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ON REMAND
Before: Maher, P.J., and Gillis and Holbrook, Jr., JJ.
Holbrook, Jr., J.
This case has been remanded
to us for further consideration and to explicate our decision in Thomas v Thomas (Aft Rem), 164 Mich App 618; 417 NW2d 563 (1987).
Trial in the instant case occurred on December 22, 1981. At that time evidence was adduced establishing the value of plaintiff’s law degree as of that date at $337,664. In Thomas, supra, we accepted that figure as accurate and awarded defendant one-eighth thereof, or $42,208, and ordered plaintiff to pay to defendant such amount over a five-year period in equal monthly payments.
The Supreme Court now asks whether we intended to award defendant $42,208 in 1981 dollars or in 1987 dollars. If our answer is the former, then our failure to award interest produced an unfair and inequitable result.
Specifically what we intended was that defendant was entitled to a one-eighth value of plaintiffs law degree as of the date of trial. We thought we made that clear in Thomas, supra, p 625. Apparently we did not. Accordingly we add to our award an interest factor.
Arriving at an appropriate interest factor is not easy. In doing so we take special note that the "Interest on Money Judgment” statute, MCL 600.6013; MSA 27A.6013, does not apply to money awards in divorce actions, Lawrence v Lawrence, 150 Mich App 29; 388 NW2d 291 (1986), Saber v Saber, 146 Mich App 108; 379 NW2d 478 (1985), and Ashbrenner v Ashbrenner, 156 Mich App 373; 401 NW2d 373 (1986), and that interest on such awards is granted solely pursuant to the equitable powers of the court. Accordingly, in arriving at an appropriate factor we feel that any such factor must be one that is fair, equitable, and just under the circumstances of the case. One that operates neither as a windfall to the recipient nor as a punitive measure against the payor. Especially is this true in a case such as is currently before us where we are asked to apply a factor more than seven years after the trial judge awarded defen dant nothing; an error which we point out is not the fault of either party.
What we wish to do is fairly compensate defendant in today’s dollars based on the award she should have received in December of 1981. We note that MCL 438.31; MSA 19.15(1) fixes the lawful rate of interest between individuals at five pecent unless otherwise agreed to in writing. While in certain situations, none of which are present here, interest may be at a higher rate, five percent is the rate fixed by statute. Hence, we believe that an interest award factor should not be less than five percent. Were we to add a simple interest rate factor of five percent to the $42,208 commencing December 22, 1981, said award would equal $57,332.53 as of February 22, 1989.
While we recognize that a five percent simple interest factor may not always be adequate to place the recipient in a comparable position in present dollars versus past dollars, in this case it is. In this respect we take judicial notice of the fact that between December, 1981, and December, 1988, the consumer price index rose 28.2 percent. This means that it cost $1,282 in December, 1988, dollars to purchase that which could have been purchased with $1.00 in December, 1981. Moreover, judicial notice can be taken at any stage of proceedings. See MRE 201(e) and People v Burt, 89 Mich App 293; 279 NW2d 299 (1979). Hence, a five percent simple interest factor which equates to $1.3583333 as of February 22, 1989, is, in our opinion, fair, equitable, and just. Had the consumer price index risen more than the five percent simple interest factor as applied, our award would be higher.
Hence, we modify our award upward to $57,332.53 as of February 22, 1989. Said sum shall be amortized over a six-year period, payable monthly, with interest at five percent per annum. Plaintiff shall have credit, however, for any sums paid pursuant to the circuit court amended order dated December 9, 1985, or by virtue of our decision of December 7, 1987. According to our calculations, if plaintiff has paid nothing toward either of the above, then payments would be $923.33 per month commencing March 22,1989.
The circuit court is directed to further amend its order to reflect that which is awarded by this opinion. | [
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Per Curiam;.
The question raised by the plaintiffs’ application for leave to appeal is who, as between the mortgagor and mortgagee, is entitled to fire insurance proceeds when the fire occurred before the mortgage foreclosure at which the mortgagee bid in the property for the balance remaining due on the mortgage.
The mortgage was executed on January 4, 1969. Plaintiffs Charles Smith and Peggy Smith were the mortgagors. Defendant General Mortgage Corporation was the named mortgagee and servicing agent for defendant Federal National Mortgage Association (FNMA). The mortgagee’s interest was assigned by General Mortgage to FNMA. A clause in the mortgage created an insurable interest in the mortgagee. Plaintiff mortgagors were to pay for casualty insurance but payment in the event of loss was to be sent to the mortgagee to be applied to reduce the mortgage debt or to repair the property. The property was insured for $18,000.
On October 17, 1974, the mortgaged house was totally destroyed by fire. The balance due on the mortgage was approximately $13,000. The plaintiffs were in default on their mortgage payments and defendant General Mortgage began foreclosure proceedings on December 1, 1974. At a foreclosure sale held on January 7, 1975, defendant FNMA bid in the property for $13,961, the amount of the outstanding debt plus foreclosure costs and attorney fees.
The insurance company sent a check for $18,000 to defendant General Mortgage six months after the foreclosure sale. The payees named on the check were General Mortgage and plaintiffs Charles Smith and Peggy Smith. No agreement was reached by the payees on the allocation of the insurance proceeds. The plaintiffs brought an equity action to compel defendant General Mortgage to endorse the check or to obtain equitable relief preventing an unjust enrichment of the defendants. The plaintiffs argued that they were entitled to the insurance proceeds because the mortgage debt was extinguished when FNMA bid in the amount of the debt at the foreclosure sale. The defendants argued that since the property was almost worthless, they were entitled to the amount of the debt plus costs and attorney fees. The trial judge granted the defendants’ motion for summary judgment and awarded approximately $14,000 of the insurance proceeds to the defendants and the remaining $4,000 to the plaintiffs.
The trial judge relied on Federal National Mortgage Ass’n v Ohio Casualty Ins Co, 46 Mich App 587; 208 NW2d 573 (1973), in granting summary judgment for the defendants. There, the fire occurred after the foreclosure sale. A clause in the mortgage stated that the mortgagee’s rights in the insurance were not to be invalidated by any foreclosure or change in title. In such a case, the mortgagee’s interest is covered by the policy at least until the mortgagor’s equity of redemption expires. Consolidated Mortgage Corp v American Security Ins Co, 69 Mich App 251; 244 NW2d 434 (1976).
Here, the loss occurred before the mortgage sale. Although the mortgagee was entitled to the insurance proceeds to reduce the debt or repair the property, it instead purchased the property at the foreclosure sale. After a review of cases from other jurisdictions, the Court of Appeals concluded that mortgagees in the defendants’ position were not entitled to the insurance proceeds but declined to apply the rule to this case. 73 Mich App 720; 252 NW2d 551 (1977).
We agree that when the loss occurs before a foreclosure sale in which the mortgagee purchases the property for a bid which extinguishes the mortgage debt, the mortgagee is not entitled to the insurance proceeds. Whitestone Savings & Loan Ass’n v Allstate Ins Co, 28 NY2d 332, 336-337; 321 NYS2d 862; 270 NE2d 694 (1971).
"The theory of recovery by a mortgagee is indemnity. The risk insured against is an impairment of the mortgaged property which adversely affects the mortgagee’s ability to resort to the property as a source for repayment. Where the debt has been satisfied in full subsequent to the fire, neither reason nor precedent suggest recovery on the policy by the mortgagee.
"The rule is not harsh and it is eminently practical. None disputes that the mortgagee is entitled to recover only his debt. Any surplus value belongs to others, namely, the mortgagor or subsequent lienors. Indeed, it is not conceivable that the mortgagee could recover a deficiency judgment against the mortgagor if it had bid in the full amount of the debt at foreclosure sale. To allow the mortgagee, after effectively cutting off or discouraging lower bidders, to take the property — and then establish that it was worth less than the bid— encourages fraud, creates uncertainty as to the mortgagor’s rights, and most unfairly deprives the sale of whatever leaven comes from other bidders. ”
See, also, Northwestern National Ins Co v Mildenberger, 359 SW2d 380 (Mo App, 1962). The rights of the parties under the insurance policy were fixed at the time of the fire, Pink v Smith, 281 Mich 107; 274 NW 727 (1937), and the mortgagee’s right to the proceeds terminated when the mortgage debt was satisfied.
The defendants also contend that the mortgagors’ right to the proceeds passed to them on transfer of title under the following clause of the mortgage:
"In event of foreclosure of this mortgage or other transfer of title to the mortgaged property in extinguishment of the indebtedness secured hereby, all right, title and interest of the mortgagor in and to any insurance policies then in force shall pass to the purchaser or grantee.”
This provision passes on coverage under the insurance policy; it does not transfer the right to proceeds which vested at the time of the fire.
Strict application of the rule in Whitestone Savings & Loan Ass’n, supra, would work an injustice in this case. Although Smith v Grange Mutual Fire Ins Co of Michigan, 234 Mich 119; 208 NW 145 (1926), includes statements which support the plaintiffs’ position, that case did not involve a dispute between a mortgagor and a mortgagee. Enforcement of this previously unannounced rule would confer an unearned benefit on the plaintiffs. The plaintiffs were compensated for the fire loss when their debt was satisfied. It would be unfair to also award them the insurance proceeds when the defendants paid the amount of the debt for worthless property.
However, we agree with Judge Holbrook’s dissent from the relief ordered by the Court of Appeals. The Court of Appeals awarded the defendant $961 for foreclosure costs and attorney fees in addition to the amount outstanding on the mortgage at the time of the fire loss. The foreclosure was improper and the plaintiffs should not be charged for the cost of that foreclosure. The parties should be placed in the position they would have been in had their expectations and intent been carried out. The foreclosure is set aside and title to the property is returned to the plaintiffs. Plaintiffs shall endorse the check from the insurance company now held by defendant General Mortgage. From the proceeds of that check, defendant General Mortgage shall pay $13,000 to defendant FNMA and pay the remaining $5,000 jointly to the plaintiffs.
In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), the judgment awarded by the Court of Appeals is vacated and the case is remanded to Wayne Circuit Court for entry of a judgment conforming with this opinion.
Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
Pursuant to Const 1963, art 3, § 8, on September 29, 1977, the Governor requested our advisory opinion on the constitutionality of 1977 PA. 108.
His letter read in part:
"Enrolled Senate Bill 419 was passed by the Legislature on July 7, 1977 and was returned to the Legislature on August 5, 1977 without the Governor’s approval. Subsequently the Legislature reconsidered the bill and as of September 28, 1977, it has been enacted into law notwithstanding the objections of the Governor. Section 2 of Enrolled Senate Bill 419 provides that the act will not become effective until January 1, 1978.
"Section 45 of the bill provides a procedure for the legislative review of rules adopted by executive branch agencies pursuant to statutory or constitutional authority. The procedure contemplates that the Joint Administrative Rules Committee would be empowered to approve, disapprove, or take no action, upon a particular set of rules within a stated time period. This procedure raises significant questions of public law and are of paramount concern to the proper functioning of the branches of government.
"Article 3, § 2 of the Michigan Constitution of 1963 provides for the separation of powers among the branches of government and the instant legislation raises significant questions as to the prerogatives of the executive and judicial branches. Therefore, I respectfully request the opinion of the Supreme Court pursuant to Const 1963, art 3, § 8 of the following questions:
"1. Do the procedures set forth in section 45 of Enrolled Senate Bill 419 violate art 3, § 2 by authorizing the legislative branch to exercise a function reserved to the executive branch of government?
"2. Do the procedures set forth in Section 45 of Enrolled Senate Bill 419 violate art 3, § 2 by authorizing the legislative branch to interpret the law, a function reserved to the judicial branch?
"3. Are the provisions of Section 45 of Enrolled Senate Bill 419 an impermissible extension of legislative authority in violation of Const 1963, art 4, § 22 as modified by the limited provisions of art 4, § 37 with respect to suspension of rules?”
From the foregoing it is apparent that a serious disagreement exists between the legislative and executive branches of our government over the respective powers of all of the branches which may result in a genuine controversy.
Courts traditionally have resolved only actual controversies, where stakes of the disputants are committed and the issues developed in adversary proceedings upon trial.
Article 3, § 8 was an innovation in the 1963 Michigan Constitution, a departure from the historic judicial scheme. It provided for advisory opinions on constitutionality — judgments framed in a factual void — for guidance on "solemn” occasions, at the discretion of the Supreme Court. Clearly, the intent was for sparing resort to this mechanism.
This section was invoked eight times in the first 12 years of its existence. In the last three years, it has been invoked nine times.
Mindful of its historic role, in full recognition of Const 1963, art 3, § 8, and with all due respect to the Governor, this Court holds that under the circumstances it would be an inappropriate exer cise of its discretion to grant the September 29 request.
The Court stands ready to examine carefully, and to resolve expeditiously, any controversy that comes to it out of application of 1977 PA 108 in a factual setting.
Kavanagh, C. J., and Williams, Ryan, and Blair Moody, Jr., JJ., concurred.
Levin, J.
We would grant the request of the Governor for an advisory opinion on the constitutionality of 1977 PA 108 which empowers a joint committee of the Legislature to prevent a rule promulgated by an administrative agency from becoming effective.
The Attorney General has advised that — apart from the limited power that may be conferred on such a joint committee, pursuant to Const 1963, art 4, § 37, to suspend a rule when the Legislature is not in regular session — a law authorizing a committee of the Legislature to revoke, suspend or amend an administrative rule is unconstitutional and void. Attorney General Adams earlier gave the same advice. Their opinions find support in scholarly commentary on the effect and constitutionality of "laying limitations” on the rule-making process.
The record of the Constitutional Convention of 1961 indicates that art 4, § 37, was incorporated in the new Constitution in the belief that absent such an expression in the Constitution the Legislature would be powerless between regular legislative sessions to suspend an administrative rule promulgated after adjournment of the Legislature. The limited power conferred may imply that the framers did not intend that the Legislature could empower such a committee to suspend or disapprove a rule promulgated while the Legislature was in regular session.
It also appears from these opinions, commentaries and the record of the constitutional convention that there is a substantial question whether the Legislature may revoke, suspend or amend a rule by concurrent resolution or can do so only by bill enacted in conformity with the Constitution.
There are no constructional or factual issues to be resolved as a predicate to consideration by this Court of the constitutional questions.
This is a solemn occasion. The administration of government depends on exercise of the rule-making power. The challenged amendment of the Administrative Procedures Act will cloud rules promulgated after its effective date and may encourage agencies to avoid the rule-making procedures of that act.
Coleman and Fitzgerald, JJ., concurred with Levin, J.
"Section 45 of the bill provides a procedure for the legislative review of rules adopted by executive branch agencies pursuant to statutory or constitutional authority. The procedure contemplates that the Joint Administrative .Rules Committee would be empowered to approve, disapprove or to take no action, upon a particular set of rules within a stated time period. This procedure raises significant questions of public law and are of paramount concern to the proper functioning of the branches of government.
"Article III, Section 2 of the Michigan Constitution of 1963 provides for the separation of powers among the branches of government and the instant legislation raises significant questions as to the prerogatives of the executive and judicial branches. Therefore, I respectfully request the opinion of the Supreme Court pursuant to Article III, Section 8 of the following questions:
"1. Do the procedures set forth in Section 45 of Enrolled Senate Bill 419 violate Article III, Section 2 by authorizing the legislative branch to exercise a function reserved to the executive branch of government?
"2. Do the procedures set forth in Section 45 of Enrolled Senate Bill 419 violate Article III, Section 2 by authorizing the legislative branch to interpret the law, a function reserved to the judicial branch?
"3. Are the provisions of Section 45 of Enrolled Senate Bill 419 an impermissible extension of legislative authority in violation of Article IV, Section 22 as modified by the limited provisions of Article IV, Section 37 with respect to suspension of rules?”
"(1) The legislative service bureau shall promptly approve a proposed rule when it deems it proper as to all matters of form, classification, arrangement, and numbering. The department of the attorney general shall promptly approve a proposed rule when it deems it to be legal.
"(2) After the legislative service bureau and attorney general have approved a proposed rule but before the agency has formally adopted the rule, the agency shall transmit by letter copies of the rule bearing certificates of approval and copies of the rule without certificates to the joint committee on administrative rules. After its receipt of the agency’s letter of transmittal, the committee shall have 60 days in which to consider the rule. This section does not apply to an emergency rule.
"(3) If the committee approves the proposed rule within the 60 days, it shall attach a certificate of its approval to all copies of the rule bearing certificates except 1 and transmit those copies to the agency. If, by a majority vote of the committee, added time to consider rules is needed, the committee may extend the time on a particular rule or set of rules to 90 days.
"(4) If the committee disapproves the proposed rule or neither approves or disapproves the rule within the 60 days, it shall immediately report that fact to the legislature and return the rule to the agency. The agency shall not adopt or promulgate the rule unless one of the following occurs:
"(a) The legislature passes a concurrent resolution adopting the rule within 60 days after receiving the report.
“(b) The rule is subsequently approved by the committee.
"(5) An agency may withdraw a proposed rule by leave of the committee. An agency may resubmit a rule so withdrawn or returned under subsection (4) with minor modification. Such a rule is a new filing and subject to this section but is not subject to further notice and hearing as provided in sections 41 and 42.
"(6) If the committee approves the proposed rule within the 60 days or the legislature adopts a concurrent resolution approving the rule, the agency may adopt the rule, in accordance with an applicable statute, and make a written record thereof. Certificates of approval and adoption shall be attached to at least 6 copies of the rules.
"(7) This section, as amended, shall apply to any proposed rule transmitted to the committee on or after the effective date of this amended section. If a proposed rule was transmitted to the committee less than 2 months before the effective date of this amended section and the committee has not approved the proposed rule before the effective date of this amended section, the agency shall not adopt or promulgate that rule unless it retransmits the proposed rule to the committee and the proposed rule is approved by the committee or by concurrent resolution of the legislature pursuant to this amended section. A proposed rule retransmitted to the committee pursuant to this subsection is not subject to further notice or hearing under sections 41 and 42.
"(8) On formal adoption of a rule, an agency, if requested to do so by an interested person either before or within 30 days after the hearing, shall issue a concise written statement of the principal reasons for its actions.” 1977 PA 108, § 45 (emphasis supplied).
"The legislature may by concurrent resolution empower a joint committee of the legislature, acting between sessions, to suspend any rule or regulation promulgated by an administrative agency subsequent to the adjournment of the last preceding regular legislative session. Such suspension shall continue no longer than the end of the next regular legislative session.” Const 1963, art 4, § 37.
OAG, 1967-1968, No 4,586, pp 65, 72 (July 13, 1967).
2 OAG, 1957-1958, No 3,352, p 246 (October 8, 1958).
Attorney General Millard, in an unpublished ruling dated December 17, 1953 addressed to a state representative, saw 1951 PA 9 as encroaching on the judicial function:
"This power to suspend the operation of a rule depends in the statute entirely upon a finding by the committee that such a rule is not in conformity with the statute under which it was promulgated. The determination of the question as to whether a rule is in conformity with the statute under which it was promulgated appears to be a judicial function. Not having the power to make such determination, the legislature cannot lawfully delegate such power to one of its committees. For this reason the provisions under discussion purporting to give a legislative committee power to suspend a rule for the reasons stated appear to contravene that provision of the Constitution under which the legislative power of the government may not perform judicial functions.”
See, 1 Cooper, State Administrative Law, p 222.
See Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Cal L Rev 983 (1975); Bruff and Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 Harv L Rev 1369 (1977); see, also, Schubert, Legislative Adjudication of Administrative Legislation, 7 J of Public L 135 (1958); Helstad, New Law on Administrative Rule Making, 1956 Wis L Rev 407; Cooper, supra, pp 221-230; 1 Davis, Administrative Law Treatise, § 6.08, pp 385-390; Gellhorn and Byse, Administrative Law, Cases and Comments (5th ed), pp 92-97; Buckley v Valeo, 424 US 1, 140, fn 176; 96 S Ct 612; 46 L Ed 2d 659 (1976); and compare Boisvert, A Legislative Tool for Supervision of Administrative Agencies: The Laying System, 25 Fordham L Rev 638 (1957); Note, "Laying on The Table” — A Device for Legislative Control over Delegated Powers, 65 Harv L Rev 637 (1952); Schwartz, Legislative Control of Administrative Rules and Regulations: The American Experience, 30 NYU L Rev 1031 (1955); Carr, Legislative Control of Administrative Rules and Regulations: Parliamentary Supervision in Britain, 30 NYU L Rev 1045 (1955).
2 Official Record, Constitutional Convention 1961, pp 2969-2970.
MCLA 24.201 et seq.; MSA 3.560(101) et seq.
See Davis, supra, § 6.08, p 389, fn 21; MCLA 24.231 et seq.; MSA 3.560(131) et seq. | [
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Per Curiam.
Plaintiff filed a five-count complaint against defendant alleging violations of the following statutes: (Count i) Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq.; (Count n) campaign financing act, MCL 169.201 et seq.; MSA 4.1703(1) et seq.; (Count hi) Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq.; (Count iv) political activities of public employees act, MCL 15.401 et seq.; MSA 4.1702(1) et seq.; and (Count v) standards of conduct for public officers and employees act, MCL 15.341 et seq.; MSA 4.1700(71) et seq. Defendant moved for, and was granted, summary disposition on Counts n, rv, and v of plaintiffs complaint pursuant to MCR 2.116(C)(8). Plaintiff and defendant then entered into a consent judgment as to Counts I and in. Plaintiff appeals from the final judgment in favor of defendant as to the claims set forth in Counts ii, iv, and v of her complaint.
Plaintiff claims that the trial court erred in determining that plaintiff could not maintain a private cause of action against defendant for alleged violation of the campaign financing act and the political activities of public employees act, Counts ii and iv respectively. We disagree.
In Count ii of her complaint, plaintiff alleges that defendant violated certain provisions of the campaign finance act by expending funds for a school newsletter which allegedly advocated a particular vote on a ballot question, by failing to legally establish a "ballot question committee,” by failing to file campaign financing statements, and by failing to print required campaign financing information on its printed materials. These duties, imposed by the campaign financing act and which plaintiff claims were violated by defendant, are new in that there were no such duties or obligations under the common law. Plaintiff argues that the campaign financing act is a remedial statute which should be given liberal construction and that, because none of the provisions in the act use the words "exclusive remedy,” the Legislature must have intended a private right of action.
The general rule of law in Michigan is that, where a new right is created or a new duty is imposed by a statute, the remedy provided by the statute for enforcement of the right or for nonperformance of the duty is exclusive unless the remedy is plainly inadequate. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 126-127; 252 NW2d 818 (1977); Bell v League Life Ins Co, 149 Mich App 481, 482-483; 387 NW2d 154 (1986), lv den 425 Mich 870 (1986). Therefore, a private cause of action must be dismissed under a statute creating a new right or imposing a new duty unless the private cause of action was expressly created by the act or inferred from the fact that the act provides no adequate means of enforcement of its provisions. Bell, supra, pp 482-483.
The campaign financing act does not allow for enforcement by private individuals. MCL 169.215; MSA 4.1703(15) provides an express remedy to enforce the duties imposed under the campaign financing act. The campaign financing act also provides for criminal penalties for knowing violation of the act, and enforcement for such knowing violation may be prosecuted by the Attorney General or local prosecuting attorneys.
Because the campaign financing act creates new rights and imposes new duties, the remedies provided in the act are the exclusive means by which the act may be enforced. Since the act provides an adequate remedy to enforce its provisions, no private right of action can be inferred. Therefore, plaintiffs claims under the campaign financing act set forth in Count n of her complaint were properly dismissed by the circuit court.
In Count iv of her complaint, plaintiff alleges that defendant’s employees violated §4 of the political activities of public employees act, MCL 15.404; MSA 4.1702(4).
The political activities of public employees act grants employees of the state classified civil service and employees of political subdivisions of the state the right to be members of political parties, to be delegates to political conventions, to become candidates for office, and to engage in other politi cal activities on behalf of a candidate or issue, etc. MCL 15.402; MSA 4.1702(2) and MCL 15.403; MSA 4.1702(3). However, this act puts some restrictions on this political freedom. MCL 15.404; MSA 4.1702(4) provides as follows:
The activities permitted by sections 2 and 3 shall not be actively engaged in by a public employee during those hours when that person is being compensated for the performance of that person’s duties as a public employee.
Plaintiff claims that defendant violated the above provision on several occasions, and plaintiff sued to enforce the provisions of the act. Plaintiff contends that a private lawsuit is the only means of protecting the public from unlawful political campaigning by public employees during the periods of time for which they are being compensated. We agree with the circuit court that plaintiff’s contention is without merit.
In order to determine if a private right of action exists to enforce revisions of this act, the analysis is the same as that used for the campaign financing act. The political activities of public employees act definitely creates new rights and imposes new duties not formally recognized by the common law. Upon a reading of the act, we find no provision expressly granting a private cause of action. Hence, plaintiff must show that a private cause of action is inferred from the fact that the act provides no adequate means of enforcement.
The Legislature expressly provided a means of enforcing the duties imposed by the act in MCL 15.406(3) and (4); MSA 4.1702(6)(3) and (4). Nothing in plaintiff’s argument shows any inadequacy in the remedy. Therefore, the express remedy is exclusive, and the trial court was correct in dismiss ing Count iv of plaintiffs complaint to enforce the provisions of this act.
In Count v of her complaint, plaintiff alleges that one of defendant’s employees violated the following provision of the standards of conduct for public officers and employees act:
Except as provided in Section 2a, a public officer or employee shall not participate in the negotiation or execution of contracts, making of loans, granting of subsidies, fixing of rates, issuance of permits or certificates, or other regulation or supervision relating to a business entity in which the public officer or employee has a financial or personal interest. [Emphasis added. MCL 15.342(7); MSA 4.1700(72)(7).]
Plaintiff contends the above provision was violated where a school district officer acted on behalf of the school district, along with other employees, in negotiating a contract with teachers, and the school district officer’s wife is a teacher in that school district who will be affected by the terms of the contract. Plaintiffs contention is, in essence, that a spouse constitutes a "business entity” within the meeting of MCL 15.342(7); MSA 4.1700(72)(7). The circuit court found that a spouse does not constitute a "business entity” within the meaning of the above statute and dismissed Count v of plaintiffs complaint.
A cardinal rule of statutory construction is that courts may not speculate as to the probable intent of the Legislature beyond the words employed in the statute, and when the language of a statute is clear and unambiguous, the statute must be applied and not interpreted. Pi-Con, Inc v A J Anderson Construction Co, 169 Mich App 389, 395; 425 NW2d 563 (1988). Words should generally be given their plain and ordinary meaning. Bailey v DAIIE, 143 Mich App 223, 225; 371 NW2d 917 (1985), lv den 424 Mich 867 (1986).
We believe that to include one’s spouse within the definition of "business entity” is a distortion of the clear and unambiguous legislative statement and intent. See Thompson v School District No 1 of Mooreland Twp, 252 Mich 629; 233 NW 439 (1930). If the Legislature intended to preclude a public officer or employee from participating in contract negotiations under which their spouse might be one of the several beneficiaries, it could have expressly provided for such a situation by inserting the word "spouse” in the statute.
We find that the trial court’s dismissal of Count v of plaintiff’s complaint was proper.
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Murphy, J.
Defendants appeal as of right from a circuit court judgment in plaintiffs’ favor permanently enjoining defendants from applying the township’s private road ordinance relative to plaintiffs’ property and awarding plaintiffs $5,300 in attorney fees. We affirm.
The lower court decided this matter on the following stipulated facts:
Plaintiffs purchased this lakefront property in two parcels by separate land contracts on September 20, 1954, and June 11, 1964 and took title in 1964 and 1970. Thereafter, Wava Bevan, formerly Wava Warner, transferred title to herself and William Bevan, her husband.
Deeds creating the above transfers reserve an easement 20 feet wide from the nearest public highway to the parcel, and such deeds predate the Zoning Ordinance and Private Road Ordinance, hereafter discussed.
The property does not have frontage on any public roadway. The only access is the easement.
In 1974, Brandon Township adopted its Zoning Ordinance. A copy of the relevant section of that ordinance (Section 5.07 Required Street Frontage) is attached hereto and incorporated herein. Other than those street frontage requirements, the parcel, as divided, meets the Zoning Ordinance requirements for two (2) buildable sites.
In 1977, Brandon Township adopted a Private Road Ordinance. That ordinance is Brandon Township Ordinance No. 42, a copy of that ordinance is attached hereto and incorporated herein.
At the time that Wava Bevan purchased the parcel, her predecessor in interest had already divided the parcel, which parcel is approximately six (6) acres, into two (2) tax descriptions.
The easement that exists for the purpose of serving the parcel does not meet the minimum private road requirement as set forth in Article VII, Section 7.1 of the Brandon Township Private Road Ordinance. (See attached) The Bevans, seeking to obtain two (2) building permits on their parcel, one (1) for each of the tax descriptions, applied to the Township Board of Zoning Appeals for a variance with regard to the road width (from the required 66' to 20', the amount they owned) so as to permit them to build a private road on the parcel, which private road would then entitle them to two (2) building permits. Section 2.5 of the Brandon Township Private Road Ordinance requires a private road when the roadway is going to service more than one (1) residence. The variance would not be necessary if the Bevan’s [sic] sought to build only one house because the Bevans would be entitled to one permit, and could obtain that at any time.
The Brandon Township Zoning Board of Appeals denied the request for a variance with regard to the width requirement. As a result of that denial this Complaint was filed. The first two (2) Counts of the Complaint deal with the appeal, and a request for delayed appeal from the action of the Zoning Board of Appeals. The next three Counts of the Complaint deal with "Violation of Constitutional Rights,” "Civil Rights Act” and "Declaratory Judgment: Township of Brandon’s Private Road Ordinance as Unconstitutional.”
Since the Board of Appeals action, the Bevans have tried unsuccessfully to sell the property to the Department of Natural Resources.
The access easement is unimproved and there has been no construction on the building sites. (See Minutes of Board of Appeals, attached to Plaintiffs Complaint and accepted by Defendant.)
Bevans’ out of pocket damages to date are Five Thousand One Hundred Twenty Five ($5,125.00) Dollars attorney fees, costs of One Hundred Seventy ($170.00) Dollars for expert witness fees, Fifty ($50.00) Dollars court costs, and Sixteen ($16.00) Dollars subpoena fees for a total of Five Thousand Three Hundred Sixty One ($5,361.00) Dollars.
After brief oral argument by counsel, the court took the matter under advisement and thereafter issued an opinion which concluded that the enactment and enforcement of the ordinance relative to plaintiffs’ property constituted a temporary, regu latory taking of property without compensation, and that it was confiscatory. The court also noted that plaintiffs were not seeking any compensation for the temporary taking of their property. However, the parties stipulated to reasonable attorney fees, if awarded, as being $5,300. The court then awarded plaintiffs their attorney fees as a proper incident to a 42 USC 1983 claim and under Michigan’s Uniform Condemnation Procedures Act, MCL 213.66(2); MSA 8.265(16X2).
Defendants first contend that the trial court erred in granting relief under a federal statute when plaintiffs failed to exhaust all of their state remedies. We disagree.
The township zoning board of appeals rendered its decision on August 28, 1985, denying plaintiffs’ request for a variance. A decision by a board of appeals is final. MCL 125.293a; MSA 5.2963(23a). Moreover, that statute provides that a person having an interest affected by the zoning ordinance may appeal to the circuit court. Therefore, while plaintiffs could have immediately appealed to the circuit court, they were not required to do so as a condition to filing their several-count complaint. We also note that plaintiffs never had to seek a variance in order to challenge the zoning ordinance. Plaintiffs’ taking challenge is separate and distinct from their seeking of a variance. A variance is simply an authorization to a property owner to depart from the literal requirement of zoning regulations in utilization of his property in cases in which strict enforcement of the zoning regulations would cause undue hardship. See, e.g., National Boatland, Inc v Farmington Hills Zoning Bd of Appeals, 146 Mich App 380; 380 NW2d 472 (1985).
Defendants also argue that plaintiffs should not be allowed to maintain a federal claim under 42 USC 1983 when they have an available remedy in a state court. However, a § 1983 claim may be brought in a state court. See Maine v Thiboutot, 448 US 1, 10-11; 100 S Ct 2502; 65 L Ed 2d 555 (1980). In addition, in McNeese v Bd of Ed for School Dist 187, Cahokia, Illinois, 373 US 668, 671; 83 S Ct 1433; 10 L Ed 2d 622 (1963), the United States Supreme Court found that a person need not first seek a remedy under state law before bringing a claim under § 1983. The Court, quoting Monroe v Pape, 365 US 167, 183; 81 S Ct 473; 5 L Ed 2d 492 (1961), stated:
"It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”
In this case, plaintiffs brought a claim for inverse condemnation under both US Const, Ams V and XIV, and Const 1963, art 1, § 17, and art 10, § 2, as a basis of their § 1983 claim. They were not precluded from bringing a claim under 42 USC 1983 though they did not first exhaust all possible state remedies.
