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To compel respondent to assume jurisdiction over and try an information for alleged breach of the peace, charged to have been committed by the use of false, abusive and insolent language, in a dwelling house in the presence of the occupants, but accompanied with no threat and causing no expectation or fear of personal violence.
Denied June 28, 1889.
Held, not to be a breach of the peace within the common law definition of that term. | [
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To vacate an order transferring a case from the Alpena Circuit to the Saginaw Circuit.
Granted January 31, 1890, on the ground that there was no proof that the judge of the Circuit Court to which the case is transferred is not disqualified, and that the substitution of attorneys residing at Saginaw was not made in good faith. | [
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To vacate an order granting a new trial.
Denied May 13, 1868.
Held, that in the affidavit for the new trial there was something upon which the circuit judge was called upon to exercise his judgment. The question, therefore, was one intrusted to his discretion, and this court has no authority to review his conclusion. | [
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To compel respondent to pay to relator, who had been a clerk in the office of the receiver of taxes, but who had been discharged by said receiver, salary alleged to have accrued since relator’s discharge, the petition setting forth that the receiver of taxes "had no power to discharge r’elator.
Reversed and writ denied December 24, 1896, with costs of both courts. Application for re-hearing denied, with costs. | [
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Moore, J.
Plaintiff recovered a judgment against defendant of $1,600 for personal injuries received by her. Defendant appeals. The defendant concedes that the plaintiff has a cause of action against it, but contests the litigation on the ground that the damages claimed are excessive.
On the cross-examination of the plaintiff, it appeared that prior- to the injury she had obtained medicine for a stomach trouble of Dr. Barclay. She denied that he had treated her for bladder and other troubles to which her attention was called. Dr. Barclay was called by the defendant. The inquiry was made of him for what ailment he treated plaintiff prior to the accident. The question was objected to as being a privileged one, because of the relationship of patient and doctor. We think the question is made by the statute a privileged one. 2 How. Stat. § 7516; Briggs v. Briggs, 20 Mich. 34; Storrs v. Scougale, 48 Mich. 387.
This case was tried in June, 1896,—one year after the accident occurred. Dr. Linn attended the plaintiff as her physician for the two months immediately preceding the trial, and was her physician at the time of the trial. He was permitted to answer the question, “What is now, and what has been, the condition of her nervous system, as long as you have been treating her?” This testimony was objected to upon the ground that the time was too remote from the time of the accident. The record shows that testimony was introduced upon both sides for the purpose of showing the physical condition of Mrs. Lammiman from a period prior to the accident up to the time of the trial. We think the testimony of Dr. Linn was competent.
Dr. Linn was allowed to testify as to the amount of his bill for attending the plaintiff as her physician. The objection to this was not very definite, but it is urged here that, as the bill had not been paid when the suit was brought, the plaintiff could not recover the amount of it; and it is also urged that, as plaintiff is a married woman, the husband, and not the wife, is liable for medical bills. It appears from the record that the husband of plaintiff is not a resident of this State. Mrs. Lammiman has not lived with him for six or seven years, during which time she has supported herself by clerking in stores and by teaching music. Under the circumstances disclosed by the record, we think the testimony was competent. The other assignments of error are covered by the disposition of those discussed.
Judgment is affirmed.
The other Justices concurred. | [
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To compel x’espondent to bring suit on an assessor’s bond for breach of its conditions, in paying an order issued to an alleged unqualified teacher.
Denied April 24, 1888.
Held, that the writ will not be allowed where it is apparent that it is applied for to gratify the spite of a private individual; nor where the relator has instigated, authorized or approved the act complained of. | [
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] |
To compel respondent to vacate an order striking from the files in a chancery cause, the papers relating*to the appointment, of a,guardian ad litem, for an infant defendant, under How. Stat., Secs. 8132-8133.
Granted February 6, 1894, with costs against defendants in the chancery cause. | [
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To vacate an order allowing an amended declaration to be filed.
Granted November 1, 1889.
Held, that a declaration in the usual form, upon an insurance policy, cannot be amended so as to claim damages for the failure of the defendant to deliver a policy in conformity to an alleged agreement, nor can it be amended so as to eliminate a guarantee on the part of the insured “ that there shall be a clear space of two hundred feet between staves, headings and mill,” under an allegation that the said clause was inserted either through mistake or fraud, and was never assented to by the insured. | [
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] |
To compel respondent to vacate a judgment in favor of defendant for costs in an action for trespass on lands, on the recovery by plaintiff of a judgment for less than $100.
Denied July 5, 1894, with costs.
Held, that the judgment was a final judgment; that all of the facts upon which the application is based are matters of record and the question is reviewable upon writ of error. | [
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To compel respondents to recognize relators as justices of the peace, and part of the township board.
Denied November 11, 1891, without costs.
[Respondents insisted that relators were not regularly elected and duly qualified justices of the peace.
Held, that an answer denying allegations of fact made in the petition is decisive on a hearing on petition and answer.
Also, that the township board cannot in this proceeding question the election or qualification of justices, who have acted as such for more than a year. | [
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Montgomery, J.
This is a bill filed in aid of execution. The defendant Herman L. Pierson was president of the Thread Flouring-Mills Company, and owner of one-fourth of its stock. On the 10th of November, 1892, the milling company made its note for $10,000, due in six months, which note was indorsed by defendant Herman L. Pierson and discounted by complainant. When this note became due it remained unpaid for some 30 days, when $1,000 was paid upon it, and new notes were given for $5,000 and $4,000, respectively. After the maturity of these notes, another $1,000 was paid, and two notes, each in the sum of $4,000, were given. Upon these last-mentioned notes judgment was obtained on the 17th of August, 1895, against the milling company, Herman L. Pierson, Clarence M. Harris, and Ira H. Wilder, who became indorsers upon these later notes. The liability of the milling company and Pierson continued throughout the transactions. After the making of the first note of $10,000, and before its maturity, namely, on the 28th of February, 1893, a disastrous fire occurred, by which the milling company lost its plant and a large quantity of wheat stored in its elevators; the total loss amounting to from $25,000 to $30,000, above insurance. Again, on December 1, 1894, the mill, which had been rebuilt by the company, burned, and a further loss was sustained by the company.
The property sought to be reached by this proceeding is a farm of 280 acres near the city of Flint, worth, substantially, $16,000. This was transferred by the defendant Herman L. Pierson to his wife, Mary E. Pierson, by a deed bearing date June 2, 1891, and recorded on the 29th day,of December, 1892; the consideration expressed being one dollar. The testimony of the parties is that this deed was without consideration other than natural affection, but that the defendant Mary E. Pierson, who was the second wife of defendant Herman L. Pierson, agreed at the time of the conveyance to divide the property at the death of the parties between the two sons of defendant Herman L.,—one by his former wife, and one by the defendant Mary E. Pierson. It further appears by the proofs that at the time of this conveyance, in June, 1891, defendant Herman L. Pierson, besides his interest in the milling company, which was valued at $9,000, owned $3,000 in bank stock, worth par; a mortgage, known as the “Middleton Mortgage,” of $2,000; lands in Dakota worth about $3,000; and a lot adjoining the homestead, of $250; or he owned unincumbered property amounting to $17,250. He also owned his homestead, in the city of Flint, worth $4,000 and upwards, subject to a mortgage to his wife of $2,500. His personal indebtedness at this time was $1,100 to his son, an indebtedness to his wife of $2,800 or thereabouts, $800 to his nephew, and about $500 additional. Shortly after the making of the first $10,000 note, the deed to Mrs. Pierson was placed of record, $2,000 of bank stock was transferred to his son, to whom he owed $1,100, and later, in October, 1894, the Middleton mortgage was transferred to his wife; so that, undeniably, at the time that the judgment was obtained, defendant Herman L. Pierson had no property subject to levy and sale on execution,— his homestead being worth nothing above his exemptions and the mortgage to his wife. The testimony fairly shows that at the time of their marriage, many years before the transactions in question, Mary E. Pierson received from her father’s estate about $3,750, and that defendant Herman L. Pierson had had the benefit of this money. The mortgage of $2,500 was given to secure a portion of it, and the balance, together with accumula tions of interest, remained a debt against Herman L. Pierson. The court below entered a decree setting aside the conveyance of the farm, and subjecting it to a sale under the execution of complainant. Defendants appeal.
Two principal questions are presented:
First, whether, in accepting new notes in place of the first, the complainant has lost its right to pursue this remedy.
Second, whether, if it be determined that the complainant has the same right which it would have had if proceeding under the first note, the deeding of this farm was fraudulent as to this creditor.
1. The defendants, to sustain their contention under the first proposition, rely upon the case of Childs v. Pellett, 102 Mich. 567, and contend, on the authority of that case, that this note of $10,000 was paid by the giving of new notes in renewal of the first. That case is not in point. The question there involved was whether one who is liable upon paper as a partner continues liable upon the renewal of such paper by his former partner after the dissolution of the firm, and was well decided upon the principle that after the dissolution of a firm the retiring partner is a mere surety for the performance of the obligations of the firm, and any renewal or extension of time releases him from such obligations. See Smith v. Shelden, 35 Mich. 42 (24 Am. Rep. 529). But in this case the debt continued throughout, and the liability of Herman L. Pierson continued from first to last. We think, under these circumstances, the bank never lost its right to complain of the fraudulent transfer, if it be held fraudulent. See Boxheimer v. Gunn, 24 Mich. 372; Tucker v. Drake, 11 Allen, 145; McLaughlin v. Bank of Potomac, 7 How. 220; Thomson v. Hester, 55 Miss. 656; Moore v. Spence, 6 Ala. 506; Blue v. Penniston, 27 Mo. 272; Bump, Fraud. Conv. (4th Ed.) § 507.
2. At the time this conveyance was made, in June, 1891, the defendant Herman L. Pierson was solvent. If we include his interest in the milling company, he was worth, outside his interest in the farm, over and above his individual indebtedness, upwards of $12,000. He was indorser upon paper of the company to the amount of $5,000 at that date, and it does not appear that he became further obligated until the making of the $10,000 note. If the stock in the milling company be deducted, and the liability on the paper of the company be added to his personal liabilities, it will be seen that Pierson had not enough assets, outside his farm, to meet his total liabilities. If the validity of this transfer be referred to the date of the execution of the deed, June 2, 1891, there would be strong ground for holding that the transaction should be sustained. State Bank of Fenton v. Whittle, 48 Mich. 1. And the fact that the grantee failed to record the deed until some time after would not, of itself, render the transaction void by relation. As was said in Wooden v. Wooden, 72 Mich. 353, “The object of the registry laws is to protect bona fide purchasers, and the fact that it was not recorded would not divest the grantee of her rights, except as to a bona fide purchaser or incumbrancer.” See, also, Michigan Trust Co. v. Adams, 109 Mich. 181; Campbell v. Remaly, ante, 214. But it is contended by complainant that the transaction between the parties indicates that this transfer was made with the purpose of protecting the defendants against the contingencies of the business; that the liabilities of defendant 'Herman L. Pierson, after this deed was made, exceeded the amount of his available assets, and that the purpose was to provide against the contingency of failure in business; and that the transaction indicates that this deed was purposely withheld from record for some 18 months after its execution. The circumstances tend strongly to support this contention. The milling company was filing annual reports falsely representing the amount of its assets. The milling property was depreciating in value, and it was doubtless clear to Mr. Pierson that the business was somewhat hazardous. The defendant Mary E. Pier-son, on cross-examination, was asked:
“You stated in your answer that the making of this deed on the 3d day of June, 1891, had nothing whatever to do about the indebtedness between you and him. Is that so ?
“A. Only in this way,—that I had nothing to secure me for interest, and I felt as though, if I did not get anything in any other way, I would have that farm.
“Q. After you got the farm,- why did he have to turn the other out to you ?
“A. It did not have anything to do towards securing it, only I thought—
“Q. You didn’t talk that?
‘ ‘A. Simply thought it. I might have spoken of it to him.
“ Q. Notwithstanding you had it, you did not consider it given to you to secure you for anything of this kind; therefore had him turn out this other paper. Is that so ?
“A. It might have secured me in one way. If I never did get anything, T would have that much.
“Q. Is that the only way ?
“A. All I think of now.
“Q. Afterwards you did not treat it as yours, so you had him make an assignment of the mortgage ?
“A. I never treated it as any security for my notes or' what he owed me.
“Q. Or anything of that kind?
“A. No, sir.
“Q. There never was any such agreement between you and him ?
“A. We didn’t agree to that, only we supposed it would.”
The defendant Herman L. testified:
“Q. The notes didn’t have anything to do with the deed, did they ? Is it not a fact that those notes did not have anything to do with your making that deed ?
“A. They did have something to do with it.
“Q. What?
“A. Inasmuch, in my mind, as they were not secured; inasmuch as they were not secured—
“Q. There was no security ?
“A. None.
“Q. She got a little afraid of you?
“A. No, sir.
‘ ‘ Q. Why was not her security just as good that day as the day before or the year before ?
“A. She asked me to give her a deed.
‘ ‘ Q. What for ? What did she want you to give her a deed for?
“A. Because she said she wanted the farm.
‘ ‘ Q. Because she asked you for it, you gave it to her, did you ?
“A. Taking all the family relations into consideration, I did.”
This witness also testified in another proceeding that at the time of the execution of this deed a paper was executed by defendant Mary E. Pierson to him, declaring a trust, which he orally states to have been in favor of his two sons. This paper is not produced, and in this proceeding the witness testifies that the understanding or agreement was oral. These conflicting statements go far to discredit the witness, and we think, under all the circumstances of the case, that the inference is fairly deducible that this deed was not intended' to take immediate effect, and was not placed of record until it became apparent that the risk of the business was increasing ; that it was executed with a view to such possible contingency, and that when the contingency arose it was made use of; and that in the absence of such contingency it never would have made its appearance. It remained all the time after its execution, and before its record, in the secretary of the defendant Herman L. Pierson, to which he had at least common access with the defendant Mary. In this respect the case resembles somewhat Fetters v. Duvernois, 73 Mich. 481.
We think that the decree of the court below is right and should be sustained.
Hooker and Moore, JJ., concurred. Long, C. J., and Grant, J., did not sit. | [
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] |
Moore, J.
This is a certiorari proceeding to review the action of the circuit court in granting to the relator a writ of mandamus against the respondents. It is the claim of the relator that the charter and ordinances of West Bay City require the official printing of that city to be done in a newspaper printed in that city, if it will do it at a reasonable price. He also contends that he put in a bid to do the printing at a reasonable price, but that the council refused to make the contract with him, and made it with some one else. He petitioned for a mandamus to compel the respondents to enter into a contract with him, and his petition was granted.
It is the claim of the respondents that the charter and ordinances do not require the official printing to be done in a newspaper published in West Bay City; that the relator never made a proposal to do the printing that complied with the advertisement asking for proposals; that his proposal was not reasonable in price; that his newspaper was not generally circulated in West Bay City; that relator was not pecuniarily responsible; that his plant was mortgaged; that judgments were in existence against him, then unsatisfied; and that there was no certainty that he could perform his contract, if made. They also claim that on September 28, 1896, they made a contract, at a lower price than was bid by the relator, for a year, with the Bay City Times Company, to do the printing, which company at once commenced work upon the contract, and that this proceeding was not commenced until six weeks or more of said contract had been performed.
In disposing of this case, we do not think it necessary to express any opinion upon the question whether the relator had a legal right to a contract with the respondents or not. The contract has been let to another party, and is partly performed. Under such circumstances, the court should not interfere by granting the writ of mandamus. The case is clearly within People v. Campbell, 72 N. Y. 496, and Talbot Paving Co. v. Common Council of Detroit, 91 Mich. 262. If the right of the relator is clear and unquestioned, he has a right of action against the city.
Judgment of the court below is reversed, and order vacated, with costs of both courts.
The other Justices concurred. | [
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To compel respondent to vacate a sentence, quash the complaint and discharge relator, who had been tried, convicted and sentenced to pay a fine, under Act. No. 134, Laws of 1885, and the amendment thereto, being Act No. 196, Laws of 1887, the relator insisting that said Acts are unconstitutional.
Order to show cause denied January 20, 1891. | [
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To compel respondent to vacate an order revoking the license of relator, a foreign assurance company, to do business in this State.
Denied June 8, 1888. | [
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] |
To quash an information and discharge persons charged with perjury, on the ground (1) that there was no proof before the examining magistrate sufficient to authorize the issue of the war rant; (2) that the examination fails to make out a prima facia case or produce sufficient evidence to support the information, and (3) that the statute (3 How. Ann. Stat. 8234) so far as it relates to the offense charged is in conflict with Art. 4, Sec. 20, of the Constitution.
Order to show cause denied November 17, 1896. | [
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Grant, J.
(after stating the facts). 1. It is insisted that the plaintiff cannot maintain an action before the issuing of the patent, and that no liability was intended to be incurred until a valid patent had been granted. This was a matter of contract between the parties. The inventor of an unpatented device may make a valid contract for its manufacture, use, or sale. It is no objection to the validity of such a contract that any person may manufacture it until a patent is issued. The vendee or licensee, in the absence of fraud or mistake, must abide by his contract. It was understood by these parties at the time the contract was made that no patent had been issued, and the contract was made with reference to that fact. If, therefore, the defendant contracted to pay a royalty before the patent was issued, the plaintiff is entitled to recover. Ingraham v. Schaum, 157 Pa. St. 88; Hall Manfg. Co. v. American Ry. Supply Co., 48 Mich. 331; Forncrook Manfg. Co. v. Barnum Wire & Iron Works, 54 Mich. 552; Brush Electric Co. v. California Electric Light Co., 52 Fed. 945, 962.
2. Does the contract obligate the defendant to pay a royalty before the issuing of the patent? Upon the answer to this question depends the plaintiff’s right of recovery. We think the question must be answered in the affirmative. Plaintiff bound himself by the contract not to make, manufacture, sell, or to transfer the right to others. The time when the royalty should begin is definitely fixed by the contract at one year from the date when the closet is modeled and ready to be put in the market. It does not depend upon the date of the issue of the patent. It was also contemplated that the patent might not be granted, or, if granted, that it might be decided to be invalid, in which case the defendant was entitled to declare the contract ended. This language is inconsistent with the position that the royalty should begin at the date of the patent. Previous manufacture was plainly contemplated, and the date is averred in the declaration and fixed by the proofs.
3. Did the notice of forfeiture destroy the right to recover for royalties accruing prior thereto ? In support of the ruling of. the court below counsel cites Jewett v. Petit, 4 Mich. 508; Goodspeed v. Dean, 12 Mich. 352; Hubbardston Lumber Co. v. Bates, 31 Mich. 158, 169; Curt. Pat. § 218; Woodworth v. Weed, 1 Blatchf. 165; Woodworth v. Cook, 2 Blatchf. 151. Jewett v. Petit states the familiar rule that when one enters into a contract induced by fraud he must affirm or disaffirm on discovery of the fraud, and that he cannot adopt that which is for his own interest and reject the residue. Hubbardston Lumber Co. v. Bates is a similar case. Goodspeed v. Dean involved the rights of parties to a land contract. Plaintiff, the vendor, after electing to treat the contract as void, sought to recover the amount then due upon the contract. The basis of that decision is the familiar principle, legal as well as equitable, that a party cannot keep his land and have the purchase price too. The citation in Curtis on Patents is based upon Woodworth v. Weed, 1 Blatchf. 165. In that case plaintiff had granted to defendant a license to construct and use one of his machines, for which the defendant gave him promissory notes amounting to |400, payable at different times. Upon failure to pay the first note, plaintiff filed a bill in equity charging that the license and permission to use the machine had become void, and praying for an injunction to restrain its use. A provisional injunction was applied for, which was opposed by the defendant, who filed an affidavit as to his financial responsibility. It was held that the plaintiff might resort to his remedy at law to enforce the collection of the notes, or treat the rights of the defendant as forfeited, and enjoin him from the use of the machine. If it be conceded that that case determined that plaintiff could not maintain an action at law after his election to rescind and enjoin the use, the reason is obvious, viz., the consideration to be paid was an entirety, indivisible into past and future payments. Woodworth v. Cook is a similar case.
None of these decisions are applicable to cases where the licensee agrees to pay a royalty for every machine manufactured and sold, or a specific sum at stated periods. The obligation to pay becomes fixed in such cases the moment the machine is manufactured and sold, or at the time fixed by the contract for the payment of the amounts due for past use or sale. The licensee refuses to pay. The licensor, as he has the right to do, rescinds the contract. Upon what principle of law or logic should the licensor be held thereby to. lose what is honestly his due, and of which the licensee has had the benefit ? The effect of such a rescission must be determined in view of all the surrounding circumstances. Plaintiff is not seeking his property and its price too. He has performed his agreement. Defendant is in default, and indebted for accrued royalties. This case is rather in the nature of a lease where the lessee is in default of his rent. He may Be ousted for nonpayment, but this does not bar an action to recover the rent due. We think the authorities sustain the plaintiff’s right of action. Hurst v. Bookbinding Co., (Com. Pl.) 22 N. Y. Supp. 371; Mayor, etc., of New York v. New York Refrigerating Construction Co., 146 N. Y. 210. The true rule is this: The rescission of a contract as against the party in default does not, in the absence of an agreement, destroy the right to recover royalty or rent which has already been earned. The past-due payments are separable from future payments, and the rescission is neither ab initio nor in toto, but solely in futuro.
4. By the terms of this contract the defendant was under obligation to pay a royalty of at least $1,000 a year, regardless of the number of closets sold. Preston v. Smith, 156 Ill. 359; Beecher v. Stein, 139 Pa. St. 570.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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To compel respondent to vacate an order made by his predecessor directing an amended return on appeal from Justice Court, and an order made by respondent dismissing the appeal, unless, appellants shall' make payment of the jury fee left unpaid.
Denied March 20, 1894, with costs.
Held, (1) no application had been made to the respondent to-vacate the first named order, and in such case, affirmative action would not be directed, and (2) that the costs which appellant is required to pay included jury fees, and that How. Stat., Sec. 7019, jelates to the fees of the justice, and not to the costs recovered by the other party to the suit. | [
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Application for a writ of certiorari, to review an order denying a mandamus to compel respondents to reinstate relator as a member of the police force.
Denied October 20, 1896.
