel the circuit judge to strike an amended declaration from the files, on the ground that the amendment introduced a new cause of action, and that the statute of limitations had run before the allowance of the amendment.
Denied February 4, 1891, with costs.
The action was for negligent injury received March 2,. 1882, and was commenced by summons, issued August 1, 1888, and served on that day. -Prior to that time, however, the defendant had 'removed to the State of "Wisconsin, and had resided there for two years and five months. The declaration was filed November 2, 1888, to which defendant pleaded the general issue, with notice of the statute of limitations. In March, 1890, plaintiff moved to amend the declaration, and' the court, on April 2, granted such leave. On April 9, 1890, defendant moved to strike the amended declaration from the files, on the ground that the amended declaration counted upon a new cause of action, which had become barred by the statute of limitations. Granted. Plaintiff, on May 14, 1890, again moved to amend the declaration, setting forth, by affidavit, the absence of the defendant from the State, as aforesaid, and also, that the circuit judge who had heard the previous motion was, at the time of the hearing, and determination thereof, disqualified. The facts, both as to the absence of defendant from the State, and the disqualification of the judge, were conceded. Because of the inability to procure another judge, the matter was uot finally heard and determined until Nov. 28, 1890. In the meantime the hearing had not been formally continued, but the motion had been re-noticed. The return insisted that the amendment was simply a re-statement of the same cause of action and th^t the statute had not run when the motion was made. | [
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To vacate that portion of order made by the crossing board which attached certain conditions to the right to cross a street and railway tracks, which conditions required relator to join'with the Mich. Central R. R. Co., across whose right of way relator desired to pass, in the construction of an overhead crossing for teams and travellers and to defray one-half of the expense thereof.
Denied June 6, 1890. | [
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] |
To require respondent to certify under How. Stat., Sec. 6897, that title to lands did not come in question, in an action of trespass to certain marsh lands commenced before a justice by relator, where defendant had given notice that the title would come in question, and the justice had certified the case to the circuit, and the sole question presented upon the trial in the circuit was, whether defendant was upon Sec. 27 (Plaintiff’s land), or upon See. 24 (land which did not belong to' plaintiff), and defendant had judgment.
Granted January 3, 1894, with costs. | [
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] |
To compel payment over of certain moneys due the township.
Granted October 16, 1877.
Held that mandamus proceedings against an official as such, are not affected by a change of incumbency; that the relator is not usually granted greater relief than the claim made in his application, and that interest is not usually allowed in the absence of a statute or contract relation calling for it. | [
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To compel respondent to issue a summons, under Act No. 460, Local Acts 1895, where the amount, the recovery of which is sought, exceeds $300.
The circuit judge denied the writ, holding the act unconstitutional.
Reversed and writ granted October 8, 1895, without costs. | [
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The Supreme Court will not review the discretion of the Attorney General in refusing to file an information in the nature of a quo warranto against a railway corporation, where it is not clearly abused and where the proceeding could not benefit the relator.
Denied October 22, 1879. | [
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To compel the court to resume control of a case after ordering its transfer to Superior Court, pending a hearing of the case.
Granted October 16, 1877. | [
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] |
To require respondent to vacate an order granting a new trial.
Order to show cause denied July 10, 1894.
Action, assumpsit commenced before a justice, against reíator, a resident of Chicago, 111. Plea, the general issue with notice of set off. Judgment for plaintiff. Defendant appealed. On the trial it became necessary for plaintiff to prove the agency of one Downie, but he was not able to do so and asked leave to submit to a non-suit. Relator, however, objected, whereupon the court directed a verdict of no cause of action. Afterwards, plaintiff moved for a new trial and the same was granted. | [
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To compel respondent to issue his warrant tor the payment of a warrant, issued by the board of health, established by Act No. 10, Laws of 1895.
The circuit judge granted the writ.- Affirmed April 26, 1895, with costs.
The case involved the constitutionality of the Act referred to. | [
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] |
To compel respondent to entertain a complaint and issue a warrant for the violation of a village ordinance.