Defendants next contend that plaintiffs’ property was not "taken” by the regulation because they were not deprived of all reasonable use of the property considered as a whole. Defendants contend that plaintiffs can still build one residence on their property. We note that resolution of this issue requires a more in-depth analysis than the previous issues.
US Const, Am V, provides that private property shall not be taken for public use without just compensation. Const 1963, art 10, § 2, provides:
Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.
It is an established doctrine that, while property can be regulated to some extent, if a regulation goes too far it will be recognized as a taking. First English Evangelical Lutheran Church of Glendale v Co of Los Angeles, California, 482 US —; 107 S Ct 2378, 2386; 96 L Ed 2d 250, 264-265 (1987). Moreover, where the government elects to discontinue regulations, compensation for the "temporary” taking is payable. Id., 107 S Ct 2387-2389; 96 L Ed 2d 266-268. Michigan also recognizes that the application of zoning law to a particular property can constitute a taking. Poirier v Grand Blanc Twp, 167 Mich App 770, 773; 423 NW2d 351 (1988). In addition, our Supreme Court in Smith v Village of Wood Creek Farms, 371 Mich 127, 136; 123 NW2d 210 (1963), reiterated the proposition that a zoning ordinance that renders property almost worthless is unreasonable and confiscatory and, therefore, illegal.
The United States Supreme Court has stated that the application of a zoning ordinance to a particular property is a taking if it does not substantially advance a legitimate state interest and if it denies the owner economically viable use of his land. Nollan v California Coastal Comm, 483 US —; 107 S Ct 3141, 3146; 97 L Ed 2d 677, 687 (1987); Agins v City of Tiburon, 447 US 255, 260; 100 S Ct 2138; 65 L Ed 2d 106 (1980).
This Court in Bierman v Taymouth Twp, 147 Mich App 499, 503-504; 383 NW2d 235 (1985), lv den 425 Mich 869 (1986), in citing the leading case authority in Michigan relative to constitutional challenges of a zoning ordinance, stated the following:
Our review of zoning cases, although de novo, is conducted with the following guidelines in mind:
"This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case, unless, after examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.” Kropf v City of Sterling Heights, 391 Mich 139, 163; 215 NW2d 179 (1974), quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).
The appropriate standard for determining the constitutional validity of a zoning ordinance set forth in Kropf, supra, was outlined concisely in Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976), as follows:
"The principles and tests to use to determine whether the present zoning of plaintiffs’ property is valid was detailed in Kropf.
"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
" '[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself... or " '[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.’ 391 Mich 139, 158.
"The four rules for applying these principles were also outlined in Kropf. They are:
"1. ' "[T]he ordinance comes to us clothed with every presumption of validity.” ’ 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
"2. ' "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property .... It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” ’ 391 Mich 139, 162, quoting Brae Burn, Inc.
"3. '"Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” ’ 391 Mich 139, 162-163.
"4. ' "This Court, however, is inclined to give considerable weight to findings of the trial judge in equity cases.” ’ 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).” [Emphasis added.]
For the purposes of analyzing this inverse condemnation or confiscation case, we note that Kropf rules one, three and four above are of particular importance. Recently, another panel of this Court in Hecht v Niles Twp, 173 Mich App 453; 434 NW2d 156 (1988), interpreted the landmark Kropf case and clarified that a substantive due process challenge to a zoning ordinance requires a separate and distinct analysis from a confiscation challenge to a zoning ordinance. Id., p 458. This Court in Hecht, pp 459-460, 462-463, explained:
Many trial courts and, indeed, we believe, some panels of this Court have unfortunately misinterpreted these rules and thus have mistakenly intertwined the standards applicable to the different theories of relief, with the result that they have held that a property owner must prove confiscation to succeed in any challenge to a zoning ordinance. We believe that a careful reading of Kropf, in particular the context from which these rules were extrapolated, reveals what we perceive as the proper application of the four rules:
(1) Rule No. 1 applies to all ordinances, regardless of the theory under which a property owner makes a challenge as to its constitutionality;
(2) Rule No. 2 applies to a challenge to a zoning ordinance which has as its basis the reasonable relationship of land use regulation under the police power of a governmental unit to public health, safety, morals, or general welfare;
(3) Rule No. 3 applies to a challenge to a zoning ordinance which has as its basis a claim of confiscation or wrongful taking under the Fifth or Fourteenth Amendments;
(4) Rule No. 4 applies to an appellate court’s review of a trial court’s findings regardless of the theory or theories advanced.
Kropf continues to make apparent the fact that a distinct analysis must be used where a claim is made that the zoning ordinance results in confiscation of the plaintiff’s land without just compensation. After analyzing the plaintiffs’ substantive due process claim, the Court then separately addressed the confiscation argument advanced by the plaintiffs:
"Turning now to the issue upon which plaintiffs presented almost the totality of their proofs, we consider whether, in this situation, plaintiffs’ property has been so restricted as to amount to a confiscation of their property. Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” [391 Mich 162-163 (citing Brae Burn, Inc, 350 Mich 434-435)].
It is from this statement that Rule No. 3 has been taken.
The view expressed in Rule No. 3 is originally found in the landmark New York case of Arverne Bay Construction Co v Thatcher, 278 NY 222; 15 NE2d 587 (1938), and was discussed in the context of the plaintiffs assertion that a New York City zoning ordinance constituted a confiscatory taking of his property without just compensation. Furthermore, Brae Burn, Inc, supra, refers to the Arverne Bay case in the context of its discussion of the confiscation argument advanced by its plaintiff. See also 1 Anderson, American Law of Zoning (3d ed), § 3.27, pp 169-170.
We believe that the Kirk Court clearly understood and properly applied this rule to situations where a plaintiff was challenging the conñscatory nature of a zoning ordinance. Kirk returned to the root of the rule as found in Kropf and stated:
"In Kropf we required the property owner claiming confiscation to prove that application of the existing ordinance to his property would 'preclude its use for any purpose to which it is reasonably adapted.’ 391 Mich 139, 163. [398 Mich 444.]”
On the basis of foregoing, we are required to apply Kropf rules one, three and four to the facts of the case at bar.
Turning to rule one, that the ordinance is clothed with every presumption of validity, the township attorney argued the following:
Your Honor, the Township in this kind of situation is between a rock and a hard place.
We’re charged with the maintenance and the welfare of our citizens. We’ve decided based on our experience with private roads that we have to be sure the people have passable access to the property where fire equipment can get in, emergency equipment can get in.
This is a lake front parcel. The first time that a piece of emergency equipment can’t get in there when there’s a child drowning or there’s a fire, the township will not only be criticized, they’ll probably be sued.
But when there’s more than one dwelling involved, public interest becomes involved. And there’s more than one dwelling involved in this situation and that’s why the township adopted this private road ordinance.
We have no doubt that the challenged ordinance is clothed with a presumption of validity. It attempts to deal with the health, safety and welfare of the public. We do note, however, that plaintiffs’ easement is twenty feet wide and this private drive would only service two homes. Plaintiffs argued that there would be limited use of this drive by the general public and that the twenty-foot easement would be wide enough to accommodate emergency equipment for the two single-family dwellings.
As for rule three, plaintiffs must show that if the ordinance is enforced the consequent restrictions on their property preclude its use for any purposes to which it is reasonably adapted.
The stipulated facts reveal that enforcement of the ordinance precludes plaintiffs from using one of their two parcels as it is zoned, that is, for a single-family dwelling. Moreover, plaintiffs’ attempts to sell the property have been unsuccessful. Plaintiffs’ property is unquestionably two separate parcels which are taxed separately and which are considered separate parcels by the township. The lower court noted that before enactment of the 1977 private road ordinance, plaintiffs could have lawfully built two single-family dwellings on the parcels and that enforcement of the ordinance constitutes a regulatory taking and is confiscatory. We agree. Our review of the record leads us to conclude that plaintiffs have shown that the township’s private road ordinance as applied to their property precludes its use for any purpose to which it is reasonably adapted. Kropf, supra.
Finally, rule four requires that we give considerable weight to the findings of the trial judge. We have done so in this case and agree that the ordinance constitutes a regulatory taking of one of plaintiffs’ two parcels. Therefore, the lower court’s order permanently enjoining defendants from enforcing the private road ordinance relative to plaintiffs’ two parcels and the court’s award of attorney fees are affirmed.
Affirmed. Plaintiffs may tax costs.
In light of recent United States Supreme Court pronouncements in taking law, particularly Nollan, supra, and First English Evangelical, supra, we question the continuing viability of the Kropf rules in analyzing cases involving taking issues. It appears that these recent Supreme Court decisions might necessitate a reexamination of the Kropf rules to reflect this development in the law in placing a greater burden on the governmental entity in regulating private property. However, since we will conclude that the municipality cannot even satisfy the applicable Kropf rules, this does not present the appropriate case to consider the impact of these recent Supreme Court decisions on the Kropf rules. | [
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Per Curiam.
The defendant-appellant’s delayed application for leave to appeal raises the question whether he was denied his right to counsel because his trial attorney also represented a co-defendant with conflicting interests.
Defendant Bentley and codefendant Jordan were charged with armed robbery and convicted by a jury of that offense on July 24, 1973. One attorney was appointed to represent both defendants. The defendants made a pretrial motion for separate trials on the grounds that a witness had confused the two defendants in earlier identifications, only one defendant would present an alibi defense, and circumstantial evidence which incriminated one defendant would be difficult to separate from that which incriminated the other. The trial judge denied the motion after noting the policy favoring joint trials and determining that there were no statements by either defendant which incriminated the other defendant.
The Court of Appeals affirmed the convictions on July 24, 1975, holding that the defendants had not shown that the joint trial prejudiced their rights. In a concurring opinion, Judge Kaufman found that the judge should have sua sponte ordered the appointment of separate counsel for each defendant but concluded that the error was harmless beyond a reasonable doubt.
Although Bentley made no formal objection to the joint representation, possible conflicts of interests were brought to the judge’s attention in the motion for separate trials. His attorney told the judge that a witness who identified Jordan at the lineup pointed to Bentley during the preliminary examination and said he was the person she had identified at the lineup. An argument by the attorney that the identification at the preliminary examination was not as reliable as the lineup identification would have impaired Jordan’s defense. In addition, the stolen goods were found in the basement of the home of Jordan’s sister. Jordan was found in the basement and Bentley was arrested outside the home. An argument stressing the relative weakness of this circumstantial evidence against Bentley would have been made at the expense of Jordan.
The defense of misidentification was raised but the attorney’s cross-examination of an eyewitness may have been inhibited by conflicting loyalties. An argument stressing the greater reliability of lineup identification might have helped Bentley but it was foreclosed because of possible prejudice to Jordan. The argument that Jordan’s link to incriminating evidence was stronger than the defendant’s link to the evidence was not made. Thus, this joint representation resulted in at least some prejudice to Bentley. The potential for this prejudice had been brought to the attention of the trial court by the motion for separate trials, even though no formal objection was made to the joint representation. Despite that fact the trial judge made no attempt to determine whether Bentley was personally aware of this potential prejudice but nonetheless chose to waive his right to separate counsel.
Absent any showing of a voluntary and informed waiver of this right in this case, we hold that Bentley was denied his right to the effective assistance of counsel. Const 1963, art 1, § 20.
Having determined that Bentley was denied his right to counsel, we reach the remaining question, whether this error can be said to have been harmless beyond a reasonable doubt. We conclude that denial of the right to effective assistance of counsel in this case is so offensive to the maintenance of a sound judicial process that it cannot be regarded as harmless error. See People v Mobley, 390 Mich 57, 65-66; 210 NW2d 327 (1973); People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). The application for leave to appeal is considered, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse Bentley’s armed robbery conviction and remand the cause to Saginaw Circuit Court for further proceedings.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Wahls, J.
Plaintiff appeals as of right from orders of the Wayne Circuit Court granting motions for summary disposition filed by defendant regarding claims for violation of the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., breach of employment contract, and negligent work-performance evaluation. We affirm in part, reverse in part, and remand the case for proceedings consistent with this opinion.
The record reveals that plaintiff, James Thomas Mitchell, Jr., was hired by defendant, General Motors Acceptance Corporation (gmac), in July, 1972, when he was twenty-five years old. Plaintiff began his employment with gmac as a field representative and was promoted to the position of credit representative. According to plaintiff’s appellate brief, "[a] credit representative is an office worker whose primary responsibility is to contact individuals who are delinquent in making loan payments to gmac.” In June, 1978, plaintiff was diagnosed as having a brain abscess. Brain surgery was performed, rendering plaintiff totally blind for a period of time and resulting in his being classified as legally blind — a classification which, it is asserted by plaintiff on appeal, is due to "lost peripheral vision in [the] right eye.” During his illness, plaintiff was placed on a disability leave of absence. In December, 1979, gmac agreed to permit plaintiff to return to work on a trial basis, a control-branch manager stating in a letter dated December 6, 1979: "After approximately two months have elapsed, a thorough evaluation will be completed for his performance. This will be a requirement as should he not perform his duties at the required standard, we do not wish to interfere with the continuance of his benefits that have not been used.” On January 28, 1980, plaintiff underwent additional surgery, and on February 19, 1980, he signed an agreement with the Michigan Department of Social Services in which he, as a disabled individual eligible for rehabilitation services, acknowledged the need for certain visual-aid equipment for the performance of his work. On March 30, 1980, with the aid of such equipment, plaintiff began his two-month trial period of employment. At the conclusion of the trial period, plaintiff was informed that his performance did not meet the requirements of the job, and he was returned by gmac to disability status. Plaintiff continued to receive disability benefits until his entitlement to them expired.
On May 5, 1983, plaintiff filed the present lawsuit against gmac and General Motors Corporation. Summary disposition was granted in favor of General Motors Corporation on the basis that that corporate entity, which is separate and distinct from gmac, had established no employment or other relationship with plaintiff. Count i asserted a claim under the hcra, Counts ii and in set forth claims for the breach of an employment contract, Count iv maintained a claim for the negligent evaluation of plaintiff’s work performance, and Count v asserted a claim of race discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. On September 13, 1984, Count v was dismissed pursuant to the parties’ stipulation. On April 7, 1987, the trial court granted gmac’s motion for summary disposition regarding Counts i, ii, and iv, and on July 6, 1987, the trial court granted gmac’s motion for summary disposition regarding Count hi. In this appeal, plaiiú'ff r xgues that the trial court improperly granted . ¿mac’s motions regarding Counts i, hi, and iv.
First, plaintiff argues that the trial court improperly granted gmac’s motion for summary disposition pursuant to MCR 2.116(0(10) regarding Count i, which alleges a violation of the Handicappers’ Civil Rights Act. The standard applicable in deciding motions under MCR 2.116(0(10) is well established:
A motion for summary disposition brought under MCR 2.116(0(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted by the parties. MCR 2.116(G)(5). The opposing party must show that a genuine issue of fact exists. Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ. Weeks v Bd of Trustees, City of Detroit General Retirement System, 160 Mich App 81, 84; 408 NW2d 109 (1987). A reviewing court should be liberal in finding that a genuine issue of material fact exists. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). A court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra at 371.
The party opposing a motion for summary disposition has the burden of showing that a genuine issue of disputed fact exists. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987). The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. M.CR 2.116(G)(4). Should the opposing party fail to make such a showing, summary disposition is appropriate. Fulton, supra at 375-376; Rizzo, supra at 372. [Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118-119; 421 NW2d 592 (1988), lv den 431 Mich 876 (1988).]
In granting gmac’s motion for summary disposition on this issue, the trial court agreed with gmac’s argument that plaintiff was not covered by the hcra because his disability was related to his ability to perform duties associated with the job of credit representative. The trial court stated:
It seems clear to this Court that the ability to see is unquestionably related to the ability to perform the tasks of a Claims Representative for gmac. That being true, the issue of whether or not the Plaintiff could adequately or substantially perform that job becomes moot. The Plaintiff admittedly has difficulty in seeing. The Plaintiff admittedly was legally blind in 1979 and 1980. There is no doubt that this handicap was related to the position that Plaintiff held. That being true, the Handicapper’s Act does not apply.
The relevant portions of the hcra provide:
"Handicap” means a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:
(i) For purposes of article 2, is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. MCL 37.1103(b)(1); MSA 3.550(103)(b)(l).
An employer shall not:
(a) Fail or refuse to hire, recruit, or promote an individual because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.
(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position. [MCL 37.1202(1); MSA 3.550(202)(1).]
Moreover, in Carr v General Motors Corp, 425 Mich 313, 315-316; 389 NW2d 686 (1986), the Supreme Court stated that the hcra applies only to "those whose disability is unrelated to ability to perform the job.”
Plaintiff asserts that the trial court erred because it rejected as moot the central issue in the case, namely, whether plaintiff was capable of performing the duties of a credit representative in spite of his ocular handicap. We agree. The plain language of the hcra indicates that it is the ability of the handicapped person to perform the duties of a particular job or position which must be examined. The trial court in this case made no such examination. Gmac, relying heavily on the language in Carr quoted above, argues that plaintiff is not handicapped within the meaning of the hcra "because [plaintiffs] physical condition is indisputably related to the duties of the job at issue.” Like the trial court, gmac reasons that, because plaintiffs job entails reading, any eye disability plaintiff may have must be related to his ability to perform his job. However, it has never been established whether plaintiffs handicap is, in fact, related to his ability to perform the duties of a credit representative. The trial court simply states that such a relatedness "seems clear.” Plaintiff has maintained that his disability, which he describes as a loss of peripheral vision in his right eye, does not prevent him from reading documents containing small print and would not interfere with his ability to function as a credit representative. In Carr, the plaintiff admitted that his handicap was related to his ability to perform the duties of the specific job in question. 425 Mich 323. Plaintiff in this case makes no such admission. In other cases cited in gmac’s appellate brief, the plaintiffs’ particular disabilities and the specific jobs in question were thoughtfully examined before determinations were made concerning whether a handicap was or was not related to an individual’s ability to perform the duties of a given job. This is also true regarding the case cited in gmac’s supplemental brief. In that case, Harris v Borman’s, Inc, 170 Mich App 836, 839; 428 NW2d 790 (1988), the majority of a panel of this Court affirmed a trial court’s grant of summary disposition in favor of the defendant because the plaintiffs poor eyesight "was undisputedly related to her ability to perform the duties of bakery clerk.” This conclusion was reached, however, only after uncontested facts in support of it were set forth. For example, it was stated in Harris that the plaintiff, who desired to work as a bakery clerk in a grocery store, had certain specific difficulties performing labeling and weighing duties due to her disability. In the present case, the parties do not agree on whether plaintiff encountered or would encounter difficulties in working as a credit representative, and the trial court, in its written opinion on this issue, states no uncontroverted or undisputed facts in support of its bald conclusion that plaintiffs eye disability is related to his ability to perform the duties of a credit representative. Indeed, plaintiff seems correct in observing that the trial court based its decision wholly on an abstract conception: that the "ability to see” without any difficulty is related to plaintiffs ability to perform his job. Such an ability, however, could, in the abstract, be related to virtually every job, just as could the ability to move or to hear. It is not in the abstract that a motion such as that filed by gmac in this case must be decided, however. Rather, the individual handicapped person and the unique job circumstances must be examined.
Accordingly, we find that the trial court’s grant of gmac’s motion for summary disposition on Count i of plaintiffs complaint was erroneous.
Second, plaintiff argues that the trial court improperly granted gmac’s motion for summary disposition pursuant to MCR 2.116(0(10) regarding Count hi, which alleges a breach of contract. The trial court granted gmac’s motion on the basis that the agreement between gmac and plaintiff regarding plaintiffs sixty-day trial period of employment had not created a contract based on gmac’s personnel and other policies, permitting termination for just cause, but rather a contract based merely on gmac’s subjective assessment of, or satisfaction with, plaintiffs performance. In this appeal, plaintiff contends that a genuine issue of fact existed regarding whether the contract between the parties permitted gmac to refuse to let plaintiff return to his job as a full-time employee based on an objective, and not a subjective, assessment of plaintiffs performance during his sixty-day trial period. We agree.
Our perusal of the record discloses that the trial court based its finding that gmac was at liberty to refuse plaintiffs request for full-time employment on certain deposition testimony of plaintiff himself. In his deposition, plaintiff was asked, and answered, the following questions:
Q. Okay, what was to happen after the 60-day period?
A. I would be evaluated.
Q. Okay, and if they . . .
A. And if I was not, if my work was not satisfactory, then I would be returned to disability.
Gmac characterizes plaintiffs response as a concession that the implied contract was a satisfaction employment contract. A satisfaction employment contract is a contract in which an employer agrees to employ a person as long as the employer is satisfied with the person’s job performance. Koehler v Buhl, 94 Mich 496; 54 NW 157 (1893). Under such a contract, the employer is the sole judge regarding whether the person’s job performance is satisfactory. Schmand v Jandorf, 175 Mich 88; 140 NW 996 (1913). Gmac, citing Milligan v Union Corp, 87 Mich App 179, 181-182; 274 NW2d 10 (1978), asserts that plaintiff was bound by his deposition testimony "and was precluded from offering any testimony to contradict his deposition.” In Milligan, this Court upheld a grant of summary disposition on the basis that the plaintiff was bound by his deposition testimony that his employment contract was at will.
We find plaintiffs deposition testimony on this issue to be ambiguous. While it could be interpreted as meaning that his agreement with gmac was a satisfaction contract, it could also be interpreted as meaning that he would return to disability status only if his work was not objectively satisfactory, i.e., only if his work was so deficient as to constitute just cause for termination. In ruling that the parties’ contract was a satisfaction contract, and not one based on the policies and procedures applicable to employees other than plaintiff, the trial court made findings of fact regarding the nature of the contract at issue and the nature of plaintiff’s deposition testimony. This was improper, since a trial court may not make findings of fact in deciding a motion for summary disposition under MCR 2.116(0(10).
Accordingly, we find that the trial court’s grant of gmac’s motion for summary disposition on Count hi of plaintiff’s complaint was erroneous.
Third, plaintiff argues that the trial court improperly granted gmac’s motion for summary disposition pursuant to MCR 2.116(C)(8) regarding Count iv, which alleges the negligent evaluation of plaintiff’s performance of work during his sixty-day trial period. The standard applicable in deciding motions under MCR 2.116(C)(8) is well established:
A motion for summary disposition brought under MCR 2.116(C)(8), failure to state a claim upon which relief can be granted, is tested by the pleadings alone and examines only the legal basis of the complaint. The factual allegations in the complaint must be accepted as true, together with any inferences which can reasonably be drawn therefrom. Unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should be denied. Beaudin v Michigan Bell Telephone Co, 157 Mich App 185, 187; 403 NW2d 76 (1986). However, the mere statement of the pleader’s conclusions, unsupported by allegations of fact upon which they may be based, will not suffice to state a cause of action. NuVision v Dunscombe, 163 Mich App 674, 681; 415 NW2d 234 (1988), lv den 430 Mich 875 (1988). [Roberts v Pinkins, 171 Mich App 648, 651; 430 NW2d 808 (1988).]
Plaintiff argues on this issue that the trial court’s failure to recognize the validity of his claim for negligent evaluation, based on its rejection of a rule set forth by this Court in Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981) , constitutes error. We disagree.
In Schipani, a panel of this Court declared that, if a plaintiff states a proper claim in contract for breach of employment contract, he may also state a claim in tort for negligent evaluation of employment duties. 102 Mich App 623, 624. The trial court in the present case specifically declined to accept this rule, noting that it found no cases which followed it and, indeed, had discovered "numerous cases, mostly Michigan Federal District court decisions,” which "specifically refused to comply with the Schipani ruling.” It is well settled that a decision by any panel of the Court of Appeals is binding precedent until contradicted by another panel of this Court or until reversed or overruled by the Supreme Court. Tebo v Havlik, 418 Mich 350, 362; 343 NW2d 181 (1984), citing In the Matter of Hague, 412 Mich 532; 315 NW2d 524 (1982) , and Hackett v Ferndale City Clerk, 1 Mich App 6; 133 NW2d 221 (1965).
In several cases decided by post -Schipani panels of this Court it has been stated that in an employment setting a tort action arises only where there is a breach of duty distinct from a breach of contract. See, e.g., Dahlman v Oakland University, 172 Mich App 502, 506-507; 432 NW2d 304 (1988), lv den 431 Mich 910 (1988); Sankar v Detroit Bd of Ed, 160 Mich App 470; 409 NW2d 213 (1987); Struble v Lacks Industries, Inc, 157 Mich App 169, 176; 403 NW2d 71 (1986); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 667-668; 378 NW2d 558 (1985). The panel in Sankar specifically expressed the belief that "the Schipani Court’s recognition of the tort of negligent evaluation should be limited to the particular facts of that case.” 160 Mich App 480, n 2. Moreover, other panels of this Court have noted that Michigan law does not recognize a cause of action for the negligent performance of a contract and have followed the rule that a breach of an employment contract does not give rise to a tort claim where the breach of duty is indistinguishable from the breach of contract. See, e.g., Grant v Michigan Osteopathic Medical Center, Inc, 172 Mich App 536; 432 NW2d 313 (1988); Lopus v L & L Shop-Rite, Inc, 171 Mich App 486; 430 NW2d 757 (1988); Loftis v GT Products, Inc, 167 Mich App 787; 423 NW2d 358 (1988); Squire v General Motors Corp, 174 Mich App 780; 436 NW2d 739 (1989). Plaintiff in this case did not plead that gmac breached any duty independent of the alleged breach of contract.
Plaintiff having failed to plead that gmac breached any duty independent of the alleged breach of contract and the Schipani holding having been challenged or rejected by other panels of this Court, we conclude that the trial court’s grant of gmac’s motion for summary disposition on Count iv was not erroneous.
To sum up, we reverse the trial court’s grant of gmac’s motions for summary disposition regarding Counts i and in of plaintiff’s complaint and affirm the trial court’s grant of gmac’s motion for summary disposition regarding Count iv.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. | [
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Kavanagh, C. J.
Defendant was convicted by a jury of assault with intent to commit murder, MCLA 750.83; MSA 28.278 on March 28, 1967 in Detroit Recorder’s Court. His appeal to the Court of Appeals raised three issues: violation of the 180-day rule; the improper admission of certain testimony into evidence; and a violation of his Fourth Amendment right to be free from unreasonable search and seizure. The Court of Appeals affirmed defendant’s conviction, 22 Mich App 91; 177 NW2d 220 (1970). We granted leave to appeal to decide whether or not there had been a violation of the 180-day rule and later granted the appellate defender’s request to brief and argue three additional issues with respect to instructions given at defendant’s trial. We remand for augmentation of record.
The Facts
On January 18, 1966 defendant was arraigned on the instant charge of assault with intent to commit murder. This charge arose out of an incident on January 17, 1966, in which a police officer was shot. On January 19, 1966, while defendant was in custody, a complaint was filed, a warrant issued, and defendant was arraigned on a second charge of robbery armed. On January 21, 1966, following the filing of a complaint and issuance of a warrant, defendant was arraigned on a third charge of first-degree murder. Disposition of these three distinct cases, each arising out of separate incidents, occurred as follows:
Robbery armed: On April 15, 1966 the defendant pled guilty to robbery unarmed and on April 19, 1966 he received a sentence of 5 to 15 years imprisonment, and was delivered to the Department of Corrections.
Murder, ñrst degree: Following two pretrial hearings and one adjournment defendant was brought to trial on the murder charge on February 1, 1967, 12 months after his arraignment. On February 6, 1967 defendant was acquitted.
Assault with intent to commit murder: On February 27, 1967, over one year after arraignment and before trial commenced on the assault with intent to murder charge, defendant brought a motion to quash the information alleging violation of the 180-day rule. On February 28, 1967, the trial judge denied defendant’s motion finding that since the delay resulted from the intervening murder trial, the prosecutor had brought defendant to trial on the instant charge in good-faith compliance with the 180-day rule, MCLA 780.131; MSA 28.969(1). Following one adjournment on March 14, 1967, defendant was tried by a jury and convicted of assault with intent to commit murder on March 28, 1967. On April 14, 1967, defendant was sentenced to 50 to 75 years imprisonment.
I. 180-Day Rule
Defendant contends that the trial court was divested of its jurisdiction under MCLA 780.131 et seq.; MSA 28.969(1) et seq. when trial in the instant case commenced 343 days after defendant’s delivery to the state prison on another unrelated conviction.
The act provides in pertinent part:
"Sec. 1. Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the pris oner. The written notice and statement provided herein shall be delivered by certified mail.
"Sec. 2. The department of corrections shall notify each prisoner of any request forwarded under the provisions of section 1 of this act.
"Sec. 3.. In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”
This Court has addressed the issue of compliance with this statute in only two cases: People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), and People v Castelli, 370 Mich 147; 121 NW2d 438 (1963).
In Hendershot, supra, defendant was sentenced to a term in a state prison pursuant to his conviction for manslaughter. The prosecutor filed a detainer notifying the Department of Corrections of an outstanding warrant for carrying a concealed weapon. Almost seven years later, when defendant was about to be released, the Department of Corrections served notice upon the prosecuting attorney requesting that action be taken toward final disposition of the untried concealed weapons charge. The prosecutor prepared the case for trial but defendant’s pretrial motions delayed the actual trial beyond 180 days from the date of receipt of notice by the prosecutor. This Court held that the prosecutor’s good-faith action in promptly readying the case for trial satisfied the statutory requirement of bringing the case to trial within 180 days from receipt of notice. The trial court was not, therefore, divested of jurisdiction under MCLA 780.133; MSA 28.969(3).
In Castelli, supra, this Court held that the 180-day period could not begin to run until a defendant was delivered to state prison authorities. Dictum in Castelli suggests that once defendant was delivered to state prison, the Department of Corrections would be charged with a duty to serve the prosecutor with notice to begin proceedings within 180 days.
"In this case the department of corrections never did notify the prosecuting attorney of Oakland county of defendant’s imprisonment or request disposition of the information. However, inasmuch as defendant was not delivered to the department and to State prison until March 3, 1961, no duty could have reposed on the department to do so before that date. 180 days thereafter had not yet expired when, on August 25, 1961, the Oakland county prosecuting attorney commenced proceedings, under the Hendershot holding, by habeas corpus to bring defendant before the magistrate for examination. Jurisdiction to try defendant, accordingly, was not lost and he is not entitled to discharge on the ground just considered.” 370 Mich 153.
Therefore, while the defendant in Castelli was already in the custody of county authorities when a warrant charging an unrelated offense was issued, the 180 days did not commence until he was delivered to state prison authorities. This Court held that prosecution was timely under Hendershot.
We read MCLA 780.131 et seq.; MSA 28.969(1) et seq. as an effort to secure to state prison inmates their constitutional right to a speedy trial.
We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:
1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;
2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.
We so hold because we are confident that the Legislature which drafted the 180-day rule did not intend to empower law-enforcement officials to defeat this statutory protection afforded to defendants by failing or refusing to serve formal notice. Our holding imposes a duty upon all law-enforcement officials to see that state prison inmates are brought to trial on outstanding warrants in good faith within 180 days.
We have held that defendant’s trial need not be concluded within 180 days, but that the prosecution must take good-faith action within that time to ready the case for trial. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959).
In the instant case, defendant was arraigned promptly after the warrant was issued, but the trial was delayed to allow the trial of another unrelated charge against the defendant. More than 180 days elapsed from the time of the charge and trial on it, but that does not determine the issue.
There is no constitutional or statutory impedi ment inherent in prosecuting unrelated offenses against the same defendant at consecutive trials. Defendant, in fact, had a right to separate trials. See People v Tobey, 401 Mich 141; 257 NW2d 537 (1977). Delay which results from other proceedings against the defendant will not necessarily constitute a violation of the 180-day statute.
Delay reasonably necessary to try an intervening case will not militate against a finding of good-faith action.
This record shows that defendant raised the question of compliance with the 180-day statute by a motion to quash the information. The trial judge denied the motion without the prosecutor establishing good-faith action to bring this matter to trial, apparently holding that adjournment of trial to permit another trial was reasonable per se and adequate compliance with the statute without regard to whether the intervening trial was unreasonably delayed. We do not agree that the delay here was necessarily reasonable, and accordingly remand for the purpose of establishing its reasonableness and that the prosecutor took the required good-faith action to ready this case for trial.