Relator had been granted a leave of absence August 14, 1894, to August 25, 1894. On August 26, relator became engaged in a drunken brawl, and with a revolver, which he earned concealed on his person, shot and killed one of the party; was arrested and confined in jail until his trial in May,
1895, when he was convicted of manslaughter. In September, 1894, a resolution was adopted by the respondent board suspending relator, and on September 25, 1895, relator petitioned the board for reinstatement. The answer set forth that relator had, at the time of the adoption of the resolution of suspension, abandoned and relinquished his position as patrolman, and had surrendered all claim to the emoluments of the said office.
Relator contended that inasmuch as he had been suspended without charges he was entitled to a peremptory writ for his reinstatement, notwithstanding the allegations of the answer. | [
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To compel respondent to dissolve an injunction restraining relator from disposing of certain property, pending divorce proceedings commenced by relator’s husband against her.
Order to show cause denied October 29, 1891. | [
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Per Curiam.
The relator applied to the circuit court for mandamus requiring.the respondent to canvass the returns of the votes cast in the Fourth ward for the office of alderman, and to issue a certificate based upon such returns, the returns showing that relator received a majority of the votes cast. The petition alleged that the members of the common council, sitting as a board of canvassers, had entered upon a recount of the votes, assuming to act under Act No. 208, Pub. Acts 1887. The return to the application for mandamus showed that the recount proceeded in some of the precincts upon the application of relator. These precincts were not the ones in which it was claimed that the board of canvassers had thrown out votes sufficient to defeat relator, and elect his opponent. The circuit judge granted the writ, and the case is here for review on certiorari.
It is first contended that the action is premature, inasmuch as the petition failed to state that relator had demanded of the council that his certificate, based upon the face of the returns, issue. But it appears that the recount upon which the committee was engaged was not com pleted -until a late hour Saturday night. The regular meeting of the council was on Monday evening, and the petition of relator was filed Monday afternoon. If such a request had been presented, the council could have taken action upon the committee’s recount before the relator would have had an opportunity to present his application. We think it was within the discretion of the trial court to proceed without previous application to the board, if convinced that such request would not avail anything.
It is further claimed that the relator is estopped from questioning the regularity of the work of the committee, inasmuch as he himself petitioned for a recount in some of the precincts. A similar contention was made in Belknap v. Ionia Board of Canvassers, 94 Mich. 516, in which the relator had petitioned for a recount in the county of Kent, and his opponent had petitioned for a recount in the county of Ionia. It was contended that he could not question the recount in either of the counties, but it was said:
“It is, however, alleged that by the original returns relator was elected. His right, therefore, to a certificate, did not depend upon the recount in Kent, and the petition filed in Ionia county was not predicated upon nor rendered necessary by the recount in Kent. Mr. Richardson was in no sense misled or prejudiced by either the recount in Kent or the failure to object to the recount in Ionia, instituted by himself.”
We think that case decisive of this question.
Section 4, tit. 10, of the charter of 1877 (Act No. 282, Local Acts 1877), provides that “the common council shall be the judge of the election and qualification of its own members, and to decide upon and determine contested elections of members thereof.” It has been held in numerous cases that Act No. 208, Pub. Acts 1887, does not apply to a contest over an election to an office as a member of a body which, by law, is made the judge of the qualifications of its own members. This was held in Naumann v. Detroit Board of Canvassers, 73 Mich. 255, and was reaffirmed in Wheeler v. Manistee Board of Canvassers, 94 Mich. 448, and Belknap v. Ionia Board of Canvassers, Id. 516.
It is suggested that the present council is to be the judge of the election of the members of the body, and decide and determine upon contested elections. The reading of this clause would not indicate such a purpose. Title 2, § 20, reads as follows:
“The common council of the preceding year shall convene on the' Thursday next succeeding such election, at 2 o’clock in the afternoon, at their usual place of meeting, and the statement of votes filed with the clerk of the city by the inspectors of election shall be produced by said clerk, when the common council shall forthwith determine and certify, in the manner provided by law, what persons are duly elected at the said election to the several offices respectively.”
It is contended that this latter section confers upon the present council the authority not only to canvass the returns, but to determine what persons are elected to the several offices respectively, and that this implies the right to proceed in any manner provided by law, for the purpose of ascertaining what candidate has received the greatest number of votes. We think, however, that this section should be construed in connection with title 10, § 4, and, so construed, must be held to relate only to those officers the authority to adjudge and determine of whose election and qualification is not vested elsewhere, and that the case must be held to fall within Naumann v. Detroit Board of Canvassers, supra. Reference is made by counsel for respondent to the case of Weston v. Kent Probate Judge, 69 Mich. 600, where it is assumed in the opinion of the court that the preceding council is the judge of the election of the members of the new body. This was not a point in the case, nor was it a case in which the council had assumed to act under Act No. 208, Pub. Acts 1887. The single question in the case was whether, under Act No. 293, Pub. Acts 1887, the probate court had power to canvass the vote. It was held that such power did not exist, upon a ground entirely consistent with that announced later in Naumann v. Detroit Board of Canvassers, supra.
We think the order of the circuit court should be affirmed. | [
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Long, C. J.
The relator filed a petition in this court for mandamus to compel the auditor general to issue to him a deed of certain lands in St. Clair county. It appears that the lands were returned for delinquent taxes for the year 1893. Regular proceedings were taken in the circuit court, in chancery, for that county, for the sale of the lands, and the sale ordered to take place December %, 1895. At said sale the lands were offered, and, for want of bidders, were struck off to the State. The lands were so held at the time the relator made application to purchase the State bid. He tendered the amount of money required for that purpose, but the respondent refused to issue the deed. The respondent by his answer shows that the reason for such refusal is that Homer Warren is the owner of the lands, and has tendered the amount of money necessary to pay and discharge said tax; that on August 28, 1895, and before the time fixed by law for the sale of lands delinquent for the taxes of 1893, Homer Warren wrote the county treasurer of St. Clair county, asking for a statement of the taxes due upon all his property in the city of Port Huron, and on the 29th the deputy county treasurer wrote him what the amount was, which amount was sent forward by Mr. Warren; and that Mr. Warren relied upon such statement. The respondent says that, in view of these facts, he refused to issue the deed to the relator.
Counsel for relator contend that the auditor general had no power, under the tax law, to receive the money from the owner after he (relator) had made application to purchase and had tendered his money. Section 98 of Act No. 154, Pub. Acts 1895, provides, substantially, that whenever any lands returned to the office of the auditor general shall have been sold on account of nonpayment of taxes thereon, if the auditor general shall discover, before a conveyance of said lands is executed and delivered—First, that the land sold was not subject to taxation ; second, that the taxes have been paid to the proper officer within the proper time; third, that the sale was not made in accordance with law; or, fourth, that the proper officer has given a certificate that no taxes were charged against the land,—he shall withhold a conveyance, etc. We are of the opinion that the auditor general very properly withheld the deed from the relator. The correspondence between Mr. Warren and the deputy county treasurer has been returned here, from which it appears that Mr. Warren made every reasonable effort to pay his taxes. He wrote to ascertain what lands were still held for taxes, and the amount thereof, and was advised of the amount, and that all taxes were paid except on certain descriptions, and that on those descriptions there was due $68.10. This Mr. Warren paid. It is apparent that Mr. Warren was acting in good faith. The relator is an entire stranger to the proceedings, and we think that, under subdivision 4 of section 98, the auditor general very properly refused the conveyance. The letter of the deputy county treasurer amounted, in effect, to a statement that no taxes were charged against these particular lands.
The writ of mandamus must be denied, with costs against the relator.
The other Justices concurred. | [
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] |
. To compel the Board of Public Works to approve, and the register of deeds to record, a plat.
Denied February 3, 1892, with costs.
The plat showed streets and alleys running north and south, and lots within the lines of east and west proposed streets not yet opened. See No. lYOS. | [
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] |
To vacate an order requiring relator to file an additional appeal bond, upon appeal from a judgment in summary proceedings to recover the possession of land, - because of insufficiency of the sureties on the original bond.
Order to show cause denied December 12, 1893.
Held that there is no occasion for interfering with the discretion of the circuit judge by mandamus, where relator could have filed a new bond or made a showing of the sufficiency of the sureties before the Circuit Court. | [
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To vacate an order quashing a civil warrant and dismissing all proceedings thereon, and to reinstate the case for .trial, the defendant having appealed from the justice’s judgment, in a case where the affidavit did not state positively the facts authorizing the issuance of the warrant, and failed to give the circumstances upon which affiant based his reason to believe that they existed.
Denied May 8, 1888. | [
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] |
To compel respondent to permit relators to inspect, copy and abstract public records, files and papers in the office of the register, subject to reasonable rules and regulations.
Denied June 9, 1880. | [
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To compel assessment of damages in replevin, in a case where the property was taken on the writ, but for want of service,, the justice dismissed the proceedings.
Granted March 2, 1888.
Taylor vs. Tripp, 15 M., 517 (655); Forbes vs. Circuit Judge, 23 M., 496 (659); La Barr vs. Osborn, 38 M., 313 (630); Humphrey vs. Bayn, 45 M., 565. | [
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] |
To compel respondent to allow to a township a certain credit and to.provide for its payment.
Denied February 10, 1891, but petitioner allowed to withdraw petition and fortify same with certified copies of records. | [
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Per Curiam.
Plaintiff appeals from a grant of summary judgment entered in Detroit Common Pleas Court in favor of defendant Michigan Bell Telephone Company. This grant of summary judgment was affirmed by the circuit court. We granted plaintiffs application for leave to appeal.
On November 11, 1971, Christopher Neff, an employee of Kenneth Langdon, doing business as Kencraft Cabinets, while operating a motor vehicle in the course of his employment, was involved in an accident with a motor vehicle owned by Michigan Bell Telephone Company (Michigan Bell). Neff was injured and was paid workers’ compensation benefits by plaintiff, the workers’ compensation carrier for Neff’s employer.
Neff sued Michigan Bell seeking damages for his personal injuries. Plaintiff did not intervene in that lawsuit. However, Neff and Michigan Bell had actual notice of the fact that plaintiff had paid workers’ compensation benefits to Neff, and that, pursuant to MCL 418.827; MSA 17.237(827), plaintiff had a lien on any recovery by Neff from Michigan Bell.
A consent judgment was entered into between Neff and Michigan Bell. Under the terms of this agreement Neff received $48,601.83. The agreement stated that it was in satisfaction of all claims against Michigan Bell including the claims of any workers’ compensation carrier. Further, the agreement stated that Neff was to indemnify Michigan Bell for any sums due and owing to Neff’s workers’ compensation carrier.
Subsequently, plaintiff commenced suit in Detroit Common Pleas Court against Neff and Michi gan Bell. Plaintiff sought enforcement of its lien of $7,497.90.
A default judgment was entered against Neff, who is not a party to this appeal.
On April 2, 1979, the Common Pleas Court denied plaintiff’s motion for summary judgment for the amount it claimed as a lien against Michigan Bell. At the same time, the court granted Michigan Bell’s motion for summary judgment of no cause of action against plaintiff. This action was affirmed by the circuit court.
On appeal, plaintiff contends that, since Michigan Bell had knowledge, when it settled with Neff, that plaintiff had paid workers’ compensation benefits, MCL 418.827; MSA 17.237(827) required that Michigan Bell reimburse plaintiff for benefits paid to Neff before giving the balance of the recovery to Neff. Plaintiff contends that since Michigan Bell had knowledge of the fact that workers’ compensation benefits had been paid failure to intervene in the lawsuit between Neff and Michigan Bell is immaterial and does not adversely affect plaintiff’s right to proceed against Michigan Bell.
Michigan Bell, in turn, argues that plaintiff does not retain a cause of action against it because plaintiff did not intervene in Neff’s action against Michigan Bell. Also, Michigan Bell points out that the settlement with Neff, by its terms, included all amounts for which Neff received workers’ compensation payments from plaintiff. In essence, Michigan Bell maintains that under the settlement with Neff, it became solely Neff’s responsibility to reimburse plaintiff.
We agree with plaintiff and hold that Michigan Bell, which had knowledge of plaintiff’s lien prior to its settlement with Neff, had a statutory obligation to reimburse plaintiff, even though plaintiff did not intervene in the lawsuit between Neff and Michigan Bell.
MCL 418.827; MSA 17.237(827) provides in pertinent part:
"Any recovery against the third party for damages resulting from personal injuries * * * after deducting expenses of recovery, shall first reimburse the * * * carrier for any amounts paid * * * under this act to date of recovery and the balance shall forthwith be paid to the employee * *
Thus, the workers’ compensation act creates a statutory lien in favor of the carrier. The statute further mandates that this lien is to be paid before any excess recovery is to be paid to the employee.
It is clear that had plaintiff intervened in the suit between Neff and Michigan Bell plaintiff would have been entitled to be reimbursed prior to any recovery being paid to Neff. See Gamble v American Asbestos Products, 381 Mich 105; 159 NW2d 839 (1968), Transamerican Freight Lines, Inc v Quimby, 381 Mich 149; 160 NW2d 865 (1968). On appeal, Michigan Bell asserts that, since plaintiff did not intervene in the lawsuit between it and Neff, this rule is not applicable, and plaintiff is not entitled to proceed against it. We disagree. The fact that plaintiff did not intervene in the lawsuit between Neff and Michigan Bell is immaterial. See Arnett v General Motors Corp, 22 Mich App 658, 662-663; 177 NW2d 704 (1970). Michigan Bell was aware of plaintiff’s lien prior to settling with Neff. Therefore, pursuant to MCL 418.827; MSA 17.237(827), plaintiff is entitled to reimbursement from Neff’s recovery and the reimbursement should have been paid prior to any recovery being given to Neff. Because Michigan Bell did not reimburse plaintiff before turning funds over to Neff, Michigan Bell, as well as Neff, are now liable to plaintiff.
In holding for plaintiff, we note that the better practice would have been for it to intervene in the láwsuit between Neff and Michigan Bell. However, where Michigan Bell had knowledge of plaintiff’s lien, intervention was not necessary to protect plaintiff’s interest.
Finally, we note that Michigan Bell has protected itself from an adverse holding in the instant case by including an indemnification clause in its settlement with Neff.
Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiff. | [
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F. X. O’Brien, J.
On March 12, 1980, defendant was convicted by a jury of larceny from a motor vehicle. MCL 750.356a; MSA 28.588(1). On March 26, 1980, defendant appeared for preliminary examination on the charge of attempted breaking and entering of an occupied dwelling. MCL 750.92, 750.110; MSA 28.287, 28.305. At that time, the defendant waived examination in order to plead guilty to the attempted breaking and entering charge. A plea agreement was placed on the record which included the following two-part sentence recommendation to be made by the prosecutor:
"Also part of that agreement is that we are recommending one year in the county jail on the larceny from the motor vehicle.
"If the court follows our recommendation of one year, we will be free to recommend whatever we want concerning the attempted breaking and entering.
"If the court does not follow our recommendation, we will recommend that the second sentence, that sentence being the sentence coming from this attempted breaking and entering, would be served concurrently with the larceny from a motor vehicle sentence.”
Two days later, defendant was arraigned on the attempted breaking and entering charge and pleaded guilty. He was sentenced for both convictions on April 25, 1980, and received from two to five years for larceny from a motor vehicle and from two to five years for attempted breaking and entering. The latter sentence was to be served consecutively. Defendant appeals his plea-based conviction.
This appeal raises a single issue: whether the defendant should have been given the opportunity to withdraw his plea of guilty when the trial court did not follow the prosecutor’s sentence recommendation.
The issue has created two distinct viewpoints. The first requires that the matter be remanded and the defendant afforded the right to withdraw or affirm his plea when an opportunity to withdraw the plea is not provided prior to sentencing. People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980), People v Newsum, 105 Mich App 755; 307 NW2d 412 (1981), People v Schirle, 105 Mich App 381; 306 NW2d 520 (1981), People v Bahlhorn, 105 Mich App 118; 306 NW2d 416 (1981), People v Black, 103 Mich App 109; 302 NW2d 612 (1981). The second requires that the conviction be affirmed where the record reveals that the defendant was advised and understood that the trial court was not bound by the prosecutor’s recommendation. People v Lee Johnson, 105 Mich App 614; 307 NW2d 385 (1981), People v King, 104 Mich App 459; 304 NW2d 605 (1981), People v Yates, 99 Mich App 396; 297 NW2d 680 (1980), People v Armstrong, 99 Mich App 137; 297 NW2d 637 (1980). On the facts of this case, we elect to follow the latter authorities and affirm the defendant’s plea-based conviction.
The plea agreement is somewhat elaborate. It contains alternate recommendations regarding sentencing. These terms were placed on the record three times, once when the defendant waived examination and twice during the course of the plea-taking procedure.
At the outset of the plea-taking procedure, the prosecutor stated the agreement in full. The court then inquired of the defendant, "Could you tell me the plea agreement as you understand it.” Defendant’s initial recollection extended only to the prosecutor’s promise to drop the supplemental information on the larceny conviction. After consultation with counsel, he also recalled the prosecutor’s promise "to recommend one year in the county jail”. At the trial court’s request, defense counsel and the prosecutor recited the balance of the terms of the agreement. The defendant then acknowledged that this was the agreement as he understood it and that he had not been promised anything beyond the agreement. At the conclusion of the plea, the trial court stated:
"Let the record reflect that the court has not agreed upon the possibility of a plea or the possible sentence with the prosecutor, the defendant, or anyone acting in the interests of either.”
Immediately thereafter, the court accepted the defendant’s plea and set the matter for sentencing.
On the day of sentencing, the prosecutor’s opening remarks included the following:
"The people have, pursuant to the plea bargain, recommended that this court sentence Mr. Shovan to a term of one year in the county jail in the matter involving the larceny from a motor vehicle, and the people, after that time, when it appeared that that would not be the sentence, did recommend to this court that the terms be served concurrently.”
It is the frequent recitation and confirmation of the terms of the agreement, GCR 1963, 785.7(2)(b), the court’s conscientious questioning of the defendant, GCR 1963, 785.7(1)-(3), and the court’s clear disavowal of any obligation to accept the sentence recommendation, GCR 1963, 785.7(4)(b), that leads us to conclude that the defendant was not misled. Defendant’s plea was voluntarily and knowingly made. Indeed, we are left with the impression that the defendant simply does not like the sentence he received.
Affirmed.
R. M. Maher, J., concurred. | [
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F. X. O’Brien, J.
Plaintiff appeals as of right from an order denying his motion for new trial. We affirm.
Plaintiff, an employee of third-party defendant Valley Consolidated Industries (Valley), was injured while working inside a blast furnace at the premises of defendant Great Lakes Steel Corporation (Great Lakes). Great Lakes had engaged Valley by contractual agreement to reline certain blast furnaces at the Great Lakes plant on Zug Island.
In order to get into the stove in the furnace to tear out the brick, the workmen used a swinging scaffold. Plaintiff and a second employee of Valley, James Willis, were asked to work on the scaffold. Willis would signal a winch operator to raise and lower the scaffold. Both men wore safety belts.
After a coffee break, the two men returned to the scaffold and signaled the operator to lower it to the point where they had been working. When they reached that point, Willis signaled the operator to stop, but the scaffold continued to descend. Willis was able to pull off his safety belt and remain on the scaffold. Plaintiff, however, was not able to pull off the belt and was left hanging in the air by his belt.
Willis continued to signal the operator for about 8 to 10 minutes and, eventually, the scaffold was raised. Plaintiff grabbed the cable, and the scaffold continued to the top of the stove where the men got off. Plaintiff was awarded $18,500 as workers’ compensation. He filed the instant action against Great Lakes, alleging that Great Lakes, as the owner of the property, was liable for his injuries under one of two theories. First, plaintiff alleged that the work was inherently dangerous. Plaintiff also alleged that Great Lakes retained the right of control over the work and, thus, was liable for the injuries.
Great Lakes moved for a directed verdict on the basis that plaintiff had failed to establish a right to recovery under either theory. The trial court granted the motion on plaintiff’s "right of control” theory but denied the motion on the "inherently dangerous” theory. The jury ultimately returned a verdict of no cause of action on the latter theory. Plaintiff does not challenge the jury verdict. This appeal is limited to a determination of whether the trial court erred in directing a verdict in Great Lakes’ favor on plaintiff’s right of control theory of recovery.
In reviewing a motion for a directed verdict, this Court is required to view the evidence, and all legitimate inferences emanating from that evidence, in a light most favorable to the nonmoving party. If reasonable minds could not differ on the meaning of the evidence the motion is correctly granted. Bosca v J A Ferguson Construction Co, 79 Mich App 177; 261 NW2d 249 (1977), Dowell v General Telephone Co of Michigan, 85 Mich App 84; 270 NW2d 711 (1978), Beals v Walker, 98 Mich App 214; 296 NW2d 828 (1980). Thus, the question becomes whether plaintiff presented evidence sufficient to raise a jury question on his theory of right of control.
The general rule is that an owner of property is not liable to an employee of a contractor for negligence. If, however, the owner retains control of the work, liability may be imposed for the contractor’s negligence. Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). The evidence presented by plaintiff on the issue of control consisted primarily of the deposition testimony of Earl Harén, Great Lakes’ safety supervisor, which was read into evidence, and of certain contractual provisions.
Harén testified that he would inspect the job site and report any unsafe conditions which he observed to Great Lakes’ field engineer. The testimony indicated, however, that Valley had a construction superintendent who was responsible for taking care of any of the problems which arose. The contract provisions basically provided that Great Lakes would have the right to inspect the site and make safety investigations, to reject subcontractors chosen by Valley, to make changes in specifications and design, and to take over the completion of the work if there was a failure on the part of Valley to perform. The evidence does not indicate that Great Lakes retained the right to exercise any substantive control over how Valley performed its work. This Court finds that on the basis of this evidence the directed verdict was properly granted in Great Lakes’ favor.