Denied June 28, 1889, on the ground that a license fee of $10 per month is excessive and unreasonable, and therefore void, and that an ordinance of a village requiring the payment of the license fee of $10 per month for the privilege of selling fresh meat on the village streets, in less quantities than one-quarter of the slaughtered animal, is in restraint of trade and not within the legislative power of the village to enact. | [
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Per Curiam.
In 1973, defendant pled guilty in Eaton County Circuit Court to a charge of second-degree murder, MCL 750.317; MSA 28.549. He was subsequently sentenced to life imprisonment. On September 29, 1980, defendant filed a motion for resentencing with the trial court alleging the trial judge had considered previous felony convictions of defendant at which defendant was not represented by counsel. The trial judge acknowledged that he was in error at the time of sentencing by considering a previous conviction on the defendant’s record although defendant was not represented by counsel in the previous conviction. The motion was granted, and on December 11, 1980, defendant was resentenced. The new sentence announced by the court was for a term of imprisonment of from 10 to 20 years, with credit for the time already served. Later that day, the judge notified the parties to reappear the following day.
On December 12, 1980, the trial court informed the parties that he had decided at the time of the previous day’s sentencing to impose a sentence of from 20 to 40 years but that in actually pronouncing the sentence he misspoke himself and stated the sentence incorrectly. Defendant appeals by right from the sentencing of December 12, 1980.
"The Court: Mr. Dotson, you are here, not at the motion of the prosecutor or of your attorney, but on my motion to correct a misstatement which I made in sentencing you yesterday.
"During our discussion in chambers, it was directed at reducing your sentence from life to a maximum of 40 years and a minimum of 20 years. I did this with the idea in mind that the minimum of 20 years would make you eligible for parole in the area of somewhere in 10 years. But when I got in the courtroom, I misspoke myself. I sentenced you to a maximum of 20 years and a minimum of 10 years, and I’m here to correct that statement.
"Now I’ll listen to anything your attorney may want to say on your behalf.
"Mr. Stiles?”
Under the facts of the instant case, the interests of justice will not be thwarted by allowing the trial judge to correct a mistake, honestly made, in pronouncing sentence.
The United States Supreme Court has recognized that the constitution does not require that sentencing should be a "game” in which a wrong move by the judge means immunity for the prisoner. Bozza v United States, 330 US 160; 67 S Ct 645; 91 L Ed 818 (1947). That Court has also held that a criminal sentence, once pronounced, is not to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. United States v DiFrancesco, 449 US 117, 136; 101 S Ct 426; 66 L Ed 2d 328 (1980). Thus, a federal statute granting the prosecutor the right to appeal a defendant’s conviction based upon its determination that the defendant was a dangerous special offender was not violative of the constitution’s Double Jeopardy Clause. There appears to be no constitutional prohibition to the action taken by the trial judge in the instant case.
There is also no statutory prohibition to the actions taken by the trial judge herein. In the absence of any constitutional or statutory prohibition, the case law must be examined.
As a general rule of law, once a sentence has been imposed and the defendant placed in the custody of the proper authorities, the court loses its power to resentence that individual. People v Meservey, 76 Mich 223; 42 NW 1133 (1889), In re Richards, 150 Mich 421; 114 NW 348 (1907). The action taken by the trial judge herein did not constitute a resentence. The judge did not call defendant to his courtroom to impose a new and different sentence based upon events transpiring subsequent to the original pronouncement. Meservey, supra. His actions merely reflect a recognition on his part that he had misspoken himself and an attempt to impose a sentence which was at all times the sentence intended.
The trial judge made an honest mistake in his pronouncement of sentence. The judge was, as is each one of us, only human and, thus, capable of such a mistake. We do not overlook the possibility for abuse, if the trial court is given the power to change a sentence simply upon its statement that the sentence as pronounced was not the sentence intended. However, based on the specific procedures followed by the trial judge herein, we do not believe that such a potential for abuse is present in the instant case.