Defendant also argues that the delay here violated his right to a speedy trial. A defendant’s constitutional right to a speedy trial is legislatively observed in both the 180-day statute, which specifically addressed speedy trial rights of those already incarcerated in state prison, and more generally in MCLA 768.1; MSA 28.1024:
"Sec. 1. The people of this state and persons charged with crime are entitled to and shall have a speedy trial and determination of all prosecutions and it is hereby made the duty of all public officers having duties to perform in any criminal case, to bring such case to a final determination without delay except as may be necessary to secure to the accused a fair and impartial trial.”
We are bound by the above statutory provisions as well as by the Federal and our own case law construing the right. This Court has adopted the Federal standards for a speedy trial enunciated by the United States Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Recently, in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), we restated the principles. The factors to be balanced in determining whether or not a defendant has been denied the right to a speedy trial are: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of the right, and (4) prejudice to the defendant.
Here the delay of 343 days for the purpose of trying another charge against this defendant without any evidence that he demanded trial or was prejudiced by the delay, will not support a conclusion that defendant was denied his constitutional right to a speedy trial.
II. Jury Instructions
On July 2, 1975, this Court granted defendant’s motion to brief and argue additional issues challenging the propriety of the jury instructions. We granted leave to appeal these issues improvidently because defendant raised no objection to the instructions at trial, in the Court of Appeals, or in his application to this Court. Defendant consequently did not preserve his right to appeal and we will not review the alleged error.
Remanded to the trial court for establishment of record to support the trial court’s finding of the prosecutor’s good-faith action to bring this matter to trial within 180 days.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J. | [
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Levin, J.
The question concerns the extent of a court’s inquiry when a party to a collective bargaining agreement containing an arbitration clause seeks to enjoin arbitration of a grievance involving an issue of contract interpretation on the ground that the dispute is not within the scope of the agreement to arbitrate.
Joy Urka, a member of the Kaleva-NormanDickson School Teachers’ Association (the union), was a certified, probationary (nontenured) teacher under contract with the Kaleva-Norman-Dickson School District (the board) for the 1971-1972 school year. In March, 1972, pursuant to provisions of the teachers’ tenure act, she was notified in writing that her contract would not be renewed.
Urka filed a grievance asserting that non-renewal of her contract violated the collective bargaining agreement. Urka was not satisfied with the resolution of her grievance and the union demanded arbitration pursuant to a provision of the agreement.
The board refused to submit to arbitration and sought injunctive relief in the circuit court. That court found that Urka’s claim was not arbitrable under the agreement and entered a permanent injunction.
The Court of Appeals affirmed. We reverse and dissolve the injunction barring arbitration.
I
Under the teachers’ tenure act all teachers during the first two years of employment are on probation. As probationary teachers, their services may be discontinued on written notice at "least 60 days before the close of the school year”. The board timely gave such notice. It is not contended that the proposed termination of Urka’s employment violates the teachers’ tenure act.
It is, rather, the claim of the union and Urka that under the collective bargaining agreement the board limited its right under the act to discontinue the employment of a probationary teacher. The board counters that the right under the act not to renew the contract of a probationary teacher is explicitly reserved to the board under the provisions of the collective bargaining agreement.
All agree that the question of arbitrability is for a court.
Arbitration is a matter of contract. A party cannot be required to arbitrate an issue which he has not agreed to submit to arbitration.
The collective bargaining agreement between the union and the board provides in pertinent part:
"ARTICLE XIV.
"Professional Grievance Procedure
"A. Any teacher, group of teachers or the Association believing that there has been a violation, misinterpretation or misapplication of any provision of this Agreement or any other provision of law except a statute specifically establishing a procedure for redress relating to wages, hours, terms or conditions of employment, may file a written grievance * * * .
"E. If the Board, the aggrieved employee, and the Association shall be unable to resolve any grievance through mediation, and it shall involve an alleged violation of a specific article and section of this agreement, it may, within ten school days, after mediation has been exhausted, be appealed to arbitration. * * *
"The arbitrator shall have no power to alter, modify, add to, or subtract from the provisions of this agreement.
"His authority shall be limited to deciding whether a specific article and section of this agreement has been violated and shall be subject to, in all cases, the rights, responsibilities and authority of the parties under the Michigan General School Laws or any other national, state, county, district or local laws. The arbitrator shall not usurp the functions of the Board or the proper exercise of its judgment and discretion under law and this agreement.
"The decision of the arbitrator shall be final and binding.”
"ARTICLE II.
"Board Rights
"A. The Board, on its own behalf and on behalf of the electors of the district, hereby retains and reserves unto itself without limitations, all powers, rights, authority, duties, and responsibilities conferred upon and vested in it by the laws and the Constitution of the State of Michigan, and of the United States, including, but without limiting the generality of the foregoing, the right: * * *
"2. To hire all employees and subject to the provisions of law, to determine their qualifications, and the conditions for their continued employment or their dismissal or demotion; and to promote, and transfer all such employees, except as hereinafter provided. * * *
"B. The exercise of the foregoing powers, right, authority, duties, and responsibilities by the Board, the adoption of policies, rules, regulations and practices in furtherance thereof, and the use of judgment and dis cretion in connection therewith shall be limited only by the specific and express terms hereof in conformance with the Constitution and Laws of the State of Michigan, and the Constitution and Laws of the United States.
"C. Nothing contained herein shall be considered to deny or restrict the Board of its rights, responsibilities, and authority under the Michigan General School Laws or any other national, state, county, district, or local laws or regulations as they pertain to education.”
"ARTICLE XL
"Teacher Evaluation
"A. Probationary teachers will be evaluated at least two times during each year and tenure teachers will be evaluated at least once during each year, by their Principal. All monitoring or observation of the work performance of a teacher shall be conducted openly. A written report shall be completed and signed by the Principal and the teacher. A copy of the evaluation is to be placed in the teacher’s personal file, and a teacher may also confer with the Superintendent regarding his evaluation.
"B. Each teacher shall have the right, upon a written request to the administration, to review the contents of his own personal file other than confidential materials. A representative of the Association may, at the teacher’s request, accompany the teacher in this review.
"C. No teacher shall be disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantage without just cause.”
The board’s complaint in the circuit court alleged that when Urka was notified in writing that her services would be discontinued she was advised that her services were "not satisfactory”.
The union and Urka contend that the non-renewal of Urka’s contract violated Art XI(C) of the collective bargaining agreement and that pursuant to Art XIV(E), there having occurred a failure to resolve a grievance involving the interpretation, application and an alleged violation of a specific article and section of the agreement, they are entitled to go to arbitration.
The board responds that Urka’s claim is nonarbitrable under Art II where the board reserved to itself without limitation all powers, rights and authority conferred upon and vested in it by the laws of this state, including the right to "hire all employees” and to determine "the conditions for their continued employment or their dismissal or demotion”, the exercise of which powers, rights and authorities "shall be limited only by the specific and express terms hereof’ in conformance with the Constitution and laws of this state and the United States. The board would have a court decide that, by reason of Art II, non-renewal of a probationary teacher’s contract does not violate Art XI(C) and that it did not agree to submit to arbitration a claim inconsistent with its rights under Art II.
II
This collective bargaining agreement was entered into in accordance with the public employment relations act (PERA). In construing the provisions and ramifications of the PERA, this Court has frequently looked to decisions of the Federal courts which construe and apply the National Labor Relations Act.
The policy favoring arbitration of disputes arising under collective bargaining agreements, as enunciated by the United States Supreme Court in the Steelworkers’ Trilogy,* is appropriate for contracts entered into under the PERA.
In United Steelworkers of America v American Manufacturing Co, 363 US 564, 568; 80 S Ct 1343 4 L Ed 2d 1403 (1960), the Court said that while the question whether a dispute is arbitrable is for a court, the judicial inquiry "is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.” (Emphasis supplied.)
The union and Urka contend that "on its face” her claim is "governed by the contract”, the collective bargaining agreement. The board contends that it is not asking the Court to interpret or apply any provision of the agreement because Urka’s claim "on its face” is not governed by the agreement but by the reserved rights of the board, including its rights under the teachers’ tenure act. Urka’s claim is not based on the teachers’ tenure act but on the collective bargaining agreement. Whether she has a valid claim is "governed by the contract”.
In United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582-583; 80 S Ct 1347; 4 L Ed 2d 1409 (1960), the collective bargaining agreement provided for arbitration of differences concerning the meaning and application of provisions of the contract except matters which are "strictly a function of the management”. The Court held that, despite the "function of management” reservation clause, the issue of contracting out work formerly done by employees was arbitrable. The Court said, "An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” (Emphasis supplied.) Absent an "express provision excluding [a] particular grievance from arbitration” or the "most forceful evidence of a purpose to exclude the claim”, (emphasis supplied) the matter should go to arbitration:
"Accordingly, 'strictly a function of management’ must be interpreted as referring only to that over which the contract gives management complete control and unfettered discretion. Respondent claims that the contracting out of work falls within this category. Contracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators. A specific collective bargaining agreement may exclude contracting out from the grievance procedure. Or a written collateral agreement may make clear that contracting out was not a matter for arbitration. In such a case a grievance based solely on contracting out would not be arbitrable. Here, however, there is no such provision. Nor is there any showing that the parties designed the phrase 'strictly a function of management’ to encompass any and all forms of contracting out. In the absence of any express' provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.” United Steelworkers of America v Warrior & Gulf Navigation Co, supra, pp 584-585.
The board did not specifically reserve from arbitration claims arising under Art XI(C). There is no evidence, forceful or otherwise, of a purpose to "exclude” from arbitration claims based on Art XI(C).
The circuit and appeals courts, asserting that Urka’s claim "on its face” was not governed by the agreement, decided the merits of the dispute in concluding that the language "disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantage” in an article of the agreement concerning "teacher evaluation” of both probationary and tenured teachers might not cover non-renewal of a probationary teacher’s contract for the reason that her services had not been "satisfactory” and that a construction in favor of coverage was necessarily precluded by the management-rights provision although, in terms, that provision is limited by the "specific and express terms” of the collective bargaining agreement.
The agreement of the parties indeed includes a forceful reservation by the board of rights in certain matters. Arguably, in such a situation a court should have leeway to weigh the competing claims and determine whether the reservation of rights by the board, if not expressly, at least impliedly covers the disputed matter. That approach, however, gives to the court the task assigned to the arbitrator — namely, the interpretation and application of the contract.
In deciding whether a dispute involving an issue of contract interpretation is arbitrable, a court should guard against the temptation to make its own interpretation of the substantive provisions of the contract encompassing the merits of the dispute. If the parties have agreed that an arbitrator shall decide questions of contract interpretation, the merits of the dispute are for the arbitrator.
Where a court finds itself weighing the pros and cons of each party’s interpretation of substantive provisions of the contract, it is likely that the court has gone astray. The question for the court is not whether one interpretation or another is correct, but whether the parties have agreed that an arbitrator shall decide which of the competing interpretations is correct.
Our holding is a most limited one. We intimate nothing about the possible merits of Urka’s claim. It may well be that the construction placed on the agreement by the circuit and appeals courts is correct — non-renewal of Urka’s contract did not violate Art XI(C) and was a right reserved to the board under Art II. But it may not be said "with positive assurance” that the arbitration clause— which covers alleged "violation, misinterpretation or misapplication of any provision” (emphasis supplied) of the agreement — is "not susceptible of an interpretation that covers” Urka’s dispute. Whether the union’s and Urka’s contention that the non-renewal of her contract violates Art XI(C) is a correct interpretation and application of the agreement is a question for the arbitrator.
The rule promulgated by the United States Supreme Court puts the burden on the party who would exclude a matter from a general arbitration clause to do so expressly and explicitly. We adopt that rule.
We reverse the Court of Appeals and dissolve the injunction restraining arbitration of Urka’s grievance for the reason that Urka’s claim does not pertain to a matter the parties specifically excluded from arbitration.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Levin, J.
MCLA 38.81-38.83; MSA 15.1981-15.1983.
MCLA 38.81; MSA 15.1981.
MCLA 38.83; MSA 15.1983.
John Wiley & Sons v Livingston, 376 US 543, 546-547; 84 S Ct 909; 11 L Ed 2d 898 (1964).
Interest arbitration imposed by statute, e.g., the policemen and firemen compulsory arbitration act, MCLA 423.231, et seq.; MSA 17.455(31), et seq., is atypical.
The briefs of the parties make no argument based on the exception for "a statute” and, accordingly, we do not speculate as to the meaning to be ascribed to this clause.
Cf. Munro v Elk Rapids Schools, 385 Mich 618; 189 NW2d 224 (1971).
Urka’s grievance also asserted that termination violated Art H(A) prohibiting discrimination against an employee by reason of union membership or activity or exercise of rights under the collective bargaining agreement — prohibitions paralleling §§ 9 and 10 of the public employment relations act (PERA) proscribing unfair labor practices. MCLA 423.209, 423.210; MSA 17.455(9), 17.455(10).
MCLA 423.201, et seq.; MSA 17.455(1), et seq.
See Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974); Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 127; 223 NW2d 283 (1974); Michigan Employment Relations Commission v Reeths-Puffer School Dist, 391 Mich 253, 260; 215 NW2d 672 (1974).
United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574; 80 S Ct 1347; 4 L Ed 2d 1409 (1960); United Steelworkers of America v Enterprise Wheel & Car Corp, 363 US 593; 80 S Ct 1358; 4 L Ed 2d 1424 (1960); United Steelworkers of America v American Manufacturing Co, 363 US 564; 80 S, Ct 1343; 4 L Ed 2d 1403 (1960). See Symposium, Arbitration and the Courts, 58 Nw U L Rev 466 (1963).
Compare International Association of Machinists v Howmet Corp, 466 F2d 1249 (CA 9, 1972). In that case, Menasco Manufacturing Company purchased two California plants from Howmet Corp. Both Menasco and Howmet manufactured aircraft landing gear. Menasco decided to close one of Howmet’s plants because it was operating at a substantial loss. Menasco and the union representing employees at that plant were unable to agree on severance and vacation pay, job transfer and preferential hiring at other Menasco plants and payments to the pension plan. The union demanded arbitration under an arbitration clause in the collective bargaining agreement which referred to arbitration any unsettled grievance "which involves the interpretation or application of this Agreement”. Menasco refused to arbitrate.
In ordering Menasco to arbitrate the unsettled grievance, the Court said:
"Although arbitration is a matter of mutual agreement between the parties, and they may choose to exclude certain areas of contention from the arbitration process, the standard set by the Court for finding a dispute non-arbitrable is a strict one: There must be either an 'express provision excluding a particular grievance from arbitration’ or 'the most forceful evidence of a purpose to exclude the claim from arbitration.’ [United Steelworkers of America v Warrior & Gulf Co, 363 US 574, 585; 80 S Ct 1347; 4 L Ed 2d 1409 (1960)] Here, there is no such 'express provision.’ Whether or not a particular dispute is prima facie covered by the agreement’s arbitration procedure is a question for the court to decide, see John Wiley & Sons v Livingston, 376 US 543, 546-547; 84 S Ct 909; 11 L Ed 2d 898 (1964), and Local Freight Drivers Local 208 v Braswell Motor Freight Lines, Inc, 422 F2d 109, 112 (CA 9, 1970). The issue is therefore a simple one: is there forceful evidence of a purpose to exclude these grievances from arbitration so that the heavy presumption in favor of arbitration is overcome? We hold that there is not.”
Compare District 50, United Mine Workers v Chris-Craft Corp, 385 F2d 946, 949 (CA 6, 1967), cited by the board, where a union unsuccessfully sought to arbitrate the dismissal of employees discharged for violating the no-strike provisions of the collective bargaining agreement. The labor agreement provided a grievance and arbitration procedure for disputes concerning discharge. However, the no-strike clause specifically stated that any violator of that provision would be subject to discharge and that "such action [a discharge for striking] may not be raised as a grievance under this agreement”,. | [
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ORDER
Entered December 23, 1974. — Reporter.
On order of the Court, the application by defendant-cross-defendant-appellant is considered and the same hereby is granted. This Court, sua sponte, pursuant to GCR, 1963, 865.1(7), hereby peremptorily reverses the Court of Appeals and remands the case to the trial court for entry of an order in accord with the trial court’s order of April 19, 1973.
The principle of Allstate Insurance Co v Motor State Insurance Co, 33 Mich App 469 (1971), barring exclusions in a policy of automobile liability insurance, applies where a motor vehicle is registered as an insured vehicle on the strength of a certificate of insurance certifying that a policy of insurance has been issued covering the vehicle in compliance with the Motor Vehicle Accident Claims Act. That principle does not apply to exclusions in a policy of insurance which has not been issued in respect to a particular vehicle. Celina Mutual Insurance Co v Preferred Risk Mutual Insurance Co, 51 Mich App 99 (1974), holding to the contrary, relied on by the Court of Appeals in this case, is disapproved.
(Docket No. 56203.)
Reported below: 54 Mich App 378. | [
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Williams, J.
Defendants in this matter raise a number of significant issues regarding the propriety of the citizens’ grand jury and allied proceedings in the instant case which culminated in their serving sentences for two instances of civil contempt for a period of more than one year. The single dispositive question we resolve today is whether defendants can properly be imprisoned for two terms totaling a sentence of more than one year for failure to answer the same or similar questions before the same grand jury, once sitting in "regular” session and once in recalled session, after the Legislature, in MCLA 767.19c; MSA 28.959(3), has established a one-year maximum punishment for "[a]ny witness who neglects or refuses * * * to answer any questions before the grand jury concerning any matter or thing of which the witness has knowledge concerning matters before the grand jury”. We hold that defendants cannot be so sentenced.
I —Facts
Defendants, after being granted immunity, were twice found to be in civil contempt for their refusal to answer questions regarding solicitation of injury cases when called before the Wayne County Citizens’ Grand Jury.
After the first such occasion, defendant Arthur Jimerson was sentenced (April 1973) to one year’s imprisonment or until he purged himself of the contempt; the two remaining defendants, James Walker, Jr., and James Walker, Sr., were sentenced (August 1973) to imprisonment until the grand jury’s term expired or until they, similarly, purged themselves of their contempt. While the grand jury’s expiration date and recall dates have been kept secret, even from this Court, it is conceded by both parties for purposes of this appeal that the grand jury’s original term expired prior to the second set of refusals to answer questions which occurred on January 31, 1974, and that this second set of testimonial refusals occurred after the grand jury was recalled, apparently some time in mid-January, 1974.
On February 2, 1974, found guilty of contempt the second time, all three defendants were sentenced to imprisonment for a second consecutive term, commencing February 1, 1974, of 11 months, 14 days. An order of contempt was issued April 8, 1974, nunc pro tunc as of February 1, 1974.
Wayne Circuit Judge Foley denied defendants’ motions to set bond pending appeal of the second contempt judgments and to set aside those judgments. This Court subsequently granted defendants’ application for leave to appeal, prior to a decision of the Court of Appeals, on May 16, 1974, concurrently admitting defendant Jimerson to $500 bond. 391 Mich 829. On October 2, 1974, this Court admitted both defendants Walker to $500 bond. All three defendants, at the time of their admission to bond, had served prison terms exceeding one year due to their contempt convictions.
II — Statutes on Point
The crux of this case involves interpretation of two relatively recent (1970) statutory provisions. MCLA 767.19c; MSA 28.959(3), reads in its entirety, as follows:
"Any witness who neglects or refuses to appear or testify or both in response to a summons of the grand jury or to answer any questions before the grand jury concerning any matter or thing of which the witness has knowledge concerning matters before the grand jury after service of a true copy of an order granting the witness immunity as to such matters shall be guilty of a contempt and after a public hearing in open court and conviction of such contempt shall be fined not exceeding $10,000.00 or imprisoned not exceeding 1 year, or both. If the witness thereafter appears before the court to purge himself of such contempt, the court shall order the recalling of the grand jury to afford such opportunity, and after appearance of the witness before the grand jury upon a transcript of the testimony there and then given, the witness shall be brought before the court and after examination, the court shall determine whether the witness has purged himself of the contempt and shall commute the sentence upon a finding that the witness has purged himself.”
MCLA 767.7a; MSA 28.947(1), in relevant part, reads as follows:
"[T]he term of service of grand jurors shall be 6 months unless extended by specific order of the judge who summoned such jurors or his successor for an additional period not to exceed 6 months, except that the grand jurors may be recalled at any time by the judge who summoned such jurors or by his successor to conclude business commenced during their term of service.”
Ill — Total Contempt Sentences Exceeding Statutory Maximum Improper
In MCLA 767.19c; MSA 28.959(3), the Legislature has provided, inter alia, that witnesses before the citizens’ grand jury, after a grant of immunity, may be punished to the extent provided in that statute, for refusal "to answer any questions before the grand jury concerning any matter or thing of which the witness has knowledge concerning matters before the grand jury”. (Emphasis added.) It is conceded that all episodes of contempt in the instant case involve refusals to answer identical or similar questions involving the same subject matter.
Plaintiff urges this Court to rule that, regardless of the common subject matter, the episodes of testimonial refusal here were separate events creating, accordingly, independent and separate instances of contempt. Cf. In re Ward, 295 Mich 742; 295 NW 483 (1940); In re Spalter, 31 Mich App 458; 188 NW2d 67 (1971). Defendants contend, on the other hand, that the various episodes consti tute one continuing offense in an "area of refusal” carved out by the recalcitrant witnesses in the first instance of questioning. Cf. Yates v United States, 355 US 66; 78 S Ct 128; 2 L Ed 2d 95 (1957). There is no need to resolve this aspect of the case.
Whether we are talking about one continuing or two separate instances on these facts, the statute on point, MCLA 767.19c; MSA 28.959(3), is, in either case, applicable. It provides that refusal to answer any questions concerning a given matter or thing subject to grand jury scrutiny is punishable by the prescribed penalties. The statute makes no mention of the chronology of the questioning or whether the questions were asked on one, two, or three different occasions; the referénce in the statute is entirely to the focus of the questioning, i.e., was it about a given "matter or thing”. If so, it is covered by the statutory penalties.
To hold otherwise — to hold that MCLA 767.19c; MSA 28.959(3) permits each occasion identical or similar questions are asked of a recalcitrant witness on multiple occasions, to be independently punishable by a maximum incarceration of one year to be served in consecutive terms, is, effectively, to abrogate the statutory maximum penalty provisions, thereby rendering contemnors’ sentences potentially infinite. Witnesses could be continuously shuttled back and forth before a grand jury, creating multiple instances of contempt, without reference to the fact that the improper act is, in each instance, the same. The language of the statute gives no support to such a position nor will we ascribe to the Legislature such a bizarre and unreasonable intent.
Further, we can see no relevant significance to the fact that the first episodes of contempt occurred during the "regular” term of the citizens grand jury while the second set of contempts fell during a meeting of the same grand jury sitting in recalled session pursuant to MCLA 767.7a; MSA 28.947(1). It is clearly erroneous to contend that we are talking about two different grand juries.* * The procedural stage at which a grand jury is operating has no relevance to its extraordinary powers to compel testimony through grant of immunity and, conversely, to its power to seek punishment of witnesses for refusal to testify.
In other words, the citizens’ grand jury, by virtue of its gathering in recalled session, is not thereby invested with a clean slate in order to start the process of investigation completely over again. Recall of the grand jury can only lawfully be accomplished in order to "conclude business commenced”, MCLA 767.7a; MSA 28.947(1), or, at the request of a convicted contemnor in order "to purge himself of * * * contempt”, MCLA 767.19c; MSA 28.959(3).
In sum, we find that the Legislature has enacted in MCLA 767.19c; MSA 28.959(3) a maximum statutory penalty of $10,000 and/or incarceration for one year in cases of testimonial contempt arising out of neglect or refusal to answer questions involving the same or similar subject matter before a grand jury lawfully sitting either in "regular” or recalled session with such subject matter properly before it.
IV —Conclusion
We do not intend, nor, we are confident, did the Legislature in its enactment of MCLA 767.19c; MSA 28.959(3), to condone nor lessen the gravity of the offense of contempt before a citizens’ grand jury. The result of the instant contempts has apparently been to stifle almost entirely an important and significant investigation. We would point out as well that the Legislature, in enacting this statute, actually increased the penalty involved for this crime by extending possible imprisonment past the expiration date of a citizens’ grand jury’s term. Whether the present statutory penalties for contempt provide sufficient deterrent from refusal to testify, having in mind the human equation is for the Legislature not the Courts to determine. The Legislature has spoken in the instant case after balancing the harm done to society with the protection of individual liberties. Its message with respect to the punishment involved is clear — the maximum permissible incarceration for this conduct arising from a single citizens grand jury, in regular and/or extended session, is one year, no more. The courts have no inherent authority to push beyond that legislative prescription.
Defendants, having served more than one year already, are accordingly discharged.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Williams, J.
Counsel for the Wayne County Organized Crime Task Force at oral argument before this Court conceded that the dates of beginning and end of the grand jury term should not have been kept secret. These dates continue not to be, to our knowledge, a matter of public record. Given the agreement by the parties as to the approximate periods in question, there is no necessity, due to our disposition today, to determine these dates for purposes of deciding this case. However, we do note that we see no reason in law or logic why these dates should have been kept secret. In fact, recognizing that defendants Walker were originally sentenced to confinement "until the term of the Grand Jury expired”, it appears to us unconscionable, at the least, not to have informed the Walkers’ counsel of the expiration date of the grand jury’s term and to have arranged, at that point, for their release.
We do not suggest that the prosecutor’s office in the instant case acted in such a manner. We merely point out the hypothetical potential for abuse in such a situation.
The instant case should be contrasted, however, with In re Colacasides, 379 Mich 69, 76-81; 150 NW2d 1 (1967), where two entirely different one-man grand juries were exploring similar subject matter. We express no opinion today on the applicability of today’s holding of the Court to such a situation.
We express no opinion today, however, on the power of a court acting under MCLA 767.19c; MSA 28.959(3) to impose multiple con secutive sentences relating to multiple occasions of identic contempt where the total of such sentences does not exceed the statutory maximum.
See for an insightful discussion of civil contempt before a grand jury both prior and subsequent to passage of MCLA 767.19c; MSA 28.959(3), Justice (then Judge) Levin’s opinion in Spalter v Wayne Circuit Judge, 35 Mich App 156; 192 NW2d 347 (1971). | [
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] |
Swainson, J.
This is a personal injury action brought by plaintiff-appellants Chester and Gail Javis to recover damages resulting from a motorcycle-school bus collision on March 13, 1969. The trial below resulted in a verdict of no cause of action, upon which judgment was entered. Plaintiff-appellants’ motion for a new trial was denied by the trial court. The denial was affirmed by the . Court of Appeals. Plaintiff-appellants appeal from the decision of the Court of Appeals that found no reversible error in the trial court’s refusal to give plaintiff-appellants’ requested Standard Jury Instruction.
On March 13, 1969, Chester Javis was operating, and Gail Javis was a passenger on, a motorcycle proceeding in a northerly direction along Hogback Road, a paved two-lane highway in Washtenaw County. At the same time, defendant-appellee Marvin Baltzell was operating a school bus owned by defendant-appellee board of education, and was proceeding in a westerly direction along Clark Road, also a paved two-lane highway, heading toward its terminus at Hogback Road. The intersection of Hogback and Clark is controlled by a stop sign for the Clark Road traffic only. The accident occurred when Baltzell, after having stopped his bus at the stop sign, attempted to make a left turn (south) onto Hogback and blocked the path of the northbound motorcycle.
The details of the collision as recounted by Chester Javis and Baltzell are markedly different, and constituted the only trial testimony which related to the accident itself. Although Gail Javis was a passenger on the motorcycle, her view of the intersection and the bus was effectively blocked by the head and body of Chester Javis. There were no other witnesses to the collision. Recounted below are the versions of the accident of each of the drivers involved.
a. The Testimony of Plaintiff-Appellant Chester Javis
Plaintiff-appellant Chester Javis was operating his motorcycle in a northerly direction along Hogback Road at approximately 35 miles per hour, with his wife Gail seated behind him. Because of the unusual topography of Hogback Road, he could not see the intersection of Clark and Hogback until he had rounded a curve, crested a hill, and was 400 to 450 feet south of the intersection. When he reached this point, Javis observed a school bus on Clark road, stopped at or near the stop sign. The plaintiff-appellant decelerated and cautiously approached the intersection. When he reached a point approximately 100 to 150 feet from the intersection, and having observed no movement of the bus, Javis assumed that the bus would remain at the stop sign until the motorcycle cleared the intersection. Javis then resumed his speed of 35 miles per hour and attempted to traverse the intersection. Just after he resumed his speed, the bus pulled into the intersection in front of the Javis motorcycle and blocked the northbound lane. Javis immediately applied the brakes of the motorcycle but determined that he could not stop before striking the bus. He therefore attempted to maneuver the motorcycle in front of the bus into the southbound lane. The driver of the bus, however, failed to stop, and the bus and motorcycle collided in the southbound lane of Hogback Road.
b. The testimony of Defendant-Appellee Baltzell
Defendant-appellee Baltzell testified that he brought his bus to a stop at or near the stop sign and checked both the northbound and southbound lanes of Hogback Road. Seeing no trafile on Hogback Road in either direction, Baltzell initiated a left turn into the southbound lane. At or about the time the front wheels of his bus crossed the center line of Hogback Road, Baltzell first observed the Javis motorcycle rounding the curve approximately 400 feet south of the intersection. Defendant-appellee Baltzell estimated the speed of the motorcycle at this time to have been 60 miles per hour. He further testified that upon observing the Javis motorcycle coming toward him he stopped the 30-foot bus and straddled the center line of Hogback, blocking the northbound lane and partially or wholly blocking the southbound lane. At the time Baltzell brought the bus to a stop, the Javis motorcycle was approximately 100 feet from the bus with Javis attempting to brake and maneuver around the front of the bus into the southbound lane of Hogback. Javis was not, however, able to avoid a collision with the stationary bus.
The facts giving rise directly to the legal issues in the present appeal developed out of the cross-examination of Marvin Baltzell. On cross-examination it was established that Baltzell’s trial testimony was, to varying degrees, inconsistent with his testimony at a pretrial deposition. In summary form the following inconsistencies arose:
1. The time taken by the Javis motorcycle to travel the 400 feet from the point it first became visible to Baltzell to the point of collision.
Deposition: "I believe something around seven seconds.”
Trial: "[0]nly a matter of seconds. * * * Well, I believe it’s something less than that [seven seconds] now that I think about it and I have been out there driving that rodd again.”
2. The speed of the bus as it entered the intersection and began its southbound turn.
Deposition: "I was proceeding south going about five miles an hour.”
Trial: "Less than five miles an hour. * * * Five or less, around there? [sic]”
3. The position of the bus in the southbound lane of Hogback Road at the time of collision.
Deposition: "I don’t believe [Javis] could have [found room to maneuver around the bus] on the paved portion.”
Trial: "I’m not sure if I blocked the whole lane. I know it [the bus] was in that lane, but I don’t know how much I blocked.”
Based on the above outlined inconsistencies, plaintiffs’ attorney requested that Standard Jury Instruction (SJI) 3.01(A) be included in the court’s charge to the jury. SJI 3.01(A) entitled "Impeachment of a Party by Prior Inconsistent Statement or Conduct” instructs a jury as follows:
"In deciding whether you should believe a party who has testified, you may consider that at some earlier time he (said) (did) something that does not agree with what he testified to here on an important point. Because he is a party, what he (said) (did) earlier may be considered not only in deciding whether you should believe him, but also may be considered as evidence of the facts in this case.”
The trial court refused to give SJI 3.01(A). Instead, the court fashioned its own instruction that it believed adequately covered the law. The court instructed:
"You’re not bound to accept the testimony of witnesses where it might be unreasonable or not in accord with known facts in the cáse, but on the other hand, you’re not to disregard the testimony of witnesses without case [sic]. You may take into account in determining what weight you’ll place on the testimony of the witnesses, what they said in Court and also any statements they may have made previously, either in depositions or other times. So, it’s up to you what I’m telling you, it’s up to you the jury to determine what weight you place on the testimony of any of the witnesses.
"In this case, also, we had certain evidence presented by the reading of depositions. I believe I told you just before the depositions were read that the depositions are a record of the sworn testimony of the persons who were disposed [sic] This was taken before an authorized person and all parties and their attorneys had a right to be present and to examine and cross-examine the witnesses. So, this evidence is entitled to the same consideration as you give the testimony as if the witness testified in open Court from the witness stand.”
On appeal, plaintiffs urge this Court to hold that the failure of the trial court to deliver SJI 3.01(A) when properly requested to do so constitutes reversible error.
I
Under the direction of GCR 1963, 516.6(2):
"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this sub-rule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.” (Emphasis supplied.)