The circumstances of the instant case must be contrasted with those of cases where it was determined that the owner retained control sufficient to subject it to liability. In Bissell v Ford, 176 Mich 64; 141 NW 860 (1913), the evidence showed that the owner, through its architect, retained the right to partially control the work of the contract. In Funk, the evidence showed that the owner assumed a "dominant role” in the construction job, including extensive day-to-day supervision. The owner, the Court noted, did more than merely observe whether the contract was being properly performed. In many instances, what the owner said or did not say determined how the work would be performed. Funk, supra, 108. In McDonough v General Motors Corp, 388 Mich 430; 201 NW2d 609 (1972), the evidence showed that the owner reserved to itself some measure of influence or control over the way the work was to be done. In Dowell, the evidence showed that an employee of the owner was on the job site, perhaps in a supervisory role, that the owner drew up the blueprints for the work to be done, furnished some of the equipment to be used, and, because the undertaking was particularly within its knowledge and expertise, was better acquainted with all aspects of the assigned tasks than was the contractor. These cases indicate that some sort of substantive control must be maintained by the owner over the contractor’s work in order to render the owner liable for an injury to a contractor’s employee.
In contrast to the above cases, this Court has held that a contractual right to terminate anyone who did not comply with the owner’s rules and regulations was insufficient as a matter of law to constitute "control” of the work. Erickson v Pure Oil Corp, 72 Mich App 330; 249 NW2d 411 (1976). Similarly, this Court has held that the specification of safety requirements in a contract is alone insufficient as a matter of law to constitute control. Markward & Karafilis, Inc v Detroit Osteopathic Hospital Corp, 77 Mich App 728; 258 NW2d 161 (1977). This Court finds that the control exercised by Great Lakes in the instant case was no more than mere contractual control, safety inspections, and general oversight. The owner must retain the right to partially control and direct the actual construction work. In the instant case, the contractual control and the testimony of Harén were insufficient as a matter of law to raise a jury question under the theory of degree of control. The trial court correctly granted a directed verdict in favor of Great Lakes.
Affirmed.
R. M. Maher, J., concurred. | [
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] |
R. M. Maher, P.J.
Plaintiffs Roman C. Kalin, Jr., and Patricia Kalin filed suit against defendants Detroit Automobile Inter-Insurance Exchange (DAIIE) and Michigan Mutual Insurance Company (Michigan Mutual) seeking no-fault benefits for injuries sustained in an accident which occurred on March 31, 1978. Plaintiffs filed a motion for summary judgment against either defendant. The circuit court granted the motion against Michigan Mutual and ordered each defendant to pay half of plaintiffs’ reasonable attorney fees. Michigan Mutual appeals as of right from the order granting summary judgment.
This case concerns the proper analysis, under the no-fault act, of situations in which a parked vehicle and a moving vehicle are both involved in an accident. For the purpose of ruling on the motion for summary judgment, the parties stipulated to the following facts:
"This action concerns an accident which occurred on March 31, 1978. At the time of the accident Roman C. Kalin was in the course of his employment with Strohs Brewery. Mr. Kalin was employed as a delivery man. His job involved driving a company truck to various stores, taking orders and delivering beer. In a normal day Mr. Kalin would pick up a company truck at the plant, go on his route and return the truck to the plant at the end of his working day. Mr. Kalin’s normal route would involve between 12 and 20 stops per day. Each stop involved between one and three trips between the store and the truck.
"At the time of the accident Mr. Kalin was in the course of his last delivery. The truck was parked next to the curb. Mr. Kalin had gone back and forth between the store and the truck twice and was on his third trip to the store when he was struck [by a moving vehicle]. When Mr. Kalin was struck he was pushing a hand cart loaded with beer along the left side of the truck next to the cab. He had locked the truck and proceeded 15 feet alongside the truck with the intention of proceeding in front of the truck to the driveway.
"If Mr. Kalin had not been struck, he would have delivered the beer and returned to his truck. He would then have driven around the corner, taking inventory and returned the truck to the brewery.
"At the time of the accident Mr. Kalin owned a private vehicle which was insured with the Detroit Automobile Inter-Insurance Exchange. The owner of the car which struck Mr. Kalin was Helen Lee who was insured by Detroit Automobile Inter-Insurance Exchange. His employer’s truck was insured by Michigan Mutual.”
I
Recently, in Gutierrez v Dairyland Ins Co, 110 Mich App 126; 312 NW2d 181 (1981), this Court addressed a similar situation involving a parked vehicle and a moving vehicle. According to Gutierrez, where a claimant suffers accidental bodily injury arising out of the ownership, operation, maintenance, or use of a moving motor vehicle as a motor vehicle, the additional involvement of a parked vehicle is irrelevant to the issue of whether such a claimant is entitled to recover no-fault benefits. Under this approach, analysis of an accident under the parked vehicle exclusion is unnecessary unless there is no causal connection between the use, etc., of a moving vehicle and the injury. Clearly, the Legislature did not intend the parked vehicle exclusion to apply to accidents involving both a parked vehicle and a moving vehicle except where the involvement of the moving vehicle is merely incidental or fortuitous.
II
In order to recover no-fault benefits, a claimant must establish that he has suffered accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. MCL 500.3105; MSA 24.13105, Dowdy v Motorland Ins Co, 97 Mich App 242, 250-251; 293 NW2d 782 (1980), Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 314-315; 282 NW2d 301 (1979), lv den 407 Mich 895 (1979). Turning to the case at bar, we have no difficulty concluding that plaintiffs injuries arose out of the operation of a moving motor vehicle as a motor vehicle. Hence, under the analysis set forth in Part I, plaintiff is entitled to recover no-fault benefits; the involvement of a parked vehicle is irrelevant.
Ill
Since we have concluded that plaintiff is entitled to no-fault benefits, it is necessary to determine which defendant insurance company is responsible for those benefits. We turn first to MCL 500.3115(1); MSA 24.13115(1), which provides:
"Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.”
Section 3115 is inapplicable if plaintiff is deemed an "occupant” of his employer’s vehicle. It is therefore necessary to review the relevant case law on the "occupancy” issue.
In Nickerson v Citizens Mutual Ins Co, 393 Mich 324, 328-331; 224 NW2d 896 (1975), the Supreme Court interpreted the term "occupying”, as used in an automobile insurance policy, to embrace situations in which a claimant was not in physical contact with a vehicle when injured. Nickerson involved an automobile insurance policy which provided coverage for injuries sustained by any "assured” while "occupying the insured automobile”. The term "occupying” was defined in the policy as "in or upon or entering into or alighting from”.
Plaintiff Nickerson, a passenger in an insured vehicle, helped to push the vehicle to the side of the road after it stalled. A passing motorist was flagged down to provide assistance, and Nickerson, who had returned to the vehicle, exited from his vehicle once again and walked around to the front of the car. At this point, a third vehicle struck the stalled vehicle from behind, pushing it into Nickerson, who sustained severe injuries.
The Court concluded that Nickerson had been "occupying” the vehicle at the time of the accident, for a number of reasons:
"(1) his immediate prior 'occupying’ of the insured vehicle * *
"(2) his suffering of an injury arising out of the use or repair of the same automobile”;
(3) "language in an insurance policy is to be strictly construed against the insurer”; and
(4) "unquestionably '[Nickerson] was in contact with the automobile at the time of his injury’.” (Citation omitted.)
Nickerson is distinguishable from the present case on several grounds. First of all, and most significantly, Nickerson involved interpretation of an insurance policy and not construction of a statute. As the Supreme Court pointed out in Nickerson, language in an insurance policy is to be strictly construed against the insurer. The strong policy considerations which justify strict construction of insurance policies are absent in the case at bar in which this Court is confronted with the construction of a statutory priority provision. "It is axiomatic that words in a statute are to be interpreted according to their commonly accepted meanings * * (Citation omitted.) Production Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301, 312; 273 NW2d 10 (1978).
Secondly, the insurance policy interpreted by the Nickerson Court defined the term "occupying” as "in or upon or entering into or alighting from”. Nickerson was undoubtedly "upon” the insured car when he was injured; thus he was clearly entitled to recover under the plain language of the policy. In contrast, the no-fault act contains no such definition of the term "occupant”. Consequently, we must interpret the word "occupant” according to its commonly accepted meaning. Production Credit Ass’n of Lansing, supra.
Finally, we are not convinced that plaintiff was an "occupant” of his employer’s vehicle even under the Nickerson standard. The Nickerson Court concluded that Nickerson was an "occupant” due to "(1) his immediate prior 'occupying’ of the insured vehicle, and (2) his suffering of an injury arising out of the use or repair of the same automobile”. We do not believe that plaintiff’s injuries were, sustained "immediately” after occupying his employer’s vehicle, as in Nickerson. Plaintiff had gone back and forth between the store and his truck twice and was on his third trip to the store when he was struck by a moving vehicle. In con trast, Nickerson was injured almost immediately after leaving the insured vehicle.
Several panels of this Court have addressed the "occupancy” issue under the no-fault act. Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), rev’d in part 408 Mich 164; 289 NW2d 708 (1980), involved a claimant who was fatally injured while examining or attempting to repair a company dump truck. "Ottenwess was crushed to death when the dump box suddenly came down upon him, trapping him between the box and the frame of the truck. * * * He had just exited the cab and was standing on or next to the dump box when the incident occurred.” The Court held that Ottenwess was an "occupant” of the vehicle when he was killed.
In Ottenwess, unlike the present case, the claimant may have been standing on the vehicle when the accident occurred. Moreover, the Ottenwess claimant was crushed between two parts of a vehicle; plaintiff, on the other hand, was not injured as a result of contact with his beer truck.
In Hathcox v Liberty Mutual Ins Co, 90 Mich App 511; 282 NW2d 374 (1979), the plaintiff had been injured by slipping on the snow-covered deck of a tractor-trailer, and the Court concluded that he was "occupying” the vehicle at the time of the injury. As in Nickerson and Ottenwess, contact with the "occupied” vehicle played a role in the accident.
Finally, McPherson v Auto-Owners Ins Co, 90 Mich App 215; 282 NW2d 289 (1979), lv den 407 Mich 908 (1979), involved a claimant who was injured by slipping on the highway immediately after exiting from her vehicle and while in the process of walking around it in order to remove her three-year-old grandson from the back seat. The majority held that the claimant was still "occupying” the vehicle at the time of the accident.
Several panels of this Court have expressed disagreement with certain aspects of the McPherson holding. However, even assuming arguendo that Nickerson is applicable to construction of the no-fault act, the McPherson injuries appear to have satisfied Nickerson’s "immediate prior occupancy” test.
As the foregoing analysis reveals, prior case law does not compel the conclusion that plaintiff was an "occupant” of his employer’s vehicle at the time of the accident.
IV
The trial court ruled that plaintiff was an "occupant” of his employer’s vehicle when he was injured, and accordingly granted summary judgment against defendant Michigan Mutual, his employer’s insurer.
We are uncertain whether the Supreme Court would hold that physical contact is necessary to a finding of "occupancy” under the priority provi sions of the no-fault act. Nevertheless, even if physical contact is not required, we are convinced that absent physical contact immediate prior occupancy — at the very least — is necessary to a finding of "occupancy” under §§ 3114 and 3115 of the no-fault act. Plaintiff had gone back and forth between the store and his employer’s vehicle twice and was on his third trip to the store when he was struck by another vehicle. Accordingly, we hold that plaintiff was not an "occupant” of a motor vehicle at the time of the accident.
V
Once again, we must focus on MCL 500.3115(1); MSA 24.13115(1), which provides:
"Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.”
Since we have concluded that plaintiff was not an "occupant” of a motor vehicle when he was injured, § 3115 is applicable in determining priority between the defendant insurance companies. However, § 3115 is subject to subsection 3114(1), which provides in part:
"Sec. 3114. (1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.”
Under subsection 3114(1), plaintiffs "personal” insurer, defendant DAIIE, is responsible for plaintiffs no-fault benefits. However, subsection 3114(1) is subject to subsections 3114(2), (3), and (5). Subsections (2) and (5) are clearly inapplicable. Subsection 3114(3) provides:
"(3) An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.”
Since we have determined that plaintiff was not an "occupant” of a motor vehicle at the time of the accident, subsection 3114(3) is also inapplicable. Consequently, subsection 3114(1) governs the allocation of priority between the defendant insurers. Therefore, the insurer of plaintiffs private vehicle, defendant DAIIE, is responsible for plaintiffs no-fault benefits.
Accordingly, we hold that the trial court erred in granting summary judgment against defendant Michigan Mutual; DAIIE is the responsible insurer.
VI
One ancillary issue requires our resolution. The trial court ordered each defendant to pay half of plaintiffs’ reasonable attorney fees. The court based its award on MCL 500.3148(1); MSA 24.13148(1), which provides:
"An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
A trial court’s finding of unreasonable refusal or delay by an insurance company will be disturbed on appeal only if that finding is clearly erroneous. GCR 1963, 517.1, Liddell v DAIIE, 102 Mich App 636; 302 NW2d 260 (1981). Defendant Michigan Mutual, arguing that a delay in payment is not unreasonable "where it is the product of a legitimate question of statutory construction, constitutional. law, or even a bona fide factual uncertainty”, insists that the trial court erred in ordering the payment of half of plaintiffs’ reasonable attorney fees. Although we concede that a "legitimate question” existed, we cannot agree with defendant’s contention that the delay in payment was the "product” of a legitimate question. Plaintiff was undoubtedly entitled to no-fault benefits; the only legitimate dispute was between the two defendant insurance companies. Under these cir cumstances insurance companies can avoid liability for attorney fees by sharing the payment of such a claimant’s no-fault benefits and then settling their differences among themselves. A claimant who is clearly entitled to no-fault benefits should not be forced to hire an attorney merely because the circumstances of his accident create problems of priority among insurers.
Manifestly, the trial court’s finding of an unreasonable delay in payment was not clearly erroneous; therefore, we must affirm its award of attorney fees.
Affirmed in part; reversed in part._
MCL 500.3101 et seq.; MSA 24.13101 et seq.
Unfortunately, certain language in Gutierrez, which I authored, suggests that where a claimant suifers accidental bodily injury arising out of the use, etc., of both a moving vehicle and a parked vehicle, the claimant must establish the applicability of one of the three exceptions to the parked vehicle exclusion (MCL 500.3106; MSA 24.13106) in order to recover no-fault benefits. Although such a situation will rarely occur (as I noted in Gutierrez), it seems anomalous to suggest that an otherwise compensable accidental injury loses its character as such merely by virtue of an additional causal connection between the use of a parked vehicle and the injury. To the extent that Gutierrez can be read in support of such a proposition, I must disavow it.
Under either approach, the result in Gutierrez would have been the same. However, I wish to make it clear that analysis under the parked vehicle exclusion is unnecessary where there exists a sufficient causal connection between the use, etc., of a moving motor vehicle and the injury.
MCL 500.3106; MSA 24.13106.
"It is unfortunate but true that the normal operation and use of motor vehicles all too often results in the striking and injuring of pedestrians.” Gutierrez, supra, 134.
Id., 326.
Id., 330.
Id.
Id.
"Who can doubt that plaintiff was 'upon’ the car when injured?” Id., 331.
Nickerson, supra, 326.
84 Mich App 292, 294-295.
We do not wish to imply that contact with a vehicle is necessary to a finding of "occupancy” thereof. Contact, however, is an important factor in determining "occupancy”. We note that Nickerson also involved a claimant injured by contact with the "occupied” vehicle.
However, in concurring separately, I expressed my belief that the plaintiff was injured while "alighting” from the vehicle.
See Dowdy v Motorland Ins Co, 97 Mich App 242; 293 NW2d 782 (1980), Block v Citizens Ins Co of America, 111 Mich App 106; 314 NW2d 536 (1981), Krueger v Lumbermen’s Mutual Casualty Co, 112 Mich App 511; 316 NW2d 474 (1982). See also McPherson, supra (Gillis, J., dissenting).
See MCL 500.3114(3); MSA 24.13114(3).
MCL 500.3114, 500.3115; MSA 24.13114, 24.13115.
MCL 500.3114(1); MSA 24.13114(1).
MCL 500.3114(3); MSA 24.13114(3).
Id., 650.
We find the following colloquy from the summary judgment hearing instructive:
"The Court: I agree that it’s not just the passage of time that makes the delay unreasonable, but here’s the point that he makes. You and Mr. Mattingly [counsel for Michigan Mutual] knew that one of you were going to have to pay that; isn’t that so?
"Mr. Hoehn [counsel for DAIIE]: Yes.
"The Court: There’s no doubt about that?
"Mr. Hoehn: No.
"The Court: It was just a question of who. And his point is shouldn’t you and Mr. Mattingly have gotten together and said, 'Look, let’s both contribute. We’ll solve it between us who gets reimbursed.’ ” | [
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D. F. Walsh, P.J.
Plaintiffs appeal the entry of summary judgment by the Court of Claims based on governmental immunity.
In May, 1977, Gene E. Trommater, Myra L. and Annette Trommater, and Tracy Jensen were involved in an automobile accident at the intersection of Ten Mile Road and Meyers Lake Road in Kent County. Plaintiff Gene Trommater’s vehicle was struck by an automobile owned and driven by Virginia Cox, an employee of the Kent County Department of Social Services. Cox allegedly disregarded a flashing red light and a pair of stop signs located at the intersection and struck the Trommater vehicle broadside. Myra L. and Annette Trommater died as a result of the collision, and Tracy Jensen sustained serious bodily injury.
At the time of the accident, Cox, a social worker in the department’s adult division, was returning to Grand Rapids after her last client visitation of the day in Rockford, Michigan. The collision, therefore, occurred while Cox was in the course of her employment by defendant. Pursuant to state departmental policy, Cox was paid mileage to compensate her for the use of her vehicle.
Plaintiffs filed separate complaints alleging that defendant State of Michigan was vicariously liable for the negligence of its employee, Virginia Cox. Plaintiff Bott also alleged that defendant was negligent in failing to take precautions in the selection of those employees required to drive vehicles in the course of their employment.
Defendant moved against both plaintiffs for summary judgment pursuant to GCR 1963, 117.2(1). Defendant argued that plaintiffs failed to allege facts in avoidance of governmental immunity and that there was no applicable exception to the immunity statute, the automobile exception, MCL 691.1405; MSA 3.996(105), being inapplicable because defendant was not the "owner” of the vehicle. Plaintiffs argued in response that the statutory exception regarding state-owned vehicles was unconstitutional on equal protection grounds. US Const, Am XIV, Const 1963, art 1, § 2.
In granting defendant’s motions for summary judgment, the Court of Claims ruled that govern: mental immunity precluded any liability on the part of defendant because the activity of Virginia Cox involved a "governmental function”. The court rejected the equal protection challenge on the ground that there was a rational basis for the statute since it placed the state in an equivalent position with private vehicle owners under MCL 257.401; MSA 9.2101 by allowing the state to be sued for tortious conduct arising out of the operation of a state-owned vehicle.
On appeal, plaintiffs claim that the court erred in ruling that the driver of the automobile was involved in a governmental function. Plaintiffs argue that the tortious conduct alleged in the complaint, i.e., the negligent operation of a motor vehicle, cannot be considered an activity effectively accomplished only by the government. Further, plaintiffs contend that since there are other pri vately financed organizations involved in providing for the social welfare, the activities of the Department of Social Services do not constitute a governmental function.
A motion based on GCR 1963, 117.2(1), challenges the legal sufficiency of a complaint and must be considered by an examination of the pleadings alone. A reviewing court is obligated to accept as true all well-pleaded facts in the complaint and to determine whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Duhame v Kaiser Engineering of Michigan, Inc, 102 Mich App 68, 71; 300 NW2d 737 (1980).
MCL 691.1407; MSA 3.996(107), provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
In Parker v Highland Park, 404 Mich 183, 199-200; 273 NW2d 413 (1978), Justice Moody discussed the dispositive test in determining a "governmental function”:
"It is held today that activity conducted in a general hospital operated by a municipality is not a governmental function for immunity purposes. This conclusion is predicated on the bases that the term 'governmental function’ is limited to those activities sui generis governmental — of essence to governing.
"In Thomas [v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976)], it was suggested that this test meant that a function is not governmental unless the particular activity involved has 'no common analogy in the private sector’. Furthermore, it was observed that the perimeter of governmental function will most often 'run along the line of distinction between decisional and planning aspects of governmental duties on the one hand, and operational aspects on the other’. 398 Mich 21, 22.
"Although these concepts may have some significance in given cases when applying the 'governmental essence’ test, in other instances they could be misleading or inapplicable. For instance, it would be incongruous to find that the operational activities of some public agencies are other than governmental. Likewise, conceivably there could be essential governmental activity which would have some common analogy in the private sector.
"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” (Emphasis supplied.)
The goals of the Social Welfare Act, 1939 PA 280, MCL 400.1 et seq.; MSA 16.401 et seq., are set forth in the preamble as follows:
"An Act to protect the welfare of the people of this state; to provide general relief, hospitalization, infirmary and medical care to poor or unfortunate persons; to provide for compliance by this state with the provisions of the social security act; to provide protection, welfare and services to aged persons, dependent children, the blind, and the permanently and totally dis abled; to administer programs and services for the prevention and treatment of delinquency, dependency and neglect of children; to create a state department of social services; to prescribe the powers and duties of the department; to provide for the interstate and inter-county transfer of dependents; to create county and district departments of social services; to create within certain county departments, bureaus of sociál aid and certain divisions and offices thereunder; to prescribe the powers and duties of the departments, bureaus and officers; to provide for appeals in certain cases; to prescribe the powers and duties of the state department with respect to county and district departments; to make an appropriation; and to prescribe penalties for the violation of the provisions of this act.”
In the instant case, the vehicle that was driven by defendant’s employee was being operated pursuant to the daily implementation of the Social Welfare Act. We reject summarily plaintiffs’ claim that the driving of an automobile must be examined without any reference to its use at the time of the accident. The driving of the vehicle and the employment-related purpose for which it was being driven are simply not divisible for purposes of our analysis here. The vehicle was being driven by a state employee in the course of her employment and to accomplish the responsibilities of her employment. We must view the tortious conduct alleged in plaintiffs’ complaint in this context.
In determining whether an activity is a "governmental function”, the primary focus is on whether the purpose, planning, and carrying out of the activity can be accomplished effectively only by the government. Here, the automobile’s driver, a social worker, was returning from a visit to a client. Her performance as a case worker was legislatively mandated under the Social Welfare Act. As correctly pointed out by plaintiffs, there are private charitable organizations concerned with remedying the same type of social problems. However, as indicated by Justice Moody in Parker, the existence of analogous private sector activities alone does not negate the conclusion that certain conduct is a governmental function. The pervasive nature of societal needs in the areas addressed in the Social Welfare Act persuades us that the activity is a governmental function. In our judgment, the scope of social welfare problems is such that effective solutions require the utilization of resources possessed only by the state. We conclude, therefore, that this uniquely mandated activity can be effectively accomplished only by government. The Court of Claims did not err in ruling that the activity was a governmental function within the meaning of the statute.