The record reflects that a discussion was held in chambers between the judge and counsel for both parties on the day defendant was sentenced. Defendant’s counsel was also present at the time sentence was pronounced and on the following day when the judge corrected his earlier misstatement. The judge stated that he had indicated his intent during the in-chambers discussion to impose a prison term of from 20 to 40 years. At no time, either before the trial judge or now on appeal, did counsel indicate or even imply that the trial judge incorrectly related the substance of that discussion or that the 20- to. 40-year term was not, in fact, the intended sentence.
Defendant was convicted properly in 1973 of second-degree murder and sentenced to life imprisonment. After his resentencing, he remained in prison. The judge recognized his misstatement on the same day and called all parties to his courtroom on the following day to correct his mistake. Under these circumstances, we do not believe this defendant reasonably can argue that he changed his position in reliance upon the earlier pronouncement and thereby is prejudiced by the correction. In the absence of any constitutional or statutory prohibition to the judge’s actions and in the absence of any prejudice resulting from the judge’s actions, any error which may have occurred is harmless and does not require reversal. GCR 1963, 529.1.
The record sufficiently demonstrates that the trial judge simply made an honest mistake in pronouncing sentence and that the sentence subsequently pronounced merely corrected that misstatement. The record also sufficiently demonstrates that the 20- to 40-year sentence was that which the trial judge, at all times, considered to be a fair and just term of imprisonment and which he intended to impose.
Affirmed. | [
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] |
To compel the respondents to direct the supervisor of the township of Eagle to spread upon the tax roll a sum sufficient to pay certain township orders.
Order to show cause denied November 5, 1895, as the application should be made to the Circuit Court. | [
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] |
Certiorari to Saginaw.
To compel respondent to hear and pass upon an application for mandamus to compel a probate judge to proceed, at the instance of an heir, with an examination of a person who is suspected of having assets in Ms hands belonging to an estate, the respondent having denied the application on the sole ground that he had no power to issue the writ to a probate j udge.
Granted December 4, 1896. | [
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To vacate an order made September 23, 1895, entering a judgment nunc pro tunc, without notice or consent, on a verdict rendered March 12, 1894, in an action of tort, the effect of which was to cut off the adverse parties’ right of appeal and enable plaintiff to collect interest on his judgment from the date of the verdict.
Granted February 25, 1896, with costs against plaintiff. | [
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] |
To compel respondent to countersign an order directed to be drawn by the board of supervisors in favor of relator.
Order to show cause allowed March 8, 1892. | [
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] |
To- compel the Board of Education to admit the relator to a seat in that body, to which he claims to have been elected.
Granted January 10, 1878. | [
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To compel the respondent to settle the testimony in a chancery case.
Granted October 31, 1863.
'The court in vacation delivered to the clerk his decision in writing in fa.vof of defendant; on the next day defendant’s coun sel verbally informed tbe plaintiff’s counsel of tbe decision, which was the only notice he received from any source. On October 4, thereafter the plaintiff’s attorney signed a stipulation consenting to the taxation of defendant’s costs. Within ten days thereafter the case was prepared and served upon the attorney for defendant and notice given for settling the same by the judge at the time fixed; the defendant’s attorney objected to the settlement because the case was not prepared and served within ten days after the oral notice of the decision.,
Held, that under the statute the clerk must at least serve notice of the judgment on the successful party, and written notice must be served upon the other party before the ten days will commence to run. | [
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] |
To compel respondent to issue a deed of certain lands, which had been sold for delinquent taxes and bid in by the State, upon application by relator for the’ purchase of the State bid, accompanied by a tender of the necessary amount.
Denied May 11, 1897, with costs, on the ground that respondent was justified in withholding the deed, under Sec. 98, of Act No. 154, Laws of 1895.
Upon taxation of costs the question of respondent’s right to tax the expense of printing briefs came up, was referred to the court and the court allowed the same. | [
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To compel respondent to allow a set-off of one judgment against another, which he refused on account of a dispute as to rights of attorney and assignee.