This court rule is stated in terms that should leave no doubt concerning the mandatory nature of the SJI. The SJI were compiled in an effort to uniformly present juries in civil cases with clear, concise and unbiased instructions to guide their deliberations. Secondarily, the SJI were also designed to conserve the energies of trial counsel and the trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects for jury resolution. These enumerated benefits of the SJI are present, of course, only if the SJI are regularly employed by the trial courts. We therefore wish to clearly state that in our view, and under our supervisory powers we hold, that GCR 1963, 516.6(2) requires that the SJI be used whenever they are applicable, accurate, and requested by a party.
Stating our position that the SJI are mandatory whenever they are legally applicable to the case and requested by a party does not, however, resolve the difficult issue of whether an appellate court should find reversible error in any failure to give a requested and applicable SJI. Counsel for appellants argues that a strict standard of review is a necessity if the SJI are, in practice, to achieve the ends for which they were designed. Counsel for appellees, in response, points out that GCR 1963, 516 makes no mention of a standard of review while GCR 1963, 529.1 establishes a harmless error standard for reviewing discrepancies in civil proceedings. See generally, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), (1974 Cum Supp 155-156).
In terms of a legal analysis of the court rules, the positions of both counsel have merit. It can be stated in favor of appellants’ argument that although GCR 1963, 516 does not specifically mention a reversible error standard, it does prescribe the giving of SJI in mandatory terms. It would be reasonable, and consistent with our policy in other instances of mandatory rules to take a strict approach and confirm our position in favor of the mandatory use of the SJI by requiring any erroneous deviation to be treated as requiring reversal. Such a result would not ignore the harmless error rule of GCR 1963, 529.1, but rather would construe the specific requirements of GCR 1963, 516.6 as controlling over the general provisions of the harmless error rule. Cf. Lasher v Mueller Brass Co, 392 Mich 488, 495; 221 NW2d 289 (1974). In favor of appellees’ position we recognize that GCR 1963, 529.1 does serve the important functions of conserving judicial resources and bringing finality to litigation. Just as the SJI conserve the energies of the court by releasing it from the task of formulating instructions on common topics, the harmless error rule avoids requiring a retrial in civil cases unless the appellant is able to demonstrate that the claimed error was prejudicial. See generally, 3 Honigman & Hawkins, Michigan Court Rules Annotated, (2d ed), pp 226-230.
In the present context, since both asserted positions are reasonable and consistent with the General Court Rules as written, our responsibility is to adopt the position that we believe will best serve the state’s jurisprudence. It is our judgment at this time that the Court should put its supervisory authority behind the consistent and uniform application of the SJI and hence we adopt a strict standard for SJI errors. Whatever wasted effort that will result from the reversal of those few cases wherein a trial court erroneously deviates from the SJI will be overcome by the benefits of conserved trial court time at the instruction stage, certainty to trial counsel as to how the law will be stated to the jury, and a clear and concise instruction for the jury to work with.
II
In order to implement our decision in Part I we must fashion a workable guideline for the appellate review of errors in the SJI cases. In two other states, Missouri and New Mexico, courts have confronted a similar problem. Their solutions merit our consideration.
In Missouri the court rule governing the use of the Missouri Approved Instructions is more straightforward than the Michigan rule. Missouri Supreme Court Rule 70.01(b)-(c) states:
"(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court desires to submit, such instruction shall be given to the exclusion of any other on the same subject.
"(c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.”
In construing this rule the Missouri Supreme Court placed a strong emphasis on the purposes that the Missouri Approved Instructions were adopted to fulfill. In Brown v St Louis Public Service Co, 421 SW2d 255, 257 (Mo, 1967), the Court determined that a stringent standard of review was the appropriate mechanism for furthering the correct use of the instructions. Its formulation for appellate review provides:
"Accordingly, where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” 421 SW2d 255, 259.
The New Mexico standard was enunciated in the case of Jewell v Seidenberg, 82 NM 120; 477 P2d 296; 49 ALR3d 121 (1970). The New Mexico Supreme Court determined that its own harmless error court rule and the history behind the adoption of its Uniform Jury Instructions barred it from following the Missouri presumption of preju dice standard. New Mexico instead retained a harmless error formulation but within a framework that focuses appellate attention on the claimed Uniform Jury Instruction error:
"However^ although the use of UJI is mandatory, we did not intend to place form above substance in adopting the instructions. The standards there [in the UJI] set forth will be our first consideration, and any deviation from them shall be held to be error. In determining whether it is reversible error, we will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice. Thus, our determination will be made by viewing the record in light of the standards we have adopted for a fair trial, rather than indulging in a presumption of prejudice if the UJI is not followed.” 82 NM 120, 124.
As stated in Part I, supra, we do not find that the general harmless error standard of the Michigan General Court Rules must control the specific provisions of GCR 1963, 516.6. We are not bound therefore by the same constraints as was the New Mexico Court in Jewell v Seidenberg, supra. In addition, we do not believe that a New Mexico type rule provides the required strength for enforcing the provisions of GCR 1963, 516.6. The New Mexico rule is essentially a harmless error standard with perhaps a reduced burden of proof required to establish reversible error. It necessarily is an uncertain standard and will not sufficiently induce the close adherence to the mandatory character of the SJI that we hope to achieve.
The Missouri rule presents a more acceptable approach, but it fails to sufficiently articulate the responsibility for proper compliance with SJI procedure at the trial level. A rule should build into itself incentives to promote compliance rather than mechanically reversing for error. The SJI are readily available and both counsel and the trial court equally share responsibility for seeing that SJI are delivered, and delivered in an accurate manner. In practice this means that the initial burden is on the parties to request SJI that they may deem accurate and applicable. If the court should disagree, a party bears the burden of pointing out to the court why it considers the SJI applicable and accurate. Moreover, it would make little sense to reverse for errors made by the court in delivering SJI when counsel have the instructions available to monitor the court’s charge. Should the court, for example, inadvertently misstate a SJI or erroneously substitute a word, it becomes counsel’s duty to bring such error to the court’s attention to allow for the appropriate correction. See, GCR 1963, 516.2.
We accordingly adopt a strict rule that we believe will provide economy in administration and fairness to the parties: Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations.
Ill
In this case we are concerned with the failure to give a SJI. There is no dispute that SJI 3.01(A) was requested by plaintiffs and there is no issue here concerning the legal accuracy of SJI 3.01(A). The only issue before the Court is whether SJI 3.01(A) was applicable to thé facts, of the case. It is defendants’ primary contention on appeal that SJI 3.01(A) was not applicable. Defendants argue that the discrepancies between Baltzell’s deposition and trial testimony were "immeasurably small” and indicated "little contradiction justifying an 'impeachment’ instruction”. Furthermore, defendants point out that the testimony on both sides was vague concerning the exact speeds and distances involved. "To therefore suggest that the defendant was impeached because of a conflict in his testimony of one second, or one mile an hour, and to ignore completely the vague estimates of the plaintiff, would be to work an injustice upon the defendant.”
In our opinion, however, defendants’ arguments overlook the neutrality and simplicity of SJI 3.01(A). The words of the instruction do not themselves focus attention on any particular party. They merely state the law of impeachment. If during the course of a trial only one party factu ally becomes subject to SJI 3.01(A), the instruction does not thereby become unavailable. Both parties have access to the same pretrial procedures and the right to cross-examine the opposing party. If one party chooses not to, or factually cannot, impeach the opposing party, it cannot then complain that an impeachment instruction was given.
The simplicity of SJI 3.01(A) also allows it to be delivered in diverse factual situations. The instruction does not overemphasize or unduly highlight any testimonial discrepancies. It matter-of-factly informs the jury that they may consider previous statements of a party "[i]n deciding whether you should believe him”. The jury clearly retains the full responsibility to weigh all of the testimony and to determine what effect, if any, prior inconsistencies are to have on the party’s credibility.
After reviewing the deposition and trial statements of Marvin Baltzell, we are of the opinion that the request for SJI 3.01(A) was a proper request. Although the variations between Baltzell’s deposition and trial testimony concerned only a few seconds, feet or miles per hour, they were significant variations when viewed in the context of this case. Two very important factual issues in this case were the reasonableness of Baltzell’s conduct after he became aware of the oncoming motorcycle and Baltzell’s estimation of the speed of the motorcycle. These issues hinged on only small variations in the speed of the bus and on the time required for the cycle to travel the approximately 400 feet from its point of visibility to the point of collision. A properly instructed jury may in its deliberations have concluded that such dis crepancies were only natural problems associated with recalling past events; but we believe that the plaintiffs, as a matter of law, were entitled to an instruction informing the jury that it could consider these material variations in assessing Baltzell’s credibility. 3A Wigmore on Evidence (Chadbourn Rev), § 1040; McCormick, Evidence (2d ed), pp 67-69.
Reversed and remanded for a new trial.
Costs to plaintiffs.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Williams, Levin, and J. W. Fitzgerald, JJ., concurred with Swainson, J.
Javis v Board of Education of the School District of Ypsilanti, 48 Mich App 461; 210 NW2d 512 (1973); leave to appeal granted 391 Mich 764 (1974).
See for example, GCR 1963, 785.7(5) and People v Shekoski, 393 Mich 134, 224 NW2d 656 (1974), where the Court stated in part:
"The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient.”
See generally, 49 ALR3d 128, Construction of Statutes or Rules Making Mandatory the Use of Pattern or Uniform Approved Jury Instructions.
Recently, in Moskalik v Dunn, 392 Mich 583; 221 NW2d 313 (1974), this Court held that an objection at trial is generally required to preserve errors based solely on a deviation from the SJI. In that context the majority stated:
"The requirement of a timely objection is not an arbitrary one. Its purpose is to avoid improper instruction and, if perchance an improper instruction which can be corrected has been given, to facilitate its correction before verdict, thereby avoiding costly new trials. The defect in the instruction was not of such magnitude as to constitute plain error requiring a new trial without regard to the failure to bring it to the attention of the judge.” 392 Mich 583, 592.
See, also, id. at 392 Mich 583, 595-596 (Williams, J., dissenting.)
GCR 1963, 516.6(1) provides that, "[njeither the original nor any amended standard jury instruction shall have the force and effect of Court Rules.” This rule reflects the fact the court does not use its rule-making power to adopt the substantive law contained in any SJI. The Court speaks to the accuracy and continued validity of an aspect of the substantive law through actual cases in controversy. See, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), (1974 Cum Supp 155-156).
We recognize that SJI 3.01(A) also allows the use of a party’s previous statements as substantive evidence. Our discussion in this opinion is limited to a review of that portion of SJI 3.01(A) dealing with impeachment. | [
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T. M. Kavanagh, C. J.
(separate opinion). This case is before us on leave granted from the decision of the Court of Appeals, 46 Mich App 71; 207 NW2d 488 (1973) reversing an order of the trial court which permanently enjoined the defendant township from interfering with appellant’s vested billboard use. As we find that such a vested right by way of an existing nonconforming use did exist, we reverse the decision of the Court of Appeals.
This case comes before us upon stipulated facts which are crucial to its determination. The follow ing calendar of events adequately sets forth the factual situation:
April, 1970 Appellant discussed with the Algoma Township Supervisor the availability of billboard sites. Appellant determined that billboards were permitted at the location in question at that time.
March 26, 1970 & April 16, 1970 Publication by Algoma Township Planning Commission of new zoning ordinance and notice of public hearing on its adoption.
May 1970 Appellant entered into a land contract. (Total cost $900; attorneys fees: $60; incidental expenses: $400.)
May 15, 1970 Building permit issued to appellant to expire May 15, 1971.
May 1970-March 1971 Appellant negotiates advertising contract for the property. (Expenses: $1,-500.)
July 1970 Appellant caused sign location to be staked.
Nov. 23, 1970-Jan. 19, 1971 Consumers Power installed a 40-foot pole and transformer upon the property.
April 1, 1971 Appellant signed an advertising contract for the billboard in question.
April 1, 1971-April 28, 1971 Appellant’s agents engaged in shop work in Traverse City constructing an outline of the billboard. (Total cost: $2,645.50.)
April 6, 1971 The new zoning ordinance officially adopted by Algoma Township effective immediately not permitting billboards.
April 15, 1971 Publication of the new ordinance by Algoma Township Board.
April 28, 1971 Appellant’s construction crew began erecting billboard structure. The frame of said structure was completed when the building inspector caused construction to cease with a stop order.
The parties also stipulate that "[sjince the steel supports of the outdoor advertising panel are embedded in concrete, the only feasible way the sign can be removed is to cut through the steel supports with a torch”. See Exhibit F attached to this opinion.
As noted by the parties in the Court of Appeals, the leading Michigan case on nonconforming uses is City of Lansing v Dawley, 247 Mich 394; 225 NW 500 (1929). In Franchise Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962), the Court at page 279 stated:
"The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, an ordinance is enacted which validity bars what was lawfully authorized by the permit.”
As to .the type of construction which must be undertaken to acquire a vested nonconforming use, the Court in Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957) stated, p 307:
"To establish a nonconforming use there must be work of a 'substantial character’ done by way of preparation for an actual use of the premises. Mere 'preliminary’ operations, e.g., ordering of plans, surveying the land, removal of old buildings, are not sufficient. * * * Nor do occasional operations upon the land suffice to indicate its appropriation to a particular use.”
Both parties to this case, and the Court of Appeals, have analyzed the factual situation present herein in such a manner as to determine whether or not the work which the appellant had performed in connection with this property met the tests set forth in Lansing and Beardslee, supra, as of the effective date of the new zoning ordinance, April 6, 1971. All parties to this lawsuit, and both lower courts, have apparently taken the unstated position that the actions of the appellant in erecting the frame of the billboard structure cannot be taken into consideration in this suit because the actions were undertaken 22 days after the effective date of the new zoning ordinance. We do not agree.
Crucial to the Lansing holding was the statement of the Court, supra, pp 396-397:
"It thus appears that the first work done upon the new building was three months after the ordinance went into effect and after the defendant had been notiñed that his permit had been revoked. If he had constructed the building or partially constructed it, if the work he did after the enactment of the ordinance had been done before, there would be no question as to his vested property rights.” (Emphasis supplied.)
Thus, as noted above, crucial to the Lansing decision was the fact that construction had taken place after the building permit issued by the city had been revoked and notice given plaintiff. Franchise Realty, supra, involved a mandamus action to order the city to issue the permit. This Court held that no nonconforming use was established in that case. However, in De Mull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962) wherein the parties had obtained a prior permit under which they had expended considerable sums in reliance thereon, a nonconforming use was found to exist.
In Willingham v City of Dearborn, 359 Mich 7; 101 NW2d 294 (1960), Justice Carr properly pointed out in his dissent that a crucial fact considered by the Court in cases of this nature is whether or not the city has ever issued a lawful permit to begin with, upon which the holder of the permit has substantially relied to his detriment.
On page 16 in Willingham, supra, Justice Carr aptly points out the facts crucial to his view of that case. He states:
"No permit had been granted to plaintiff for the construction of his service garage. The application therefor gave him no vested rights in the property with reference to the construction of said building, nor was the situation otherwise at the time the petition for writ of mandamus was filed.”
Although this Court disagreed with Justice Carr as to his view of the procedural issue involved in Willingham, supra, this Court fully supports his analysis of the Dawley line of cases. Once a city or township issues a valid permit to an applicant, that applicant has every reason and right to rely thereon in his business dealings. Permits are not issued by local authorities when the contemplated use for which the permit is issued conflicts with a local zoning ordinance. Should these ordinances change, the average holder of such a permit, even if he had notice of the change of ordinance, would not necessarily presume that the new ordinance applied to him. After all, he has within his possession an official document of the local community authorizing him to proceed with his contemplated project.
While it is true that the issuance of a permit itself will not give vested rights to a nonconforming use to the holder thereof, the possession thereof, and substantial reliance thereon, will give such rights. And in determining whether or not there has actually been substantial reliance on the issuance of the permit, in order that a nonconforming use may vest, equity demands that, at the very least, all actions which have been undertaken and completed by the holder of the permit prior to actual notification to him of the revocation of such permit must be considered.
Under the facts of the instant case, this would require that this Court also consider that a large portion of the frame structure of the billboard was also completed prior to any action on the part of the township. Under the authority of any of the prior cases cited above, the extent of the reliance upon the permit by the appellant in this case, plus the substantial character of the preparatory construction work completed by appellant in this case, lead this Court to a conclusion that a valid vested nonconforming use exists in favor of the appellant. Therefore, equity requires that appellant be permitted to complete the project. We find other objections raised by the township in this case to be without merit.
Accordingly, the Court of Appeals is reversed and the judgment of the trial court is reinstated.
T. G. Kavanagh and Levin, JJ., concurred with T. M. Kavanagh, C. J.
M. S. Coleman, J.
(to reverse). The facts have been stipulated by the parties and adequately detailed in the other opinions. In his decision based on these facts, the trial judge found that "the plaintiff relied upon the permit, that it incurred substantial costs and that sufficient work was done upon the land by the placing of pole and transformer thereon”. The judge concluded that these circumstances afforded plaintiff a vested property right in the planned use. I would affirm that finding and conclusion.
Injunction is an equitable remedy usually exercised when there has been a violation of a legal right. In this case, plaintiff claims to have a vested property right in the planned land use and argues that defendants’ stop order was in violation of that right.
T agree with Justice Williams that "the critical point in vesting of a nonconforming use is when a zoning ordinance is enacted.” I do not agree with his conclusion that "there was inadequate construction or use under Michigan law to constitute a vested nonconforming use.” Under all the circumstances on and off the particular parcel of land, I must conclude that adequate construction or use had occurred to constitute a vested, nonconforming use..
The decision in City of Lansing v Dawley, 247 Mich 394; 225 NW 500 (1929) contains the basic principles. The Court noted that if the landowner
"had constructed the building or partially constructed it, if the work he did after the enactment of the ordinance had been done before, there would be no question as to his vested property rights. But he did nothing of a substantial character. He went no farther than to order the plans and cause a survey to be made of the lot. This preliminary work was not sufficient to create a vested right to erect the building.”
The Court apparently had this language in mind when it adopted the following analysis in Sandenburgh v Michigamee Oil Co, 249 Mich 372; 228 NW 707 (1930):
"The permit was issued in true accord with the zoning ordinance then in force, and, if substantial work was commenced and performed thereunder, the city was precluded from revoking the permit and later amending the ordinance with reference solely to this property and have it accorded retroactive effect. We think the work commenced toward the construction of the building, the purchase of material and accessories, and the sums expended for labor bring the case within the exception noted in City of Lansing v Dawley, 247 Mich 394.”
Also see Coldwater v Williams Oil Co, 288 Mich 140; 284 NW 675 (1939) and Expert Steel Co v City of Clawson, 368 Mich 619; 118 NW2d 815 (1962). Justice Black further said in Franchise Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962):
"The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, an ordinance is enacted which validity bars what was lawfully authorized by the permit.”
In his dissent to the Court of Appeals decision in this case at 46 Mich App 71; 207 NW2d 488 (1973), Judge J. H. Gillis opined that "tangible change of a substantial nature is a relative question.” He then noted the following:
"The only tangible changes in the property wére the staking of the sign and the erection of the power pole. However, plaintiff had performed substantial work in utilizing the property in accordance with the existing zoning ordinance and permit issued to him for erection of a billboard. He had purchased -the land, executed a land contract, obtained a building permit, negotiated and completed an advertising contract, staked the location, caused a pole and transformer to be placed on land, and began construction of the sign at his shop in Traverse City, expending $2,645.”
I agree with Judge J. H. Gillis that these factors make this case analogous to De Mull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962). In that case the land user wanted to establish a junk yard. He began to build a seven foot fence around the property before the land was rezoned residential. This was the only change to the property. In addition, as Judge J. H. Gillis indicated, the user "entered into a purchase agreement, executed a land contract for purchase, purchased some automobiles, ordered fence posts, and obtained a dealer’s license.” The trial judge in De Mull concluded and this Court agreed that these facts concerning on and off premises activity were sufficient to establish a vested property interest.
To deny the requested injunction would be to leave plaintiff in the position of having purchased land useless for its planned purpose. Plaintiff would have expended $2,645 for a sign which could not be used on the property for which it was designed. It would be left with an advertising contract which it could not execute. The transformer and pole would be useless and probably would have to be removed. The time and effort spent in obtaining the permit, staking out the ground and in furthering the business transactions would be lost.
The great weight of the equities are on the side of the plaintiff. The trial court did not abuse its discretion in granting the permanent injunction.
I would reverse the Court of Appeals and affirm the trial court.
Williams, J.
(separate opinion). There are two principal questions presented in this zoning case:
1 —Is the critical point of time relative to the vesting of a nonconforming use (a) when a zoning ordinance is enacted, or (b) when a construction stop order is served?
2 —What must be done to establish a nonconforming use?
We hold that the critical point in vesting of a nonconforming use is when a zoning ordinance is enacted. We further hold that in the instant case appellant had done insufficient work on the land to establish a vested right to a nonconforming use. Accordingly, we affirm the Court of Appeals in its reversal of the trial court on this point.
I. FACTS.
The facts in this case are of paramount importance and are stipulated in detail by the parties. The following calendar of events tells the story:
April 1970 Appellant discussed with the Algoma Township Supervisor the availability of billboard sites. Appellant determined that billboards were permitted at the location in question at that time.
March 26, 1970 & April 16, 1970 Publication by Algoma Township Planning Commission of new zoning ordinance and notice of public hearing on its adoption.
May 1970 Appellant entered into a land contract. (Total cost $900; attorneys fees: $60; incidental expenses: $400.)
May 15, 1970 Building permit issued to appellant to expire May 15, 1971.
May 1970-March 1971 Appellant negotiates advertising contract for the property. (Expenses: $1,-500.)
July 1970 Appellant caused sign location to be staked.
November 23, 1970-January 19, 1971 Consumers Power installed a 40-foot pole and transformer upon the property.
April 1, 1971 Appellants signed an advertising contract for the billboard in question.
April 1, 1971-April 28, 1971 Appellant’s agents engaged in shop work in Traverse City constructing an outline of the billboard. (Total Cost: $2,645.50.)
April 6, 1971 The new zoning ordinance officially adopted by Algoma Township effective immediately not permitting billboards.
April 15, 1971 Publication of the new ordinance by Algoma Township Board.
April 28, 1971 Appellant’s construction crew began erecting billboard structure. Building inspector caused construction to cease with a stop order.
The parties then proceeded to circuit court. The trial court, in an opinion of May 15, 1972, held, inter alia, that appellant’s use was of substantial character and ordered defendant permanently enjoined from interfering with appellant’s vested billboard use. The Court of Appeals reversed (2-1) on March 29, 1973 finding no "tangible change in the land itself by excavation and construction.” 46 Mich App 71; 207 NW2d 488 (1973). We granted leave on October 26, 1973. 390 Mich 794-795 (1973).
II. WHEN MUST A NONCONFORMING USE VEST?
The dispositive legal issue in this case is whether a nonconforming use vests
a) when a zoning ordinance is enacted, or
b) when a construction stop order is served?
The general rule covering this point is well-stated in 2 Yokley, Zoning Law & Practice (3d ed), § 16-5, p 225 as follows:
"The general rule is that for a property owner to have the benefit of the nonconforming use provisions of a zoning ordinance, the use sought to be continued must be the use in existence on the effective date of the ordinance.’’(Emphasis added. Footnote omitted.)
Michigan case law recognizes and follows this rule. An important case in point is De Mull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962). Justice Black, in De Mull, quoted trial Judge Hoffius’s opinion with approval and wrote as follows for a unanimous Court:
"The judge’s opinion speaks for itself and fully warrants affirmance of that part of the entered decree which adjudges that plaintiffs said business constitutes a legally protectible nonconforming use.” 368 Mich 242, 250.
The pertinent part of the quotation from Judge Hoffius’s opinion follows:
" 'It was said in City of Lansing v Dawley, 247 Mich 394 [225 NW 500 (1929)] at page 396, as follows:
"' "In the exercise of its police power the city of Lansing had a right to enact the ordinance in question, but this right was subject to vested property interests acquired before its enactment. The defendant contends that he has such interests and that he acquired them in reliance on a valid permit. We would be inclined to agree with him if before the enactment of the ordinance he had done anything of a substantial character towards the construction of the building.” (Emphasis added.)
" 'It is apparent from this case that if the owner had undertaken substantial construction of the building for which a permit was issued prior to the adoption of the zoning ordinance the court would have permitted the use of the premises.
" 'From the foregoing it is apparent that at the time the zoning ordinance was adopted for the city of Lowell the plaintiff was operating a junk yard as a nonconforming use.’ ” 368 Mich 242, 248-249.
It will be noted that this Court specifically approved Judge Hoffius’s opinion which emphasized the quotation from City of Lansing v Dawley making the time of enactment of the zoning ordinance the critical time determinative of whether there was or was not an existing nonconforming use of the property. It is of further interest that in the De Mull case the nonconforming use was recognized as vesting and in the City of Lansing case it was held not to have vested.
That De Mull is a correct interpretation of City of Lansing v Da wley is reinforced by the following unanimous statement of this Court in Franchise Realty Interstate Corp v Detroit, 368 Mich 276, 279; 118 NW2d 258 (1962), decided the same day:
"The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, ah ordinance is enacted which validity bars what was lawfully authorized by the permit.”
In the instant case the general rule is reinforced by specific legislation. The rule to be followed is plainly expressed in the language of the relevant section of The Township Rural Zoning Act, MCLA 125.286; MSA 5.2963(16), which reads as follows:
"Sec. 16. The lawful use of any dwelling, building or structure and of any land or premise as existing and lawful at the time of enactment of a zoning ordinance, or, in the case of án amendment of an ordinance, then at the time of such amendment, may be continued although such use does not conform with the provisions of such ordinance or amendment.” (Emphasis added.)
III. WHAT MUST BE DONE TO ESTABLISH A NONCONFORMING USE?
The subject of what precisely constitutes a nonconforming use has, understandably, generated a great deal of controversy and discussion. The stakes are high — the property owner generally has a strong pecuniary interest in retaining the existing use of his or her land, while the zoning authority is seeking to upgrade the community by pre venting deviation from a plan thought to be in the best interests of all the people residing in the zoned area.
The leading case in Michigan on nonconforming use is City of Lansing v Dawley 247 Mich 394; 225 NW 500 (1929) where the Court found that appellant did not have a vested nonconforming use in a business building. In reaching this conclusion, a unanimous Court held that a nonconforming use could only be established:
"[I]f before the enactment of the ordinance he [the property owner] had done anything of a substantial character towards the construction of the building.
" 'Evidently the test in each case as to whether a holder of a permit has acquired vested rights thereunder is, not whether he has spent much or little in reliance upon it, but rather whether there has been any tangible change in the land itself by excavation and construction. ’ [Quoting from Rice v Van Vranken, 132 Misc 82; 229 NY Supp 32 (1928).]
"Until the excavation was finished and the footings put in, which was late in October, the plaintiffs could not be sure that the building was to contain stores.” (Emphasis added.) 247 Mich 394, 396-398.
The Court in Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957) utilized a nearly-identical test in the process of ultimately finding a gravel mining operation not to be a vested nonconforming use:
"To establish a nonconforming use there must be work of a \substantial character’ done by way of preparation for an actual use of the premises. Mere 'preliminary’ operations, e.g, ordering of plans, surveying the land, removal of old buildings, are not sufficient.* * * Nor do occasional operations upon the land suffice to indicate its appropriation to a particular use.” (Footnote omitted.) (Emphasis added.) 349 Mich 296, 307.
Subsequent Michigan cases do not dispute either the Dawley or Beardslee formulations of the general rules involved; they rely entirely on the application of those rules to particular factual situations. See De Mull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962) (junk yard was nonconforming use); Franchise Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962) (drive-in restaurant not nonconforming use); Detroit Edison Co v City of Wixom, 382 Mich 673; 172 NW2d 382 (1969) (transmission line was nonconforming use); Fruitport Twp v Baxter, 6 Mich App 283; 148 NW2d 888 (1967) (junk yard was not nonconforming use); Fredal v Forster, 9 Mich App 215; 156 NW2d 606 (1967) (operation of gravel pit and quarrying was nonconforming use); Rodd v Palmyra Twp, 42 Mich App 434; 202 NW2d 446 (1972) (trailer park was not nonconforming use).
To capsulize the law stemming from Dawley and Beardslee, the test for determining in Michigan whether there is a vested property right in an alleged nonconforming use is:
(1) Has there been preparatory construction work of a substantial character which has effected a tangible change in the land itself? and
(2) Has such work made apparent the actual use of the premises asserted as nonconforming?
If both of these indicia are met, the interests of the property holder will be held to outweigh the interests of the zoning body and nonconforming use will be established thereby creating a vested property right in the owner.
IV. APPLICATION OF LAW TO INSTANT CASE,
A. Construction and Use at Time of Ordinance Enactment.
Prior to adoption of the amendatory zoning ordinance by Algoma Township, appellant alleges accomplishment of two preliminary steps on the land:
(1) Staking of the sign location; and
(2) Making of an electrical engineering survey and construction by Consumers Power of a 40-foot pole, installation of a transformer, and attachment of power lines.
We agree with the Court of Appeals that the making of a survey and staking of the land based on that survey is not sufficient to vest property rights. The mere placement of stakes in the ground is obviously not "work of a substantial character effecting a tangible change in the land itself.” Nor do stakes make apparent the alleged nonconforming use of the land as the site for a billboard. In Dawley we specifically found that the making of a survey was insufficient preliminary work to vest property rights. 247 Mich 394, 397. We continue to take that position today.
We also agree with the reasoning of Judge Danhof writing for a majority of the Court of Appeals with respect to the status of the electrical pole:
"The installation of the power pole presents a closer question. Plaintiff argues that here we have a tangible change in the land which satisfies the Dawley test; that 'tangible change’ is a relative concept which varies in degree according to the character of the use which it is intended to effect; that to erect a billboard, relatively little change need be made in the land. However; it is to be remembered that plaintiff claims and defendant contests that plaintiff has acquired a vested right to use its land for outdoor advertising purposes, not to illuminate it. In Dawley, the defendant tore down one structure on his land and had another moved in preparing for construction. No vested rights were found to exist.” (Emphasis added.) 46 Mich App 71, 75-76.
Judge Danhof has well grasped the flaw in logic in appellant’s contention that the electrical pole establishes a nonconforming billboard use. The electrical pole has only vested appellant with an illumination use not a billboard use. While it may be the case, as appellant urges, that little change in the land is necessary in order to erect a billboard, nonetheless, the changes made must, to lawfully vest a nonconforming use, make apparent the actual use asserted as nonconforming. The billboard use not being apparent from construction by Consumers Power of an electrical pole, appellant had no vested right in a nonconforming use of the land as the site for an advertising billboard.
At the time of enactment of the ordinance, there was inadequate construction or use under Michigan law to constitute a vested nonconforming use.
B. If Construction and Use At Time of Service of Stop Work Order Were Controlling.
Our Brother, the Chief Justice, directing his attention to the time of service of the stop work order, finds the additional factor to be considered of " 'steel supports of the outdoor advertising panel * * * embedded in concrete’ ”. We agree that such amount and character of construction on the land would be sufficient to constitute a vested nonconforming use had it existed at the time of enactment of the zoning ordinance, but the fact of the matter is that it didn’t. Therefore, that at tempt at establishment of nonconforming use is too late and is not entitled to create a vested nonconforming one.
C. Was There Due Process Notice?
To begin with, plaintiff-appellant makes no claim of lack of due process because of inadequate notice. This is what it says:
"Certainly plaintiff did not attempt to challenge the ordinance on the ground that it had no actual knowledge of the amendment. * * * [Constructive knowledge of changes does not affect the question whether a nonconforming use comes into existence. The issue is one of plaintiffs activity, in utilizing its property.”
As stipulated by the parties, "[t]he Algoma Township Zoning Ordinance adopted April 6, 1971 was properly adopted and is a valid ordinance”. In order to gain that status, Algoma Township took, as required by the Township Rural Zoning Act, MCLA 125.271 et seq.; MSÁ 5.2963(1) et seq., a panoply of actions aimed at meeting due process notice requirements, including:
(1) Notice of publication of meetings of the township zoning board (MCLA 125.275; MSA 5.2963[5]);
(2) Notice by publication of, and public hearing on the proposed change by the township zoning board (MCLA 125.284; MSA 5.2963[14]; MCLA 125.279; MSA 5.2963[9]);
(3) Notice by publication of, and public hearing on the proposed change by the township board (MCLA 125.284; MSA 5.2963[14]; MCLA 125.281; MSA 5.2963[11]).