Plaintiffs further argue that MCL 691.1405; MSA 3.996(105) is unconstitutional on equal protection grounds. The statute reads as follows:
"Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.”
Plaintiffs contend that the statute arbitrarily distinguishes between privately owned and state-owned vehicles because there is no rational relationship in the Legislature’s allowing compensation from the state for victims of auto accidents involving state-owned cars but excluding liability for collisions involving privately owned automobiles driven by state employees.
In order to prevail on the claim that a statute violates equal protection, a party must demonstrate that the classification is arbitrary and wholly unrelated in a rational way to the objective of the statute. Smith v Employment Security Comm, 410 Mich 231, 271; 301 NW2d 285 (1981).
Plaintiffs have failed to meet this heavy burden. The statutory exception, confined solely to state-owned vehicles, serves the purpose of ensuring that redress is available against the owner of the vehicle, in this case the state. This is consistent with the Legislature’s imposition of liability on the owner of a privately owned vehicle under MCL 257.401; MSA 9.2101. The exception also distinguishes between state-owned and privately owned vehicles so as to preserve governmental immunity from liability for accidents caused by vehicles that are neither kept nor maintained by the state. It is reasonable, at least, for the Legislature to provide that the state will not be. held liable for vehicles over which it has no control. Since there is a rational basis underlying MCL 691.1405; MSA 3.996(105), we conclude that there is no violation of equal protection.
We summarily reject plaintiff Bott’s assertion that the doctrine of governmental immunity should be abolished. See Deaner v Utica Community School Dist, 99 Mich App 103, 109; 297 NW2d 625 (1980).
The decision of the Court of Claims is affirmed. | [
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D. C. Riley, P.J.
We adopt the facts as they are clearly and concisely set forth in the dissenting opinion.
For the reasons stated in Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981), we hold that plaintiff’s due process right to a fair hearing before an impartial tribunal is not violated by MCL 600.5040 et seq.; MSA 27A.5040 et seq., where one of the three arbitrators assigned to hear a medical malpractice claim is a physician. Nor is the act unconscionable in that it abrogates plaintiff’s constitutional right of access to the courts. Thus, we affirm the trial court’s decision upholding the statute.
However, we conclude, further, that the third issue raised by the plaintiff — whether the arbitration form signed by plaintiff was an enforceable agreement where defendant hospital failed to provide plaintiff with an information brochure and a duplicate or original of the executed form as required by MCL 600.5042(7); MSA 27A.5042(7) — requires a remand to the trial court for an evidentiary hearing.
It is conceded that the plaintiff at no time has denied the existence of a signed arbitration agreement form. Nonetheless, the plaintiff contends that an arbitration agreement cannot be legally valid unless it is in strict conformance with the arbitration statute, MCL 600.5042(8); MSA 27A.5042(8). We agree.
In an affidavit dated January 31, 1979, attached to defendant’s brief, an employee of Sinai Hospital at the time of plaintiffs admission states that, in accordance with routine practice in carrying out her duties with respect to arbitration agreements, she explained the agreement to the plaintiff, gave her a copy of the agreement and brochure explaining the agreement, advised plaintiff that her signature was not required, and further, that if she did sign she had 60 days within which to revoke her agreement to arbitrate. Her affidavit attests further to witnessing the plaintiffs signature on the agreement.
The plaintiff, in her affidavits, acknowledges that an arbitration agreement was presented to her at the time of her hospitalization but states that no verbal explanation or information was provided her, that she did not receive the brochure setting forth details about the agreement and its revocation provision, that she did not receive a duplicate copy of the original agreement and that she did not understand the entire matter of arbitration.
In concluding that a remand is mandated to resolve the fact issue raised by plaintiff, we find Capman v Harper-Grace Hospital, 96 Mich App 510; 294 NW2d 205 (1980), and Pipper v DiMusto, 88 Mich App 743; 279 NW2d 542 (1979), to be instructive.
In Pipper, the Court held that the plaintiffs affidavit alleging that, at the time she was admitted into the hospital, she was receiving emergency treatment within the meaning of MCL 600.5042(1); MSA 27A.5042(1) (which provides that a person receiving emergency treatment must be offered the arbitration option after the emergency care or treatment is completed) created a question of fact requiring an evidentiary hearing to determine if the plaintiff met the conditions of the emergency exception.
In Capman, the plaintiff argued that defendant conditioned the providing of health care upon her signing the arbitration agreement and thereby improperly coerced her in direct violation of MCL 600.5042(2); MSA 27A.5042(2). The Capman Court, while noting plaintiffs "unsupported assertion” of coercion, concluded as follows:
"[I]n stating its conclusion, the trial court shall set forth the findings of fact and the law upon which it is based. It should be noted that the arbitration statute is in derogation of common law. It takes away one’s right to sue and have one’s case heard by a jury in the court of law. Although its objects are laudatory considering the plethora of malpractice litigation that has burdened our court dockets, the fact that it is purely a creature of statute in derogation of common law requires strict statutory compliance before arbitration may be ordered. To insure that such strict compliance was in effect herein, remand becomes necessary.” Capman, supra, 517-518.
We note that a fundamental rule of construction requires that the language of an agreement be given its plain meaning. New Amsterdam Casualty Co v Sokolowski, 374 Mich 340; 132 NW2d 66 (1965), Kukowski v Piskin, 99 Mich App 1; 297 NW2d 612 (1980). Further, we note that there is a strong public policy in this state favoring arbitration. Hence, arbitration clauses should be liberally construed with all doubts about the arbitrability of an issue to be resolved in favor of arbitration. Kukowski, supra, Detroit Automobile Inter-Ins Exchange v Reck, 90 Mich App 286; 282 NW2d 292 (1979). Nevertheless, consistent with Capman and Pippin, supra, we conclude that a remand is neces sary herein to determine whether or not the plaintiff received a brochure describing the arbitration agreement and whether a duplicate or original copy of the agreement was provided the plaintiff.
Remanded to the trial court for proceedings consistent with this opinion.
M. B. Breighner, J., concurred. | [
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Cynar, J.
Plaintiff appeals as of right from the trial court’s marital property determination in a divorce granted on August 29, 1980. We reverse.
The parties were married on December 21, 1973. At the time of the marriage, defendant owned a cabin on Lake Superior which was encumbered by a $6,000 mortgage, the furniture in the cabin, a 1973 Toyota automobile, and a small savings account. Plaintiff owned a substantial amount of furniture and the proceeds of a land contract on property she had sold prior to the marriage. During the marriage, both parties were employed. Plaintiff earned approximately $61,000 during the marriage and defendant earned approximately $150,000.
In 1974, the parties purchased a house located at 1406 Ashmun in Sault Ste. Marie for $18,000, with a downpayment of $3,000. In 1979, they sold the Ashmun property and received proceeds of $12,500 after paying off the mortgage. Thereafter they purchased a house located at 1309 Park Street in Sault Ste. Marie for $55,000, with no downpayment. At the time of trial, a balance of $54,000 remained owing on the mortgage on that property. Payments on the mortgage were $550 per month. Of the $12,500 in proceeds from the sale of the Ashmun Street property, $2,500 was used to pay off the remaining balance of the mortgage on the cabin. The remaining $10,000 was used for improvements to the Park Street property. An additional $13,000 worth of improvements were made to the Park Street property. It was undisputed that $5,000 of that amount was contributed by plaintiff and, although disputed, defendant contended he contributed $8,000.
The only items of furniture that were purchased during the marriage were a hutch, a couch, two bunk beds and a pine table.
Prior to the marriage, defendant executed a writing which stated the following:
"Please be advised that I have this day devised, bequeathed and in all other ways conveyed unto Mary Jane Mitchell [plaintiff herein] the property owned by me at Birch Point, Bay Mills Township, Michigan, more particularly described as * * *
"And that further, said Mary Jane Mitchell shall have unto herself, her heirs, legatees and devisees, the full use and ownership of the above described property until such time as shall be determined by her own wants, needs and debts. And that further, this instrument was done this 4th day of September 1973, by my own hand and in full recognizance and in full knowledge of the consequences thereof.”
Defendant claimed that the above writing was a "will” and was revocable at any time. Although he testified he executed the document freely and voluntarily, the reason he did so was the result of the plaintiff’s pleading and cajoling. He also testified that he executed the document as the result of the plaintiff’s threat to burn down the cabin if he did not do so.
Plaintiff did not claim title to the cabin. Rather, she contended that the cabin was worth a great deal and that her efforts were largely responsible for the increase in value. Plaintiff claimed that she had contributed financially and that she had performed a great deal of labor in redecorating and modernizing the cabin. Furthermore, the entire $6,000 mortgage on the cabin was paid off during the marriage, $2,500 of which came from the proceeds of the sale of the Ashmun Street property. Defendant contended that the cabin was worthless, that he was going to tear it down, and that the efforts the parties put into the cabin were wasted. The cabin property had a value for tax purposes of $13,000. Defendant testified that the unimproved value of the cabin property was $7,-500. He also testified that the cabin was insured for $10,000 but that he would not sell it for any price.
Defendant testified that the value of the Park Street house was $55,000 but that the low value was the result of depressed market conditions in the area. He stated that under normal circumstances it would sell for $68,000. No expert testimony was introduced concerning the value of either the cabin or the house.
At the time of the divorce, plaintfif was indebted in the amount of $15,000 (not including the mortgage on the Park Street house, for which she was a co-signer). Of the $15,000 debt, $13,000 related to a note which was executed to the Bank of Montreal. Of that amount, $9,000 represented principal, the remainder represented interest. Five thousand dollars of the principal related to the improvements on the Park Street house, as discussed above. The remaining $4,000 was borrowed after the parties separated and was used to make house payments after defendant moved out of the Park Street house and to pay off other joint debts. Plaintiff contends that she made four house payments after the parties separated.
Plaintiff occupied the Park Street house at the time of trial and requested that she be awarded the house and its contents. She claimed that she would be able to make mortgage payments by renting several rooms to students attending a nearby college. It appears that at the time of trial the parties were behind in house payments and foreclosure had been threatened. At the time of the motion for a new trial in December, 1980, plaintiff was still occupying the Park Street house and a foreclosure sale was scheduled for January, 1981.
Defendant did not claim the Park Street house. Rather, he requested the court to order the house to be sold and the proceeds divided equally. Defendant was not willing to permit plaintiff to assume the mortgage because he did not believe that she could make the payments. Furthermore, he contended that if he permitted a nonveteran to assume the mortgage he would lose $54,000 worth of VA loan eligibility.
Defendant had a contributory retirement savings plan to which he had contributed approximately $10,000 during the marriage. Plaintiff claimed a share of those funds.
The court made no findings of fact. The trial judge simply sent a letter to the attorneys and the parties stating:
"Please prepare a judgment for divorce with the following being the property settlement of divorce.
"A. To the Husband:
"1. The husband is to receive the home presently occupied by Mrs. Ripley, no later than 30 days from the date of the judgment. Also, during this period of 30 days, the husband may list the home for sale.
"2. All personal property now in his possession.
"3. Volkswagen
"4. Dodge pickup
"5. Sailboat
"6. Desk located in home occupied by the wife at the present time.
"B. To the Wife:
"1. All furniture in the home which is not built-in. No carpet is to be removed if attached.
"2. 1976 Omega
"3. Her existing land contract in Canada.
"4. All personal property in her possession, except the desk.
"5. A sum of money in the amount of $3,000, which is to be a lien on the husband’s cabin until paid. One thousand dollars of this is to be paid within 30 days and the balance within one year.
"C. Both parties are to be responsible for their own debts and obligations.
"D. No alimony is to be paid to either party.
"E. The plaintiff will be responsible for bills related directly to the house, such as electricity, telephone, etc.
"F. The defendant will be responsible for bills related to the house and property such as taxes, house payments, etc.
"Please prepare a judgment in connection with the above property conditions and the other terms of the divorce as set out on the date that testimony was taken.”
The above letter by the trial court indicates that the property settlement in the judgment of divorce was to provide that defendant was to receive all personal property in his possession. The judgment of divorce so provides. Neither the said letter nor the judgment of divorce specifically indicates that the defendant received a Central Savings Bank savings account of $300, a $400 stereo, $300 in savings bonds, a $300 employee’s savings account, and TV sets valued at $300, nor was the $10,000 retirement account mentioned.
The property settlement provision in the judgment of divorce awarded to the defendant: the cabin and family home property, the Volkswagen, the Dodge pickup truck, the 14-foot sailboat, and all personal property in his possession.
The property settlement provision in the judgment of divorce awarded to the plaintiff: the 1976 Omega vehicle, all household furniture, furnishings, fixtures and equipment, and all personal property in the family home except built-in equipment, attached carpeting and a desk located therein which was to be retained by the husband. Additionally the plaintiff received all personal property in her possession and $3,000 cash to be paid to her by defendant.
Plaintiff filed a motion for a new trial, arguing that the court’s findings were against the great weight of the evidence. The motion was heard on December 18, 1980. At the motion hearing, plaintiff argued that the court had effectively awarded everything that was accumulated during the marriage to defendant while requiring plaintiff to pay the bills associated with the purchase of those assets. Plaintiff also argued that the court had failed to consider plaintiff’s labor in redecorating the house and the cabin and her claim for a portion of defendant’s retirement savings fund.
The trial judge indicated that he had awarded the Park Street house to defendant because he was of the opinion that plaintiff was unable to make the mortgage payments. He also indicated that he had considered the other claims in making the award. The court did not make any findings concerning the various factors it considered in making the award.
GCR 1963, 517.1 provides the following:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. * * * 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.”
It is apparent that the trial court failed to make any findings of fact in connection with the judgment rendered herein.
MCL 552.19; MSA 25.99 provides in part the following:
"Upon the annulment of a marriage, a divorce from the bonds of matrimony or a judgment of separate maintenance, the court may make a further judgment for restoring to either party the whole, or such parts as it shall deem just and reasonable, of the real and personal estate that shall have come to either party by reason of the marriage, or for awarding to either party the value thereof, to be paid by either party in money.”
Divorce cases are reviewed de novo. However, an appellate court will not substitute its judgment for that of the trial court absent an abuse of discre tion. Kurtz v Kurtz, 34 Mich App 34; 190 NW2d 689 (1971). The end sought in the division of property is a fair and equitable distribution under all of the circumstances. The division is not governed by any rigid rules or mathematical formulas. The factors to be considered include the source of the property, the length of the marriage, the needs of the parties, their earning abilities, and the cause of the divorce. Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976), Patrick v Patrick, 99 Mich App 132; 297 NW2d 635 (1980).
The lower court made no findings concerning the above factors. The marriage lasted seven years and it was the second marriage for both parties. At the time of trial the defendant was making approximately $33,000 per year. He was obligated to pay $3,600 to support the children of his former marriage. Plaintiff’s wages in 1979 were $11,718.59. She also received $164.72 each month from the sale of a home in Ontario that she had sold prior to the marriage; those payments were due to end in September, 1982. Defendant’s health was excellent. Plaintiff testified that she was in poor health. She stated that she had spinal problems, arthritis and suffered from heart strain. At the time of trial plaintiff was 45 years old and defendant was 43. Defendant had a B.A. degree from Northern Michigan University and was employed as a customs supervisory inspector by the United States Customs Department. Plaintiff was employed during the day as an auditor for a Holiday Inn in the area and had an evening job as a clerk in a gift shop. Although it appears that defendant made most of the house payments and paid a large share of the household expenses during the marriage, plaintiff testified that she also contributed all of her income for the parties’ joint support. She also testified that she did virtually all of the manual labor associated with redecorating both the Ash-mun Street property and the Park Street property. Defendant admitted that to be the case and also admitted that plaintiff had worked at redecorating the cabin. The only testimony concerning the cause of the divorce was plaintiff’s statement that defendant drank approximately three-fourths of a quart of liquor each day. Defendant contended that the marriage broke down in part because he did not want to purchase the Park Street property since he did not believe the parties could afford it and he did so only because plaintiff agreed to pay $300 per month toward the mortgage. He claimed she failed to do so. He also stated that plaintiff ridiculed his job.
The court ordered each party to be responsible for their individual debts. Plaintiff owed approximately $15,000. Defendant owed approximately $9,000. Of the amount owed by plaintiff, $13,000 represented the amount she had spent on the Park Street house. Defendant alleged that $7,000 of his debts represented amounts he had expended on that property. The court awarded the Park Street house to defendant but did not require him to assume the $13,000 of debt that plaintiff had incurred with respect to that property. It was clear that virtually all of the improvements were fixtures and were not removed by plaintiff.
The court made no findings concerning the effect of the document plaintiff had executed prior to the marriage with respect to the cabin. The court did not award plaintiff anything with respect to the cabin property despite the uncontroverted testimony that the $6,000 mortgage was paid off during the marriage with joint funds and despite the fact that the plaintiff expended her own funds and labor in remodeling the cabin. Although defendant said the cabin was worthless, he also indicated he would not sell it for any price because it had been in his family for many years. Defendant indicated that the value of the land in its unimproved condition was $7,500 and that the appraised value of the property with the cabin was $13,000.
Assuming the market to be depressed and that plaintiff was not in a position to make the mortgage payments of $550 per month, the trial court’s ruling appears correct in awarding the Park Street property to defendant. The family home was two years old and the parties paid $55,000 for it. Plaintiff indicated the fair value to be between $55,000 and $60,000 and about $58,000 without the appliances which were not built-in. Further, defendant alleged that to permit plaintiff to assume the mortgage would have been unfair to defendant as it would have resulted in a loss of his future borrowing ability. In determining the amount of equity in the family home, the court appears to have included only the $54,000 mortgage balance, although uncontroverted evidence indicated that plaintiff borrowed some $13,000, which sum together with the $7,000 as contended by defendant was also expended on the family home. While the trial court did give consideration to what would be in the best interest of defendant under the circumstances, the same was not accorded to plaintiff when the court awarded the family home to defendant without defendant’s having to assume any part of the plaintiff’s $13,000 debt.
A pension fund that has a reasonably ascertainable present value and is not a contingent or future possible benefit is a marital asset to be considered in making an equitable division of property. McCallister v McCallister, 101 Mich App 543; 300 NW2d 629 (1980), Evans v Evans, 98 Mich App 328; 296 NW2d 248 (1980). Savings, although accumulated from one party’s earnings, are in reality acquired from what would otherwise be income of the parties during the marriage and are properly a part of the marital assets. Darwish v Darwish, 100 Mich App 758; 300 NW2d 399 (1980), Miller v Miller, 83 Mich App 672; 269 NW2d 264 (1978).
There was no dispute that the defendant’s pension fund had a reasonably ascertainable value. It was estimated the amount accumulated from contributions made by the defendant during the marriage was approximately $10,000. The trial court did not include the pension fund in the property settlement in the judgment of divorce.
After careful consideration of the record and with due consideration to the length of the marriage, the source of the property, the needs of the parties, their earning abilities, their respective health, and all other relevant factors, we amend the property settlement provision in the judgment of divorce, but only in the following manner. The $3,000 payment from defendant, Patrick Joseph Ripley, is increased to $5,000. A sum of $2,000 is to be paid within 30 days from the date of release of this opinion. In reference to the plaintiff's indebtedness on a note which was executed to the Bank of Montreal, it is ordered that the defendant is to assume payment on the plaintiffs indebtedness to the extent of $13,000 commencing to make payment or make reimbursement for payment made from the date of the divorce.
Reversed and remanded to the trial court for the issuance of a modified judgment in accordance with this opinion. | [
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Per Curiam.
Defendant was convicted in a bench trial of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to from 7-1/2 to 15 years in prison. He now appeals as of right.
Defendant argues that there was insufficient evidence of malice aforethought and that the court therefore erred in convicting him of second-degree murder. In People v Aaron, 409 Mich 672, 733; 299 NW2d 304 (1980), the Supreme Court, in abrogating the common-law felony-murder rule, stated:
"We hold that in order to convict a defendant of murder, as that term is defined by Michigan case law, it must be shown that he acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm. We further hold that the issue of malice must always be submitted to the jury.”
The charge against defendant arose out of a fistfight over rent money between defendant and the deceased, Frank Lawson. There was testimony that defendant, after taking money from Lawson, knocked him to the ground, rendering him unconscious, and then stepped with a twisting motion on Lawson’s head as if putting out a cigarette. The trial judge found this specific testimony to be credible, stating, "I believe the witnesses’ testimony that the man ran, and that the defendant pursued him, got him out of an automobile, and then knocked him to the ground again and put his foot on his head, and spun around his foot on his head. That is the testimony this court believes.” We believe that this evidence was sufficient to allow an inference that defendant acted with a wanton and willful disregard of the likelihood that the natural tendency of his behavior was to cause death or great bodily harm. The court, as trier of fact, readily could have concluded that malice existed. Cf. People v Thomas, 85 Mich App 618; 272 NW2d 157 (1978).
Defendant’s conviction and sentence are affirmed. | [
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Bronson, P.J.
Defendant was convicted of unarmed robbery contrary to MCL 750.530; MSA 28.798, and unlawfully driving away an automobile (UDAA), in violation of MCL 750.413; MSA 28.645,* following a jury trial in the Detroit Recorder’s Court. Defendant was sentenced to concurrent terms of from 3 to 5 years for UDAA and from 3 to 15 years for the robbery. He now appeals as of right.
The complaining witness, Linda Bridges, testified that on September 20, 1979, she was driving her 1977 Thunderbird when she pulled into a parking lot at Six Mile and Meyers in Detroit. She stated that she locked her car, which contained a purse, a diamond ring, a checkbook, credit cards, and approximately $25, and went to mail a letter. Upon her return, however, the vehicle was un locked. Before she could close the door, defendant approached her with a gun. He told Ms. Bridges to exit from the vehicle. She tried to close the door but failed. After a brief struggle, defendant was able to pull her out of the car, get into the vehicle himself, and drive away.
Defendant’s testimony was somewhat different than complainant’s and substantially consistent with previous statements he had given to the police. Defendant indicated that he had been in a record store in the Six Mile-Meyers area when he observed an unoccupied 1977 Thunderbird with its motor running. Thereafter, he jumped into the car, heard a woman scream, and took off. Defendant specifically denied threatening anybody with a gun or struggling with anyone.