Denied June 11, 1879.
Held, that mandamus does not lie to review the discretion of a circuit judge; that his denial of the motion was not a bar to proceedings in equity. | [
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] |
To compel respondents to draw an order upon the township treasurer for the' payment of one of certain bonds issued by said township “for public improvements.”
Order to show cause denied July 1, 1891. | [
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To compel respondent to issue a summons and make same returnable before some justice other than Justice Phalfen.
Order to show cause denied February 24, 1891.
Plaintiff signed a praecipe for a summons returnable before some one of the justices other than Justice Phalen, giving as a reason that she desired to call Mr. Phalen as a witness upon the trial. Act No. 28, Local Acts of 1883, Am., 1885, p. 58, requires the clerk to make all writs returnable before the justices in regular rotation, and does not give the clerk power to make exceptions. | [
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] |
To compel respondent to vacate an order imposing conditions on setting aside a default, which it is claimed was improperly entered.
Order to show cause allowed, returnable January 3, 1893.
Plaintiff moved to amend his declaration and was allowed to amend on payment of $10 costs. The amended declaration was filed, but the costs were not paid and plaintiff entered a default for want of plea to amended declaration. Defendant moved to set aside the default, the same was granted on condition that defendant plead within five days, and that the cause be placed upon the docket of September term for trial. See Detroit vs. Circuit Judge (Wayne), 386.
On January 4, 1893, the respondent having granted the relief prayed for, relator moved for costs. Denied. | [
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] |
To vacate a judgment.
Denied October 13, 1880.
Judgment by default is not absolutely void for want of sufficient notice of the rule to plead, where process has been personally served; and if the party suffering judgment neglects to seek relief against it on error until the other party would have lost his remedy by lapse of time, he cannot then have it vacated by mandamus. Costs not awarded when, proceeding brought at respondent’s request. | [
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To compel respondent to issue a certificate for certain lands where the conditions entitling relator to a certificate of purchase were that he should pay one-fourth down and the rest at any time thereafter, with interest; the refusal to issue a paid up certificate being based upon the ground that the taxes levied in respect to said land from the time of their purchase remained unpaid.
Granted October 6, 1880.
A statute enacted after the original purchase added the condition to such sale that the taxes should also be paid. The court in granting the writ held that the State did not release any tax lien on the land by giving a deed, and that this would not govern a case where the certificate of purchase had been issued after the passage of the statute. | [
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To compel tbe payment over of certain moneys in respondent’s bands, arising from tbe tax on dogs, under Act No. 214, Raws of 1889.
Granted Nov. 14, 1890.
Tbe case involved tbe constitutionality of tbe act referred to. | [
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Bv the Superintendent of Fisheries, who is held to be not an officer within the meaning of the Constitution and Laws of the State, but an employe of the Board, to compel the Board to rescind its action discharging him; expunge from its records the minutes of such action; to treat him as a superintendent; to surrender to him a certain note, and to certify liis salary bills.
Denied February 27, 1883. | [
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] |
To compel respondent to dissolve an injunction.
Denied February 18, 1897, with costs.
One Shafer filed a bill against relator praying that the title to certain land of complainant be quieted, and also praying for an injunction to restrain the defendant from building a cement driveway and stone coping upon land claimed to belong to complainant and adjoining the boundary line between lands owned by the parties.
Relator contended that a court of equity has not jurisdiction to settle a dispute over a boundary line, and, therefore, that the court had no jurisdiction to grant an injunction.
Held, that while a court of equity has not jurisdiction to settle a’dispute over boundary lines, yet if the case is brought within some other head of equity jurisprudence, the mere fact that there is involved in the question of the complainant’s right the necessity for fixing the boundary line, will not oust the court of jurisdiction. | [
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To compel respondents to meet and canvass the votes cast for the establishment of a county seat.
Granted January 27, 1887.