The brief of Algoma Township well depicts the time, trouble, and effort made by Algoma Township to comply with the statutory scheme for effective adoption of its new zoning ordinance:
"The township of Algoma spent several years considering the adoption of a new zoning ordinance before the adoption of the revised ordinance in 1971. The township hired a firm of planners who spent a considerable amount of time developing a master plan and a proposed zoning ordinance to replace the previous ordinance which was adopted in 1955. After many meetings of the planning commission, several public hearings by the planning commission and the township board, the new zoning ordinance was adopted April 6, 1971. The ordinance constituted a complete revision of the prior ordinance. It was not a special zoning ordinance amendment which was designed to thwart plaintiffs use of its property.”
We have no reason to find that the Legislature did not provide due process in the notices above provided.
D. "Fair Play” for Nonconforming Uses.
Algoma Township without statutory compulsion did make specific provision for outstanding permits in its new ordinance: '
"Article XIII
"Non-Conforming Uses
"13.8 PLANS ALREADY FILED. Where plans for a building have been filed which would conform with the zoning regulations then effective but not with subsequently enacted regulations, and where a building permit for such building has been issued, such building may be erected provided construction is begun within three months of the issuance of the Building Permit and diligently pursued to completion. ” Algoma Township Zoning Ordinance of 1971, § 13.8. (Emphasis added.)
Appellant in the instant case did not begin construction of the frame for its billboard until 11 and 1/2 months after issuance of its building permit, substantially more than 3 months after issuance of its permit and, significantly, more than 3 weeks subsequent to adoption of the new ordinance. It does not qualify therefore for the provision for outstanding permits spelled out by Algoma Township in § 13.8.
V. CONCLUSION.
In view of all of the facts, it is difficult to contend that Algoma Township was not fair as well as within its rights in enforcing its zoning ordinance with respect to plaintiff-appellant.
We hold that, on the particular facts of this case, appellant did not establish a vested nonconforming billboard use under Michigan law prior to adoption by Algoma Township of its amendatory zoning ordinance of April 6, 1971.
The Court of Appeals is affirmed. The trial court is reversed. This cause is remanded to Kent County Circuit Court for further action not inconsistent with this opinion.
Costs to appellees.
Swainson and J. W. Fitzgerald, JJ., concurred with Williams, J.
The analysis in these and other cases led two Justices to conclude that "there is a body of case precedent in which nonconforming uses are found to exist based upon the investment of money and the change of a proprietor’s position in reliance upon existing regulation or nonregulation.” See Justice T. E. Brennan’s opinion in Detroit Edison Co v City of Wixom, 382 Mich 673; 172 NW2d 382 (1969).
There is a secondary issue in this case briefly argued by the parties and only discussed implicitly in a conclusory sentence by the Court of Appeals (46 Mich App 71, 73). Appellees argue that appellant could not have acquired property rights due to its failure to abide by the set-back provision of Algoma Township Zoning Ordinance of 1955, § VI (1). We do not reach this issue today as, in light of our affirmance of the Court of Appeals, it is unnecessary to disposition of this cause.
See in accord: 1 Anderson, American Law of Zoning, § 6.10, pp 328-330; Strong, "Nonconforming Uses: The Black Sheep of Zoning”, 7 Institute on Planning & Zoning (Matthew Bender, 1968), p 25.
In cases where no permit issue was involved, the case law is unequivocal in recognizing this rule. Representative of the many supportive cases in Michigan are: Double I Development Co v Taylor Twp, 372 Mich 264, 267; 125 NW2d 862 (1964); White Lake Twp v Amos, 371 Mich 693, 699; 124 NW2d 803 (1963); Detroit Edison Co v City of Wixom, 382 Mich 673, 690; 172 NW2d 382 (1969).
My Brother the Chief Justice states in his opinion in this case:
"Crucial to the Lansing holding was the statement of the Court, supra, pp 396-397:
" 'It thus appears that the first work done upon the new building was three months after the ordinance went into effect and after the defendant had been notified that his permit had been revoked. If he had constructed the building or partially constructed it, if the work he did after the enactment of the ordinance had been done before, there would be no question as to his vested property rights.’ (Emphasis supplied.)”
With all due respect, the Chief Justice’s emphasis on the revocation of the permit as the critical point in City of Lansing seems strained. The very sentence in which this quoted reference above appears refers first to the time "the ordinance went into effect”. But more importantly, that the time of enactment of the ordinance is the critical point is brought out by the fact that the preceding paragraph in City of Lansing twice refers to the time of enactment of the ordinance as critical. Furthermore, the last sentence quoted by the Chief Justice above refers to the time of enactment of the ordinance as does the quotation from the New York case, Rice v Van Vranken, infra, heavily relied upon by this Court in City of Lansing. Reference to the revocation of the permit is never again mentioned in City of Lansing except indirectly where it was held that the city was not guilty of laches in starting action against the defendant more than three months after the enactment of the ordinance and one month after excavation was finished and the footings were in. In the instant case, the township issued its stop order 22 days after the effective date of the zoning ordinance, the same day appellant began construction.
Again with all due respect to my Brother the Chief Justice’s reference to Willingham v City of Dearborn, 359 Mich 7; 101 NW2d 294 (1960), Justice Carr’s reference in his dissent to City of Lansing v Da wley is on all fours with the general rule we re-affirm today in that Justice Carr recognized the critical time is the time of enactment of an ordinance. Justice Carr only points out that the newly prohibitory ordinance might lawfully have been used in the city’s amended answer as a valid defense for its refusal to issue a permit. In any event, the main point of both opinions in Willingham appears to be not the merits of the case but pleading procedure.
In addition, there has been a substantial amount of discussion in the last few years about billboards specifically, their status as nonconforming uses, and other methods (mostly statutory amortization provisions or action under the condemnation or nuisance laws) aimed at ridding certain geographic zones of billboards’ aesthetic and environmental detractions. See Babcock, "What Should and Can Be Done With Nonconforming Uses”, Institute on Planning, Zoning, and Eminent Domain (Southwest Legal Foundation 1972) p 23; Dowds, "Private Signs and Public Interests”, Institute on Planning, Zoning, and Eminent Domain (Southwest Legal Foundation 1974) p 221; Holme, "Billboards and On-Premise Signs: Regulation and Elimination Under the Fifth Amendment”, Institute on Planning, Zoning, and Eminent Domain (Southwest Legal Foundation 1974), p 247; Zoning: Amortization of Non-Conforming Uses For Aesthetic Purposes, 39 U Mo at KC L Rev 179 (Winter 1970-1971); Nonconforming Uses in Iowa: The Amortization Answer, 55 Iowa L Rev 998 (1970); Billboard Law Today-Reaction or Solution, 24 Baylor L Rev 86 (1972); Sussna, Abatement of Nonconforming Uses and Structures, 44 Conn B J 589 (1970).
The law in other jurisdictions is in accord. See 8A McQuillan, Municipal Corporations (3d ed), §§ 25.186, 25.188, pp 25-26, 31; 1 Anderson, American Law of Zoning, § 6.17, p 344; 2 Yokley, Zoning Law & Practice (3d ed), § 16-2, pp 212-213; 2 Rathkopf, Law of Zoning & Planning, Chapt 58, § 3, p 58-14; 101 CJS, Zoning, § 184, pp 940, 941.
Appellant, in its complaint, asserted compliance with Algoma Township Zoning Ordinance of 1971, § 13.8, through (1) survey and staking, and (2) hiring of Consumers Power to "provide electric installation”. Consumers Power "installation” did not begin until more than six months subsequent to issuance of the building permit. Without question, and without extended discussion, survey and staking are not "construction” within § 13.8. For discussion of the legal effects of such acts, see § IV (A) of this opinion, supra. | [
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Levin, J.
Edgar Milton appealed his conviction of second-degree murder. The Court of Appeals affirmed in an unreported memorandum opinion, but did not discuss the issues now presented which were subsequently raised by a post-conviction petition for a writ of habeas corpus which we treated as a motion for reconsideration of a previous denial of leave and granted.
Following his arrest, Milton was bound over by a district court to circuit court for trial. He asserts that 1968 PA 154, creating the district court and providing whatever jurisdiction it may have to bind over felons, violates Const 1963, art 4, § 24, the title-body clause:
"No law shall embrace more than one object which shall be expressed in its title”
and that this unconstitutionality and resulting lack of jurisdiction renders void the criminal prosecution against him.
We hold that the district court act does not violate the title-body clause and affirm Milton’s conviction.
I
The Revised Judicature Act, 1961 PA 236, superseded the Judicature Act enacted in 1915. The RJA, as did the 1915 Judicature Act, contains provisions concerning the organization and powers of the Supreme Court and, in a separate chapter, of the circuit court. A chapter concerning the organization and powers of the Court of Appeals was added in 1964. The RJA also contains chapters concerning proceedings and procedures in the courts and at least one chapter concerning an extra-judicial procedure.
In 1968 the Legislature added Chapters 81-86 and other sections to the RJA thereby establishing the district court and providing for its jurisdiction and powers. In addition to civil jurisdiction in cases where the amount in controversy does not exceed $3,000, the act confers criminal jurisdiction to try certain misdemeanors and to hold preliminary examinations in felony cases.
Milton contends that the title of the RJA and its statutory scheme evidence an intent that its provisions pertain only to civil matters. He asserts that statutory provisions defining criminal jurisdiction belong in the Code of Criminal Procedure. He asks us to hold that the 1968 act creating the district court is defective insofar as it purports to vest criminal jurisdiction in that court because criminal jurisdiction is not germane to the RJA and statutory provisions defining criminal jurisdiction should be set forth in the Code of Criminal Procedure.
Read literally, the subject matter of the 1968 addition (district court act) to the RJA, placed alongside the title of that act, does not violate the title-body clause. While the entitlement of the RJA does refer to the "forms and attributes of civil claims and actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedures in civil actions and proceedings in said courts” (emphasis supplied), these clauses follow the opening language of the title: "AN ACT to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof’. The words "organization and jurisdiction” and the words "powers and duties” are not qualified by the word "civil”. The literal meaning of those words manifestly is sufficiently broad to include criminal as well as civil jurisdiction, powers and duties.
Milton responds that the title of the RJA must be read in conjunction with the title of the Code of Criminal Procedure and that when so read "[i]t can only be concluded that each act seeks to define the jurisdiction of courts in their respective spheres; that is, that the Revised Judicature Act defines the jurisdiction of civil courts while the Code of Criminal Procedure defines the jurisdiction of criminal courts. * * * The Revised Judicature Act title speaks generally of jurisdiction, but then proceeds to catalogue purely civil procedure” while "the title to the Code is much more specific.” (Emphasis in original.)
II
Milton’s contentions find support in People v Stanley 344 Mich 530; 75 NW2d 39 (1956), in which this Court ruled violative of the title-body clause an amendment to the 1915 Judicature Act providing that a writ of error to the Supreme Court shall issue as a matter of course following final judgment in a criminal case involving the personal liberty of the appellant. The title of the 1915 Judicature Act and of the RJA are in all material respects identical.
In reaching its conclusion, the Stanley Court reasoned, much as does appellant Milton:
"The title of the judicature act negatives a conclusion that it was intended by the legislature to apply to procedure in criminal cases. The later enactment of the code of criminal procedure, without making reference to the judicature act, shows the legislative intent. These 2 acts were obviously intended by the legislature to apply to the practice and procedure in civil cases separate from that in criminal cases. A mere reading and comparison of the titles of the judicature act and of the code of criminal procedure can lead to only one conclusion — one was intended by the legislature to refer to practice and procedure in civil cases, and the other to criminal procedure.” People v Stanley, supra, 540.
In support of its reasoning, the Supreme Court referred to the three clauses in the title, previously quoted, where the word "civil” appears, adding: "Nowhere does the title of the act, nor the provisions in the act itself, expressly apply to appeals in criminal cases. To the contrary, the legislature, as before indicated, subsequently enacted the code of criminal procedure, applying specially and solely to that subject.” People v Stanley, supra, 539.
The Stanley Court nowhere acknowledged or otherwise adverted to the opening clauses of the title of the 1915 Judicature Act, the clauses not qualified by the word "civil”.
The Attorney General, emphasizing the opening clauses of the RJA’s title, argues that Stanley voids only RJA provisions concerning criminal procedure and not those pertaining to criminal jurisdiction.. Milton responds that the proffered jurisdiction-procedure dichotomy is "facile”, "illusory”, "transparent” and "intellectually dishonest.”
We agree with Milton that the distinction between jurisdiction and procedure would not be a sound basis of reconciling our conclusion that the inclusion of criminal jurisdiction provisions in the RJA does not violate the title-body clause, with Stanley’s conclusion that the inclusion of an appeal as of right in criminal cases violated the Judicature Act, both acts bearing the same title.
We are of the opinion that the Stanley analysis is incorrect in considering the entitlement of another act (the Code of Criminal Procedure) in deciding whether the subject matter of the challenged act (the 1915 Judicature Act) was within and germane to the object expressed in its title.
When passing new legislation, the Legislature is free either to enact an entirely new and independent act or amend any act to which the subject of the new legislation is "germane, auxiliary or 'incidental”.
Not infrequently there will be a number of existing acts to which the new legislation would be germane, auxiliary or incidental. The legislative choice will not be held invalid merely because an alternative location for the new legislation might appear to some more appropriate.
In Detroit Board of Street Railway Commissioners v Wayne County, 18 Mich App 614, 622-623; 171 NW2d 669 (1969), the Court of Appeals rejected a claim of the DSR that a statutory provision imposing liability for ad valorem taxes on public transportation facilities acquired by home rule cities violated the title-body clause because the amendment to the home-rule act imposing the liability should properly have been located in the property tax law:
"It might have been better draftsmanship to have placed the provision concerning the taxability of municipal transportation utilities in the general property tax law (where one might expect to find it) rather than in the home rule act. There is, however, no constitutional requirement that the legislature do a tidy job in legislating. It is perfectly free to enact bits and pieces of legislation in separate acts or to tack them on to existing statutes even though some persons might think that the bits and pieces belong in a particular general statute covering the matter. The constitutional requirement is satisfied if the bits and pieces so enacted are embraced in the object expressed in the title of the amendatory act and the act being amended.”
No purpose would be served by perpetuating the Stanley analysis. The constitutional validity of an amendatory statute does not turn on an appraisal of whether it was located in the most appropriate of the possibly many statutes to which it is germane.
Nor does Stanley stand up when analyzed in the light of the facts as they were when the Judicature Act was enacted. In 1915 there was no codification of criminal procedure. The legislation on criminal procedure, while compiled as Part Two of Title XV of the Compiled Laws of 1915, was not a codification, but rather consisted of provisions of the Revised Statutes of 1846 interspersed with numerous subsequent enactments. When the 1915 Judicature Act was adopted, the Legislature could not have had any intention with regard to a Code of Criminal Procedure enacted in 1927 — 12 years later.
Contrary to Milton’s assertions, the 1915 Judica ture Act did contain provisions concerning criminal procedure. It was provided that "[t]he Supreme Court shall have ** * * jurisdiction of suits, actions and matters brought before it by writ of certiorari or writ of error, when the same shall be allowed by law to any inferior court, to magistrates and other officers, as well in cases of prosecution for any offense, misdemeanor or penalty, in the name of the people of this state * * * ’
The civil jurisdiction of the circuit courts was indeed expressly stated, but the Judicature Act also provided: "Said court shall also have and exercise all the powers usually possessed and exercised by courts of record at the common law * * * ” except as modified by statute or rule of the Supreme Court.
The statutory provisions eliminating the common-law disability of defendants in criminal cases from testifying in their own defense were also part of the 1915 Judicature Act. Additionally, the 1915 Judicature Act states the disqualification of a married person from testifying against his or her spouse with the exception for cases of "prosecution for bigamy” and for "a crime committed against the children of either or both”.
Manifestly, the Stanley Court erred in ascribing to the 1915 Legislature an intent to confine the Judicature Act to strictly civil matters.
We appreciate that it is arguable that the statutory references in the Judicature Act to the jurisdiction of this Court and the circuit court were unnecessary as the jurisdiction of the Supreme Court and of the circuit court in civil and criminal matters was provided for in the 1908 Constitution at least to the extent not divested by law. Be that as it may, the Legislature did specifically provide for this Court’s jurisdiction in criminal matters and did specifically cover at least two evidentiary questions arising in criminal cases; we cannot properly ascribe to the Legislature an intent to confine the Judicature Act strictly to civil matters.
Nor was the 1968, district court act, amendment to the RJA the first inclusion in the RJA of language concerning criminal jurisdiction. In addition to the continuing inclusion of the evidentiary provisions referred to, there is again a reference to the jurisdiction of this Court:
"The supreme court has jurisdiction and power over:,
"(1) Any matter brought before it by appropriate writ to any inferior court, magistrate or other officer.” MCLA 600.215; MSA 27A.215.
This reference to a magistrate clearly refers to criminal matters. "Any matter” would include criminal as well as civil matters. In addition to the express statement that the circuit court has original jurisdiction to determine civil claims and remedies, reiterated again is that court’s power and jurisdiction to the extent "possessed by courts of record at the common law as altered by the constitution and laws of this state and the rules of the supreme court”.
The language concerning the jurisdiction of the courts to try criminal cases embodied in the Code of Criminal Procedure is so general that one cannot readily determine whether the circuit court’s jurisdiction in criminal cases is constitutionally vested, derives from the common law, the Judicature Act (and its successor, the Revised Judicature Act), or the Code of Criminal Procedure.
More saliently, in 1964 the Legislature added Chapter 3 to the RJA, thereby establishing the Court of Appeals. In contrast with the Supreme Court and the circuit court, the jurisdiction of the Court of Appeals is entirely statutory. RJA 308 provides the Court of Appeals with jurisdiction on appeal from:
"All final judgments from the circuit courts, court of claims, and recorder’s court, except judgments on ordinance violations in the traffic and ordinance division of recorder’s court.” MCLA 600.308; MSA 27A.308.
Manifestly, this confers jurisdiction on the Court of Appeals in criminal cases. There is no other source of its jurisdiction.
Either the Court of Appeals has jurisdiction of criminal appeals under the RJA or this Court is obliged to take all criminal appeals to secure the right in every criminal prosecution "to have an appeal as a matter of right”.
It is indeed ironic that this matter has come full circle. In Stanley, by finding a violation of the title-body clause, this Court avoided appeals as of right in criminal cases. If we adhere to Stanley, then, perforce, this Court was obliged, until the legislative response, to grant appeal as of right in every criminal case and the Court of Appeals was relieved of that jurisdiction — the very jurisdiction which prompted the creation of that Court.
Ill
Milton further contends that the title to the RJA does not provide adequate notice to the public or the Legislature that the RJA contains provisions affecting jurisdiction in criminal matters.
This Court has had frequent occasion to consider like claims. It is now well established that the title need not serve as an index of all that the act contains:
"An abridgement of all those sections is not essential to a sufficient title. While it contains various related provisions not directly indicated or enumerated in the title, under the construction of this constitutional requirement, as many times reviewed by this court, if the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met.” Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917).
More recently, in Advisory Opinion re Constitutionality of1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), Justice M. S. Coleman’s and my opinions addressed similar challenges to the no-fault automobile liability act. Justice Coleman wrote at pp 464-465:
"It is and was reasonable and logical for the Legislature to classify the matter herein referred to as related to the Insurance Code. Such action cannot be said to have been prompted by deceit or some ulterior motive. * * * The amendment in question cannot be said to have allowed the passage of a law not fully understood (although the subject matter may be complex and difficult for a layman to understand), or that the amendment brought into the Code subjects having no connection with the Insurance Code. The Legislature and the public were well aware of the intention and context of this legislation.”
I wrote at 389 Mich 488-489:
"The word 'object’ expresses an intrinsically elastic concept. * * *
"Codification of multifarious enactments would be impossible if the constitution obliges the Legislature to define the object of a codification in narrow terms. Especially in the case of a codification, the Legislature is free to conceive of the object of its endeavors in terms of a common denominator and to express that conception in umbrella words.”
In Regents of the University of Michigan v Pray, 264 Mich 693, 697; 251 NW 348 (1933), this Court said: "Title to a codification statute can scarcely be expected to embody reference to every detail of the act”.
Just as the title of the RJA is adequate notice of the civil and criminal jurisdiction of the Supreme Court and the circuit court, to the extent there stated, and of the Court of Appeals, so too it is adequate notice of the civil and criminal jurisdiction of the district court.
In conclusion, the correct question is not whether the Legislature might have included provisions concerning the criminal jurisdiction of the district court in the Code of Criminal Procedure, but rather whether provisions establishing criminal jurisdiction are germane to the general purpose of the RJA.
While there are specific and therefore limiting clauses in the entitlement of the RJA, the more general, opening clauses of the entitlement speak of the "organization and jurisdiction” and "powers and duties” of the courts of this state and are not confined to civil matters.
The RJA centers on one main general object or purpose which the title comprehensively declares, though in general terms. The provisions conferring criminal jurisdiction on the district court, although not directly mentioned in the title, are germane to that general purpose.
1968 PA 154 does not violate Const 1963, art 4, § 24. The defendant’s conviction is affirmed.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, and M. S. Coleman, concurred with Levin, J.
J. W. Fitzgerald, J., did not participate in the decision of this case.
MCLA 600.101 et seq.; MSA 27A.101 et seq.
Chapter 32 provides for foreclosure of mortgages by advertisement.
By amendment increased to $10,000. 1971 PA 148; MCLA 600.8301; MSA 27A.8301.
By amendment, 1969 PA 261, it now provides:
"The district court shall have jurisdiction of
"(d) Preliminary examinations in all felony cases and misdemeanor cases not cognizable by the district court, but there shall not be a preliminary examination for any misdemeanor to be tried in a district court.” MCLA 600.8311; MSA 27A.8311.
MCLA 760.1 etseq.; MSA 28.841 et seq.
The opening clauses of the Code of Criminal Procedure read: "AN ACT to revise, consolidate and codify the laws relating to criminal procedure and to define the jurisdiction, powers, and duties of courts and of the judges and other officers thereof under the provisions of this act * * * .” 1927 PA 175, immediately preceding MCLA 760.1; MSA 28.841.
The only change is that in the phrase "the forms and attributes of civil * * * actions”, the words "and attributes” did not appear in the 1915 enactment.
"It should be noted that the title to the judicature act, supra, which PA 1954, No 53, purports to amend, obviously was intended to apply to, and in express terms does apply to, 'the forms of civil actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil actions and proceedings in said courts.’ ” (Emphasis in original.) People v Stanley, supra, 539.
See Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917).
As originally enacted the RJA contained a chapter concerning assignment of accounts receivable. This chapter was repealed upon enactment of the Uniform Commercial Code which, in Art 9 (Secured Transactions), covers the subject matter formerly dealt with in the RJA. No doubt the Legislature thought that the subject matter— secured transactions — could properly be included in either the RJA or the UCC. The original location in the RJA of a specific kind of secured transaction did not preclude inclusion of the subject matter generally in the UCC.
1948 CL 601.9.
1948 CL 606.1, subd 6.
"No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered * * * .” 1948 CL 617.63. Now MCLA 600.2158; MSA 27A.2158.
"No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise * * * . Provided, however, That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” 1948 CL 617.64. Now MCLA 600.2159; MSA 27A.2159.
1948 CL 617.67. Now MCLA 600.2162; MSA 27A.2162.
Const 1908, art 7, §§ 4, 10.
When the RJA was enacted in 1961, prior to the adoption of the present constitution, there appears to have been a question whether the jurisdiction of the Supreme Court was wholly constitutionally established. The commentary to the RJA seems to indicate that the drafters were under the impression that they were thereby defining this Court’s jurisdiction.
MCLA 600.605; MSA 27A.605.
MCLA 600.601; MSA 27A.601.
"The various courts and persons of this state now having jurisdiction and powers over criminal causes, shall have such jurisdiction and powers as are now conferred upon them by law, except as such jurisdiction and powers may be hereinafter repealed, enlarged or modified.” MCLA 762.1; MSA 28.844.
"The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.” Const 1963, art 6, § 10.
Const 1963, art 1, § 20.
In 1953, this Court issued opinions in 290 cases (265 civil, 25 criminal). That same year 326 cases were heard (302 civil, 24 criminal) and 442 were filed.
In 1954, opinions in 241 cases (226 civil, 15 criminal) were issued; 317 cases (295 civil, 22 criminal) were heard; 522 cases filed.
In 1955, opinions in 219 cases (200 civil, 19 criminal) were released; 308 cases (278 civil, 30 criminal) were heard; 502 cases filed.
And in 1956, opinions issued in 228 cases (218 civil, 10 criminal); 328 cases (308 civil, 20 criminal) were heard; 523 were filed.
No doubt, had this Court upheld the constitutionality of the act challenged in Stanley it would have resulted in at least a doubling of its mandatory — appeal as of right — caseload.
The title of the RJA was amended by 1974 PA 52 to add the underlined words in the following clause: "pleading, evidence, practice and procedure in civil and criminal actions and proceedings in said courts”.
See People v Wohlford, 226 Mich 166; 197 NW 558 (1924).
People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 574; 17 NW2d 756 (1945).
See People v Sowall, 279 Mich 261, 266; 271 NW 751 (1937); Loomis v Rogers, supra. | [
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J. W. Fitzgerald, J.
The principal question before us is whether the Court of Appeals erred in reversing a determination of the Michigan Employment Relations Commission Board in favor of plaintiff-appellant Chase on the ground that the findings of fact of the Board were not supported by substantial evidence. We conclude that the Court of Appeals correctly applied the "substantial evidence” standard and affirm.
I
It is the position of plaintiff Allen Chase that he lost his employment with the Detroit Symphony Orchestra because of his continued participation in union organizational activities contrary to MCLA 423.16; MSA 17.454(17). Undisputed evidence introduced at an evidentiary hearing held before a trial examiner of the Labor Mediation Board indicates that plaintiffs "discharge” by the Symphony is traceable to events occurring on February 27, 1968 and shortly thereafter.
The master contract governing relations between the Detroit Symphony Orchestra and the Detroit Federation of Musicians, plaintiff Chase’s union, provided that employment contracts should be signed and in by March 1, 1968. Past practice indicated, however, that the Symphony had not always strictly adhered to this cutoff date. Early in February 1968, Chase, a trombonist for many years with the Symphony, was offered a one-year contract of employment. On February 27, Chase approached Bistritzky, personnel manager of the Symphony and a union-management agent, and Harrington, general manager of the Symphony, to "negotiate” his contract. He was offered a $10 per week raise and rejected it out of hand, stating "Get yourself another boy. I do not accept.” When contacted shortly thereafter by Bistritzky, Chase indicated that he had not changed his mind. On March 1, 1968, Bistritzky informed the union that Chase’s position was vacant.
Chase later contacted Bistritzky on March 2, 1968 and at that point was informed that the Symphony was auditioning another trombonist for his position. He then stated that he accepted the offer only to learn from Bistritzky that in the Symphony’s view the offer had been withdrawn. A series of events ensued which entailed Chase’s reapplication for employment with the Symphony and the eventual hiring of another trombonist. Chase introduced evidence in an effort to show that the Symphony’s actions in failing to hire him were discriminatory and attributable to anti-union animus.
Joseph Bixler, the trial examiner presiding at the evidentiary hearing, concluded after a lengthy recitation and discussion of the facts:
"There is not sufficient evidence in this record to establish that the orchestra discriminated against Chase in violation of the Act. * * * Chase quit the Orchestra when he rejected the contract and the offered raise with the abrupt 'get yourself another boy.’ ”
He therefore recommended that the charges be dismissed. The MERC Board disagreed with the findings of its examiner, concluding:
" * * * the Symphony applied the March 1 cut-off discriminatorily with respect to Chase.”;
and
"[T]he only plausible reason for the Symphony’s discriminatory treatment of Chase is his union activity.”
The Court of Appeals initially refused to enforce the order of the MERC Board in favor of Chase, concluding in an order of that Court that the Board’s findings of fact were not supported by substantial evidence. Upon further review, this Court (387 Mich 424; 196 NW2d 763 [1972]) determined that the decisional process employed by the Court of Appeals had been "unsound” and remanded for further consideration and preparation of a full opinion. Upon remand the Court of Appeals again denied enforcement to the order of the MERC Board, reiterating, in an unpublished per curiam opinion containing discussion of the facts, that Court’s view that the Board’s finding of facts were not supported by substantial evidence. The case is before us on leave granted.
II
The standard of appellate review of MERC Board findings of fact is set forth in the labor mediation act as follows:
" * * * The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive. * * * ” MCLA 423.23(e); MSA 17.454(25)(e).
This standard comports with Const 1963, art 6, § 28 which sets forth the minimum constitutional scope of judicial review of administrative decisions.
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. * * * ” (Emphasis supplied.)* *
The Court of Appeals reversed findings of fact of the MERC Board which were supported by some record evidence. In this context, the meaning of the above-cited "substantial evidence” standard is critical to the outcome of this appeal. To ascertain this meaning we turn to the debates surrounding the adoption of art 6, § 28 at the Constitutional Convention of 1961.
Art 6, § 28 was originally introduced at the Convention in slightly different form as "Proposal 95” of the Committee on Judicial Branch. During extensive debate on March 5, 1962, Delegate Krolikowski, speaking on behalf of the committee, stated:
" 'Substantial evidence’ [as that term was used in the Proposal] means such evidence as a reasonable mind will accept as adquate [sic] to justify conclusion. 'On the whole record’ means that the reviewing magistrate can consider all the evidence in favor and all the evidence against a certain determination.”
Delegates Everett and King, whose statements reflected the position of proponents of the proposal favoring meaningful court review, respectively elaborated:
"I would like to give you the background of this proposal. To begin with, there were delegate proposals, and they went much further than this. Many of us who sat in the judicial committee felt a need for judicial review, but not the type of review and the extensive review that some of the delegate proposals offered.
" * * * We developed within the committee, * * * language which we felt would hit a medium between a review which would be so extensive as to make administrative agencies’ work virtually useless, and a review such as we frequently now have which makes court review meaningless”;
and
"The idea here is to get full, fair, honest to goodness judicial review, not de novo. * * * Just a review on the record. * * * I’m not saying it won’t cause an increase in the amount of judicial work in this state, but I never maintained that justice was cheap.”
Opponents of the proposal were very concerned that setting forth the contemplated standard of review would promote judicial fact-finding at the expense of the administrative process. Delegate Nord, speaking for the opposition, stated in debate on March 6, 1962:
"With the proposal that we have before us, Committee Proposal 95 * * *, it seems clear to me that we open the door for every single case, every determination by any administrative board, to be subjected to a review. Not just some cases, but every case. Because there are enough words in that last sentence to make it an easy thing for a lawyer to pick on one of them. Is the evidence reliable? That is a question of fact. That could be one way or the other. That could be reviewed. Is the evidence probative? Is it substantial? [Those kinds of questions would make it an automatic appealable case in every single case. And, if we have that, we have really lost the use of administrative procedure.”
Persistent pleas by Delegate Nord and his fellow members of the opposition failed to persuade a majority that the proposal was unwise. The opposition’s efforts to amend and strike significant portions of Proposal 95 failed and on March 6, 1962, the proposal was referred, intact, to the Committee on Styling and Drafting. After minor amend- merit, the present text of here-pertinent provisions of art 6, § 28 was approved by an 86-32 vote of the Committee of the Whole on April 23, 1962. The ultimate adoption of art 6, § 28 came on August 1, 1962.
The cross-fire of debate at the Constitutional Convention imports meaning to the "substantial evidence” standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.
Ill
We turn now to apply the foregoing principles to the record before us. In so doing, our focus is upon what we perceive to be the critical issue: is the MERC Board’s conclusion that the Symphony’s failure to rehire plaintiff Chase was motivated by anti-union animus supported by substantial evidence?
The trial examiner, in reaching a conclusion contrary to that of the MERC Board, stated:
"[T]he only question in this case is whether the refusal of the contract to- Chase on March 2, was motivated by animosity arising out of the activities of Chase on behalf of the Federation of Musicians. The record is devoid of any evidence of animosity toward Chase prior to March 2, 1968. As far as this record reveals, on February 29, the Symphony Orchestra was anxious to have the services of Chase as first trombonist. He was offered a contract, as were all the musicians, and upon his protest that he had been offered less than he deserved, the general manager agreed and offered Chase a $10.00 a week increase over the contract offer. The record reveals that such an increase was granted to only nine other employees in the Orchestra.
"It is the absence of evidence of animosity toward Chase for any reason and the apparent willingness and anxiousness of the Symphony Orchestra to employ Chase on February 29, that militates most heavily against the contention that the March 2 refusal to allow Chase to sign the contract was discriminatorily motivated.”