Defendant was arrested about one hour after the incident. The police obtained a description of the stolen vehicle and followed defendant to his house. He generally matched the description of the thief given by Ms. Bridges and was arrested.
Among his several claims, defendant contends that on the facts of this case convictions for both UDAA and robbery violates his constitutional right to be free from double jeopardy. We agree.
Where, on the facts of a particular case, the jury must necessarily find a defendant guilty of the lesser offense in order to convict him of the greater, it is not consonant with the prohibition against double jeopardy to permit convictions for both the greater and the lesser offense. People v Cook, 236 Mich 333; 210 NW 296 (1926), People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). Where the object of the taking is an automobile and robbery is the charged offense, UDAA is a lesser cognate offense which the trial court must instruct upon if it is requested by the defense. People v Harris, 82 Mich App 135; 266 NW2d 477 (1978). Jankowski clearly establishes that a defendant may not be convicted of the most serious crime and also lesser cognate offenses based upon one illegal taking.
The prosecution on appeal argues, however, that this case involves two distinct crimes and thus is not controlled by Jankowski and its predecessors. The prosecution notes that the information filed in this matter alleged that items other than the automobile were taken from the victim. The prosecution contends that these other items constitute the basis of the robbery charge, while the automobile is the basis for the UDAA conviction. We disagree that two distinct crimes were proven on the facts of this case.
The prosecution’s argument focuses solely on the separate items of property taken and not defendant’s criminal behavior or his intent. We believe that the references in Jankowski to a "single act” and a "single taking” allude to a single criminal transaction in which defendant’s act manifests a single criminal intent. Acceptance of the prosecution’s argument would lead to absurd results. For instance, one taking in which a watch with a value of $250 and a $10 bill were stolen could result in convictions of larceny over $100 and larceny under $100 by making the watch and the federal reserve note the basis of two separate counts in the information. Similarly, if a defendant robbed his victim of a wallet containing 50 credit cards, under the prosecution’s argument 50 counts of armed robbery could be properly charged.
In the instant case, there was no break in time or any significant intervening circumstances between the taking of the car and the purse. Indeed, it was a mere fortuity that the purse, containing the other items, happened to be in the vehicle at the time of the taking. Defendant committed one criminal act manifesting one criminal intention. Under Jankowski separate convictions and punishments would violate the prohibition against double jeopardy.
Generally, where a defendant is convicted of both a greater and a lesser offense, the remedy is to vacate the conviction on the lesser offense and affirm the conviction on the greater offense. See People v Grable, 95 Mich App 20; 289 NW2d 871 (1980), People v Hale (On Remand), 103 Mich App 273; 303 NW2d 17 (1981). In this case, however, another error precludes utilizing the usual remedy.
We agree with defendant’s contention that the prosecutor’s rebuttal argument constituted an improper appeal to the jurors’ civic duty and fears. A civic duty argument is impermissible because it injects into the trial issues beyond the guilt or innocence of the defendant and encourages the jurors to convict based on some societal obligation apart from the evidence adduced. See, for instance, People v Wright (On Remand), 99 Mich App 801, 809; 298 NW2d 857 (1980), lv den 410 Mich 854 (1980).
In this case the prosecutor stated:
"Ordinarily in presenting the facts of the case which is my job as the prosecutor to do, I can’t just sit back and listen to the proofs and comment on the evidence as it comes out. But every now and then you get a little upset because here we’ve got a situation where you’ve got Mrs. Bridges, who’s being attacked, her credibility, her story, the manner in which she’s describing the act. She didn’t ask to have her car stolen that day.
"On the other hand, you have a person who’s charged with a crime who admits to taking the car and then the argument that he’s a person who is not used to being questioned by police officers. So when he admits to something in the police station, let’s give him a break, okay? After a while you hear this for a little while and it gets you a little upset because who’s supposed to get a break; the criminal or the victim in our society? This isn’t a game where you’re weighing things on scales. If you listen to defense counsel’s version, if you ever had a crime where there were no people as witnesses around, the defendant should automatically go free, because it’s a one-on-one situation, and that’s not the law ladies and gentlemen. That can’t possibly be the law. Does she mean to say that if you’re out in the street and there’s no witnesses — "
At this point an objection was interposed but was overruled by the trial court. Thereafter, the prosecutor continued:
"If you were out on the street and there’s no witnesses around and someone comes up and commits a crime against you, are we to say then that we cannot bring prosecution against that person that committed the crime when that person gets on the stand and admits, 'yes, I was there, but you’ve only got one witness, the victim, so you can’t convict me because there’s only one witness.’ Block the scales. That is not the law ladies and gentlemen; that is nonsense.”
The prosecutor did not emphasize in his argument how defendant’s testimony was unbelievable. Instead, the argument injected into the case the broader issue of the problem of crime. The prosecutor’s argument also implied that the jury should convict out of sympathy to the victim. Furthermore, the prosecutor in part argued from a hypothetical case putting the jurors in the position of the victim. Compare, People v Edward Villarreal, 100 Mich App 379, 392-393; 298 NW2d 738 (1980).
The harmless error standard applicable to this type of problem requires us to reverse if the error was so offensive to the maintenance of the judicial system that it can never be deemed harmless or if, in a trial free of the error, one juror might have voted to acquit. People v Swan, 56 Mich App 22, 31-33; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975).
We are not convinced that the prosecutor deliberately injected error into the proceedings. While arguments appealing to a jury’s fears or indicating that a duty to convict exists have been condemned, the impermissible portion of the prosecutor’s argument here was not so blatantly improper that we believe he intentionally injected error into the trial. Instead, it appears that he was merely caught up in the heat of battle. Thus, this case is distinguishable from Wright, supra, in which the prosecutor’s argument concerning the effects of drug trafficking on the community had been squarely condemned in People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975).
In considering the likely effect of a prosecutor’s argument on the verdict, the improper statements must be evaluated in light of their relationship to the evidence adduced at trial. Each case must be considered on its own facts. An improper argument harmless in one case may be reversible in another. See People v Cowell, 44 Mich App 623, 627-628; 205 NW2d 600 (1973).
In many cases, the argument made here would not warrant reversal.
In this case, however, the argument cannot be deemed harmless in respect to the robbery charge. The case turned on the jury’s assessment of the defendant’s and the victim’s credibility. The trial was short; the evidence of guilt on the robbery charge was not overwhelming. Consequently, it is impossible for us to say that one juror would not have voted to acquit on the robbery charge but for the error. However, since defendant admitted driving off with the car without permission, the error in the argument cannot be deemed harmful in respect to the UDAA charge.
Our resolution of the argument issue allows us to formulate the following remedy in respect to the double jeopardy problem. Defendant’s UDAA conviction can stand, and the unarmed robbery conviction is vacated. However, if the prosecution believes the interests of justice will best be served by retrying defendant for unarmed robbery, it may do so. If a reprosecution is brought, the jury must be instructed that its verdict may be guilty of unarmed robbery or guilty of UDAA, but not both.
We will briefly address the remainder of the issues raised by defendant in case the prosecution elects to try him again. None of the remaining issues would entitle defendant to a reversal of his conviction. However, other problems with the trial are apparent.
We agree with defendant that under the standards set forth in People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977), the complainant’s in-court identification of defendant should not have been allowed. Prior to the preliminary examination, where the complainant identified defendant, she had incorrectly chosen a person other than defendant at a lineup as the thief. This incorrect identification was positively asserted. None of the other Kachar factors cut in favor of admitting the questionable identification. The prosecution bears the burden of showing by clear and convincing evidence that an unduly suggestive confrontation between the witness and the defendant did not taint the subsequent in-court identification. People v Richmond, 84 Mich App 178, 182; 269 NW2d 521 (1978). This burden was not satisfied in this case. The fact that the prior confrontation occurred at the preliminary examination does not per se mean it cannot be considered unduly suggestive. People v Solomon, 47 Mich App 208; 209 NW2d 257 (1973), (Lesinski, C.J., dissenting), remanded for the reasons stated by the dissent 391 Mich 767; 214 NW2d 60 (1974).
Solomon involved other indicia of undue suggestiveness not present here, namely, that the witness was told by the police that the man who robbed him was going to be in court and, in fact, defendant was the only person there who could possibly have been the culprit. Nonetheless, this factual difference is not dispositive. Solomon adopted a totality of the circumstances test in determining whether a preliminary examination confrontation is unduly suggestive. The factors identified as important by then Chief Judge T. John Lesinski in Solomon are included within the Kachar test. While Kachar actually was concerned with the problem of an independent basis for the identification following a suggestive identification procedure, the Kachar factors are equally applicable here where the problem of an unduly suggestive confrontation, itself, must be resolved in relationship to the totality of the circumstances. In some cases, such as this one, undue suggestiveness in the confrontation and an independent basis for the identification are inextricably intertwined. See People v Lyles, 100 Mich App 232, 245-247; 298 NW2d 713 (1980). In Lyles, while we referred separately to the Solomon and Kachar criteria, it is apparent that the Solomon factors merely consist of two of the Kachar factors.
Despite the foregoing, the error was harmless beyond a reasonable doubt. Defendant admitted that he took the car, and there was substantial circumstantial evidence implicating him as the thief.
Defendant next argues that two series of questions, one put to him and one to his mother, insinuated that he committed the crime because he was unemployed and poor. These questions were not objected to during trial. Some of the questions were arguably relevant to show that defendant had indeed robbed the victim of some money. The complainant stated that she had about $25 in her purse at the time of the robbery. Defendant was arrested with $200 on his person. He testified that he had cashed a disability check for $180 from Ford Motor Company on the day of the incident. Thus, from the line of questions asked, the jury could infer that the extra money was obtained from the victim. People v Stanton, 97 Mich App 453, 460; 296 NW2d 70 (1980).
Other questions asked by the prosecutor were clearly immaterial. For instance, defendant’s mother was asked if her son paid room and board. To the extent that the questions were improper, we are convinced that they did not result in manifest injustice. See People v Smith, 80 Mich App 106, 114-117; 263 NW2d 306 (1977), lv den 406 Mich 920; 275 NW2d 259 (1979). The prosecutor did not argue that the theft was committed for economic reasons. Furthermore, it is clear that on the day of the theft defendant did enjoy a legitimate source of income.
Defendant next asserts that the following instruction tended to coerce a guilty verdict on the greater offense:
"Now I’m going to instruct you on a lesser included offense, which is not one of the principle charges. The two charges in this case are unlawfully driving away an automobile and also robbery armed. However, I’m going to give you an instruction on a third offense. It is not charged, but it is a lesser included offense that you can consider after consideration of the principle charges. This charge is unarmed robbery.”
It constitutes reversible error to give an order of consideration instruction which suggests that the jurors must find a defendant innocent or not guilty of a greater offense before turning their deliberations to lesser offenses. People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976), People v Mays, 407 Mich 619; 288 NW2d 207 (1980). In this case, however, nothing in the court’s charge suggested a verdict actually had to be reached on the greater offenses before consideration of the lesser offense. We further note that, in fact, defendant was convicted of the lesser offense of unarmed robbery instead of the greater charged offense of armed robbery._
Defendant finally contends that the prosecutor argued facts not in evidence in closing. We disagree. The prosecutor’s argument was limited to the facts and fair inferences to be drawn from the facts.
Defendant’s conviction for UDAA is affirmed. Defendant’s conviction for unarmed robbery is reversed. Upon remand, the prosecution may elect to retry defendant for unarmed robbery and UDAA. However, in this instance, the jury must be instructed that a guilty verdict on one charge constitutes an acquittal on the other.
Affirmed in part, reversed in part and remanded.
Defendant was originally charged with UDAA or, in the alternative, receiving and concealing stolen property with a value in excess of $100 in contravention of MCL 750.535; MSA 28.803. Following an oral motion by the prosecutor at the close of the preliminary examination, defendant was also bound over on a charge of armed robbery. MCL 750.529; MSA 28.797. Before the case was submitted to the jury, the receiving and concealing count was dropped. Defendant argues on appeal that the magistrate erred in granting the prosecution’s motion to add a count of armed robbery. Since the objection to the added count was not renewed before the trial court, any defect in the proceedings before the magistrate was waived. People v Jones, 75 Mich App 261, 268; 254 NW2d 863 (1977), lv den 402 Mich 822 (1977). In any case, an examining magistrate is empowered to add a count not originally charged in the absence of unfair surprise to defendant. People v Mathis (On Remand), 75 Mich App 320, 329, 326; 255 NW2d 214 (1977). There was no unfair surprise here.
Even were we to accept that one act resulting in the theft of several items could constitute multiple offenses, there would still be a double jeopardy problem in this case. The court charged:
"It is the prosecution’s theory in this case that on or about Septem ber 20, 1979 that 17150 Meyers, in the City of Detroit on a Thursday, that the defendant Rickey Leverette approached the complainant Linda Bridges in the parking lot and at gunpoint ordered her out of the car. The defendant Rickey Leverette then took the car, drove north onto Meyers to Santa Maria, then turned right.
"Now if you find that the people have established their theory, you must find the defendant guilty of count I, unlawfully driving away an automobile, and count II, robbery armed.”
The court’s instruction, which apparently was submitted by the prosecutor as his theory of the case, specifically told the jury that the theft of the car was the basis of both counts. Thus, the jury did, in fact, return the multiple guilty verdicts based on the theft of but one item. Moreover, trial on the theft of the other stolen items would now be barred by the Michigan doctrine of transactional double jeopardy. People v White, 390 Mich 245; 212 NW2d 222 (1973).
Later in his argument the prosecutor again made statements associating the jurors as victims when he stated, "I don’t know how many of you have ever been mugged, or attacked or held up at gunpoint * *
Villarreal, supra, People v Biondo, 76 Mich App 155, 159-160; 256 NW2d 60 (1977), lv den 402 Mich 835 (1977).
The tenor of the prosecutor’s argument suggests that in part he was legitimately rebutting the defense counsel’s argument. However, this is not really the case. Defense counsel did not argue that defendant could not be convicted of robbery because the complainant was the only witness. Rather, she specifically suggested that defendant’s story was more credible concerning how the taking occurred. She never indicated that defendant should be given a "break”. Her argument was entirely proper and related to the evidence. As such, it did not give the prosecution the right to respond with an improper rebuttal argument.
We question the extent to which the present day jury is actually likely to be swayed by a prosecutor’s comments. At one time it was probably true that juries routinely gave greater weight to a prosecutor’s statements because he acts with the imprimatur of the state. We believe, however, that in post-Viet Nam, post-Watergate American society the average juror is not so easily swayed by the state- merits of public officials. This is not to say that occasionally juries are not impressed with the prosecutor’s position and thus give undue weight to his argument. It seems to us that problems with prosecutorial arguments could be handled by explicit instructions from the trial court. Prior to the arguments the court could state that the attorneys are given free rein to say what they want to but that these arguments are not evidence, should be treated with skepticism, and represent the individual attorney’s view of the case. In the case of a particularly strong argument, these warnings could be repeated. However, the sweeping change of the variety suggested here would require a reappraisal of prosecution arguments by the Michigan Supreme Court. Although counsel in this case objected to the argument, no cautionary instruction was given, nor were specific, explicit warnings about closing arguments of the type suggested here given.
Although it is rarely articulated in the opinions of this Court, the harmless beyond a reasonable doubt standard propounded in Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967), relating to fundamental constitutional errors, seems to require more than merely ascertaining if, but for the error, one juror might have voted to acquit. Instead, the relevant inquiry is whether there is a .reasonable possibility that the erroneously admitted evidence contributed to the guilty verdict.
At the same time, however, since defendant admitted removing money from the purse — which he claimed was merely lying on the car seat when he took the car — it is difficult to see how the source of the money was material in this case.
Although we do not believe the instruction was erroneous, we also believe that it would be preferable if the trial court explicitly indicated that the jurors need not reach an agreement on the greater charge before considering any lesser offenses. See Mays, supra, 623, fn 1.
Although we found no error requiring reversal in respect to the UDAA conviction, if defendant is retried for unarmed robbery, his UDAA conviction is vacated. It would be unfair to, require defendant to have his case submitted only on the unarmed robbery charge. On the facts of this case, the jury is unlikely to want to acquit defendant entirely. If UDAA is not offered as a possible verdict, it is inherently likely that the jury would convict defendant of robbery even if it really believed his story concerning what happened. | [
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Per Curiam.
Plaintiff appeals as of right from a Wayne County jury’s verdict of no cause of action in this medical malpractice case.
The instant cause of action arose from decedent’s, Jack Stone’s, hospitalization for replacement of his pacemaker implanted some 18 months earlier by defendant Dr. Bassett on defendant Dr. Lee’s referral. Prior to surgery, Stone was given various dosages of Nembutal, Innovar, and atropine. Following surgery, Stone was given dosages of five other drugs.
The nurses’ notes reflect that Stone became disoriented and restless at approximately 2 a.m. on May 19, 1973, the morning following the surgery. The intern on call was notified. Apparently, the intern did not examine Stone, but had him transferred to the coronary care unit. Further evidence submitted during trial showed that, contrary to standard hospital procedure, the intern did not contact either defendant, whose names were listed on Stone’s hospital chart. The intern also failed to cancel all previous drug orders, which defendants further indicated was contrary to standard hospital procedure.
Dr. Lee arrived at the hosptial at 10 a.m. that same morning and was then notified of Mr. Stone’s hospitalization and condition. He notified Dr. Bassett. The doctors implemented various procedures and administered certain drugs.
Dr. Stone, the decedent’s son, was notified of his father’s condition by his brother, who also told him about the type and dosage of drugs that decedent had received. Dr. Stone requested that his brother tell Dr. Lee to use the drug Narcon. Narcon is a drug antagonist that counteracts the effect of certain other drugs. Dr. Lee did not administer the Narcon. When Dr. Stone arrived at the hospital, he asked Dr. Lee why he did not administer the drug. Dr. Lee allegedly told him that he was not familiar with the drug and did not believe it would be beneficial.
Stone’s condition deteriorated and he began to exhibit Cheyne-Stokes breathing. His blood pressure fell to 60/0 many times and for a prolonged period. Dr. Stone testified that the specific effect of a prolonged period of 60/0 blood pressure is irreversible brain damage. Stone remained comatose about 24 hours.
According to Dr. Lee, Stone’s condition improved. Dr. Lee testified that Stone was well oriented and ambulating well for several days before he was discharged on May 30, 1973. Dr. Lee testified that Stone’s mental and physical condition were as they had been prior to hospitalization until February, 1974. In February, 1974, Dr. Lee determined that Mr. Stone was showing obvious signs of Parkinsonism (a group of neurological disorders marked by hypokinesia, tremor and muscular rigidity).
Stone was examined by Dr. Kapphahn, Chief of Neurology at Henry Ford Hospital. In a report dated March 29, 1974, Dr. Kapphahn stated:
"Degenerative brain disease with nonpsychotic organic brain syndrome and rigid — bradykinetic parkinson’s syndrome. Associated contribution of episode of cerebral anoxia cannot be entirely excluded but is not felt to be etiologically primary.”
Stone was subsequently followed by Dr. Kole, who treated him for Parkinson’s disease and senile dementia.
Stone remained alive for 16 months after this incident until his death on September 12, 1976. Dr. Stone testified as to the changes he observed in his father: his coordination, his ability to calculate, and his ability to do the things he had done before were all gone. According to his son, decedent lost the will to live because he could not do things independently. Stone’s condition became progressively worse.
Plaintiff contended that both defendants breached the applicable standards of care in many ways. ,Dr. Stone testified that his father suffered oxygen deprivation, resulting in "irreversible brain damage”. Dr. Stone indicated that defendants’ departures from the proper standards of care led to prolonged lack of oxygen, causing central nervous depression and sapped decedent’s brain of the will to function in that way needed to survive. Defendant’s case, which was apparently more convincing in the jurors’ minds, rebutted plaintiff’s allegations. Defendants argued that Stone’s death was the result of arteriosclerotic heart disease, from which decedent suffered even prior to being treated by defendants.
All questions on appeal center on the admissibility of the death certificate prepared in relation to Stone’s unfortunate demise. This certificate had been prepared by Dr. Bennish and indicated that death was caused by cardiac arrest as a consequence of arteriosclerotic heart disease. Plaintiff asserts that the death certificate was erroneously admitted into evidence and that reversal is required.
Plaintiff’s argument in large part relies on this Court’s decision in Smith v Children’s Hospital of Michigan, 33 Mich App 186; 189 NW2d 753 (1971), lv den 385 Mich 779, 781 (1971). In Smith, this Court construed MCL 326.16; MSA 14.236, which provided that a death certificate could be used at trial as prima facie evidence of identity, occurrence, time, and place of death. Due to the explicit language of MCL 326.16; MSA 14.236, this Court held that a death certificate was not admissible as evidence of the cause of death.
The problem with plaintiff’s reliance on Smith is that MCL 326.16; MSA 14.236 was repealed prior to trial in this matter. Effective September 30, 1978, MCL 333.2886; MSA 14.15(2886) embodied the legislative expression of policy concerning a death certificate’s admissibility. This provision provides:
"A certified copy of a vital record, or any part thereof, or a certificate of registration issued in accordance with sections 2881 and 2882 is considered for all purposes the same as the original and is prima facie evidence of the facts stated in the original.”
Prior to the enactment of this provision, the Michigan Supreme Court adopted the Michigan Rules of Evidence. MRE 803(9) provides for the following exception to the hearsay rule:
"Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.”
Plaintiff argues that neither the new statutory provision nor the rule of evidence changes the law as propounded in Smith. We disagree.
In respect to the statutory provision, plaintiff contends that its reference to "prima facie evidence of the facts stated in the original” (emphasis added) precludes the admissibility of the certificate’s stated cause of death. Plaintiff notes that a statement of the cause of death in a certificate is not a fact, but an opinion. We believe, however, that plaintiff gives too literal an interpretation to the term "fact”. If we were to require that a statement in a death certificate be a "fact” in the sense of an absolute objective reality, virtually nothing in a death certificate would be admissible. For instance, the identity of the deceased, although usually not in dispute, is sometimes not easily ascertainable. In any case, the death certificate’s statement of "identity” is merely the examiner’s opinion of identity. The same would be true for the stated time of death.