The Board adjourned without canvassing the votes, claiming that no legal election was held. The answer alleges that the Board having met and adjourned, had gone out of office, and had no further function; that the proceeding is a political one, not involving judicial questions, and that the court has no jurisdiction in the premises, and that no valid election was held. | [
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] |
To vacate order for costs imposed as terms upon opening a default.
Denied October 15, 1879.
Held, tbat such conditions are discretionary. | [
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To compel respondents to re-assemble and make a full and detailed report of all ballots claimed to have been improperly-counted for'relator’s opponent, and all those in his favor rejected by said board, and for an order to count certain ballots and to reject others.
Denied December 24, 1892, with costs.
Held, that the statute cannot be construed as calling for a statement respecting every contested ballot.
And further, that should the board refuse to re-count, mandamus would issue to set the board in ’motion, but when they have re-counted and made their return and disbanded, they then become functus officio, and the remedy of the aggrieved party is by quo warranto. | [
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To compel the secretary of the corporation to permit a stockholder to inspect the records.
Denied November 6, 1861.
Held, that to entitle a corporator to the remedy he mnst show that he has made a proper demand for such inspection, at a proper time and place, and for a proper purpose. | [
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] |
To compel respondents to pay to relator, who is the official stenographer for the county, the per diem compensation which had been fixed for the office before his appointment, the board having subsequently fixed an annual salary.
Denied April 9, 1885.
Held, that the statute clearly contemplated an annual salary, and that the fixing of a per diem allowance was wholly incompetent. | [
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To compel respondent to pay over certain state taxes collected by him.
Granted November 28, 1888.
The county claimed the right to set off amounts alleged to be due from the State. | [
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] |
To dismiss an appeal from disallowance of a claim by commissioners on claims in the Probate Court.
Denied February 3, 1891, with costs.
The facts are similar to those in Snyder vs. Circuit J., No. 149. | [
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To compel respondent to set aside verdict and grant a new trial.
Denied June 18, 1891.
'Two jurors had sat in other cases of the condemnation of land for Boulevard purposes, but elsewhere located. The case is distinguished from the Hester case where the jurór sat the second time in the same case. | [
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] |
To vacate an order requiring a justice of the peace to make a return to a writ of certiorari.
Granted April 18, 1890.
Held that an affidavit which has been indorsed with an allowance of a writ of certiorari and filed in the clerk’s office and tbe writ issued, cannot be used as the basis for the allowance of a second writ; that a justice of the peace is justified in refusing to make return to a writ of certiorari, if the bond is not served upon him within the statutory ten days; that the statutory writ is special, and the proceedings to obtain a review by this process must be strictly complied with, and that a party has no right to take from the clerk’s office an affidavit upon which a writ has been issued, to present it for a second order of allowance. | [
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] |
To compel the allowance of relator’s claim for services as justice of the peace.
Denied January 23, 1880.
Held, that it was the duty of the relator in rendering his account to specify the services in detail, so that the board may ■determine whether the amounts charged corresponded with the statutory fees; that the board is not concluded by the account but may require proof, and may examine the docket and files, and the return made by the justice, and where they do so and reject claims on the ground that the services were not performed or that the charges made exceeded those allowed by the statute, their action would no.t be disturbed on a review of their finding upon the facts. | [
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To compel respondent to set aside an order denying a re-taxation of costs in ejectment in favor of each of the defendants, where the case had gone to trial, and all the defendants were acquitted.
Denied March 5, 1895, with costs.
Held, that How. .Stat., Secs. 8964, 8967 to 8969 contemplate but one bill of costs in favor of defendants in such case. | [
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] |
To vacate an injunction issued at the instance of a judgment creditor of relator’s husband, restraining both from transferring certain shares of stock which-it is alleged were transí erred to relator by her husband after judgment rendered, without consideration, and in fraud of the rights of the judgment creditor.