In disputing these conclusions the Board stated in part:
"The fact that Chase was offered a raise does not, per se, indicate that the Symphony was anxious to hire Chase. On the contrary, when it is remembered that other members of the orchestra had engaged in extensive individual negotiations in previous years and that Chase had not, the Symphony may have believed that the increase it offered to Chase would be rejected. Indeed, the Symphony’s offer may have been calculated to generate a prompt rejection from Chase.”
While the hearing examiner’s analysis is based upon permissible inference from record evidence, the above statements of the Board are nothing but convoluted conjecture tantamount to speculation. As such, they do not support a finding of anti-union animus.
Beyond this, the Appeal Board finding of anti-union animus rests solely upon the Board’s interpretation of certain conversations between plaintiff Chase and Sixten Ehrling, the conductor of the orchestra, who was instrumental in the Symphony’s ultimate decision to employ another trombonist. The trial examiner and Board’s differing views as to the "credibility” of these witnesses explain the divergence in their ultimate conclusions.
Our reading of the cold record indicates that the finding of the trial examiner is more plausible than the finding of the Board. Given this reading, are we to ignore the determination as to credibility of the only decision-maker to hear testimony firsthand and, in effect, credit the contrary determination of the Board? We think not. The findings of the trial examiner are a part of the record we are entitled to consider in exercising our review power. In Universal Camera Corp v National Labor Relations Board, 340 US 474; 71 S Ct 456; 95 L Ed 2d 456 (1951), the United States Supreme Court, applying the Federal "substantial evidence” test under the National Labor Relations Act, similarly concluded that a reviewing court was entitled to consider examiner findings. We adopt as our own the following comments of that Court:
"We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. The 'substantial evidence’ standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is "substantial”. (Emphasis supplied.) 340 US 474, 496-497.
Ascribing due weight to the unique opportunity of the trial examiner to weigh the testimony of witnesses, our reading of the cold record is confirmed. We conclude that the critical finding of the MERC Board is not supported by "substantial evidence”.
Affirmed. No costs, a question of public significance being involved.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, and M. S. Coleman, JJ., concurred with J. W. Fitzgerald, J.
Williams and Levin, JJ., did not sit in this case.
The term "discharge” is used advisedly because there is dispute as to whether plaintiff Chase quit or was fired.
The treatment of this case in the Court of Appeals on remand has generated a good deal of appellate "static”. Appellants MERC and Chase contend that certain language used by the Court of Appeals in its opinion indicates that that Court misperceived its appellate function and further that the opinion leaves to conjecture the factual basis for conclusions reached. A second contention raised is that fair procedure was not provided because opportunity for oral argument was not given in the Court of Appeals.
While certain portions of the Court of Appeals’ opinion are ambiguous, we find reviewable that Court’s basic determination that the MERC Board’s findings are not supported by substantial evidence. Opportunity for oral argument should have been provided upon proper request by the parties. Michigan Employment Relations Commission v Reeths-Puffer School Dist, 391 Mich 253, 270; 215 NW2d 672 (1974). At the request of the parties, however, we proceed to "fill the appellate gap” by providing opportunity for oral argument and full consideration in this Court.
Similar language is used in the administrative procedures act to set forth the standard of appellate review. See MCLA 24.306(l)(d); MSA 3.560(206)(l)(d) and fn 6, infra.
Committee Proposal 95 as initially introduced read as follows:
"All final decisions, findings, rulings and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as shall be provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law, and, in cases in which a hearing is required, whether the same are clearly supported by reliable, probative, and substantial evidence on the whole record.”
The initial debate on this provision took the better part of two days and appears at 1 Official Record, Constitutional Convention 1961, pp 1440-1452, 1463-1478, 1483-1487. The above-quoted remarks appear in the Record as follows: Delegate Krolikowski, p 1444; Delegate Everett, p 1472; Delegate King, p 1473; and Delegate Nord, p 1468.
One such amendment substituted the language "competent, material, and substantial evidence on the whole record” for the language of the original Proposal 95 ("reliable, probative, and substantial evidence on the whole record”) in order to conform the language of the constitutional provision to the existing language of the administrative procedures act governing review of administrative fact-findings. The debate on April 23, 1962 is found at 2 Official Record, Constitutional Convention, 1961, pp 2712-2720.
In its ultimate form, art 6, § 28, excepts Workmen’s Compensation Commission findings and property tax agency findings from the application of constitutional "minimum” review. These exceptions are not here applicable.
A number of ancillary issues have been interjected into these proceedings. Some deal with interpretation of the Union-Symphony contract. Another involves the allegation that the Symphony refused to hire Chase because he was engaged in "individual bargaining” under the contract. Unfair labor practice charges were brought by plaintiff Chase, and MERC jurisdiction invoked, under § 16 of the labor mediation act, MCLA 423.16; MSA 17.454(17) pursuant to plaintiffs charge that he was discharged: " * * * because he had engaged in Union and other protected concerted activities.” We confine our discussion in this case to analysis of the only properly raised § 16 issue.
Plaintiff Chase recounted conversations with Ehrling from which it might be inferred that dismissal flowed from anti-union animus on the part of the Symphony. Ehrling’s recollection of these conversations differed from that of Chase and Ehrling expressly commented that the decision not to rehire Chase was made for artistic reasons, having nothing to do with Chase’s union activities. The crucial decision as to "credibility” of which we speak is that prerogative which permits the decision-maker confronted with conflicting testimony of a subjective nature to assign weight to, or find more inherently reliable, the testimony of a particular witness. | [
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ORDER
Entered November 21, 1974. — Reporter.
On order of the Court, the application by defendant and appellant for leave to appeal is considered and the same is hereby granted.
The Court sua sponte, pursuant to GCR 1963, 865.1(7), reverses the Court of Appeals’ decision insofar as the Court of Appeals found no reversible error resulting from the prosecutor’s statements concerning defendant’s failure to testify. It is further ordered that the case be remanded to Recorder’s Court for the City of Detroit for a new trial. The privilege against self-incrimination is a fundamental constitutional right. United States Const, Am V; Const 1963, art 1, § 17. To protect the viability of this right prosecutors are prohibited from commenting on the defendant’s failure to take the stand. People v Cahill, 147 Mich 201; 110 NW 520 (1907). Despite admonition by the trial judge, the prosecutor, during summation, made improper reference to the defendant’s failure to testify as follows: "one does not have to take the stand at all and there are times in fact, when it would be better if one did not take the stand.” These remarks were not merely comments on uncontradicted evidence which under some circumstances are permissible, People v Earl, 299 Mich 579; 300 NW 890 (1941) but were statements designed to suggest that the defendant, in refusing to take the stand, had something to hide. The prose cutor’s conduct constituted a serious infringement upon the defendant’s constitutional rights and necessitates granting the defendant a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Thomas A. Ziolkowski, Assistant Prosecuting Attorney, for the people. Thomas A. Maher, for defendant.
(Docket No. 55,877.)
Case below, Court of Appeals No. 16,409, per curiam opinion of March 22, 1974.
M. S. Coleman and J. W. Fitzgerald, JJ., dissenting. | [
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J. T. Kallman, J.
Plaintiffs appeal by leave granted the order of the Menominee Circuit Court denying plaintiffs’ motion for summary disposition on their usury claim.
On July 7, 1978, plaintiffs executed a retail installment sales contract with Miles Homes for building materials and plans to construct a re,sidential home. The cash price listed on the install ment contract was $21,041 and the finance charge was $6,265.05. With taxes and other costs, total payment came to $28,247.69. The sales contract indicated that interest would be charged at an annual percentage rate of 9Vi percent and that the debt was to be secured by a mortgage on the property where the home was to be built.
On August 9, 1978, plaintiffs executed a mortgage to Miles Homes, a division of Insilco Corporation, on their real property. This mortgage secured the subject matter of the sales contract, i.e., the building materials and specifications for plaintiffs’ residential home. Prior to the mortgage executed in favor of Miles Homes, plaintiffs executed two separate mortgages on the same property to the Bank of Stephenson.
On December 23, 1982, all of the existing mortgages were assigned to defendant Miles Finance Corporation, including the mortgages with the Bank of Stephenson as mortgagee. Plaintiffs have failed to make payments on any of these obligations since December 3, 1984.
On October 3, 1986, plaintiffs filed a complaint against the defendants, alleging that the sales contract interest rate was usurious and requesting injunctive relief.
On December 5, 1986, plaintiffs filed a motion for summary disposition on their usury claim alleging the sales contract interest rate was governed by the general usury statute, MCL 438.31 et seq.; MSA 19.15(1) et seq., which provides for a maximum interest rate of seven percent. Defendants argue that it is regulated by the Retail Installment Sales Act (risa), MCL 445.851 et seq.; MSA 19.416(101) et seq., which allows an interest rate of up to ten percent per annum pursuant to MCL 445.857(l)(b); MSA 19.416(107)(l)(b) on a retail installment sales contract. After a hearing held on July 7, 1987, the trial court denied plaintiffs’ motion, and this interlocutory appeal ensued.
The issue presented in this case is one of first impression: Does the risa create a statutory exception to the general usury statute regulating the legal rate of interest which may be charged on obligations collateralized by a real estate mortgage?
The relevant inquiry is whether the Legislature purposefully intended to exclude from the ambit of risa a mortgage on real estate given as security for building materials used in the construction of a new home on the basis that the risa defines a retail installment contract as
an instrument, other than a retail charge agreement or an instrument reflecting a sale made pursuant to a retail charge agreement, entered into in this state evidencing a retail installment transaction, whether secured or unsecured. Retail installment contract includes a chattel mortgage, a security agreement, a conditional sale contract, or a contract in the form of a bailment or a lease if the bailee or lessee contracts to pay as compensation for their use a sum substantially equivalent to or in excess of the value of the goods sold and if it is agreed that the bailee or lessee is bound to become, or for no other or a merely nominal consideration, has the option of becoming, the owner of the goods upon full compliance with the provisions of the bailment or lease. [Emphasis added. MCL 445.852(g); MSA 19.416(102)(g).]
This Court finds that the trial court correctly denied plaintiffs’ motion for summary disposition on the basis of the interpretation of the following statutes
The usury statute, MCL 438.31; MSA 19.15(1), generally sets the legal rate of interest at no more than seven percent. However, by its own terms § 1 of that statute makes an exception to the general rule, providing that the seven percent rule does not apply "to any time price differential which may be charged upon sales of goods or services on credit.”
Plaintiffs argue that, because the mortgage in question is a second or junior mortgage, the interest rate cannot exceed seven percent because defendant is not a regulated lender, relying on Bebee v Grettenberger, 82 Mich App 416; 266 NW2d 829 (1978). However, the heart of plaintiffs’ argument is that the risa does not provide an exception to the general usury statute given the statutory definition of a retail installment contract cited above, and we are unpersuaded by this argument.
MCL 445.852(a); MSA 19.416(102)(a) defines "goods” under the risa as follows:
(a) "Goods” means all tangible chattels personal when purchased primarily for personal, family, or household use and not for commercial or business use, but not including motor vehicles, money, things in action, or intangible personal property or their equivalent. Goods includes chattels which are furnished or used, at the time of sale or subsequently, in the modernization, rehabilitation, repair, alteration, improvement, or construction of real property so as to become a part of the property whether or not severable from the property and which are not covered by the provisions of the home improvement ñnance act, Act No. 332 of the Public Acts of 1965, being sections 445.1101 to 445.1431 of the Michigan Compiled Laws. [Emphasis added.]
Since the Home Improvement Finance Act, MCL 445.1102(g); MSA 19.417(102), excludes from its definition of "goods” chattels used in the construction of new homes, it would follow that the Legislature intended that new home construction be covered under the risa definition of "goods” pursuant to MCL 445.852(a); MSA 19.416(102)(a) cited above.
A specific statute shall control over a general statute where the two deal with the same subject. Imlay Twp Primary School Dist No 5 v State Bd of Ed, 359 Mich 478, 485; 102 NW2d 720 (1960); Hisaw v Hayes, 133 Mich App 639, 645; 350 NW2d 302 (1984). Further, the transaction was clearly a retail installment transaction pursuant to MCL 445.852(f); MSA 19.416(102)(f), which states:
"Retail installment transaction” means any transaction in which a retail buyer purchases goods or services from a retail seller pursuant to a retail installment contract or a retail charge agreement, which provides for a time price differential and under which the buyer agrees to pay the unpaid balance in 1 or more installments.
Therefore, we hold that the risa, as a specific statute, controls the transaction at bar to exclude it from the seven percent interest limitation under the general usury statute. A careful reading and synthesis of MCL 445.1102; MSA 19.417(102), MCL 445.852(a) and (g); MSA 19.416(102)(a) and (g) leads us to this conclusion.
MCL 445.857(l)(b); MSA 19.416(107)(l)(b) states that the interest rate on a retail installment sales contract shall not exceed ten percent when the principal balance exceeds $500. Therefore, the 9 Vi percent interest rate contained in the retail installment sales contract, secured by the note and mortgage, is proper.
In Hartwick Lumber Co v Perlman, 245 Mich 3; 222 NW 147 (1928), our Supreme Court, at a time prior to the enactment of the risa, was presented with a similar factual situation. Perlman wanted to construct a store and apartment building on his property. Hartwick Lumber contracted to provide Perlman with the necessary building supplies, on credit, evidenced by a promissory note and secured by a second mortgage on the property. The only issue presented to the Hartwick Court was whether the second mortgage was usurious. Citing the predecessor to the present general usury statute, 2 Comp Laws 1915, § 5998, our Supreme Court held:
Plaintiff had a right to charge more for its lumber sold on credit than when sold for cash. That it did so does not render the mortgage herein usurious. [Citation omitted. Id. at 6.]
Prior to the enactment of the risa, our Supreme Court had no difficulty with a time price differential contract for building materials secured by a second mortgage on the real estate as evidenced by the Hartwick case cited above. Moreover, our Sur preme Court has held that "[u]nless the sale and purchase of property is a mere pretense, the seller may charge a greater price for goods bought on credit than for cash without rendering the transaction usurious.” Attorney General v Contract Purchase Corp, 327 Mich 636, 643; 42 NW2d 768 (1950). The sale of goods in the case at bar, is not a mere pretense, but rather a valid sale of goods in the construction of real property as defined by the risa, MCL 445.852; MSA 19.416(102).
In addition, in Silver v International Paper Co, 35 Mich App 469, 472; 192 NW2d 535 (1971), lv den 386 Mich 764 (1971), a panel of this Court stated:
The Legislature could have easily expressed its desire to include differentials in the usury statute if it had so desired; instead it expressly exempted such a classification from the purview of the stat ute. The time price differential exemption was probably expressed in order to avoid possible statutory confliction with the retail installment sales act’s "time price differential” provision. Both statutes were enacted into positive law on the same date, i.e., March 10, 1967.
In construing interest statutes, the Court must look beyond the form to the true nature of the transaction to determine whether it is usurious. Paul v US Mutual Financial Corp, 150 Mich App 773, 780; 389 NW2d 487 (1986); Barck v Grant State Bank, 137 Mich App 440, 444; 357 NW2d 872 (1984), lv den 421 Mich 858 (1985). The substance of the transaction, rather than the form, governs. Heberling v Palmer’s Mobile Feed Service, Inc, 119 Mich App 150, 154; 326 NW2d 404 (1982), lv den 417 Mich 995 (1983). Time price differential credit contracts have been a long-standing expressed exception to the general usury statute, MCL 438.31; MSA 19.15(1), Hartwick, supra, and we hold that they still are.
The fact that the risa fails to specifically list real estate mortgages as a method of securing a retail installment sales contract should not be interpreted as an intentional omission by our Legislature. Legislative intent can be inferred from a recent amendment of the risa which allows such contracts with time price differentials on mobile home sales. MCL 445.852(a), (c); MSA 19.416(102)(a), (c). This Court has held the maxim "expressio unius est exclusio alterius” is only an aid in interpreting legislative intent. It cannot govern where legislative intent is opposed to its application. Chesapeake & O R Co v Public Service Comm, 59 Mich App 88, 101; 228 NW2d 843 (1975), lv den 394 Mich 818 (1975).
Excluding real estate mortgages as security for repayment in cases such as this, where the chat tels sold are construction supplies for a new home, would endorse an arbitrary and unnecessary distinction calling for usurious penalties in a sale of goods on credit depending on the type of security taken for the contract. Securing the construction supplies with a real estate mortgage, as in this case, is no different than securing a washing machine with a chattel mortgage.
We affirm the decision of the Menominee Circuit Court. | [
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Per Curiam.
On April 10, 1981, Eugene and Geraldine Kaminski filed a medical malpractice complaint against Holy Cross Hospital and Dr. Kenneth Newton. Plaintiffs alleged that defendants’ negligence caused the right foot of Eugene Kaminski (hereafter plaintiff) to become gangrenous, requiring the amputation of the foot. Plaintiffs sought compensation for damages sustained as a result of the loss of plaintiff’s foot.
Following trial, the jury returned a verdict against defendant Newton and in favor of plaintiff in the sum of $75,000 and in favor of plaintiff’s wife in the sum of $1,000. A judgment of no cause of action was entered against defendant Holy Cross. Newton subsequently satisfied the judgment and plaintiffs filed a satisfaction of judgment in the sum of $156,508 (the amount of the verdict plus statutory interests. and costs). Plaintiffs’ motion for a new trial as to defendant Holy Cross was denied by the trial court. Plaintiffs now appeal as of right from the judgment of no cause of action against Holy Cross and the denial of the motion for a new trial.
Holy Cross argues that the satisfaction of the entire judgment by defendant Newton renders plaintiffs’ appeal moot. On the facts of this case, we agree.
Plaintiffs sued Newton and Holy Cross jointly and severally. Plaintiffs sought to recover damages resulting from a single injury, the loss of plaintiff’s foot. At common law, where the conduct of two or more actors proximately causes a single injury to a plaintiff, while the plaintiff may pursue compensation for the injury from any or all of the defendants, the plaintiff is entitled to only one satisfaction. Sobotta v Vogel, 37 Mich App 59, 64; 194 NW2d 564 (1971).
"The liability of tort-feasors for a joint tort is joint and several. The injured party has the right to pursue them jointly or severally at his election, and recover separate judgments; but, the injury being single, he may recover but one compensation.” Verhoeks v Gillivan, 244 Mich 367, 371; 221 NW 287 (1928), quoting from 58 LRA 410.
"[W]here injury results from the concurrent negligence of two or more, each proximately contributing to the result, recovery may be had against one or more, although but one satisfaction may be had.” [Barkman v Montague, 297 Mich 538, 542; 298 NW 273 (1941), quoting from Banzhof v Roche, 228 Mich 36, 41; 199 NW 607 (1924).]
The common-law prohibition against more than one satisfaction is codified in MCL 600.2925c(5); MSA 27A.2925(3)(5), which provides in pertinent part:
The recovery of a judgment for an injury or wrongful death against 1 tort-feasor does not of itself discharge the other tort-feasors from liability for the injury or wrongful death unless the judgment is satisfied. [Emphasis added.]
Assuming, arguendo, we granted plaintiffs a new trial against Holy Cross, on remand Hold Cross could successfully move for summary disposition on the basis of satisfaction of judgment. Plaintiffs correctly point out that the allegedly negligent acts of Holy Cross were entirely distinct from the alleged negligent acts advanced against Newton. Plaintiffs incorrectly assert the materiality of this distinction to the issue of whether they are entitled to further recovery.
In Belin v Jax Kar Wash No 5, Inc, 95 Mich App 415; 291 NW2d 61 (1980), we considered the legal consequences of a verdict against one tortfeasor in a subsequent trial involving a joint and several tortfeasor. Plaintiff Belin, while a passenger in a van owned by Jax Kar Wash, was injured when the van was involved in an accident with vehicles owned or operated by defendants Dawson and Hoover. Belin sued Jax, Dawson, and Hoover. A directed verdict was entered in favor of Jax. Hoover was found not liable, and the jury returned a verdict against Dawson in the sum of $75,000. Appellate proceedings resulted in a retrial against Jax. In the second trial, the jury returned a verdict against Jax in the sum of $146,594. On appeal from the second trial, Jax argued that the trial court erred in allowing a verdict to stand which was in excess of a verdict assessed at an earlier trial. This Court disagreed, stating:
The correct rule as to persons jointly and severally liable is found in the American Law Institute’s Restatement of Judgments, § 94, p 467:
"Except as stated in §§ 96-99, the rendition of a judgment in an action against one of two or more persons liable for a tort, breach of contract, or other breach of duty, does not affect the claim against the other.”
"Sections 97-99 of the Restatement contain no exception which would apply in the present case. The comments to § 94 of the Restatement state in part:
"b. Merger, bar, collateral estoppel. A judgment against one of several persons each of whom is liable for the entire cause of action does not discharge any of the others unless the liability is alternative (see § 100) or the claim is not severable (see § 101). Thus, a person is entitled to separate judgments for the full amount of his harm against any number of tortfeasors whose conduct contributes to the tort or who otherwise are responsible for it. . . .
"Further, subject to the limitations stated in §§ 96-99, the plaintiff can obtain judgments against the defendants for varying amounts. Thus, if he is awarded a small amount as damages in an action against one of a number of joint tortfeasors, he is not necessarily prevented from obtaining a judgment for a larger amount in a subsequent action against another of the tortfeasors. The matter of damages is not res judicata except under the circumstances stated in §§ 96-99.
"For the same reasons that a judgment against one of two persons liable for a single breach of duty does not merge the claim against the other, and with the same exceptions, a judgment for such person does not bar the claim against the other; nor do the rules of collateral estoppel make the determination of fact in one action decisive in a later action.” [95 Mich App 420-421.]
This Court was further troubled by the fact that Jax’s position throughout the second trial had been that it was not bound by the prior determination.
We agree with our decision in Belin; however, there is a significant distinction between Belin and the instant case. In Belin, the judgment entered in the first trial was not satisñed prior to or during the second trial or appeal therefrom. Where, as here, the first judgment was satisfied, different legal consequences ensue. Restatement Judgments, 2d, § 50, p 40 (formerly Restatement Judgments, § 95, p 469), states:
When a judgment has been rendered against one of several persons each of whom is liable for a loss claimed in the action on which the judgment is based:
(1) A satisfaction . . . does not discharge the liability of any of the other persons liable for the loss ....
(2) Any consideration received by the judgment creditor in payment of the judgment debtor’s obligation discharges, to the extent of the amount of value received, the liability to the judgment creditor of all other persons liable for the loss.
Comment d explains:
d. Amount of loss adjudicated. The rule that payment of a loss, in whole or in part, by one of several obligors reduces the amount that may be obtained from other obligors also applies when the amount of the loss has been adjudicated. The adjudication of the amount of the loss also has the effect of establishing the limit of the injured party’s entitlement to redress, whoever the obligor may be. This is because the determination of the amount of the loss resulting from actual litigation of the issue of damages results in the injured person’s being precluded from relitigating the damages question. See § 29. Therefore, when a judgment is based on actual litigation of the measure of a loss, and the judgment is thereafter paid in full, the injured party has no enforcible [sic] claim against any other obligor who is responsible for the same loss. [Emphasis added.]
We emphasize that further recovery is barred only where the tortfeasors produced a single indi visible injury. Where injuries are apportionable, satisfaction of the damages assessed by a jury against one tortfeasor would not necessarily amount to full compensation for all injuries suffered by the plaintiff. Whether apportionment is appropriate involves a factual inquiry into whether the injuries suffered by a plaintiff are separable and can be allocated between the tortfeasors with reasonable certainty. Rodgers v Canfield, 272 Mich 562; 262 NW 409 (1935); Sexton v American Aggregates, 60 Mich App 524, 534; 231 NW2d 449 (1975). Allocation may be impossible even where the negligent acts were not strictly simultaneous. Maddux v Donaldson, 362 Mich 425, 433-434; 108 NW2d 33 (1961).
[T]he plaintiff may suffer from a composite injury, the ingredients of which are impossible to identify in origin and impracticable to isolate in treatment.
[I]f . . . the jury is able to determine that one party has caused "one harm,” and whether "another and distinct harm,” each will respond for the harm determined by the jury to have been caused by him and that injury alone. The problem before us does not arise if we have "distinct” harms. It is only where the jury is unable to distinguish the harms that difficulty arises.
The fact that one wrong takes place . . . after the other is without legal significance. What is significant is that the injury is indivisible. [362 Mich 431-434.]
Here, while plaintiffs allege that distinct acts of the defendants contributed to plaintiff’s injury, plaintiffs sought recovery for a single indivisible injury, the loss of plaintiff’s foot. (All damages requested by plaintiffs, e.g., wage loss and pain and suffering, flowed from the loss of the foot.) The trier of fact measured compensation for that loss to be $75,000 and $1,000, respectively. Since plaintiffs were fully compensated for the loss, plaintiffs are not entitled to additional recovery.
While plaintiffs moved for additur as to the verdict against Newton, the motion was denied and on appeal plaintiffs are not challenging that portion of the verdict. Thus, the amount of plaintiffs’ loss has been fixed by the trier of fact. Satisfaction of the judgment based on actual litigation of the measure of plaintiffs’ loss discharges any potential liability of Holy Cross to plaintiffs for that loss and thus renders plaintiffs’ appeal moot. We do not, however, believe the appeal was vexatious under MCR 7.216(C)(1)(a) and, accordingly, deny the appellee’s request for actual attorney fees.
The trial court’s order denying plaintiffs’ motion for new trial is affirmed. | [
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Per Curiam:.
The prosecutor has asked us, in each of these cases, to determine whether the Court of Appeals was correct in holding that voluntary manslaughter is a necessarily included offense within the crime of murder.
Robert Bruce Van Wyck was convicted by a jury in Kent circuit court of the second-degree murder of Lois McDonald. The jury was instructed on first-degree murder and second-degree murder. Defense counsel requested that the trial court also instruct the jury on manslaughter. The request was refused.
The Court of Appeals concluded that voluntary manslaughter is a necessarily included offense within the crime of murder and reversed Van Wyck’s conviction. 72 Mich App 101, 105; 249 NW2d 311 (1976). The Court alluded to this Court’s decisions in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), and the holding in those cases to the effect that if an instruction on a necessarily included offense is requested, it is reversible error to fail to so in struct. The Court of Appeals remanded for entry of a judgment of conviction of manslaughter but gave the prosecutor the option to retry Van Wyck on the second-degree murder charge if the prosecuting attorney was persuaded that the ends of justice would be better served thereby. People v Van Wyck (On Rehearing), 76 Mich App 17; 255 NW2d 754 (1977).
James Libbett was convicted by a Kent circuit jury of the first-degree murder of Rosalie Sterling and the second-degree murder of Danny Ireland. The trial court refused to instruct the jury with regard to manslaughter, although requested to do so by defense counsel. The Court of Appeals concluded that voluntary manslaughter is a necessarily included offense within the crime of murder and reversed.
We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.
As we noted in People v Ora Jones, supra:
"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.” 395 Mich 387. (Emphasis in original.)
A person who kills another with malice aforethought is guilty of common-law murder.
"Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.” People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971).
Provocation may mitigate the degree of the offense to manslaughter:
"But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.” Maher v People, 10 Mich 212, 219 (1862).
The absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter.
It remains to be decided in these cases, however, whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter. If the evidence would have been sufficient to support such a verdict, it was reversible error for the trial court, on request, to refuse the requested instruction. People v Paul, 395 Mich 444; 236 NW2d 486 (1975). The Court of Appeals did not address this question in light of its disposition of each of these matters. Accordingly, we now, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, reverse the judgment of the Court of Appeals and remand to that Court so it may determine whether the evidence in each case was sufficient to support a conviction of manslaughter.
If the Court concludes in Van Wyck that it was, it shall reverse the defendant’s conviction and remand for entry of a judgment of conviction of manslaughter with the option to the prosecutor to retry, in his discretion, on second-degree murder. If, on the other hand, the Court concludes that the evidence was not sufficient to support a conviction of manslaughter, the Court shall affirm defendant’s conviction of second-degree murder.
If the Court concludes in Libbett that the evidence was sufficient to support convictions of manslaughter, it shall reverse defendant’s convictions of first-degree and second-degree murder, and shall remand for entry of judgments of conviction of manslaughter with the option to the prosecutor to retry, in his discretion, as to first- and second-degree murder of Sterling and Ireland, respectively. Libbett’s request for appointment of counsel has become moot and is denied.
We do not retain jurisdiction in either case. In deciding these cases, we have no need to advert to the retroactivity of People v Carter, 395 Mich 434; 236 NW2d 500 (1975); People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975); People v Paul, supra; People v Chamblis, supra; or People v Jones, supra.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
This is an appeal from an order of the State Bar Grievance Board dated February 3, 1977 which affirmed a disciplinary order entered by Wayne county hearing panel no. 5 on Septem ber 30, 1976. The order of discipline permanently revoked Monte R. Geralds’ license to practice law.
Mr.. Geralds was charged with three counts of professional misconduct, two of which were dismissed following a protracted hearing. The hearing panel determined that Mr. Geralds violated DR 9-102(A) and DR 9-102(B) of the Code of Professional Responsibility, and State Bar Rule 15, §§ 2(1) — 2(3). The conclusion of the hearing panel affirmed by the State Bar Grievance Board was:
"That during the representation of Geraldine Patria, by respondent, respondent had managed and had access to her funds and property; that he failed to preserve the identity of the funds and property of Mrs. Patria; that he commingled Mrs. Patria’s money with his own by placing same in a joint savings account and subsequently in his personal account; that further respondent used Mrs. Patria’s funds for his own gain, without her permission, in purchasing an office building in Madison Heights and that respondent converted a sum of money to his own use by purchasing certain POM stock in his own name and that his conduct violates Canon DR 9-102 subparagraph A and DR 9-102 subparagraph B.”
Counsel for Mr. Geralds raises these issues:
(1) Was there record support for the findings and did the findings support the conclusion that violations of DR 9-102 and Rule 15 took place?
(2) Did the hearing panel abuse its discretion in not allowing Mr. Geralds to amend his answers?
(3) Is the disciplinary order unreasonably punitive and discriminatory?
"In State Bar disciplinary pleadings on appeal to the Supreme Court, we review the findings and conclusions of the hearing panel, as affirmed by the State Bar Grievance Board, to determine whether they 'have proper evidentiary support on the whole record’. State Bar Grievance Administrator v Estes, 390 Mich 585, 593; 212 NW2d 903 (1973); Grievance Board Rule 16.24(h).” State Bar Grievance Administrator v Beck, 400 Mich 40, 46; 252 NW2d 795 (1977).
There is ample support in the more than 1,000-page transcript of the proceedings for the findings and conclusions of the hearing panel. A detailed exposition of the facts is unwarranted. Suffice it to say that in December, 1970, client Patria gave Mr. Geralds more than $33,000 to redeem foreclosed real property. Nonpertinent reasons militated against using the money for redemption and Mr. Geralds deposited the funds in a joint savings account. In October, 1971 he withdrew approximately $13,000 and placed it in his personal checking account. Mr. Geralds tendered a personal check for the purchase of some 4,000 shares of stock in his name. The client had no prior knowledge of this investment. It was not until years later that the client learned specifically of the transaction through her newly retained attorney who secured an accounting from Mr. Geralds. Mr. Geralds maintained that the stocks were purchased on behalf of the client and that he had mentioned an investment to his client shortly after the transaction. At the time of the hearing below, the stock remained with Mr. Geralds.
In January, 1972, Mr. Geralds withdrew $9,200 of funds from the joint savings account and applied it as a downpayment on his new office building. Again the client was not notified of this transaction; no security was given. Mr. Geralds suggests that the transaction was proper in that it constituted an enforcement of an attorney’s lien as well as a collection of an apparently overdue promissory note. The record indicates the client received legal services from Mr. Geralds from 1967 through 1974. Notwithstanding that Mr. Geralds failed to bill his client after 1969, it is suggested the DR 9-102(A)(2) grants an attorney an alternative means to enforce an attorney lien by helping one’s self to funds of a client. This Court cannot agree with the interpretation given to DR 9-102 by Mr. Geralds. Client Patria was not notified that the enforcement of a so-called attorney’s lien, if any, had been undertaken by Mr. Geralds by removal of funds from a joint savings account to serve as a downpayment on an office building. The Court is unconvinced that attorney Geralds acted with propriety and in conformity to the standards required under DR 9-102 and State Bar Rule 15.
Denial of the last-minute request for an amendment of the answer did not result in a miscarriage of justice. State Bar Grievance Administrator v Crane, 400 Mich 484, 492; 255 NW2d 624 (1977):
"Given the facts of the instant case, we do not believe any miscarriage of justice occurred:
" 'No investigation or proceedings hereunder shall be held invalid by reason of any nonprejudicial irregularity, nor for any error not resulting in a miscarriage of justice.’ Grievance Board Rule 16.34(c).”