We also note that in construing an amendment to a statute, it is presumed that a change in phraseology implies that a change in meaning was also intended. Lawrence Baking Co v Unemployment Compensation Comm, 308 Mich 198, 205; 13 NW2d 260 (1944), cert den 323 US 738; 65 S Ct 43; 89 L Ed 591 (1944), Michigan Transportation Co v Secretary of State, 41 Mich App 654, 665; 201 NW2d 83 (1972), lv den 389 Mich 767 (1973). While this case actually involves the repeal of one statute and the enactment of another covering the same subject area, the presumption of a change of meaning principle is equally applicable. We believe the Legislature’s failure to reenact the limiting language of MCL 326.16; MSA 14.236 represents its belief that the purposes for which statements in a death certificate are admissible should be broadened.
Historically, Michigan law concerning the admissibility of a stated cause of death in a death certificate has varied in different eras. In Krapp v Metropolitan Life Ins Co, 143 Mich 369; 106 NW 1107 (1906), the Michigan Supreme Court dealt with yet another statute covering this subject matter which allowed the use of death certificates for the "facts recorded therein”. In Krapp, although the explicit issue under consideration was not the same as in this case, the court held that the reference to the stated cause of death included within the certificate was admissible. See, also, Gilchrist v Mystic Workers of the World, 188 Mich 466, 474; 154 NW 575 (1915).
We further note that statutes from other states referring to the admissibility of "facts” contained in death certificates have been near universally construed to allow introduction of the certificate for the stated cause of death. See, among others, Loughlin v Marr-Bridger Grocer Co, 10 SW2d 75 (Mo App, 1928), Bishop v Guthrie, 25 Ohio Op 2d 375; 184 NE2d 910 (1962), La Count v General Asbestos & Rubber Co, 184 SC 232; 192 SE 262 (1937), Bozicevich v Kenilworth Mercantile Co, 58 Utah 458; 199 P 406 (1921), Pilcher v New York Life Ins Co, 25 Cal App 3d 717; 102 Cal Rptr 82 (1972), Anderson v Commercial Travelers Mutual Accident Ass’n, 73 App Div 2d 769; 423 NYS2d 542 (1979). See, also, for a general overview of this subject, Anno: Official Death Certificate as Evidence of Cause of Death in Civil or Criminal Action, 21 ALR3d 418.
Plaintiff further argues that even if this Court were to determine that MCL 333.2886; MSA 14.15(2886) changes the law as expressed in MCL 326.16; MSA 14.236, MRE 803(9) follows the old rule. As such, plaintiff argues that the rule of evidence and the statute would conflict. We agree with plaintiff that where a statute and court rule are conflicting on a matter of judicial procedure, including evidentiary rules, the rule controls. Perin v Peuler, 373 Mich 531, 541-542; 130 NW2d 4 (1964), James v Dixon, 95 Mich App 527, 530; 291 NW2d 106 (1980). We disagree, however, that the rule and the statutory provision under consideration here conflict. If anything, MRE 803(9) more obviously allows the stated cause of death in a death certificate to come into evidence. Unlike the statutory provision, the rule does not use the contextually imprecise term "facts” contained in the certificate. In arguing that MRE 803(9) is consistent with Smith, supra, plaintiff relies on the Committee Note concerning the new evidentiary rule’s impact on prior law. This note provides:
"Exception 803(9). MRE 803(9) is generally consistent with prior Michigan law. MCLA § 326.16 provides that records of vital statistics (births, adoptions, deaths, marriages and divorces) 'shall be prima facie evidence in all courts and for all purposes of the facts recorded therein pertaining to identity, occurrence, time and place.’ ”
We first note that the committee refers to MRE 803(9) as being "generally consistent” with prior law. The use of the term "generally” implies that, in fact, there exists some inconsistency between the new rules and prior law. More important, however, is the fact that the Committee Notes are merely aids to the bench and bar and are not authoritative interpretations. See Michigan Court Rules Annotated, Evidence Rules (West Pub Co, 1979), p IV.
MRE 803(9) is identical to FRE 803(9). Where a statute is adopted from another jurisdiction, it is presumed that the Legislature intended that the statute be construed in accordance with the judicial construction given by such other jurisdiction. State v Holmes, 115 Mich 456, 459; 73 NW 548 (1898), Bredemeier v Kentwood Board of Education, 95 Mich App 767, 771; 291 NW2d 199 (1980). Doctrines of statutory construction are applicable as an aid in determining the Michigan Supreme Court’s intention in adopting a particular rule. People v Lange, 105 Mich App 263, 266; 306 NW2d 514 (1981), Cleveland-Cliffs Iron Co v First State Ins Co, 105 Mich App 487, 493-494; 307 NW2d 78 (1981). At the time the Michigan Supreme Court adopted the Michigan Rules of Evidence, we have located only one federal decision dealing with FRE 803(9). This decision relied on FRE 803(9) in ruling that a reference to the cause of death appearing in a death certificate is admissible into evidence. See Weiner v Metropolitan Life Ins Co, 416 F Supp 551, 558 (ED Pa, 1976). Moreover, the federal courts had generally allowed the stated cause of death in a record of death to be admitted into evidence pursuant to 28 USC 1732, the general business exception to the hearsay rule in effect prior to the adoption of the Federal Rules of Evidence. See, e.g., Shell v Parrish, 448 F2d 528, 530-531 (CA 6, 1971).
Plaintiff lastly argues that his counsel was misled by the trial court. Plaintiff asserts that his attorney believed the court had ruled in his favor and that he was subsequently surprised when the jury was allowed to examine the death certificate as an exhibit. While we do not doubt plaintiff’s attorney’s assertion that he believed himself misled, any misleading cannot be attributed to the trial court. Plaintiff concedes that the trial court stated that the certificate would be received "under the causes and effects”. While in the heat of battle this ruling may have seemed ambiguous, we are unable to construe it any other way than as a ruling in defendants’ favor.
Affirmed. No costs, questions of first impression concerning the proper construction of a statutory provision and rule of evidence being involved.
Plaintiff settled his case against four other defendants and the action against them was dismissed.
We herewith express our sumpathy for plaintiff’s counsel. He has had the misfortune of losing on this issue twice. Once in Smith, supra, where the death certificate was ruled inadmissible for purposes of establishing the cause of death, and now, again, where we hold the death certificate properly admitted for the stated cause of death.
Following the first draft of this opinion, Wallace v Garden City Osteopathic Hospital, 111 Mich App 212; 314 NW2d 557 (1981), was released. Judge T. M. Burns’ concurring opinion in Wallace, relying solely on the new language of the Public Health Code, also reaches the conclusion that the stated cause of death in a death certificate is admissible into evidence. | [
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R. B. Burns, J.
The parties were divorced on October 13, 1978. Custody of the two minor children was granted to the plaintiff mother with the defendant father receiving reasonable visitation rights.
In April, 1979, plaintiff filed a motion for a change of domicile. Immediately after plaintiff filed the motion, defendant submitted a petition to change custody. The court denied both petitions.
On August 20, 1980, pursuant to his visitation rights, defendant was spending time with his children. He noticed a bruise on his son’s ribs. The bruise was in the form of a handprint. The defendant suspected that the bruise resulted from an incident of child abuse. The incident was referred to the Protective Services Division of the Department of Social Services, which conducted an investigation into the matter. Although the investigation determined that child abuse had occurred, the case was not pursued further since the perpetrator of the bruise remained unidentified and it was an isolated incident.
Upon the conclusion of the investigation, defendant petitioned for a change of custody. On Octo ber 16, 1980, an ex parte order was issued, giving defendant custody of the children. On December 1, 1980, defendant moved for leave to withdraw the petition. The motion was granted, without prejudice. Shortly thereafter, plaintiff remarried and filed a petition for a change in domicile to the State of Ohio, necessitated by a relocation in her present husband’s place of employment. Defendant responded by filing another petition for a change of custody. The plaintiffs petition was approved; defendant’s petition to change custody was denied.
A trial court is prohibited from changing a custody order where an established custodial environment exists unless clear and convincing evidence demonstrates that the change in custody would be in the child’s best interest. MCL 722.27; MSA 25.312(7) provides in part:
"722.27. Custody, support and visitation; awards, judgments, orders; modifications, amendments; community resources; guardian ad litem; counsel
"Sec. 7. If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from another action in a circuit court or another judgment of a circuit court, for the best interests of the child the court may:
"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”
Defendant argues that the court erroneously held him to the "clear and convincing” standard where plaintiffs petition to change domicile de stroyed the children’s established custodial environment.
Defendant further asserts that even if this Court finds a custodial environment to exist, his petition below for a change of custody was supported by "clear and convincing evidence”, as required by MCL 722.27(c); MSA 25.312(7)(c), and that the findings made by the trial judge, which led to the denial of the petition to change custody, were against the great weight of evidence, thereby mandating a reversal of the decision.
This Court has the power of de novo review of child custody cases. Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). However, to ensure stability and finality in the resolution of child custody matters, MCL 722.28; MSA 25.312(8) provides:
"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”
The first issue which must be decided is whether an established custodial environment continues to exist despite a change in the children’s domicile.
A definition of what constitutes a custodial environment is set forth in MCL 722.27(c); MSA 25.312(7)(c) as follows:
"The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
Recently, the Supreme Court had occasion to reflect on the elements which factor into establishing a custodial environment. In Baker v Baker, 411 Mich 567; 309 NW2d 532 (1981), the father, through an ex parte order, requested custody of his child. The mother protested the order and custody of the child was restored to her. The father’s argument, that Michigan was the established custodial environment because the child had spent the majority of his life in Michigan, was rejected. The Court in Baker, supra, 579-580, stated:
"Such an environment depended instead upon a custodial relationship of a significant duration in which Arthur was provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability and permanence.”
The children have lived in Midland' most of their lives and their father and relatives presently live in Midland. The Ohio home is new. However, the children have been cared for by the mother since their parents separated, with the exception of the two months they resided with their father, pursuant to the ex parte order.
For approximately three years now, the children primarily have looked to their mother for their upbringing. The emotional bond between the children and the mother has developed over this period of time. The definition of a custodial environment elaborated on in Baker, supra, emphasizes the continuity and strength of an established relationship between a custodian and a child. The custodial environment is the family unit which cannot be destroyed by a simple change in geographic location. The family unit still will be preserved in the new domicile.
In Adams v Adams, 100 Mich App 1, 14; 298 NW2d 871 (1980), where a change in custody was found not to be justified by "clear and convincing” evidence, this Court refused to find that a change in domicile adversely affected a child’s living environment. The Court opined:
"The trial judge’s emphasis on the fact of. plaintiffs moves to Wisconsin and to Oregon and on his assumption that plaintiff and her husband would continue to move from one state to another was similarly improper. As Judge Beasley noted in his concurrence to Hutchins v Hutchins, 84 Mich App 236, 240; 269 NW2d 539 (1978):
" 'We live in a transient society. With respect to the best interests of a child, state boundaries are artificial and meaningless; there is no presumption that bringing up a child in Michigan has any advantage (or disadvantage) over Missouri or Georgia, or any other state. To conclude otherwise would be a meaningless generalization. Restrictions upon where a custodial parent may live, in terms of geography, are not realistic. In every state there are good and bad places to bring up a child.’ ”
The custodial environment was not disturbed by the move from Michigan to Ohio. The children still remained in the home with their mother. Under these circumstances, the trial court, pursuant to MCL 722.27(c); MSA 25.312(7)(c), properly placed the burden on defendant to prove by "clear and convincing” evidence that the best interests of the children required that the custody order be modified.
Defendant next contends that even if the trial court utilized the "clear and convincing” standard, the conclusion that the best interests of the children were served by awarding custody to plaintiff was against the great weight of evidence.
MCL 722.23; MSA 25.312(3) contains 10 factors a trial judge is to weigh in custody cases when evaluating how to serve the best interests of the child:
"Sec. 3. 'Best interests of the child’ means the sum total of the following factors to be considered, evaluated, and determined by the court:
"(a) The love, affection, and other emotional ties existing between the parties involved and the child.
"(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
"(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
"(d) The length of time the child has lived in a stable, satisfactory, environment, and the desirability of maintaining continuity.
"(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
"(f) The moral fitness of the parties involved.
"(g) The mental and physical health of the parties involved.
"(h) The home, school, and community record of the child.
"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
"(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
"(k) Any other factor considered by the court to be relevant to a particular child custody dispute.”
Upon a de novo review of these factors we cannot say that the finding of the trial court was against the great weight of evidence, especially where the "clear and convincing” standard controls the disposition of the change in custody order.
Admittedly, the trial judge stated that but for the burden of proof placed on defendant:
"I’m not certain that if this was a matter of first impression that I would not have awarded custody of those children to David, assuming that all the circumstances had been the same as they are today at the time that the divorce was entered, if it had been my burden at that time, and if the situation with which David has now existed at the time of the divorce.”
This comment does not lead us to conclude that the decision below was against the great weight of evidence. Rather, it simply indicates that the defendant did not carry the burden of demonstrating that the best interests of the children truly would be served by awarding him custody. At most, he established his case by a preponderance of the evidence.
The Legislature, in enacting the Child Custody Act, sought to spare children from the detrimental effects of constantly being shuffled between parents involved in ongoing custody battles. Becker v Becker, 95 Mich App 370; 290 NW2d 149 (1980). In furtherance of this policy the Legislature required "clear and convincing” evidence to support change of child custody petitions.
A change in custody is not to be easily facilitated, absent those cases where the factors clearly dictate the best interests of the child will be served by a switch in custody. Recently, the Supreme Court in Baker v Baker, supra, 576-578, reaffirmed the commitment to rigidly adhere to the "clear and convincing” standard set forth in the statute and overturn a decision only when a different outcome is mandated by the great weight of evidence. The Court stated:
"In adopting § 7(c) of the act, the Legislature intended to minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child from an 'established custodial environment’, except in the most compelling cases. * * *
"Complementing the foregoing provision is § 8 * * * which limits the power of an appellate court to disturb a trial court’s custody decision to those instances in which the 'trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error’.”
Both parties express great love and concern for the children. The children’s parents both have remarried since the divorce and their respective households appear to be stable environments. The moral fitness and physical health of the parties is not challenged.
The isolated incident of child abuse is disturbing. The Protective Services, though, was not alarmed by the incident. Upon completion of an investigation into the matter, the Protective Services Department returned the children, who had just completed a visit with their father, to their mother. The case was closed; the children’s home environment was found to be safe and stable.
Although defendant, through an ex parte order, was granted custody of the children based on the child abuse incident, the judge admitted he was misinformed when he granted the order. During the change of custody hearing he revealed:
"I certainly would not have issued the ex parte order had I been aware that the mother was, in fact, in possession, physical custody of the children. And I certainly would not have issued it had I known that there had been a resolution * * * by the Protective ' Services at the time I issued the order. That was not my impression at the time I issued thé order * * * I now regard that ex parte order as having been improvidently issued.”
The children expressed a preference to live with their father. However, the child’s preference does not automatically outweigh the other evidence but is only one element to evaluate in determining the best interests of the child. See Baker v Baker, supra, 585.
The fact that the children already were in their mother’s custody had to be heavily weighed by the trial court to achieve the objective of serving the best interests of the children. This factor was highly relevant to the emotional ties the children had established and the desirabilty of maintaining continuity.
In the past, even where this Court has found the evidence to be equally balanced, orders which have granted custody changes have been set aside. Outcalt v Outcalt, 40 Mich App 392; 198 NW2d 779 (1972). The trial court did apply the "clear and convincing” standard to the facts. In order to encourage stability in custody cases and serve the best interests of the children, this Court must refrain from reversing the decision absent clear error of law. We find no ground to upset the decision.
Affirmed.
V. J.. Brennan, J., concurred. | [
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Per Curiam.
Defendant was convicted by a jury of having committed assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. He was also convicted of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to prison terms of 3 to 10 years for the assault conviction and 2 years for the felony-firearm conviction. These convictions are currently pending on appeal in this Court.
Subsequently, defendant pled guilty to being an habitual offender, second offense, MCL 769.10; MSA 28.1082. The sentence imposed for the assault conviction was vacated and defendant was sentenced to 5 to 15 years in prison under the habitual offender statute. The mandatory two-year felony-firearm sentence was not disturbed.
On appeal, defendant asserts that the trial court erred in not setting aside the two-year felony-firearm sentence. Our review of the law leads us to conclude that the trial court did not err in imposing sentences for both the habitual offender and the felony-firearm convictions.
Where a defendant is convicted as being an habitual offender, the trial court may resentence him to greater punishment as detailed in the statute. MCL 769.10-769.12; MSA 28.1082-28.1084. Upon resentencing, the court is required to "vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required”. MCL 769.13; MSA 28.1085.
We do not read the habitual offender statute as requiring that the felony-firearm sentence also be set aside. In enacting the felony-firearm statute, the Legislature intended to create a separate crime distinct from the underlying felony and intended that cumulative punishment should be imposed. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 389; 280 NW2d 793 (1979), app dis 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). To hold that the felony-firearm sentence is nullified upon an habitual offender conviction and resentencing on the underlying felony would circumvent the intent of the Legislature in enacting both statutes.
The felony-firearm conviction had no bearing on the habitual offender charge, which was based upon the assault conviction and a 1971 conviction for breaking and entering an unoccupied building with the intent to commit larceny, MCL 750.110; MSA 28.305. We find nothing in the felony-firearm and habitual offender statutes mandating that the felony-firearm sentence be vacated.
Defendant seeks resentencing on other grounds. It is alleged that the sentencing judge considered constitutionally infirm juvenile convictions in setting the habitual offender sentence. The prosecution has agreed that remand is necessary in order that a Tucker hearing may be held on the issue. Accordingly, the matter is remanded for further proceedings as outlined in People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Also see People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980).
The habitual offender and felony-firearm convictions are affirmed. The felony-firearm sentence is also affirmed. The habitual offender sentence is held in abeyance pending the outcome of the Tucker hearing. We do not retain jurisdiction.
United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). | [
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Per Curiam.
Defendant was convicted by plea of attempted breaking and entering, MCL 750.92, 750.110; MSA 28.287, 28.305, and was sentenced to two years probation. During the term of probation, he was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and felonious assault, MCL 750.82; MSA 28.277. Based on the felony convictions, defendant was charged with violation of probation. He pled not guilty, and a hearing was held at which the judgments of conviction were established by certified court record. Defendant was found guilty of violation of probation and was sentenced to two to five years in prison. He appeals as of right.
Defendant contends that use of certified court records to establish the felony convictions denied him the right to confront and cross-examine adverse witnesses. The argument is without merit. Use of certified court records to establish facts recited therein is proper under MCL 600.2106; MSA 27A.2106, and does not deny defendant the right of confrontation. People v Hurst, 59 Mich App 441; 229 NW2d 492 (1975), People v Kirtdoll, 391 Mich 370; 217 NW2d 37 (1974).
Affirmed. | [
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MacKenzie, J.
On July 22, 1979, defendant was charged with assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279. An amended information stating the same charge was filed on March 17, 1980. After various delays, the case was set for trial on April 17, 1980. However, on April 14, 1980, defendant appeared in court for arraignment on a supplemental information charging him as an habitual offender, MCL 769.11; MSA 28.1083, although no such supplemental information appears in the lower court file. It is undisputed that the prior felony convictions on which the habitual offender charge was based were obtained by the same prosecutor’s office that prosecuted the instant case. During that appearance, defendant pled guilty to the original charge in return for the prosecutor’s agreement to dismiss or refrain from filing the supplemental information. Defendant was sentenced to serve 6-1/2 to 10 years in prison and now appeals by right.
Defendant argues that his conviction must be reversed as the product of an illusory plea bargain. In People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978), the Court held that if defendant’s plea was induced by a promise to forego habitual offender proceedings when no such proceeding would be warranted, the plea bargain was illusory. In Roderick Johnson, the record was unclear as to whether defendant had any felony convictions prior to the offense to which he pled guilty, and the case was accordingly remanded for an evidentiary hearing. Here defendant does not contend that he had no prior felony convictions. Instead, defendant contends that the prosecutor brought the habitual offender charge too late in view of People v Fountain, 407 Mich 96, 98-99; 282 NW2d 168 (1979):
"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970); People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet’. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
"Here the prosecutors must be presumed to have known of the defendants’ prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been hied with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.” (Emphasis added.)
Recently, in People v Ruff, 108 Mich App 716; 310 NW2d 852 (1981), a panel of this Court analyzed Hatt and Stratton, the cases relied upon in Fountain, and concluded that the "promptness” requirement of Fountain meant nothing more than that the prosecutor must file the habitual offender information before defendant’s conviction of the last felony. The language emphasized above concerning simultaneous filing was dismissed as dicta in view of the Fountain Court’s statement of the issue before it, at 407 Mich 96, 97:
"Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person’s prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?” (Footnote omitted.)
Of course, even the dicta of our judicial superiors is entitled to considerable deference. In Detroit v Michigan Public Utilities Comm, 288 Mich 267; 286 NW 368 (1939), the Court explained that all that is necessary to render its decisions authoritative on any point decided is to show an application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question to decide the case. Defendant would read the "simultaneous filing” language in Fountain to impose a requirement that the prosecutor proceed on an habitual charge at a substantially earlier stage than prior cases such as Hatt and Stratton required. The Fountain opinion contains nothing which indicates a reason for such a departure from prior law. An application of the judicial mind to the "simultaneous filing” language is thus not apparent and we therefore agree with the Ruff panel that the language may be disregarded as dicta.
The result we reach here is supported by a close reading of the Court’s later decision in People v Young, 410 Mich 363; 301 NW2d 803 (1981), in which the Court passed on the question of Fountain’s retroactivity. At 410 Mich 363, 366, the Court quoted what it called its holding in Fountain without quoting the "simultaneous filing” language. Moreover, the Court’s holding on the retro-activity of Fountain at 410 Mich 363, 367-368, was as follows:
"The former practice of filing the habitual offender information only after conviction on the current felony was widespread. Retroactive application of the Fountain policy would have adverse effect on the administration of justice. The rule established in Fountain is procedural in nature, mandating how a prosecutor must proceed when charging a defendant as an habitual offender pursuant to a supplemental information. The guilt or innocence of the accused is not at issue. Since the purpose of the rule is to avoid an appearance of prosecutorial impropriety, it would not serve that purpose to apply the rule to past conduct.