Order to show cause denied April 17, 1894. | [
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] |
To compel respondent to quash a suit commenced by summons, on the ground that the summons had been delivered to the attorney, signed in blank without reference to the particular suit, and the entry fee had not been paid
Denied April 28, 1893, with costs. | [
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] |
To vacate order granting leave to appeal from a justice’s judgment, after five days had elapsed, where appellant had employed an attorney who had informed him that upon the return day the case would be adjourned and he notified, but on the return day said attorney’s mother was buried, and said attorney was taken seriously ill, aud tbe defendant only learned of tbe judgment on the 8th day after judgment, when an execution was presented.
Order to show cause denied June 2, 1894. | [
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] |
To compel re-payment of moneys deposited for a re-count of votes.
Order to show cause denied November 30, 1892.
Held, that under the statute (3 How., 23-1 a) it is necessary in order to entitle the depositor to return of the deposit, that fraud or mistake be proven, and-the depositor receive a certificate of election. | [
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] |
To compel respondent to pay to relator such sum as he was entitled to as bolder of some of tbe circulating notes of tbe Government Stock Bank, out of tbe avails of tbe stock deposited witb tbe treasurer.
Granted 1855.
Held, tbat an averment tbat such notes were issued by tbe bank necessarily implied that they were first duly countersigned as required by the bank charter, and that circulating notes are not such claims as required proof at their presentation to the treasurer within the provisions of the charter. | [
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] |
To compel tbe correction of an assessment.
Tbe circuit judge denied tbe writ. Affirmed September 14, 1897.
Relator claimed to be a resident of Negaunee, Mich., and sought to compel respondent to strike tbe assessment, made against him as a resident of Detroit, from tbe rolls. Tbe circuit judge held that tbe answer raised an issue.,of fact as to relator’s residence. A jury was called and found that relator resided in Detroit. Tbe court confirmed tbe findings. Relator’s contention was that there was no testimony which warranted sucb a finding. Tbe court held otherwise. | [
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•To vacate order striking from the files, relator’s objections, in proceedings instituted for sale of lands for delinquent taxes, because copy not served upon the prosecuting attorney ten days prior to the commencement of the term.
Denied December 10, 1895, with costs. | [
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] |
To quash an attachment.
Denied 1844.
It appears that the affidavit was not made before an officer authorized to take affidavits, but the court permitted plaintiff to file a new affidavit and then refused to grant defendant’s motion to quash. Held, that the proper remedy in such case is certiorari. (But see No. 116.) | [
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To compel respondent to re-convene and assess a tax for cleaning out a drain.
Denied December 7, 1897.
The contract had been let, but no work had been done thereon. In his notice, the commissioner advertised that the job would be let by sections.
The answer set .forth, that the job had been let as an entirety; that responsible parties were present at the time and place appointed for the letting of the contract, but that the commissioner refused to receive bids for sections; that the petition for the drain, asks for the cleaning out of the drain, while the contract provides for deepening and widening, and, in some places, changing the route of the drain. The return also alleged fraud in the letting of the’contract.
Held, that respondent’s return must be taken as true. | [
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] |
To compel respondent to proceed and spread the State and other taxes in accordance with the provisions of the City Charter as amended in 1895.
Granted November 26, 1895. | [
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To dismiss an appeal taken by relator from the report of commissioners on claims and set aside the order of the commissioners making the allowance, on the ground that the claim is a contingent one-' under 3 ITow. Stat., Sec. 5932, and that the sole duty of the commissioners was to take the proofs and report the same to the Probate Court.
Denied November 5, 1895, with costs, on the ground that a claim upon a note, payable absolutely, secured by a real estate mortgage, is not, as between the holder and the estate of the maker, a contingent claim. | [
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28,
-9,
-45,
-66,
-38,
32,
-36,
-69,
-21,
23,
-8,
-2,
-51,
-87,
-11,
19,
-18,
-31,
-23,
40,
1,
6,
-24,
39,
-1,
-20,
5,
-2,
30,
36,
14,
12,
-1,
15,
-53,
30,
-2,
39,
21,
-19,
56,
20,
63,
40,
15,
32,
28,
60,
-23,
68,
-57,
-20,
-25
] |
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