In light of Mr. Geralds’ "previously unblemished record” as well as the totality of circumstances surrounding the relationship between Geralds and client Patria, the Court hereby modifies the discipline imposed to a suspension from the practice of law for three years. In all other respects the hearing panel and grievance board’s determinations are affirmed.
Kavanagh, C.J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Canon 9 reads: "A lawyer should avoid even the appearance of professional impropriety.” DR 9-102 provides:
"(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
"(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
"(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
"(B) A lawyer shall:
“(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
"(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
"(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
"(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”
State Bar Rule 15 reads in pertinent part:
"Sec. 2. Grounds for Discipline in General. The following acts or omissions by a member of the bar of this state, individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether or not the act or omission occurred in the course of an attorney-client relationship.
"(1) Conduct prejudicial to the proper administration of justice;
"(2) Conduct that exposes the legal profession or the courts to obloquy, contempt, censure or reproach;
"(3) Conduct that is contrary to justice, ethics, honesty or good morals”.
See State Bar Grievance Administrator v Crane, 400 Mich 484, 494; 255 NW2d 624 (1977). | [
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Application for rehearing filed by the appellant, motion to disqualify appellant’s counsel filed by the State Bar Grievance Board, and motion to extend the time for filing supplementary matter in support of the application for rehearing filed by substituted counsel for the appellant, are considered. It is ordered that the application for rehearing and the motion to extend time are denied, the motion to disqualify appellant’s counsel is denied as moot, and the stay of suspension heretofore granted by order dated August 9, 1976 is terminated.
Reported at 401 Mich 516.
Kavanagh, C. J., and Levin, J., dissenting:
We would grant the motion for an extension of time to provide appellant’s substituted counsel time to review the motion for rehearing and to file supplementary matter in support of such motion.
Certiorari having been granted by the United States Supreme Court in Ohralik v Ohio State Bar Ass’n, 48 Ohio St 2d 217 (1976), and In the Matter of Smith, 233 SE2d 301 (1977), and it appearing that the decisions in those cases may be dispositive of the application for rehearing, we would hold the application in abeyance and continue the stay of appellant’s suspension pending the decision in Ohralik and Smith.
Justice Fitzgerald would grant the motion for an extension of time to file supplementary matter in support of the application and until said matter was considered by the Court would withhold action upon the application for rehearing.
Ordered resubmitted September 29, 1978. 403 Mich 955. | [
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Per Curiam.
The issue in this case is whether the defendant employer was placed on sufficient notice of the plaintiff’s disability before the filing of the plaintiff’s petition for benefits so that the statute of limitations was tolled pursuant to MCLA 418.381; MSA 17.237(381).
I
The plaintiff, who was born in 1900, first began working for General Motors in 1926. Except for a three-year hiatus from 1945 until 1948, he worked continuously for General Motors until his retirement on January 1, 1966. During most of his work experience for General Motors, he worked on jobs involving grinding. From 1951 through 1965 his job was on a grinding machine.
For the three months before his retirement the plaintiff was on extended sick leave for which he received extended sick leave benefits. Company records indicate that the causes of the plaintiff’s extended sick leave were pneumonitis, pulmonary emphysema and bronchial asthma.
The plaintiff’s petition for benefits was filed almost five years after his retirement. He testified that he did not suspect a connection between his employment and his lung problems until shortly before the petition was filed.
On November 27, 1972 the hearing referee found that the plaintiff was totally disabled from an occupational disease. As a result, weekly payments were ordered at the maximum rate of $70 per week commencing October 1, 1965 and continuing until further order of the bureau. The defendant appealed the referee’s award to the Workmen’s Compensation Appeal Board which found that the plaintiff suffered a work-related disability. However, the board reversed the finding of the referee and denied benefits because the plaintiff did not comply with the notice provisions of the Worker’s Disability Compensation Act. The board decision was affirmed by the Court of Appeals. 78 Mich App 494; 260 NW2d 143 (1977).
II
The primary notice statute relevant to this case is MCLA 418.381; MSA 17.237(381), which reads in pertinent part as follows:
"(1) No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury has been given to the employer within 3 months after the happening thereof and unless the claim for compensation with respect to the injury, which claim may be either oral or in writing, has been , made within 6 months after the occurrence of the same * * * . In a case in which the employer has been given notice of the happening of the injury or has notice or knowledge of the happening of the accident within 3 months after the happening of the same, and fails, neglects or refuses to report the injury to the bureau as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of the employer or his insurer, until a report of the injury has been filed with the bureau.”
In this particular case the notice provision as quoted is slightly modified by MCLA 418.441; MSA 17.237(441), which reads as follows:
"The requirements of notice of occupational disease and death resulting therefrom and the requirements as to the bringing of proceedings for compensation for disability or death resulting from such occupational disease shall be the same as required in chapter 3, except that the notice shall be given to the employer within 120 days after the disablement.”
No report of injury or occupational disease was made by this defendant employer to the bureau at any time before the plaintiff filed his petition for hearing. The question is whether there was sufficient notice to the employer of plaintiffs occupational disease and disability to require such a report and thereby to toll the statute of limitations as to plaintiffs claim. We find that there was sufficient notice under the test announced in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974).
The dissenting opinion in the Workmen’s Compensation Appeal Board notes that:
"records kept in the ordinary course of business established that this employer knew at the time plaintiff became disabled that he suffered from 'bronchial asthma, pneumonitis, and pulmonary emphysema’ which caused disablement beginning on September 22, 1965.”
The records also show that the plaintiff was paid group insurance benefits because of his disablement until he retired on January 1, 1966. The defendant had every opportunity to report the disablement and its nature to the bureau as required by the statute. The employer did not do so.
The nature of the plaintiffs employment was such that pulmonary disability is a common result after many years of exposure, as plaintiff experienced. Certainly the nature of the employment environment is well known to the defendant employer. This knowledge, coupled with the information surrounding the plaintiff’s extended sick leave prior to retirement, is sufficient to place the employer on notice under the statute and to require the employer to make a report to the bureau. The failure of the employer to file the report resulted in a tolling of the statute of limitations.
In Norris, supra, Justice Coleman, writing for a unanimous Court, said:
"The notice given must be sufficient to make the employer aware that an injury has been sustained. If, after inquiry, the employer does not believe the injury to be compensable, it need not report the accident. However, in not reporting the accident, the employer assumes the risk that the injury will be found to be compensable. If such a determination occurs, the employer’s penalty is a suspension of statutory limitations.” 391 Mich 477.
The evidence shows that the defendant employer had timely notice of the plaintiff’s occupational disease as a result of the information it had surrounding plaintiff’s sick leave before his retirement. The employer chose not to notify the workmen’s compensation bureau. Accordingly, the statutory time limits for the filing of notice and claim by the plaintiff were suspended.
In lieu of granting leave to appeal, and pursuant to GCR 1963, 853.2(4), we reverse the decision of the Court of Appeals and reinstate the order of the worker’s compensation referee based upon our holding in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974).
Kavanagh, C.J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
This opinion cites the present forms of the Worker’s Disability Compensation Act. The pertinent provisions are substantially unchanged since the plaintiffs disability date in 1965. | [
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Per Curiam.
Wayne-Westland Community Schools appeals as of right a decision and order of the Michigan Employment Relations Commission in favor of the Wayne-Westland Education Association.
This case arises out of a reprimand given to school counsellor Melvin Straight by the school system’s assistant superintendent Thomas Svitkovich for Straight’s refusal to attend a meeting without union representation. The merc found that Straight had a right to union representation at the meeting because he had a reasonable belief that the scheduled meeting with Svitkovich could have led to discipline and, thus, Straight had a right to refuse to participate in the meeting without representation. The merc concluded that the school system interfered with Straight’s exercise of his rights under §9 of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., by reprimanding him for his refusal to attend the meeting. On appeal, the school system claims that the merc erred in its determination that Straight had a right to union representation during the scheduled meeting with Svitkovich because Straight’s fear that discipline would result from the meeting was unreasonable. We disagree.
The pera governs labor relations in public employment. Wayne Co Government Bar Ass’n v Wayne Co, 169 Mich App 480, 485; 426 NW2d 750 (1988). Section 9 of the pera provides:
It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of . . . mutual aid and protection .... [MCL 423.209; MSA 17.455(9).]
Section 10 makes it unlawful for a public employer to "interfere with, restrain or coerce public employees” in the exercise of their rights under § 9. MCL 423.210; MSA 17.455(10).
In National Labor Relations Bd v J Weingarten, Inc, 420 US 251; 95 S Ct 959; 43 L Ed 2d 171 (1975), the Supreme Court affirmed the National Labor Relations Board’s following holding regarding § 7 of the National Labor Relations Act, 29 USC 157, which is similar to § 9 of the pera:
The National Labor Relations Board held in this case that respondent employer’s denial of an employee’s request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action constituted an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act, as amended, 61 Stat 140, because it interfered with, restrained, and coerced the individual right of the employee, protected by § 7 of the Act, "to engage in . . . concerted activities for . . . mutual aid or protection . . . .” 202 NLRB 446 (1973). [Id. at 252.]
Thereafter, the merc held that the Weingarten right to union representation is within the statutory protections of § 9 of the pera. See Regents of the University of Michigan v Local 1583, AFSCME, 1977 MERC Lab Op 496.
Although this Court may review the law regardless of the factual findings of the commission, the merc’s findings of fact are upheld if they are supported by competent, material and substantial evidence on the whole record. Wayne Co Government Bar Ass’n, supra. Moreover, review of the merc’s findings must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and do not invade the province of exclusive administrative fact finding by displacing an agency’s choice between two reasonably different views. Mid-Michigan Ed Ass’n v St Charles Community Schools, 150 Mich App 763, 768; 389 NW2d 482 (1986).
After reviewing the record, we believe that the merc’s finding that Straight had a reasonable belief that discipline could result from the scheduled meeting with Svitkovich is supported by competent, material and substantial evidence in this case. Accordingly, we affirm the decision of the MERC.
Affirmed. | [
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Gribbs, J.
The prosecution appeals by leave granted from a circuit court order which affirmed an order of the district court suppressing evidence. We reverse.
This is a prosecution for carrying a dangerous weapon in a vehicle, MCL 750.227; MSA 28.424. The weapon in question is a combination lock-blade knife and metallic knuckles._
On January 21, 1987, at approximately 11:00 p.m., West Bloomfield Township Police Officer John Truitt arrested two youths on charges of felonious assault. During the arrest, a bb gun designed to look like a six-inch Colt .357 Magnum was discovered in a car belonging to one of the two youths.
While processing the arrest of the two youths at the police station, Officer Truitt received an anonymous telephone call from a woman who claimed that she had witnessed the felonious assault incident. The district court found that the anonymous caller told Officer Truitt that another car had also been involved and that there was a weapon in that other car. The caller described a black Trans Am and provided a license number. The credibility of the anonymous caller is not at issue.
Sometime after receiving the telephone call, Officer Truitt went outside to the station parking lot to retrieve some evidence he had left in his patrol car. He saw a black Trans Am enter the parking lot and noticed that the license plate number matched the number provided by the anonymous caller. The Trans Am parked next to another car, a Honda. The two occupants of the Trans Am and the four people in the Honda began to talk together.
As Officer Truitt neared his patrol car, the six people called out with questions but Officer Truitt ignored them. Defendant got out of the driver’s seat of the black Trans Am and said, "Where’s my brother?” Officer Truitt testified that defendant’s attitude was "somewhat aggressive, demanding.” Officer Truitt was the only police officer in the parking lot with the six people and he was "rather apprehensive about the whole situation ... on guard and survival conscious.”
Officer Truitt testified that he could not see defendant’s hands, so he asked defendant to step away from the Trans Am. Officer Truitt used his portable radio to call dispatch. He told dispatch what was going on and asked for assistance. West Bloomfield Township Police Officer Himmelspach, who had just entered the parking lot, responded to the call for assistance.
Officer Truitt told Officer Himmelspach about the earlier felonious assault and expressed concern that there might be a weapon in the Trans Am. Officer Truitt asked Officer Himmelspach to watch defendant while Truitt walked over to the Trans Am.
Officer Truitt looked through the passenger side window of the Trans Am and saw a "silver metallic-looking object that was flat on the top and appeared to me to be either the top or the handle of an automatic revolver” protruding from under the passenger seat. Officer Truitt opened the passenger door and removed the object, a "unique hammer” which had been "honed to a very sharp point” on one side.
Officer Truitt then went to the other side of the Trans Am and opened the driver’s door. He looked under the driver’s seat and saw what appeared to be a black leather holster. The holster contained the combination lock-blade knife and metallic knuckles at issue on this appeal.
After placing defendant under arrest, Officer Truitt opened the trunk of the Trans Am and discovered a two-foot metal rod that had been sharpened to a point on one end.
After hearing Officer Truitt’s testimony at the preliminary examination, defense counsel asserted that the combination knife should be excluded from evidence because the search of the defendant’s car was unreasonable within the meaning of the Fourth Amendment. The prosecution responded that Officer Truitt’s search of the Trans Am was permissible under the United States Supreme Court decision in Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983).
The district court held that evidence of the combination knife must be excluded because the exception to the warrant requirement outlined in Long was not applicable to this case. The district court specifically found that Officer Truitt had acted properly under the circumstances and that discovery of the sharpened hammer was permissible because it was in plain view. Nevertheless, the district court concluded that the extended search of defendant’s car was not allowed because defendant was not in the car and there was, therefore, no immediate threat of harm to the officers. We reverse.
Both the Michigan and United States Constitutions provide that every person shall be secure from unreasonable searches and seizures of their person, houses, papers and possessions. US Const, Am IV; Const 1963, art 1, § 11. It has long been established, however, that a police officer may, in appropriate circumstances, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. If the police officer reasonably believes that the suspect is armed and dangerous, the officer may conduct a limited protective search for concealed weapons. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
In Michigan v Long, 463 US 1032, 1051; 103 S Ct 3469; 77 L Ed 2d 1201 (1983), the United States Supreme Court extended the Terry-type "stop and frisk” to include protective searches of automobile passenger compartments. The Court emphasized:
In evaluating the validity of an officer’s investigative or protective conduct under Terry, the "[tjouchstone of our analysis ... is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long’s immediate grasp before permitting him to reenter his automobile. Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous. [Emphasis added. Citations omitted.]
As in this case, Long involved a defendant’s claim that a search of his car could not be justified as a protective search because he was out of the car and under the control of the police at the time of the search. The United States Supreme Court rejected this argument:
The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. This reasoning is mistaken in several respects. During any investigative detention, the suspect is "in the control” of the officers in the sense that he "may be briefly detained against his will . . . .” Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long’s position break away from police control and retrieve a weapon from his automobile. In addition, if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation "at close range,” when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a "quick decision as to how to protect himself and others from possible danger . . . .” In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter. [Id., 463 US 1051-1052. Emphasis changed. Citations omitted.]
In this case, it is undisputed that Officer Truitt properly conducted an independent investigation when he saw defendant’s Trans Am in the parking lot, using the information supplied by the anonymous caller as the impetus for the investigation. People v Lumsden, 168 Mich App 286, 293; 423 NW2d 645 (1988). Before he approached the Trans Am, Officer Truitt knew that the Trans Am was reportedly involved in the earlier felonious assault incident, that defendant was most likely a brother of one of youths arrested for the earlier incident and that defendant was behaving in an aggressive manner.
When Officer Truitt looked into the window of the Trans Am, he saw what appeared to be a weapon in plain view. Upon inspection, the object was found to be a hammer with one end sharpened to a point. We believe that discovery of the hammer would, of itself, have warranted a conclusion that the weapons statute was being violated:
A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person. [MCL 750.227; MSA 28.424.]
The sharpened tool in the present case, which had no apparent legitimate purpose, certainly provided Officer Truitt with probable cause to believe that the weapons statute was being violated. This is especially so since the object was not found in a context that would have suggested legitimacy, such as a tool box or even the trunk of the car. Instead, it was under the passenger seat, placed within easy reach of the passenger or driver. See People v Values, 310 Mich 500, 504-505; 17 NW2d 729 (1945).
These observations alone might have justified an arrest of the passenger at that point. Instead, Officer Truitt quite legitimately resolved that he should conduct further investigation. His brief examination of the area under the driver’s seat disclosed a weapon illegal per se, metallic knuckles in combination with a knife. Metallic knuckles are a weapon illegal per se, possession of which is also a five-year felony, MCL 750.224; MSA 28.424. Vaines, 310 Mich at 505.
Even though defendant was outside the vehicle, we are convinced that the entire Terry stop and resulting confrontation constituted a legitimate effort by the officer to protect himself. Had Officer Truitt terminated his investigation prematurely, defendant would have been free to reenter the vehicle and make use of any weapon overlooked. The Fourth Amendment simply does not stand as a bar to such reasonable police conduct. Michigan v Long, 463 US 1032; 103 S Ct 3469; 74 L Ed 2d 1201 (1983).
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AFTER REMAND
Before: MacKenzie, P.J., and McDonald and R. E. Robinson, JJ.
Per Curiam.
Respondent appeals as of right from a supplemental decision and order of the Michigan Employment Relations Commission holding that individuals employed in respondent’s sheltered workshop operation known as Westport Janitorial Service are "employees” within the meaning of the Michigan labor mediation act, MCL 423.2(e); MSA 17.454(2)(e). Goodwill Industries of America, Inc., and Michigan Association of Rehabilitation Facilities have filed amicus briefs aligned with respondent. We reverse.
The facts of this case are set forth in this Court’s previous opinion, Local 1106, International Brotherhood of Electrical Workers, AFL-CIO v Goodwill Industries of Muskegon Co, Inc, 162 Mich App 417, 418-421; 413 NW2d 67 (1987):
In September of 1985, Local Union 1106, International Brotherhood of Electrical Workers filed a petition with the commission. The petition asserted that thirty percent or more of the full- and part-time janitors and laborers employed by West-port Janitorial Service wished to be represented for purposes of collective bargaining and sought an election and certification of a union representative pursuant to MCL 423.27; MSA 17.454(29). Goodwill responded that the workers were not "employees” within the meaning of the Michigan labor media tion act, since the primary objective of the program in which they were working was rehabilitation and placement in competitive employment.
The parties stipulated that Westport, a nonprofit organization, is part of Goodwill’s program to prepare "clients ... for competitive employment elsewhere by rehabilitating them in regard to mental, physical, emotional and social disabilities.” Before qualifying for the Westport program, the "clients” receive some type of rehabilitation training; they are referred to the Westport program by public schools, Michigan Rehabilitation, community mental health offices, and Job Training Partnership Act programs.
Prior to assuming their duties as Westport workers, the clients also undergo an additional twelve-week state-paid training program. After their training, however, the clients are supervised by Goodwill staíf and are paid a minimum wage and perform labor and janitorial services pursuant to Goodwill’s contracts with churches, public schools, state buildings, and commercial (e.g., doctors’) offices. Goodwill reports in its budget any Westport revenues in the same manner as it reports other sources of revenue such as United Way contributions.
As part of the Westport rehabilitation program, Goodwill job placement officers, professional counselors and work adjustment counselors evaluate the clients and prepare reports on their physiological, psychological and psychiatric condition. The clients are allowed to stay in the program as long as required by their individual needs, but may be removed from the program or otherwise disciplined if necessary.
Following a hearing held in December of 1985, the commission in its opinion and order recognized that the relationship between Goodwill and its clients was unlike that of traditional competitive employment, since the relationship existed to serve the clients. However, the commission further stated that the existence of an employer/employee relationship was not precluded by a rehabilitative relationship and concluded that the "clients” were "employees” within the meaning of §2(e) of the Michigan labor mediation act, MCL 423.2(e); MSA 17.454(2)(e). The commission then ordered a vote among Westport’s full- and part-time janitors and laborers.
In Local 1106, supra, this Court held that handicapped or disabled workers in a Michigan workshop operation may be excluded from the Michigan labor mediation act’s definition of "employee,” MCL 423.2(e); MSA 17.454(2)(e), if, on a case-by-case finding, the "guiding purpose” of the workshop is "rehabilitative” as opposed to "typically industrial.” 162 Mich App 423. This Court remanded the case to merc for a finding on the question of Westport’s "guiding purpose.” The "guiding purpose” test for determining whether respondent’s clients were "employees” under the Michigan labor mediation act, MCL 423.2(e); MSA 17.454(2)(e), was gleaned from federal cases construing the National Labor Relations Act, 29 USC 152:
[T]he federal courts have held that handicapped workers in a workshop setting are not excluded as a matter of law from being "employees” unless the "guiding purpose” of the workshop operation is "rehabilitative” as opposed to "typically industrial.” Cincinnati Ass’n for the Blind v NLRB, 672 F2d 567, 571 (CA 6, 1982), cert den 459 US 835; 103 S Ct 78; 74 L Ed 2d 75 (1982). In conformity with the practice of the nlrb, a determination that the "guiding purpose” is "rehabilitative” or "typically industrial” is made on a case-by-case basis. Id. Where the "guiding purpose” is "rehabilitative” (i.e., primarily oriented toward providing social services to workers), the workers are not "employees” within the nlra’s definition. However, where the "guiding purpose” is "typically industrial” (i.e., where the rehabilitative purpose is subordinate to routine business considerations), the workers are "employees.” Id. at 571-572.
Common factors noted by the nlrb and the federal courts in finding the "guiding purpose” of workshop operations to be "typically industrial” include: whether the workshop was conducted for profit, whether workers are suspended or terminated for poor job performance, and whether workers are compensated based on work performance.
A common factor in finding the purpose to be "rehabilitative” is whether placement of a worker in the workshop operation is temporary, as a means of training, pending placement in private industry. The focus is on factors which indicate that the workshop is operating to benefit the "workers,” as opposed to such benefit being incidental. Id.; NLRB v Lighthouse for the Blind of Houston, 696 F2d 399 (CA 5, 1983), reh den 703 F2d 557 (CA 5, 1983); Key Opportunities, Inc, 265 NLRB 1371 (1982); Goodwill Industries of Southern California, 231 NLRB 536 (1977). [162 Mich App 421-422.]
On remand, merc held that, under the guiding purpose test, Westport’s clients are employees under the Michigan labor mediation act. Accordingly, the commission affirmed its original direction of election.
Merc’s findings with respect to questions of fact are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. Const 1963, art 6, §28; MCL 421.38; MSA 17.540. This Court may review the law regardless of the factual findings of the commission. Wayne Co Government Bar Ass’n v Wayne Co, 169 Mich App 480, 485; 426 NW2d 750 (1988).
In this case, we are convinced that merc misapplied the facts to the law and that the guiding purpose of respondent’s workshop is rehabilitative rather than typically industrial. The parties stipu lated that the purpose of Westport Janitorial Service was to get clients ready for competitive employment elsewhere by rehabilitating them in regard to mental or physical disabilities. The parties stipulated that respondent employs specialists in job placement, professional counselors and work adjustment counselors to evaluate and report on the progress of respondent’s clients as part of the rehabilitation effort. The parties stipulated that clients are not hired from the general public but are referred by various governmental agencies.
Evidence adduced in a hearing on a challenged ballot held November 6, 1986, also strongly indicates that respondent’s Westport program was primarily oriented toward providing social services to workers. At the hearing, respondent’s director Hugh Kennedy testified that, quite unlike the profit-seeking and performance-based factors used by this Court to characterize "typically industrial” employment, respondent’s program suffered losses of $23,000 and responded by laying off its most productive workers and retaining workers whose work competence was low. In this way, respondent was able to cut its losses while continuing to serve the rehabilitative needs of those workers who needed it most. We believe that this evidence indicates that the workshop is operating to benefit the workers as opposed to such benefit being incidental. See Local 1106 v Goodwill Industries, supra, p 422.
Testimony at the challenged ballot hearing also revealed that workers who are retained in the program are selected not on the basis of work competence but on the basis of severity of handicap and need for supportive supervision. Thus, while a worker’s performance and progress are regularly evaluated at Westport, workers are selected for retention within the program on the basis of poor progress rather than acceptable performance, unlike the evaluative process in private industry.
The merc focused on language in Cincinnati Ass’n for the Blind v NLRB, 672 F2d 567 (CA 6, 1982), cert den 459 US 835; 103 S Ct 78; 74 L Ed 2d 75 (1982), in concluding that a workshop’s guiding purpose is typically industrial where the operation closely "résembles” a traditional for-profit business enterprise.
Westport has certain characteristics typical only of a workshop operation: it hires only handicapped workers, it receives referrals from social service agencies, and its level of work is geared to the abilities of its workers rather than vice versa. None of these are characteristics of typical industrial employment. Nevertheless, the record also shows that work at Westport resembles traditional employment in many ways which may not be characteristic of all workshop operations.
However, the nlrb and the federal courts have held that the "guiding purpose” test requires more than merely focusing upon a workshop’s outward resemblance to competitive business.
From the foregoing, it is clear that the Employer’s clients whom Petitioner seeks to represent are employees in the generic sense of the term. Clients work for a set number of hours a day, perform functions which are of recognized economic value, and are paid for the performance of those functions. Nevertheless, it is equally clear that this employment relationship is different in many, if not most, significant respects from the normal employment relationship.
The focus of Goodwill’s employment concern is upon rehabilitating its clients and preparing them for work in private competitive industry, not on producing a product for profit. Prospective clients are 'hired’ not on the basis of their competence, but on the basis of the severity of their impairments — presumably the more severe their impairment, the more likely they are to be hired. Wages are the same regardless of the client’s performance or tenure, and are as much an instrument of the rehabilitative process as they are recompense for productive activity. In addition, clients are counseled rather than disciplined, are rarely, if ever, discharged, and are allowed to continue their employment as long as they desire. The picture presented is thus that of an employer whose primary objectives are the converse of a normal employer’s objectives — so much so that Goodwill might better be classified as a vocational clinic than as a viable entrepreneurial concern. [Goodwill Industries of Southern California, 231 NLRB 536; 537 (1977).]
In NLRB v Lighthouse for the Blind of Houston, 653 F2d 206 (CA 5, 1981), the Fifth Circuit concluded that the nlrb’s application of the "guiding purpose” test was not supported by substantial evidence where the board found workers to be covered "employees” because they were paid variable wages based upon performance and productivity. Id., p 210. Reversing the board’s decision, the Fifth Circuit observed as follows in holding that the workshop’s wage scheme did not preclude a rehabilitative purpose despite its resemblance to a profit-seeking enterprise:
Such payments do not transform a sheltered workshop into an enterprise in which decisions are governed by economic considerations, rather payments relating to productivity are an integral part of the service provided by the workshop. They foster the goal of rehabilitation by providing an incentive to employees to learn the skills and, thus, become sufficiently acclimated to a work environment to move eventually from the sheltered workshop into the competitive job market. [653 F2d at 209.]
The characteristics of the Westport workshop resembling traditional employment relied upon by the merc to infer a typically industrial guiding purpose are clearly an outgrowth of the program’s rehabilitative purpose inasmuch as the program seeks to simulate competitive employment as a part of its rehabilitative efforts. This being so, merc erred in determining that respondent’s workers are "employees” for the purposes of the Michigan labor mediation act according to the legal standard set forth by this Court.
Reversed. | [
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Michael J. Kelly, J.
Defendant pled guilty to larceny over $100, MCL 750.356; MSA 28.588, possession of stolen property over $100, MCL 750.535; MSA 28.803, and to being an habitual offender, third offense, MCL 769.12; MSA 28.1084. Defendant was sentenced to 2 prison terms of 2 V2 to 10 years.
Defendant’s convictions arose out of his theft of fourteen shirts from a store in February of 1987. Defendant ran into the store, snatched the shirts from a rack, and ran back out and into a waiting car. Police stopped defendant and his driver later that day.
On appeal, defendant argues that his conviction violated the prohibition against double jeopardy, and so requires reversal and resentencing.
In order to determine whether multiple punishment for the same act or transaction violates double jeopardy, we must inquire into whether the Legislature intended to authorize multiple punishment under different statutes for a single criminal transaction. People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984); People v Allay, 171 Mich App 602, 606; 430 NW2d 794 (1988). In order to determine legislative intent, we should examine two criteria. First, whether each statute prohibits conduct violative of a social norm distinct from that norm protected by the other statute. This indicates a legislative intent to allow multiple punishment. Robideau, p 487. However, where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishment. Id. Second, we should consider the amount of punishment authorized by each statute and whether they are hierarchical or cumulative in nature; that is, whether the statute prohibiting the greater offense incorporates most of the elements of the base statute and builds on that less serious offense by requiring a showing of some aggravating conduct or factor, which is thereby punished more harshly than the offense prohibited by the base statute. Id., pp 487-488. If such a hierarchy exists, an intent to punish the defendant under only one of the statutes is indicated. Id., p 488. If a review of the two charged offenses results in no indication of legislative intent, the defendant may be convicted under only one statute. Allay, p 607.
Here the punishment provided by each statute is exactly the same: up to five years or a fine of $2,500 for either crime. MCL 750.356; MSA 28.588 and MCL 750.535; MSA 28.803. Each statute prohibits conduct which violates the same social norm: theft of property. Although one statute prohibits the actual theft and the other prohibits reaping the fruits by buying, receiving, possessing, or concealing stolen property, each statute operates so as to discourage the theft of property, although in different manners. Thus, we must conclude that the Legislature did not intend to provide for multiple punishment under both these statutes. Robideau, supra, p 487; Allay, supra, p 607.
Nor is this result contrary to the language of the receiving and concealing statute, or the Supreme Court’s holding in People v Hastings, 422 Mich 267, 271-272; 373 NW2d 533 (1985). The Legislature specifically amended MCL 750.535; MSA 28.588 in 1979 to allow for prosecution of the thieves who stole property for possession of that same stolen property. Hastings, pp 271-272. The purpose of this amendment was to allow possession of the previously stolen property by the person who stole it to serve as the factual basis for a conviction for possession of stolen property under the receiving and concealing statute, effectively overruling the contrary holding of People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Hastings, pp 271-272. However, this amendment does not indicate a legislative intent to impose multiple punishment for the same act, but rather to enlarge the prosecutor’s arsenal to allow alternate charging and conviction of a thief under either the larceny statute or the receiving and concealing statute. Defendant could have been charged and convicted under either statute for this theft, but not under both of them.
We conclude that the Legislature did not intend to authorize punishment under both these statutes for a single criminal act. Defendant’s multiple convictions for this single theft violate the constitutional prohibition against double jeopardy. In view of this conclusion, we vacate defendant’s conviction and sentence on the charge of possession of stolen property under MCL 750.535; MSA 28.803. See People v Jankowski, 408 Mich 79, 96; 289 NW2d 674 (1980). This remedy is without effect on defendant’s conviction and sentence for larceny, which we hereby affirm.
Reversed in part and affirmed in part. | [
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Shepherd, P.J.
The prosecution appeals as of right from a January 11, 1988, order of dismissal. The sole issue concerns whether defendant had a right to specific performance of the prosecutor’s obligation under a plea bargain agreement. We reverse the circuit court’s decision to order specific performance.
In April, 1986, the Oakland County Prosecutor’s Office filed an information charging defendant with burning insured property, MCL 750.75; MSA 28.270, and attempted false pretenses over $100, MCL 750.92; MSA 28.287; MCL 750.218; MSA 28.415. Following a preliminary examination, defendant was bound over on the charges to Oakland Circuit Court. A plea bargain agreement was then executed whereby the prosecutor agreed to allow defendant to enter a plea to a misdemeanor offense if defendant cooperated in an investigation of two major drug dealers being conducted by the County of Macomb Enforcement Team (comet).
Specifically, defendant represented that he could "assist the law enforcement agencies involved in the investigation of two major drug dealers identified to Lieutenant James Tuttle, dealing in kilo quantities of cocaine and hereafter referred to as the Drug Targets,” and agreed in part:
4. That I will fully assist the law enforcement agencies involved in their investigation of the Drug Targets and other individuals who became suspects in this investigation; and further, I will make "hand to hand” buys and/or "reverse buys” and/or arrange to introduce third parties to the aforementioned individuals or their accomplices, as requested by the law enforcement agencies involved.
The agreement further provided:
8. That I fully understand that the agreement made by the Oakland County Prosecutor’s Office in consideration for my cooperation will not be implemented until I have completely fulfilled my part of the Agreement. This agreement shall be reviewed six months from the date hereof to determine whether the investigations aforedescribed should be continued or terminated. ... I agree to abide by the judgment of the Oakland County Prosecutor’s Office as to whether I have completely fulfilled my part of this Agreement. I understand that the Oakland County Prosecutor’s Office will be the ultimate judge of whether I have complied with the terms of this agreement.
9. That I fully understand that if I violate any part of this Agreement, the entire Agreement will be null and void and that the Oakland County Prosecutor’s Office will immediately resume prosecution of the presently pending case ....