"We conclude that People v Fountain is applicable to cases pending on appeal on August 28, 1979, the date of decision in People v Fountain, provided the issue was raised during the pendency of the appeal; and in cases, the original trial or guilty plea hearing of which concluded 20 days after the date of decision in People v Fountain.”
If a "simultaneous filing” requirement was indeed imposed by Fountain, then the Court’s holding on Fountain’s retroactivity in Young was inconsistent with its expressed concern for prosecutorial reliance on the former practice. For example, Fountain applies here since the guilty-plea hearing was concluded more than seven months after the date of decision in Fountain, August 28, 1979. Yet if Fountain required the prosecutor here to file the habitual offender information with the information charging the last felony, the prosecutor would have had to file the habitual offender information on July 22, 1979, before Fountain was decided.
We recognize that some previous decisions of this Court have taken a different view of the Fountain "simultaneous filing” language. See, for example, the pre-Young decisions in People v Mohead, 98 Mich App 612; 295 NW2d 910 (1980), and People v Stankiewicz, 101 Mich App 476; 300 NW2d 611 (1980), rev’d 411 Mich 979 (1981). In view of the aspects of the Young decision noted above, we no longer believe that the treatment of the "simultaneous filing” language in those cases was correct.
Since the habitual offender information here was filed before defendant’s conviction of the last felony, it was filed "promptly” as that term was used in Fountain. See Ruff, supra. Defendant’s conviction was, therefore, not the product of an illusory plea bargain.
Affirmed.
Bashara, J., concurred. | [
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Per Curiam.
Defendant was arrested on April 30, 1979, and charged with possession of a controlled substance, heroin, MCL 333.7403(2)(a); MSA 14.15(7403)(2)(a). On May 10, 1979, defendant was bound over for trial. The people appeal by leave granted an order of June 29, 1979, quashing the information filed against defendant-appellee, Allen G. Alexander, Jr.
Testimony during the preliminary examination revealed that officer Madison and his partner, in plain clothes, received information that an individual was selling marijuana on the corner of Alfred and St. Antoine Streets in the City of Detroit. Upon arriving at the corner, the officers observed this individual flagging down vehicles and receiving money. When the last car drove away, the officers approached and chased the man who stopped running approximately six feet from defendant.
Officer Madison testified that he observed defendant stuff a manila envelope into the waistband of his pants. Madison and his partner approached defendant, identified themselves as police officers, retrieved the envelope, opened it, and discovered a substance stipulated by the parties to be 9.7 grams of heroin. Officer Madison further testified that he had never retrieved such an envelope which did not contain narcotics.
The question presented on appeal is whether the examining magistrate abused his discretion in binding over the defendant for trial. The test to be applied for review of an abuse of discretion is set out in People v Talley, 410 Mich 378, 387; 301 NW2d 809 (1981), as follows:
" 'Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ”
That an observation by police officers of a container such as a manila envelope and a furtive gesture can provide probable cause to believe that a person has a controlled substance in his possession which would justify a search and arrest of that person has been addressed by this Court.
In Wayne County Prosecutor v Recorder’s Court Judge, 101 Mich App 772, 777-778; 300 NW2d 516 (1980), the Court found that
"the arresting officer’s observations of the two defendants, his duties as a narcotics officer, his experience and knowledge of the common use of coin envelopes in drug trafficking, his personal observation of the actual delivery and exchange of currency, and the fact that this incident occurred in an area known for its high narcotics activity, were clearly sufficient to support a finding of probable cause.”
Although in Alexander’s case there was no testimony indicating that defendant exchanged money for the envelope, the other factors were present.
In Wayne County Prosecutor v Recorder’s Court Judge, 100 Mich App 518; 299 NW2d 63 (1980), the point on which the case turned was that the arresting officer testified that he had encountered coin envelopes of the type seized here 800 or 900 times in the same general area during his experience as a police officer and that such envelopes usually contained heroin. Further the Court stated:
"Based on this testimony, which is additionally supported by a countless number of cases yearly confronting both the trial and appellate bench, it is or should be clear by now that coin envelopes of the sort seized from the defendant are not simply innocuous, folded pieces of paper.” Id., 519-520.
In the present case, officer Madison testified that he had retrieved envelopes such as that retrieved from the defendant before and that he never had retrieved one that did not contain narcotics.
With regard to the furtive gesture, in People v Young, 89 Mich App 753; 282 NW2d 211 (1979), the gesture involved was the dropping of a tinfoil packet onto the floor of an automobile. The Court in Young stated:
"This gesture, combined with the suspicion aroused by the tinfoil packet, may have been sufficient to establish probable cause.” Id., 762.
The gesture in the instant case, stuffing a manila envelope in the waistband of pants, is more evasive than the gestures in the cases where an item is merely dropped.
In conclusion, the officer’s observation of the envelope and his knowledge of the common use of such envelopes in drug trafficking, coupled with defendant’s gesture of putting the envelope in the waistband of his pants, constituted probable cause to search and arrest defendant. This Court cannot say, as a matter of law, that the magistrate abused his discretion in binding over the defendant for trial. Thus, the trial court erred in quashing the information.
Reversed and remanded. | [
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Per Curiam.
Plaintiff appeals from the circuit court’s ruling that its valid security interest was unenforceable due to collusion between defendant’s ex-husband and her father-in-law.
In October, 1972, Leonard and Judy Jarosz purchased a 43-foot, Egg Harbor Yacht from the Duffy Marina and Yacht Sales, Inc., in Mt. Clemens, Michigan. The Jaroszes executed a purchase money security agreement with the City National Bank for $45,000 plus interest.*
On August 2, 1974, George Rinaldi, Jr., purchased the boat from Leonard Jarosz and also executed a security agreement which called for 84 monthly payments of $760.71 and 4 lump sum payments of $5,000 at specific intervals. Subsequently, George Rinaldi, Sr., signed a copy of the purchase contract and acted as a guarantor of his son’s obligations under the agreement. Rinaldi, Jr., made monthly payments through November, 1975.
In April, 1975, George Rinaldi, Jr., instituted divorce proceedings against defendant Patricia Rinaldi. The ownership of the yacht was in dispute throughout the duration of the divorce action. In a judgment entered on January 11, 1978, a Macomb County Circuit Court judge found that the owner of the boat was George Rinaldi, Jr., not his father, as contended by Rinaldi, Jr., during the divorce proceedings. The court awarded the boat to Patricia Rinaldi as her sole property "subject to the security interest therein of L. W. Jarosz and Judy L. Jarosz”.
From December, 1975, through November, 1977, Rinaldi, Sr., continued to tender the monthly installment payments under the purchase contract. When no payments were made beginning in De-. cember, 1977, Leonard Jarosz, the secured party under the agreement, brought an action for claim and delivery. In the complaint filed on March 7, 1978, Leonard Jarosz sought the immediate possession of the yacht due to the Rinaldis’ default in making the monthly payments.
Thereafter, several hearings were held in the St. Clair County Circuit Court. In May, 1978, George Rinaldi, Sr., obtained from Leonard and Judy Jarosz an assignment of the lien and the interest in the claim and delivery action originally brought by Leonard Jarosz. Rinaldi, Sr., paid them approximately $24,192 and also assumed the underlying indebtedness to the City National Bank.
At a hearing on February 9, 1979, defendant attempted to demonstrate that the lien now held by Rinaldi, Sr., should not be enforced due to the collusive efforts of the Rinaldis, Sr. and Jr., in reducing and/or eliminating the equity in the boat. Defendant’s testimony was confined to the actions of Rinaldi, Jr., during the divorce proceedings which included his attempts to lie about his real earnings and his ownership of the yacht, forcing defendant and her children to leave the family residence (owned by Rinaldi, Jr.’s, grandmother) because Rinaldi, Sr., would not repair a furnace, and numerous statements by both father and son that defendant should not contest the divorce and should accept merely what was offered to her.
George Rinaldi, Sr., died unexpectedly on February 27, 1979. His estate is the current party in interest in the lawsuit.
In August, 1979, the boat was sold for $34,000. City National Bank the first priority secured party, received $16,403.75. The balance of $17,596.25 was deposited into an escrow account.
In a decision rendered on January 25, 1980, the circuit court ruled that defendant was entitled to the amount in the escrow account. The court stated that the lien held by the estate of Rinaldi, Sr., was valid but unenforceable because "the actions of George Rinaldi, Sr., and George Rinaldi, Jr., represent collusion and wrongdoing and, therefore, defeat the lien * *
The central issue on appeal is whether the trial court erred in finding collusion so as to defeat the lien. Plaintiff argues that there was insufficient evidence of the alleged collusion because defendant’s testimony was limited solely to a retrial of the matters already decided in the divorce action. Plaintiff contends that the trial court’s finding was clearly erroneous since there was no evidence of collusion with respect to the assignment of the security interest, which defendant acknowledged as a legally owed debt. We agree and reverse.
The findings of fact by a trial court shall not be set aside unless clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous where, although there is evidence to support it, a reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
Agreements under the Uniform Commercial Code can be invalidated based on principles of law and equity, including estoppel, fraud, misrepresentation, duress, or coercion. MCL 440.1103; MSA 19.1103. Collusion is defined as:
"[A]n agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose.” Black’s Law Dictionary (4th ed), p 331.
In Dickerman v Northern Trust Co, 176 US 181, 190; 20 S Ct 311; 44 L Ed 423 (1899), the plaintiff brought a foreclosure suit based on the default in the payment of certain bonds. In response to the claim that the foreclosure suit was based on collusion, the Court stated:
"[Collusion] implies the existence of fraud of some kind, the employment of fraudulent means or of lawful means for the accomplishment of an unlawful purpose; but if the action be founded upon a just judgment, and be conducted according to the forms of law and with a due regard to the rights of parties, it is no defense that the plaintiff may have had some ulterior object in view beyond the recovery of a judgment, so long as such object was not an unlawful one. In Morris v Tuthill, 72 NY 575, which was also a suit to foreclose a mortgage, the court observed: 'The facts that the assignor of a mortgage and his assignee acted in concert with the view unnecessarily to harass and oppress the mortgagor and with intent to prevent payment, to the end that the equity of redemption might be foreclosed, and they become purchasers for less than the value, do not constitute a defense to an action to foreclose a mortgage. So, also, the facts that the assignee took title from motives of malice, and solely with the view to bring an action, and that the assignor assigned from a like motive, and without consideration, furnish no defense, and do not impeach plaintiffs title. It is sufficient to sustain the action that the mortgage debt is due, has been transferred to and is owned by plaintiff; and the mortgagor can only arrest the action by paying or tendering and bringing into court the amount due.’
"If the law concerned itself with the motives of parties new complications would be introduced into suits which might seriously obscure their real merits. If the debt secured by a mortgage be justly due, it is no defense to a foreclosure that the mortgagee was animated by hostility or other bad motive. Davis v Flagg, 35 NJ Eq 491; Dering v Winchelsea, 1 Cox, Ch Cas 318; McMullen v Ritchie, 64 Fed Rep 253, 261; Toler v East Tennessee, V & G R Co, 67 Fed Rep 168.”
Accord, United States v Winters, 224 F Supp 8, 9 (D Wyo, 1963).
In the instant case, a debt is owed to the holder of the Jarosz lien. The judgment of the divorce so stated and defendant’s attorney and defendant herself admitted this obligation on several occasions throughout the course of the proceedings below. The fact that the security interest was assigned to George Rinaldi, Sr., does not make this debt any less due and owing.
The testimony as to the alleged collusion between father and son in the present case was limited to their admittedly deceptive actions in the divorce action that was terminated in December, 1977. There was absolutely no testimony that through a fraudulent scheme between the two men Rinaldi, Sr., failed to pay valid consideration for the assignment of the Jarosz lien in May, 1978. The Rinaldis’ efforts to reduce defendant’s share of the marital assets in the divorce proceedings did not render the subsequent assignment of lien fraudulent, nor did Rinaldi, Sr.’s, hostility toward defendant make the lien unenforceable. Dicker-man, supra.
Any reduction in defendant’s share of the equity in the yacht was not due to Rinaldi, Sr.’s, acquisition of the Jarosz lien. The Jarosz lien had to be satisfied regardless of the indentity of the lien-holder. The elimination of defendant’s equity in the yacht was primarily due to the fact that the boat was not sold for $55,000 as originally contemplated in the judgment of divorce. Had the boat been sold for $55,000, defendant would have recovered in excess of $26,000. However, the boat was sold for only $34,000. After the bank’s lien was satisfied, the balance was insufficient to satisfy the Jarosz security interest._
It may be that Rinaldi, Jr., and Rinaldi, Sr., conspired to deprive the defendant of her rightful share of the marital estate by failing to make the payments on the boat and by failing to máintain it in marketable condition. There is no evidence, however, that there was any fraud in the transaction between Rinaldi, Sr., and the Jaroszes through which Rinaldi, Sr., acquired the Jarosz lien. The trial court correctly ruled that the lien was valid. Its ruling that the lien was nevertheless unenforceable, however, was erroneous.
We also reject defendant’s argument that there was no valid security agreement between the parties. The lower court record contains written agreements signed by both Rinaldi, Jr., and Rinaldi, Sr. The one document cited by defendant as an improper security agreement because it does not include a handwritten signature does not support defendant’s position. A typewritten name suffices as a "signed” writing, as long as parol evidence establishes an intention to authenticate. White and Summers, Uniform Commercial Code (2d ed), § 23-3, p 913. Also, any claimed irregularities with respect to the filed financing statement do not invalidate the security agreement. An error in filing affects only the perfection of the security interest. See MCL 440.9301; MSA 19.9301. The security interest is not rendered unenforceable by any errors in the filing of the financing statement.
The judgment of the circuit court is reversed.
The total price of the boat was $75,000.
At the April 17, 1978, show cause hearing defendant’s attorney stated:
"There’s been no question that Mr. Jarosz has an interest in the boat as the seller.
"I have no quarrel, as Mrs. Rinaldi’s attorney, that Mr. Jarosz should get every cent he is entitled to as seller.”
At the February 9, 1979, hearing, defendant Patricia Rinaldi testified as follows:
"Q. Mrs. Rinaldi, you indicated in the divorce judgment that you were given the boat, is that correct?
"A. Yes.
"Q. Wasn’t there an extra condition on that, though, wasn’t the boat given to you subject to the interest of Leonard and Judith Jarosz?
"A. Yes.
"Q. Isn’t that in fact what it says in the judgment of divorce? "A. Yes.
"Q. Without handing you the judgment, Mrs. Rinaldi, you admit that the boat was given to you free and clear of any interest on the part of the plaintiff, your husband, isn’t that true?
"A. Yes.
"Q. But subject to the security interest therein of Leonard W. Jarosz and Judy Jarosz, isn’t that true?
"A. Yes.” | [
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] |
T. M. Burns, P.J.
Defendant was originally charged with criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), and, following a three-day bench trial, he was convicted on March 8, 1978, of criminal sexual conduct in the second degree. MCL 750.520c; MSA 28.788(3). On March 20, 1978, he was sentenced to a term of from 1-1/2 to 15 years imprisonment. He now appeals his conviction, having been granted a delayed appeal pursuant to an order of this Court dated August 14, 1978, and raises three issues, none of which require reversal.
Defendant first argues that the trial judge committed error requiring reversal by permitting a police officer who interviewed the eight-year-old complainant to relate at trial the details of his interview under the tender years exception to the hearsay rule.
The tender years exception to the hearsay rule was recognized by this state in People v Gage, 62 Mich 271; 28 NW 835 (1886). Since that time, it has been the subject of a number of appellate decisions. Recently, in People v Washington, 84 Mich App 750, 755; 270 NW2d 511 (1978), this Court noted that "[t]he Michigan Rules of Evidence contain no tender years exception”. Defendant seizes upon this comment by the Court and argues that it supports his contention that error requiring reversal occurred when the trial judge permitted the police officer who interviewed the complainant to testify regarding what the complainant had told him during the interview.
While it is true that the Michigan Rules of Evidence contain no specific hearsay exception for all statements made by children of tender years regardless of the crime perpetrated upon them, the Washington Court was not seeking to eliminate the tender years exception as it had been used for over 90 years in cases of sexual abuse. As the Court noted there, the tender years exception had been applied in Michigan only to sex-related cases. The facts of Washington involved a murder and not a sex crime. To the extent that the Washington Court’s comments on the viability of the tender years exception are construed, as applying to sex cases then, those comments are only dicta.
Further support for the belief that the tender years exception continues to survive in Michigan after the effective date of the Michigan Rules of Evidence comes from the fact that the rules of evidence do recognize a res gestae exception to the hearsay rule. MRE 803(2). The tender years exception is a species of the res gestae exception. There fore, although the tender years exception is not explicitly recognized in the rules of evidence, it continues to be viable in applicable cases by virtue of the res gestae exception to the hearsay rule.
Examining the record before us, we are convinced that the police officer’s testimony in this case does fall within the tender years-res gestae exception to the hearsay rule. People v Debreczeny, 74 Mich App 391, 394; 253 NW2d 776 (1977). The facts of Debreczeny are similar to the instant case in all significant respects. That is, as in the case before us, Debreczeny involved an eight-year-old complainant’s interview with a police officer a few hours after an incident of sexual abuse. There, as here, a complainant testified and largely substantiated the out-of-court declarations. Finally, both cases involved a trial before a judge sitting without a jury and, thus, there is minimal likelihood of prejudice to defendant from any extraneous material in the out-of-court interview.
We similarly reject defendant’s contention that he was denied his constitutional right to confrontation on account of the admission of this hearsay testimony. The complainant testified, and defendant was afforded an adequate opportunity to question her regarding her recollection of the incident and to impeach her regarding any inconsistencies between her testimony and her statements made during the police interview.
Defendant next argues that the trial judge erred in his findings of fact when he stated that he based his finding of sexual contact, in part, upon the "testimony of [the complainant] directly coupled with the statement that [the complainant] made to her mother soon after the incident”. Defendant argues that because the complainant’s mother never testified that her daughter told her of the sexual assault "soon” after it occurred the trial judge relied upon nonexistent evidence in his findings of fact. However, it would be mere speculation for us to conclude that the "statement” referred to by the trial judge was to the effect that the complainant told her mother that defendant had sexual contact with her. In fact, the record establishes that the complainant told her mother "soon after the incident” that the reason she did not cry was because defendant had his hand over her mouth. This testimony, although not significant, quite likely was "the statement” referred to by the trial judge in his findings of fact. Thus, no error has occurred.
The final argument raised by defendant in this appeal concerns whether error occurred requiring reversal when a prosecution witness made reference to prior similar acts of defendant.
The police officer witness who had interviewed the complainant read into evidence his interview of the complainant. The last question he asked the complainant at the time of the interview was, "Has Michael [the defendant] ever done anything like this before to you?” The complainant responded, "Yes”. Defense counsel immediately objected to this testimony, and his objection was sustained.
Although the introduction of evidence of prior, similar bad acts certainly was improper in this case, we do not find that error has occurred which requires reversal because it does not appear that the reference to any prior acts so tainted the trial as to have amounted to undue prejudice. We note, in particular, that defendant was tried before a judge sitting as trier of fact and not a jury. Further, there is no indication that the prosecutor benefitted by the police officer’s improper testi mony. Finally, the trial judge did not rely upon that testimony in his findings of fact, and, indeed, the trial judge immediately sustained an objection to it when one was made. Therefore, because only a fleeting reference was made to this inadmissible testimony and because it does not appear to have prejudiced defendant, we find that error warranting reversal has not occurred.
Affirmed. | [
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] |
To vacate an order holding to bail on a writ of capias in an action in tort against relator, a physician, who is charged with so recklessly, negligently and unnecessarily performing an operation as to cause the premature delivery of a child.
Granted October 21, 1896, with costs.
Kelator contended that the affidavit failed to show that the treatment given constituted malpractice; that the only evidence admissible to prove malpractice is the testimony of physicians, citing Sheridan vs. Briggs, 53 M., 569; Wood vs. Baker, 49 M., 295; Spaulding vs. Bliss, 83 M., 311; Moyle vs. Circuit Judge, 97 M., 136 (No. 68); Howell vs. Circuit Judge, 88 M., 366 (112); Stensrud vs. Delamater, 56 M., 145; McCrea vs. Circuit Judge, 100 M., 355 (114). | [
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] |
To vacate an order allowing the filing of new affidavits, nunc jpro tunc, in place of defective ones filed under the statute pro viding for filing transcripts of justices’ judgments with the ■county clerk.
Granted August 1, 1890.
Held, (1) that where the required affidavit in such case is •defective, the Circuit Court has no power to allow sufficient ones to be filed nunc pro tunc; (2) that the authority of the attorney who appears in the Justice Court extends no further than the proceeding before the jusice; (3) that the affidavits required to be filed with the justice may be made by any duly authorized attorney who may swear to his authority in said affidavit; ■(4) that where the affidavit filed with the justice fails to .show that any costs are due, the county clerk has no authority to enter such costs as a part of the judgment docketed in his ■office; (5) that where eleven days intervene between the making of the affidavit for the transcript and the filing of such transcript with the county clerk, another affidavit of the amount due is necessary to authorize such filing, and (6) that the •official character of a notary in another State, before whom the .affidavit of amount due is sworn to, must be certified as required by How. Stat., Sec. 7448. | [
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To compel respondents to receive certain protests and enter the same on the journals of their respective bodies.
Denied April 14, 1893.
Held, that mandamus will- not issue unless it clearly appears that the person to whom it is directed has the absolute power to execute the mandate of the court. | [
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Appeal from a judgment rendered upon the trial of statutory issues in a garnishee suit.
The garnishee had before the trial moved to dismiss the proceedings for want of a good statutory affidavit. The circuit judge denied the motion and a mandamus was asked to review that decision, but the court had refused to exercise its discretion in granting the writ.
Held, that the decision on a motion for a mandamus based upon conflicting affidavits was not such a determination of the facts as would preclude a trial on the testimony. | [
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To compel respondent to restore an order made by his predecessor, which respondent had vacated, appointing a receiver for the Owosso & Corunna Street Railway Co.
Granted May 4, 1894.
It appeared that the corporation was without a president, vice-president or secretary; that the trustees named in the mortgage given to secure the bond had refused to enforce the mortgage, and had signified their intention to resign their trust; that interest on the bonds remained unpaid; that there are tax and judgment levies and liens upon the corporate property, and that the Municipality which granted its franchise had taken proceedings to repeal the same. | [
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To vacate an order granting a re-hearing in a chancery cause, on petition therefor made within ten days after entry of decree.
Order to show cause denied January 7, 1896, on the ground that the matter was within the discretion of the court below. | [
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] |
To vacate an order entered in a chancery cause, brought to annul a marriage ceremony, submitting to a jury the question of the mental competency of complainant and providing that the verdict when reported back is to be decisive upon the question. The case having been noticed for hearing and no demand for, or mention of, the jury trial having been made, and the parties being in court ready for trial, the court, upon the application of the defendant, made the order in question.
Held, that How. Stat., Sec. 6622, is not mandatory and may be waived; that the court would have been justified in denying the application for trial by jury, upon the ground of waiver; that nevertheless the court had the authority upon its own motion to send the question to the jury, but in such case the verdict is advisory merely.
The writ was, therefore, granted, vacating that portion of the order making the verdict conclusive; but without costs, April 27, 1897. | [
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To set aside so much of an order granting a re-bearing in a chancery cause, as imposed, as a condition, tbe payment of certain amounts aggregating $294.57.
Denied, with costs, February 11, 1897. | [
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] |
To compel the payment of certain orders issued by a drain ■commissioner.
Granted January 11, 1893.
Respondent alleged that he had no funds in his hands applicable to the payment of said orders. Thereupon an issue was framed and sent down for trial, and the jury found the facts for relator. After the return of the verdict exceptions thereto were filed and a hearing had thereon. | [
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To compel respondent to. vacate an order discharging from custody a defendant taken upon a capias ad satisfaciendum.
Denied January 20, 1880.
The execution issued May 13, 1878, but was not returned until July 9, 1879. Held, that the defendants could not be taken on a capias issued over three months after the return day of the execution. Held, further, that an answer would be disregarded if only drafted by the attorneys in the case without being submitted to the respondent and approved by him.
The case was however treated as on demurrer to the relator’s showing. | [
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To compel respondent to strike from the files an amended declaration.
Denied October 21, 1874.
Action for injury, caused by the obstruction of a river by a dam, to lumber manufactured by plaintiffs at their mill above the obstruction, and the amendment referred also to lumber and timber purchased by plaintiffs as well as that manufactured by them. | [
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] |
To require respondent to sign a bill of exceptions to bring up for review on writ of error proceedings on habeas corpus.
Denied October 7, 1874.
Held, that the proper rexnedy was by certiorari, or by habeas corpus in the Supreme Court. | [
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] |
To compel William Finley, late supervisor, and William J. Terney, county treasurer (Roscommon), to deliver to relator the books, blanks, assessment rolls and papers pertaining to the office of supervisor.
Granted, without costs, April 26, 1893.
Finley, the then supervisor, and relator were candidates for the office of supervisor, at the spring election, held April 3, 1893, and it is conceded that relator received a majority of the votes cast, and was declared elected.
The petition avers, a regular nomination at the party caucus and notice by proper certificate signed by the chairman and secretary of the caucus, filed with the township clerk more than ten days previous to the day of election. The answer denies this allegation “upon information and belief.” It is conceded that a printed ballot was used at the election and both candidates were voted for upon said ballot; but the answer claims that no official ballot was used, but does not state why the ballot was not an official ballot. | [
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] |
To compel respondent to canvass the election returns for the office of circuit judge, as filed in the office of the county clerk, the board having assumed to re-count the votes, under Act. No. 208, Laws of 1887.
Granted April 28, 1893, on the ground that the Act does not apply to the office of circuit judge. | [
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] |
To vacate an order dismissing an appeal from a Justice Court where the judgment was for less than $50.
Denied October 8, 1895, without costs.
This cause and No. 623 were brought to test the constitutionality of the Local Act of 1895, enlarging the jurisdiction of Justices’ Courts in the City of Detroit, and limiting appeals therefrom to cases where the judgment was for $50 or upwards, except where the same were allowed by the Circuit Court. | [
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] |
To compel respondent to return his tax roll to the Board of Supervisors of Bay County, and to attend the meetings of that boax*d, relator insisting that the act of tbe Legislature setting off tbe County of Arenac, including Deep Diver Township, from Bay County, is invalid.
Order to show cause denied October 18, 1883. | [
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] |
To vacate order directing execution to issue against relator in person, upon a judgment for costs, in an action commenced by her, as administratrix de bonis non, against a railroad company for negligence resulting in the death of relator’s husband, it appearing that there were no assets in her hands belonging to the estate.
Order to show cause denied June 19, 1894. | [
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To compel respondent to quash a subpoena.
Granted February 17, 1892, with costs.
The subpoena required defendant to have his appearance entered “within twenty days after the......day of November, 1891, which is the return day of the writ,” and while it gave the name of the month and year in which'issued, it did not give the day of the month, nor did the Original give the return day of the month nor the day of the month on which the subpoena issued. | [
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] |
Mandamus will not lie to compel a circuit judge to overrule his finding that the proceedings taken for the condemnation of a site for a schoolhouse were iregular, and to compel him to enter judgment for the amount found due.
Denied October 31, 1882. | [
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] |
Assumpsit to recover an amount claimed to be due tbe township.
Held, that assumpsit and not mandamus is the proper remedy, where no account between the county and the township has been stated and no settlement has been made showing the state of said account. | [
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45
] |
To compel payment of a balance due relator as salary while prosecuting attorney.
Granted October 21, 1896, with costs.
Delator, during his official term, was taken sick, and, upon the advice of his physician, went south, and was absent from April 5 to May 25, during which time such matters pertaining to the office as could not be postponed were attended to by another attorney, to whom the .board had allowed the sum of $102, which amount the board claimed the right to deduct from relator’s salary.
It appeared that the circuit judge was disqualified and the court therefore entertained the petition. | [
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To compel the modification of a chancery decree.
Order to show cause denied October 27, 1896. | [
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18
] |
To compel respondents to issue orders for the payment of certain audited claims.
Denied July 11, 1866.
Held, that the audit of the claims was unauthorized. | [
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] |
To compel payment of interest on paving orders, payable out of a particular fund, the principal of which has been paid and accepted and which contained no promise to pay interest.
Denied July 10, 1888. | [
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To vacate an order sustaining a demurrer to a plea in abatement interposed by defendant, a foreign corporation, in a suit brought against it for alleged negligent injuries, which plea set forth that plaintiff’s declaration shows that the said cause of action did not arise within the State of Michigan, but arose and occurred wholly without the State, to wit, in the County of Iron, in the State of Wisconsin, and that said defendant, being a foreign corporation organized under the laws, of the State of Wisconsin was not, for the said cause of action, amenable to the process of the Circuit Court for the County of Gogebic.
Order tO' show cause denied April 16, 1895.
Relator contended that How. Stat., Sec. 8145, confers jurisdiction upon our Courts only in cases where the cause of action arises within the State; Maxwell vs. Circuit Judge, 60 M., 36 (24); Hartford Ins. Co. vs. Owen, 30 M., 441; Reath vs. Telegraph Co., 89 M., 22; Watson vs. Circuit Judge, 24 M., 38 (17); and that the proper manner of raising the question is by plea in abatement, Maxwell vs. Circuit Judge, supra. | [
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To compel respondent to enter an order in a case pending, where relator is plaintiff and the Detroit Cycle Company, Limited, is defendant, compelling defendant and its members, Robinson, Mathewson and Holmes, to produce the books of said Detroit Cycle Company, especially its subscription book, and to receive such other evidence as may be offered by relator concerning the amount of capital stock remaining unpaid upon the subscriptions thereto, and to cause execution to issue against said members for the amount unpaid.
Granted February 26, 1895, with costs against Robinson, Mathewson and Holmes. | [
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To compel respondent to consider an application for extension of time to settle bill of exceptions.
Granted February 11, 1891, with costs.
Judgment was rendered upon trial by the court, on October 24, 1890.' Findings had been filed, and on October 31, amendments thereto were proposed which were not finally disposed of until February 24, 1890. A further extension of time was, asked for, December 22/1890, which the court refused, holding, that the time in which appellant could take out his writ had expired October 24, 1890; that no writ of error had been taken' out, and the time within which such writ could issue had not been extended. | [
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] |
To compel a guardian to pay a claim against bis ward which the Probate Oourt bad adjudged valid.
Order to show cause denied June 14, 1882.
Held, tbat tbe proceeding must be by action. | [
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] |
To compel respondent to set aside a verdict and grant a new trial, in a case where one of the jurors was taken sick during the trial and tbe court, without the consent of counsel, directed the trial to proceed with eleven jurors.
Denied May 5, 1891, on the ground that error is the proper remedy.
See McRae et al. vs. Grand Rapids, L. & D. R. R. Co., 93 M., 399, 17 L. R. A. 750, where the verdict referred to was reversed and a new trial ordered., | [
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To compel respondent to admit relator to a seat as a supervisor, he having received the statutory certificate of election.
Granted October 18, 1882. | [
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To compel the filing of articles of association under Act No. 187, Laws of Í875.
Denied January 2, 1890.
•Held that by Sec. 36 of Act No. 232, Laws of 1885, Act No. 187, Laws of 1875 is repealed; and that said Act No. 232, Laws of 1885, in so far as it authorizes the formation of corporations for manufacturing or mercantile purposes, or any union of the two, is valid legislation, and any corporation organized under it can be created for all of its purposes. | [
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To vacate an order incrasing bail from the-sum of $500, fixed by the justice before whom the examination was had, to $2,000, on complaint for selling liquor without having paid the tax.
Order to show cause denied February 13, 1894. | [
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] |
To compel respondent to quash an,information and discharge relator.
Order to show cause denied October 23, 1894.
Relator had been tried upon an information charging two offenses and was convicted of one and acquitted of the other.
On appeal, the judgment was reversed and a new trial granted, People vs. Rohrer, 100 M., 126. After the record was returned relator moved for his discharge, claiming that he had been acquitted of one of the offenses charged, and had been once put in jeopardy as to the other. | [
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To compel the recognition of relator as a member of one of the subordinate lodges of the order.
Granted January 13, 1882.
Delator was suspended for refusing to pay an assessment made under the order of the Supreme Lodge, which is a foreign corporation, to pay losses on risks taken in other States. It was held, that relator was not liable to pay the assessment. No point was made on the argument as to the propriety of affording to the relator this proper remedy, but as the case was one in which the law under which respondent is organized is being ignored and perverted, the court was not disposed to go beyond an examination of the equities. | [
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] |
To compel payment of warrant drawn in favor of a teacher.
Denied April 30, 1895.
Held, that a want of funds was a sufficient answer. | [
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To compel respondents to mate a settlement with relator under the provisions of joint resolution No. 16, passed by the legislature of 1895.
Denied December 24, 1895, on the ground that the resolution did not authorize the board to compromise the claim or surrender any pari of the same. | [
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To vacate an order requiring the receiver of a foreign insurance company to give a bond for the payment of the judgment, as a condition upon which a verdict against relator should be vacated and a- new trial bad.
Order to show cause denied January 8, 1895. | [
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] |
To compel respondent to sign an order upon the county treasurer for the amount received by said county treasurer for office charges on payments under the tax laws, the same having been included in the compensation of that officer by the board of supervisors.
Granted January 29, 1878. | [
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Where after the division of a township, the township boards have made and determined the amount of the township indebtedness to be paid by the new township, such, amount is a fixed and liquidated demand against such new township, which it is the duty of the township board to allow, and if such board refuses to perform such duty, mandamus to compel its performance is the proper remedy and not assumpsit. | [
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] |
McArthur brought suit on certain orders drawn by highway commissioners on the township treasurer, who- refused payment. The trial court ruled that mandamus was the proper remedy.
Judgment affirmed April 18, 1876.
The court say: “Mandamus and not an action against the township is the proper remedy to enforce payment of orders regularly drawn by highway commissioners; the duty of the township authorities to raise the necessary funds and to malee payment is just as imperative upon the presentation of such orders as it would be after judgment against the township.” | [
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To grant a new trial on the ground that the verdict was contrary to the weight of evidence.
Order to show cause denied May 2, 1894. | [
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18
] |
To require respondent to reinstate a case which had been removed by certiorari directed to the circuit court commissioner, to review proceedings dissolving an attachment, and to hear and determine it on its merits, the court having refused to hear it, on the ground of want of jurisdici .on.
Granted April 30, 1875. See Nos. 220, 1479. | [
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] |
To require the board to take action under Act No. 168, Laws of 1879, relative to contracting for the publication of the Supreme Court reports.
Granted January 13, 1880.
Held, that while the court will not interfere with the discretion of the governor, nor subordinate him to its process, nor will it review the exercise of political and executory functions, when not ministerial, State officers have many duties which the courts will compel them to perform. The remedy by mandamus is not precluded by the fact that respondent may be liable, as for a misdemeanor. A private person who would be a competent bidder under a State law for letting a contract, may appear as relator by his own counsel in a mandamus proceeding to compel State officers to carry out the law, if the public interest requires prompt action, and. the attorney-general declines to appear for him. The rule rejecting the intervention of private complaints against public grievances is one of discretion and not of law. Judicial discretion is always involved in mandamus cases, concerning the relief as well as other questions. | [
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To set aside order vacating judgment and execution sale.
Granted July 1, 1891, with costs as against White.
A judgment was recovered by B. against one White in Justice Court in 1879. In 1885 the judgment was assigned to relator, who “as assignee and owner of the judgment rendered,” etc., filed with the justice an affidavit, took a transcript, filed same in the Circuit Court; a writ of execution issued, and a levy was made. In December, 1885, relator filed a bill in aid of execution against W. and wife, and II. ~W.., his son, alleging the judgment, the assignment, the procuring of the transcript, the filing of same with the affidavit therefor, in the Circuit, etc., and that W. and wife had conveyed the property levied upon to his son, to defraud complainant, and praying that the deed might be declared fraudulent and set aside, and the premises might be sold to satisfy said execution.
Defendants appeared and demurred, specially alleging that it did not appear that any affidavit was ever made by any party legally entitled to make the same, upon which to base the issuing and filing in the Circuit of the transcript of the judgment. The demurrer was overruled, and afterwards complainant had a decree in accordance with the prayer of the bill. The premises were sold and complainant become the purchaser. Subsequently relator brought ejectment, and recovered possession. W. after-wards moved for a statutory new trial, which was granted. W. then moved to set aside the judgment and sale, on the ground that no sufficient affidavit was ever made or filed with the justice to authorize the issue of the transcript.
The circuit judge granted the motion.
Relator contended that the motion to vacate was a collateral attack; that the laches in making the motion had not been excused; that after final decree in the chancery cause, and judgment in the ejectment suit, defendant was not entitled to relief by way of motion and that the decree in the chancery was conclusive. Citing Tusca vs. O’Brien, 68 N. Y., 446; Beam vs. Macomber, 35 M., 455; Pray vs. Hegeman, 98 N. Y., 351; Aurora City vs. West, 7 Wall., 82; Beloit vs. Morgan, 7 Wall., 619; Cooper vs. Reynolds, 10 Wall., 308; Cornett vs. Williams, 20 Wall., 226; Hazen vs. Reed, 30 M., 331; Moore vs. Martin, 38 Cal., 428; Hooker vs. Yale, 56 Miss., 197. | [
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To vacate an order dismissing relator’s appeal from an order of the Probate Court, denying his application for discharge from •guardianship as an incompetent person; to reinstate the case and hear the appeal on the merits.
Denied February 20, 1894.
Held, that mandamus will not lie in such case where it appears that the citation was directed to the guardian, mother, two sisters and wife of the incompetent, all of whom, except the wife, resided in this State, and the files in the Probate Court failed to show service, either actual or constructive, upon the wife or sisters. | [
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To compel respondent to proceed to a hearing upon charges preferred against relator as a member of the Board of Fire Commissioners.
The circuit judge denied the application.
Affirmed November 1, 1894, on the ground that the indefinite action of the council is equivalent to a dismissal-of the charges. | [
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] |
To compel respondent to pay relators’ salaries as deputy clerks of the Justice Court of Detroit.
Granted June 8, 1893. | [
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] |
To set aside the conditions imposed by an order vacating an order dismissing an appeal.
Denied February 26, 1895, with costs.
Relator appealed in January, 1894, from a judgment of ouster entered by a circuit court commissioner. A motion to dismiss said appeal was entered February 24, 1894, and on February 29, 1894, an order was entered dismissing the appeal unless a new bond be filed within ten days, with ten dollars costs. The-conditions were not complied with, but the default was not. brought to the attention of the court. The appellee, however, obtained from the clerk a certificate that such an order had been entered and that it had not been complied with, and upon-such certificate the commissioner issued a writ of restitution and relator was ousted.
In April, 1894, suit was brought on the appeal bond and. judgment was taken therein by default July 17, 1894.
On December 31, 1894, relator moved the court to set aside the order dismissing her appeal because (1) the order of dismissal was entitled Edgar R. Whitcomb vs. Mary Connelly, whereas relator’s name is Emma Connelly, and in the proceedings had she was so named;
(2) While no appearance was entered before the commissioner, relator sets forth that she employed one B. as her attorney to represent her there. B. made the affidavit for appeal, the bond was executed in tbe name of relator by B., her attorney, and one of the sureties was relator’s husband, and notice of tbe motion to dismiss was served upon B. and proof thereof filed.
Tbe court made an order granting relator’s motion upon payment of tbe amount due upon tbe land contract under wbicb relator bad occupied and tbe amounts wbicb tbe plaintiff bad expended upon tbe property since be took possession.
Respondent contended that the service of notice upon B. was a good service, Roskopp vs. Circuit Judge, 97 M., 628 (340); and that the record furnished ample means for the correction of the clerical error in the order, Emery vs. Whitwell, 6 M., 474; Merrifield vs. Ingersoll, 61 M., 4. | [
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To compel- vacation of order requiring respondent, in contempt proceedings, after answer upon oath filed, to answer interrogatories and permitting further proofs to be made respecting the matters set forth in the petition-upon which the order to show cause was issued.
Order to show cause denied June 26, 1894.
(For a full statement of the facts, see in re Lange, 104 M., 411.)
Relator insisted that his answer was final. U. S. vs. Dodge, 2 Gallison, U. S. C. C., 313; Ex Parte Briggs, 64 N. C., 214; Ex Parte Moore, 63 N. C., 397; In re Murdock, 2 Bland, 461; Hollingsworth vs. Duane, Wall., C. C., 77; Ex Parte Gould, 33 Pac. Rep. (Cal.), 1112; Langdon vs. Circuit Judge, 76 M., 358-366; Latimer vs. Barmore, 81 M., 592.
Respondent, in a brief anticipating the application, contended that. How. Stat. Sec. 7275, was applicable, Latimer vs. Barmore, 81 M., 592; that such is the practical construction which has been given to the statute, Scott vs. Layng, 59 M., 43; Smith vs. Circuit Judge, 84 M., 564 (475). | [
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To set aside a judgment taken on default, because (1) the return set forth that the declaration was served upon “Ohas. C. Kritzer, as president;” (2) there is a.material variance between the note upon which the judgment was entered and the copy .appended to the declaration, in that the former reads “on demand, after date,” and the latter “on demand, after due;” (3) there was no evidence offered showing that plaintiff .was a corporation, or that defendant was a corporation; (4) the note was signed “Kritzer Milling Co. By Chas. O. Kritzer, president,” and there was no evidence offered tending to show that Kritzer was .authorized to sign the note.
Denied December 21, 1896, with costs.
The answer denied the statements as to the absence of evidence upon the last two points.
Respondent insisted that as to them the answer was conclusive; that one term had intervened after judgment and before.the motion was made; that error and not mandamus is relator’s remedy; that, as to the return, the case is governed by Grand Rapids Chair Co. vs. Runnels, 77 M., 104; that a default for not pleading admits plaintiff’s demand, 1 Green’s Pr., 194-458; Granger vs. Superior Court Judge, 44 M., 384 (715); Howe vs. Maltz, 35 M., 499; 5 Am. & Eng. Enc. of Law, 491-644; and that mandamus will not lie to interfere with the exercise of discretion unless there is a palpable abuse, Dibble vs. Rogers, 2 M., 404; Railway Co. vs. Circuit Judge, 89 M., 551 (900); Aetna L. S. & T. Co. vs. Circuit Judge, 20 M., 220 (862); Shimer vs. Circuit Judge, 17 M., 67 (860). | [
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To vacate an order dismissing attachment procéedings, where relators, residents of Wayne County, sued out the writ in Washtenaw against one who resided and had property in Lenawee County, and levied it upon property in Washtenaw.
Denied April 29, 1886, with costs.
Held that the statutory provision requiring a writ of attachment to be sued out in the county where one of the parties resides if the debtor has property subject to attachment therein, is jurisdictional. | [
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] |
To compel respondents to obtain corrected returns, and to make tire proper credits to certain candidates for office, ‘where the answer shows that if all the votes were credited, as prayed for, it would not affect the result.
Held, that the writ should not be issued to compel the performance of an idle ceremony.
Denied December 24, 1896. | [
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To compel respondent to grant a new trial.
Order to show cause denied February 10, 1891.
The case in which the new trial was denied was affirmed in 86 M., 585. The ground of the motion for a new trial was that through the inadvertence of counsel no testimony was given to show that the husband had consented to the performance of the service for plaintiff’s individual benefit. At the close of the testimony, counsel for defendant moved for a verdict upon thc> ground that the services belonged to the husband and not to plaintiff, and the court directed the jury accordingly. | [
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] |
To vacate an order requiring relator, plaintiff in a cause commenced by capias ad respondendum, to give security for costs and also an order reducing defendant’s bail in said cause from $3,000 to $1,000.
Order to show cause denied May 2, 1894, on the ground that the matters are within the discretion of the circuit judge. | [
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] |
To compel payment of a certain order issued for a public improvement.
Denied October 4, 1892, with costs.
Relator joined with others in a suit to restrain the collection of the tax, and the tax was declared void, and its collection enjoined, and he now seeks to obtain payment from funds collected from others who paid voluntarily. | [
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To compel respondent to provide means for enabling women to. vote for city officers, under Act No. 138, Laws of 1893.
Denied October 24, 1893, without costs. | [
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