The prosecutor concluded that defendant did not comply with his obligation to cooperate with comet in its investigation and, accordingly, resumed prosecution on the felony charges. Defendant responded by moving for specific performance of the agreement. An evidentiary hearing was held at which defendant and Lieutenant Tuttle, an officer with the Michigan State Police and a supervisor of comet, gave conflicting accounts of defendant’s cooperation with comet. The circuit court found that defendant did not cooperate with comet but that defendant’s cooperation with the investigations of other agencies fulfilled his obligation under the agreement. On October 28, 1987, the circuit court entered an order granting defendant’s motion to enforce the agreement. When the prosecutor refused to amend the information so as to allow defendant to plead to a misdemeanor offense, the circuit court dismissed the case.
On appeal, the prosecution contends that the circuit court clearly erred by finding that defendant fulfilled his obligation under the agreement. We agree.
The circuit court’s decision was based on the rule of substantial performance applied to commercial contracts. Under this rule, a party may enforce contractual rights if the other party obtains substantially what is called for by the contract. On the other hand, where deviations from the contract are such as would essentially change the terms of performance, this will be considered a failure of performance. Even if the deviations are not such as to change the terms of performance, the other party may be entitled to "extra compensation or damages” as a result of the deviation. Gibson v Group Ins Co of Michigan, 142 Mich App 271, 275-276; 369 NW2d 484 (1985), lv den 424 Mich 851 (1985).
In reviewing the circuit court’s application of this rule to the agreement in this case, we initially note that some contractual analogies have been applied to agreements executed between a prosecutor and defendant. For instance, the rule of construction providing that the agreement should be read as a whole and given a reasonable interpretation has been applied to cooperation agreements by the federal courts. See, for example, United States v Brown, 801 F2d 352 (CA 8, 1986). However, it seems clear that strict contractual analogies are not applied and that those principles peculiar to commercial transactions may not be applicable to agreements affecting the disposition of criminal charges. Instead, the agreement must be reviewed within the context of its function to serve the administration of criminal justice. See People v Reagan, 395 Mich 306, 313-314; 235 NW2d 581 (1975).
Whether or not the rule of substantial compliance, viewed in this context, should be applied to dispositional agreements affecting criminal charges need not be addressed in this appeal inasmuch as the rule, even if applicable, would not support the circuit court’s finding that the agreement was substantially complied with. The only reasonable construction of the agreement as a whole is that defendant agreed to cooperate in a specific investigation being conducted by comet involving the designated "Drug Targets.” The prosecutor never consented to defendant’s cooperation in other investigations involving other agencies and, hence, defendant’s purported cooperation in those investigations would not support a finding that he fulfilled his obligation under the agreement.
The circuit court specifically found that defendant did not cooperate with comet. On the basis of this finding, the circuit court should have concluded that defendant did not live up to his part of the bargain and, hence, had no right to specific enforcement of the prosecutor’s obligation to amend the information so as to allow defendant to plead guilty to a misdemeanor offense. Compare People v Olsen, 155 Mich App 294; 399 NW2d 66 (1986); People v Acosta, 143 Mich App 95, 98-99; 371 NW2d 484 (1985) (a defendant has no right to specific performance where he fails to meet an agreed-upon condition precedent). The circuit court’s failure to make this finding was clearly erroneous. MCR 2.613(C).
For these reasons, we set aside the order of dismissal and reinstate the case. On remand, the prosecution may proceed to trial on the original felony charges.
Reversed and remanded. Jurisdiction is not retained.
T. Gillespie, J., concurs in the result only. | [
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Weaver, J.
Defendant was convicted by a jury of possession of liquor in prison, MCL 800.281; MSA 28.1621. Defendant also pled guilty to being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. After vacating the sentence on defendant’s underlying offense of possession of liquor in prison, the trial court sentenced defendant to a prison term of IV2 to 5 years on the habitual offender plea. Defendant appeals as of right. We affirm.
1
Defendant was caught with a sealed bottle of Arrow Peppermint Schnapps, an alcoholic liquor, which he had hidden in the groin area of his trousers upon his return to the Pontiac Correction Center where he resided as a new inmate. Testi mony adduced at trial indicated that when defendant returned to the center on August 29, 1986, at approximately 10:30 p.m., he appeared to be drunk. While engaging in a routine pat-down search of defendant, two officers discovered the bottle. During the search but prior to removal of the bottle from his pants, however, defendant denied possessing anything improper.
Following jury selection, defense counsel informed the court that a counselor from the Oakland County Jail, who purportedly was familiar with defendant’s alcohol dependency and who had been subpoenaed as a witness, was unavailable to testify due to an illness. Although defense counsel stated that the witness was not a res gestae witness and was not essential to the defense, defendant requested an adjournment to enable the witness to testify. The court denied the request. Before hearing defendant’s testimony and after listening to defendant explain that the testimony of the proposed witness was proffered to establish that defendant was diagnosed as an alcoholic, the court concluded that the proffered testimony was unnecessary in light of the parties’ stipulation to the bottle’s alcoholic contents and to admission of a document indicating defendant’s alcoholism.
During opening argument, defense counsel argued that defendant should be acquitted because he was an alcoholic and at the time of the offense was too inebriated to have knowingly and intentionally brought the bottle of alcohol into the center. After hearing the testimony, the trial court, without objection, instructed the jury that specific intent was required to convict defendant of possessing liquor in prison. However, the court did not instruct on intoxication as a defense, and defense counsel made no request. The jury returned a guilty verdict. Defendant subsequently pled guilty to being an habitual offender, fourth offense, and was sentenced.
ii
On appeal, defendant argues that the trial court abused its discretion in denying defendant’s request for an adjournment, that defense counsel’s failure to request an instruction on intoxication as a defense amounted to ineffective assistance of counsel, and that the trial court erred by not instructing the jury, sua sponte, on intoxication as a defense.
Each of defendant’s arguments turns on the question of whether possession of liquor in prison, MCL 800.281; MSA 28.1621, is a specific intent crime. We do not believe that it is.
In resolving disputed interpretations of statutory language, it is the function of the reviewing court to effectuate legislative intent. If the language of the statute is clear and its meaning unambiguous, a common-sense reading of the statute will suffice and no interpretation is necessary. Karl v Bryant Air Conditioning Co, 416 Mich 558, 567; 331 NW2d 456 (1982); State Farm Mutual Automobile Ins Co v Wyant, 154 Mich App 745, 749-750; 398 NW2d 517 (1986). We find the language of the statute which proscribes the possession of liquor in prison, MCL 800.281; MSA 28.1621, to be clear and unambiguous. Therefore a common-sense reading of the statute will suffice.
A common-sense reading of this statute does not lead to the conclusion that proof of specific intent is required for a conviction. MCL 800.281(3); MSA 28.1621(3) provides: "Except as provided in section 2 [medical prescription], a person shall not bring any alcoholic liquor, prescription drug, poison, or controlled substance into or onto a correctional facility.” The preface to this act states that the purpose of the act is to prohibit or limit access by inmates to certain weapons, alcoholic liquors, and drugs. Bead as a whole, the language of the statute does not support the proposition that the Legislature intended specific intent to be an element of the crime. Conspicuously absent from this language are words such as "knowingly,” "wilfully” and "intentionally,” which are words traditionally found in specific intent statutes. Moreover, because proof of the crime rests on a substantial overt act and fully consummated offense, a defendant runs little danger of being convicted on slight evidence. See People v Langworthy, 416 Mich 630, 645; 331 NW2d 171 (1982). Accordingly, there is no need to read into the statute a requirement to prove specific intent. Id.
The decision to grant a motion for trial adjournment rested in the trial court’s sound discretion, which decision will not be reversed absent an abuse of discretion resulting in prejudice to the accused. People v Gross, 118 Mich App 161, 164; 324 NW2d 557 (1982). Because the parties stipulated to admission of documentary evidence establishing defendant’s problem with alcoholism, the proffered testimony regarding defendant’s alcoholism and blackouts was merely cumulative. The proffered testimony was also irrelevant, since specific intent was not required for proof of the crime and a showing of defendant’s alcoholism would only have been useful to prove inability to form specific intent. Therefore it was not an abuse of discretion for the trial court to deny defendant’s motion for adjournment.
There is no merit to the argument that defense counsel rendered ineffective assistance of counsel when failing to request a jury instruction on the defense of intoxication. Because the crime charged was not a specific intent crime, the instruction was unnecessary and would not have affected defendant’s chances for acquittal. People v Lyles, 148 Mich App 583, 596; 385 NW2d 676 (1986).
Similarly, because the defense of intoxication would not have negated a showing of general intent, the trial court’s omission to instruct, sua sponte, on the intoxication defense would not have affected the outcome of defendant’s case. Moreover, the trial court’s erroneous instruction on specific intent afforded defendant more protection than the statute required. Therefore, any error in the trial court’s omission to instruct on intoxication was harmless. MCR 2.613.
Affirmed.
The preface reads:
An Act to prohibit or limit the access by prisoners and by employees of correctional facilities to certain weapons and to alcoholic liquor, drugs, medicines, poisons, and controlled substances in, on, or outside of correctional facilities; to prohibit or limit the bringing into or onto certain facilities and real property, and the disposition of, certain weapons and substances; to prohibit or limit the selling, giving, or furnishing of certain weapons and substances to prisoners; to prohibit the control or possession of certain weapons and substances by prisoners; and to prescribe penalties. [1909 PA 17, as amended by 1977 PA 164.] | [
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ORDER
Entered January 21, 1975. — Reporter.
On order of the Court, the application by the plaintiffs-appellants for leave to appeal is considered and the same is hereby granted.
The Court, sua sponte pursuant to GCR 1963, 865.1(7) reverses the decision of the Court of Appeals and reinstates the order of the Tngham County Circuit Court.
I
This is a suit in equity filed in the Ingham County Circuit Court seeking to enjoin the construction of a sewer as violative of the Environmental Protection Act (EPA). MCLA 691.1201 et seq.; MSA 14.528(201) et seq.
The trial court found that the sewer, as planned, would "pollute, impair and destroy water and other natural resources” not only upon the plaintiffs’ property but would cause "additional damage down stream in the Carrier Creek to the Grand River into Lake Michigan.” The trial court granted the injunction but required plaintiffs to furnish an alternative route across their property, which would reduce the adverse impact on the environment without significant prejudice to defendants,
The trial court found this EPA suit raised issues that were not "the same matters presented in the condemnation action” [Delta Twp v Eyde, 389 Mich 549; 208 NW2d 168 (1973)] and that action was not res judicata.
The Court of Appeals reversed the judgment of the Circuit Court in an unpublished memorandum opinion which reads in its entirety:
"We perceive no purpose to be served by writing extensively in this case. It is patently a dilatory effort to forestall construction of a necessary sewer, delayed by litigation for over three years. All of the bases employed by the circuit court in granting relief to plaintiffs were, or could have been disposed of in the Eaton county condemnation proceedings affirmed in Delta Township v Eyde, 389 Mich 549; 208 NW2d 168 (1973).”
II
The EPA is significant legislation which gives the private citizen a sizable share of the initiative for environmental law enforcement. The act creates an independent cause of action, granting standing to private individuals to maintain actions in the circuit court for declaratory and other equitable relief against anyone for the protection of Michigan’s environment.
There is no statutory duty that requires citizens to intervene in condemnation proceedings to assert their rights under the EPA or be forever barred from raising them. It is true that a condemnation action is an in rem action and binds all persons with respect to its traditional objectives. See Todd v State Highway Commissioner, 227 Mich 208, 210; 198 NW 945 (1924). However, it is not in rem with regard to environmental rights under the EPA. Consequently, the established principle that those not party or privy to an action are unaffected by the judgment rendered in that action applies. Laskowski v People’s Ice Co, 203 Mich 186, 194; 168 NW 940 (1918); Phillips v Jamieson, 51 Mich 153, 154; 16 NW 318 (1883).
Thus, even if we were to find that plaintiffs, as parties to the condemnation proceeding, were barred from bringing an action for injunctive relief because of res judicata, that doctrine need not prevent the plaintiffs from having a friend or neighbor file for injunctive relief under the EPA.
For the following reasons, this Court sitting in equity, reinstates the trial court’s order:
1. The overriding need to achieve finality. This matter, which has been pending since 1970, should be brought to an immediate, conclusive determination. Litigation has caused delays in construction which have severely taxed the financial resources of this state and neighboring property owners. To dismiss plaintiffs’ suit could only cause further delay since other persons, not a party to the condemnation proceeding, have the right under the EPA to seek an injunction against the drain project as presently planned. Res judicata is designed to insure finality of litigation. In this case finality can be better achieved by not dismissing plaintiffs’ action.
2. The prejudice, if any, to the defendants is minimal. The defendants will have an easement accomplishing the same objective as the original one and the trial court opined "it is no more costly”.
3. This action raises environmental issues of great significance which are of interest and concern to many. The impact on the environment resulting from the construction of the sewer across plaintiffs’ property as presently planned extends well beyond the boundaries of plaintiffs’ property. The trial judge found that the project would pol lute, impair and destroy natural resources reaching from the lower Carrier Creek to the Grand River and into Lake Michigan.
Sinas, Dramis, Brake, Turner, Boughton & McIntyre, P. C, for plaintiffs.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles D. Hackney and John D. Pirich, Assistants Attorney General, for defendant State of Michigan. Glassen, Rhead, McLean & Campbell, for defendant Delta Township.
(Docket No. 56188.)
Case below, Court of Appeals No. 20210, memorandum opinion of July 26, 1974.
4. At the time of trial the EPA had only recently become law. It is not surprising that the plaintiffs, lacking an understanding that they might raise an EPA issue in a condemnation proceeding, did not do so.
Our holding today is restricted to the unique facts of this case.
The Court of Appeals is reversed and the trial court’s order is reinstated. No costs, a public question being involved.
T. M. Kavanagh and J. W. Fitzgerald, JJ., not participating. | [
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M. S. Coleman, J.
Plaintiffs appeal an order of the State Tax Commission (STC) regarding its equalization of property tax assessments in Washtenaw County. Adhering to the decision in Cooper Twp v State Tax Commission, 393 Mich 58; 222 NW2d 900 (1974), we vacate the STC order and remand to the Tax Tribunal for further proceedings.
Facts
On April 24, 1972, the Washtenaw County Board of Commissioners equalized the value of real property in the county. The Supervisor of Ypsilanti Township petitioned the STC for a review of this action saying in part that it created "non-uniformity of the tax burden between classes of property and communities within the county”. The STC accepted the "appeal from the 1972 equalization of Washtenaw County” on May 8, 1972.
The STC surveyed property in Washtenaw County. This study resulted in preliminary findings increasing the equalized value of every county unit except Ypsilanti Township. A hearing was set for August 7, 1973. Representatives of the newly aggrieved cities and townships had an opportunity to present evidence regarding the equalization of Washtenaw County by the STC. The hearing was continued to September 17.
The Commission’s final order was signed October 10, 1973. It briefly recited the chronology. It said the STC staff "reviewed the statements made by the supervisors at the hearings”. There was a "field check” made of some units "after which the report was prepared showing some revision of valuation in some of the units from the preliminary findings”. "After reviewing the whole file and the voluminous material” in its possession, the STC "adopted a resolution determining the equalized valuation of the several townships and cities of Washtenaw County”.
The Court of Appeals denied plaintiffs’ application for leave to appeal and their application for rehearing.
Discussion
I.
Cooper Twp concerned, as does the instant case, an appeal of equalization action taken by the county board of commissioners. The STC’s final order in Cooper Twp failed to meet the requirements of MCLA 209.102; MSA 7.632 and on remand we directed the STC to comply with this provision. The order in this case is likewise flawed and requires a remedial remand.
The STC was also required by Cooper Twp to "conduct the equalization hearing under the relevant provisions of the Administrative Procedures Act, MCLA 24.271-24.287; MSA 3.560(171)-3.560(187)”. The form and substance of a "final decision or order of an agency in a contested case” are detailed by MCLA 24.285; MSA 3.560(185). These requirements were not met in this case.
In Cooper Twp we remanded the matter to the newly created Tax Tribunal. MCLA 205.701-205.779; MSA 7.650(l)-7.650(79). Although we expressly gave "no consideration * * * to the practices and procedures of the Tax Tribunal” we did remand to that body "for further proceedings in conformity with this opinion”.
We cannot pass judgment on how the Tax Tribunal conducts its proceedings until we have such proceedings before us. However, MCLA 205.721; MSA 7.650(21) states that the Tribunal "is a quasi-judicial agency”. As such, we would expect it to conform to procedures applicable to other such agencies.
II.
Plaintiffs have raised another question concerning equalization. Noting that the constitutional goal in taxation is uniformity, plaintiffs argue that the STC subordinated that principle by denying the relevancy of evidence concerning the equalization results and practices in other counties.
In Allied Supermarkets, Inc v Detroit, 391 Mich 460; 216 NW2d 755 (1974), we said that the "process of equalization is designed to enhance the goal of uniformity”. That goal is achieved by both intra- and inter- county equalization, by uniformity within and between the counties.
The STC’s final order in this case intended to achieve uniformity within Washtenaw County. However, its final order resulted in an increase in the state equalized valuation of Washtenaw County. In attempting to achieve uniformity within counties, it must be remembered that uniformity should also be maintained between counties. In balancing the one scale the other should not be unbalanced.
Remand to the Tax Tribunal for further proceedings consistent with this opinion.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, Levin, and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J.
See MCLA 211.34(1); MSA 7.52(1) and MCLA 209.5; MSA 7.605.
See MCLA 211.34(2); MSA 7.52(2).
This section requires in part:
"In appeals to the state tax commission, the decisions of the commission shall be upon a form prescribed by the commission which shall state the facts constituting the commission’s finding of true cash value, the proportion thereof at which assessments in the local assessing district are made, and which of the 3 commonly accepted valuation approaches were used in the determination of true cash value. The order shall be signed by the commissioners concurring therein. A commissioner may, in writing, dissent from any order so entered. If a party desires a stenographic record of an appeal hearing, said party must bear the expense of the stenographer and the transcript of the record. All decisions shall be filed in the office of the state tax commission and shall be mailed or delivered to a party or his legal representative.”
"A final decision or order of an agency in a contested case shall be made, within a reasonable period, in writing or stated in the record and shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. If a party submits proposed findings of fact which would control the decision or order, the decision or order shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by authority or reasoned opinion. A decision or order shall not be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with the competent, material and substantial evidence. A copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.”
MCLA 24.211; MSA 3.560(111) says the APA "shall not be construed to repeal additional requirements imposed by law”. The basic form for an order is set by MCLA 24.285. MCLA 209.102 additionally requires that certain specific items be covered. The two provisions go together.
Const 1963, art 9, § 3 reads:
"The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. The legislature may provide for alternative means of taxation of designated real and tangible personal property in lieu of general ad valorem taxation. Every tax other than the general ad valorem property tax shall be uniform upon the class or classes on which it operates.”
See MCLA 211.34; MSA 7.52.
See MCLA 209.1-209.8; MSA 7.601-7.608. The state board of equalization was abolished and its authority, powers, duties and functions transferred to the STC. See MCLA 16.186; MSA 3.29(86) and MCLA 16.103(c); MSA 3.29(3)(c).
Our decision of In re Appeal of General Motors Corp, 376 Mich 373; 137 NW2d 161 (1965) said it is
"the purpose of these procedures to adjust or correct all of the different modes of assessment to achieve uniformity among governmental units within a county and uniformity among all of the counties of the State. School District No. 9, Pittsfíeld Township, Washtenaw County, v. Washtenaw County Board of Supervisors, 341 Mich 388, 405 [67 NW2d 165 (1954)], and Calumet & Hecla, Inc., v. Township of Allouez, 363 Mich 671 [110 NW2d 585 (1961)].”
MCLA 211.34; MSA 7.52 permits the STC to equalize county valuation. If the Commission
"decides that the valuations of the county have been improperly equalized, it shall proceed to make deductions from, or additions to, the valuations of the respective townships, cities or school districts as may be deemed proper, and in so doing the commission shall have the same powers as the board of commissioners had in the first instance. Any such deductions or additions shall decrease or increase the state equalized valuation of the local unit affected thereby and the total state equalized valuation of the county.” | [
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T. M. Burns, J.
This is an appeal by leave granted to review the circuit court’s action of setting aside a default judgment entered in the Detroit Common Pleas Court. The underlying action involves a claim under an insurance policy issued by defendant on a building under construction. When defendant failed to appear on the adjourned trial date, the common pleas judge entered default judgment for $7,000 plus costs.
The trial in this matter was set for February 25, 1976. On February 17, 1976, the parties filed a written stipulation to adjourn the trial date to March 8, 1976. The defense failed to appear on that date and the judgment noted above was entered.
Defendant’s attorney has alleged in the various motions to set aside the default that he had informed plaintiff’s attorney of a scheduling conflict and was under the impression that the matter would be further adjourned. We note that no motion, required for the second adjournment, was ever filed in the common pleas court. CPR 28, § 2.
Defendant moved to set aside the default on March 24, 1976, 16 days after it was entered. The common pleas judge denied the motion, stating: "Denied, under Rule 19, the same being untimely filed, and appears to be the fault or neglect of defendant.” CPR 19, § 3 then required the motion to be filed within 10 days after the default judgment was entered.
After a substitution of attorneys, defendant moved for rehearing. In the motion the defendant argued that the default judgment should be set aside under GCR 1963, 528.3. The common pleas judge granted rehearing but refused to set aside the default, noting: "Circuit court may have authority under GCR 528.3, but common pleas court does not.”
On appeal to the circuit court, the default was set aside and the matter returned to common pleas for trial. It is not clear from the record, but apparently the circuit court relied upon GCR 1963, 528.3.
The original motion to set aside the judgment was not timely under CPR 19. The problem lies in what procedure must be followed to set aside the default judgment after this original time period had run.
CPR 39 provides: "In all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern.”
In this case, the matter is "specified by statute”. MCL 728.29; MSA 27.3680 provides in part:
"In any case where default judgment shall have been rendered by any such court against any defendant and the regular time for * * * motion to set aside such default * * * has expired, the judge who rendered such judgment or his successor in office, shall have power to set aside such judgment and grant a new trial on special motion therefor supported by affidavit based upon the personal knowledge of the affiant, setting forth, in substance, the following facts: (a) that such motion is based upon lack of personal service of process upon the judgment debtor; (b) that no delayed appeal from or transcript of such judgment has been taken and no other proceeding, seeking relief therefrom, has been instituted in any other court; (c) that said defaulted party has a good and meritorious defense to the action; and (d) that such motion is filed within 10 days after such judgment debtor had notice or actual knowledge of the existence of such judgment”.
This statute provides the grounds upon which relief may be granted after the time specified in Rule 19 has expired and the procedure to be followed. That the grounds are limited and the time for raising them short is understandable, given the limited jurisdiction and the nature of the court to which it applies.
The defendant has not filed an affidavit containing the. information envisioned by the statute. It has never properly moved to set aside the default.
Even if we were to assume that GCR 1963, 528.3 could have been applied either by the common pleas court or the circuit court sitting as an appellate court, relief would not be justified here.
Generally, the errors of an attorney must be charged against the client. White v Sadler, 350 Mich 511; 87 NW2d 192 (1957). It is difficult to perceive how the attorney could have been "mistaken” about the fact that the trial had not been adjourned where the rules clearly require a motion and a showing of cause before a judge. CPR 28, § 2. There has been no allegation that a motion for adjournment was ever filed or that there was some act by the court which led counsel to believe that the case was further adjourned. Despite the assertion, made now, that defendant is ready and anxious to have the cause heard on the merits, one could conclude from the delays occasioned before the final trial date was set and the delayed efforts to have the judgment set aside, that defendant was more interested in delaying the matter than in having it heard. Defendant is not entitled to relief under the general court rules on the facts of this case. See, Okros v Myslakowski, 67 Mich App 397; 241 NW2d 223 (1976), lv den, 397 Mich 861 (1976).
The circuit court erred in setting aside the default on this record.
Reversed and default reinstated. Costs to appellant.
R. M. Maher, J., concurred. | [
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] |
Per Curiam.
In May, 1972, plaintiff, Rose C. Hanson, purchased an American Motors automobile from defendant, Art Post American. The sale was completed and delivery was tendered and accepted in May of that year in Michigan. In her complaint, which was dated and filed October 3, 1975, plaintiff alleged that on October 2, 1972, she was injured in an automobile accident as a result of the failure of the automobile’s steering gear assembly. Suit was instituted against American Motors Corporation; General Motors Corporation; General Motors Corporation, Saginaw Steering Gear Division; and Art Post American.
The complaint alleged a breach of warranty by all defendants, that plaintiff was the original purchaser of the automobile and that all defendants "failed the terms and provisions of the Uniform Commercial Code”. The suit was instituted one day after the expiration of the general three-year statute of limitations, MCL 600.5805(7); MSA 27A.5805(7), but within the four-year statute provided by the Uniform Commercial Code, MCL 440.2725(1); MSA 19.2725(1).
Defendants General Motors, American Motors and Saginaw Steering Gear Division filed motions for accelerated judgment on the grounds that more than three years had elapsed between the accrual of the action and the filing of the complaint and the suit was therefore barred by the general three- year statute of limitations. Defendant Art Post American filed a motion to dismiss on the same grounds as the other defendants, which motion the court treated as a motion for accelerated judgment pursuant to GCR 1963, 116.1(5). Art Post also filed a motion to dismiss on the ground that the complaint failed to state a cause of action, which the court treated as a motion for summary judgment pursuant to GCR 1963, 117.
In an opinion and order dated April 27, 1976, the trial court granted the motions filed by General Motors and American Motors and General Motors Corporation, Saginaw Steering Gear Division. It also denied both of Art Post American’s motions, holding that the four-year statute of limitations provided under the UCC applied to it. However, upon rehearing, the trial court reversed its earlier decision and granted defendant Art Post’s first motion holding that the general three-year statute of limitations applied. It is from this order granting defendant’s motion based on the three-year statute of limitations that plaintiff appeals.
The issue presented in this Court is whether the general three-year statute of limitations or the four-year limitation period set out in the UCC applies in the present case. The general three-year statute of limitations is set out in MCL 600.5805; MSA 27A.5805, and provides in part as follows:
"No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
MCL 440.2725(1); MSA 19.2725(1), provides:
"An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.”
Michigan also has a six-year statute of limitations which applies to actions to recover damages for sums due for breach of contract. MCL 600.5807; MSA 27A.5807. The distinctions between the applicability of the general three-year statute of limitations and the six-year statute of limitations has been discussed in several Michigan cases. In Weeks v Slavik Builders, Inc, 384 Mich 257; 181 NW2d 271 (1970), State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968), Baatz v Smith, 361 Mich 68; 104 NW2d 787 (1960), and Coates v Milner Hotels, Inc, 311 Mich 233; 18 NW2d 389 (1945), there were contractual relations between the parties to the litigation. However, as was later noted in Huhtala v Travelers Ins Co, 401 Mich 118; 257 NW2d 640 (1977), the general three-year statute of limitations was applied in State Mutual, Baatz and Coates while the six-year limitation was applied in Weeks. In Huhtala the Court held that the distinction in those cases centered on whether the plaintiffs claim arose out of a breach of an express contractual provision or whether the claim was one implied by law.
None of the above cited cases resolves the question in the present case. However, a similar question was presented and answered in Reid v Volks wagen of America, Inc, 512 F2d 1294 (CA 6, 1975). There, the driver of a Volkswagen was injured in an automobile accident and brought suit against the manufacturer to recover damages for those injuries. There was no privity of contract between plaintiff and defendant in that case. Despite this lack of privity, the Sixth Circuit Court of Appeals held, noting that Michigan had rejected the privity requirement, that the four-year statute of limitations of the UCC applied and that the plaintiffs action was not barred by the general three-year statute of limitations. However, while the analysis in that case is helpful in the decision of the present case, the holding there is not in accord with the dicta in several recent Michigan Supreme Court cases. In Southgate Community School District v West Side Construction Co, 399 Mich 72, 78; 247 NW2d 884 (1976), reh den 400 Mich 951 (1977), the Court held that:
"The manufacturer’s duty to the consumer with regard to products which it puts into the stream of commerce does not generally arise out of a contract for sale, and is therefore not limited by the UCC * * *. By its terms, UCC § 2-725 applies only to an 'action for breach of any contract for sale’, and was not meant to apply to actions between consumers and manufacturers who were never in any commercial relationship or setting.”
See Parish v B F Goodrich Co, 395 Mich 271; 235 NW2d 570 (1975), Waldron v Armstrong Rubber Co (On Remand), 64 Mich App 626; 236 NW2d 722 (1975), lv den, 399 Mich 895 (1977).
While it seems clear that Michigan courts will not apply the four-year limitation of the UCC where a consumer brings an action for recovery against the manufacturer where there is no con tractual relation or any commercial relationship or setting, it is not clear what limitation will apply where there is privity between the parties.
The policy considerations of the UCC extend § 2-725’s operation to all claims based on an agreement of the parties to the litigation and to all actions based on warranties implied from the agreement. However, such an extension does not necessarily follow from prior Michigan decisions. The Supreme Court has consistently indicated in dicta that the three-year statute of limitations is applicable in all cases where the claim is for damages for injury to person or property except where that injury results from the breach of a specific contractual provision. Huhtala v Travelers Ins Co, supra. Therefore, the same reasoning which was applied in that case will be applied here.
In order to apply this rule, however, it is necessary for this Court to remand the cause to the lower court to determine whether defendant has breached a contractual provision with regard to the steering mechanism. If there is such a specific provision in the sales contract, the four-year limitation set out in the UCC should be applied and the trial court’s order granting accelerated judgment in favor of defendant, Art Post American, should be set aside and trial held. However, if the court finds that the cause of action arose out of the breach of an implied warranty, the three-year limitation period should apply, thus barring plaintiffs action.
The cause is remanded for further proceedings consistent with this opinion. Costs to await final disposition of the case. | [
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Per Curiam.
Defendant appeals from his plea-based conviction for armed robbery. MCL 750.529; MSA 28.797. His arguments on appeal focus on the timing of the plea hearing in this case and probation revocation proceedings in another case.
Defendant was already on probation for a previous conviction when he was charged with the instant armed robbery. That probation was revoked as a result of this charge. The revocation hearing was held and a sentence was imposed in the other case before defendant pled guilty on this armed robbery charge. A part of the bargain offered to the defendant in return for his plea of guilty was a promise that his sentence in this case would not exceed the sentence imposed following the probation revocation and that both sentences would run concurrently. That bargain was kept by the prosecution and the trial judge.
On appeal, defendant argues that where a defendant allegedly violates his probation contract by engaging in criminal activity, a revocation hearing may not be held until after the defendant is tried on the new criminal charges. While that may be the sequence of events in most cases, we reject any suggestion that the revocation hearing may not be held first. The defendant’s probation might have been revoked even if he had been acquitted of the present armed robbery charge if the prosecution failed to establish guilt beyond a reasonable doubt but did show guilt by a preponderance of the evidence. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975). See also People v White, 98 Ill App 2d 1; 239 NE2d 854 (1968).
Defendant states that holding the revocation hearing first "creates 'unjustifiable tension’ between the defendant’s rights to due process and the right to be free from duress when he enters a plea”. He assumes that a person who has already been sentenced following a revocation of probation is more likely to accept a favorable plea bargain which does not impose additional punishment. We agree with that assumption, but it does not follow that this conviction must be reversed for that reason. All plea bargains involve some consideration passing from the prosecution to the defendant in order to induce the defendant to waive a full trial. Almost all defendants who enter guilty pleas do so because they expect to be treated more leniently if they plead guilty. If they had nothing to gain by pleading guilty and nothing to lose by going to trial, most of those defendants would choose the trial in the hope that they might somehow be acquitted. The fact that they would not plead guilty were it not for a promise or expectation of leniency does not render their pleas involuntary. People v Kindell, 17 Mich App 22; 168 NW2d 909 (1969), People v Guest, 47 Mich App 500; 209 NW2d 601 (1973). Defendant has raised a slightly different variation of the contention made by the defendants in the two cited cases and many others. It has always been rejected because acceptance would make plea bargaining impossible. The form of the argument is different here, but it still has no merit.
We also note that if the order of the proceedings had been reversed, the defendant might very well appeal the probation revocation, arguing that his will to resist the revocation had been overcome by the effects of his conviction and sentence on the substantive charge. One or the other must come first and we see no error in the decision to start with the probation revocation hearing.
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Per Curiam:.
Defendants Reuben Cargile and Odell Dyess were convicted in a jury trial of first-degree murder, contrary to MCL 750.316; MSA 28.548, and sentenced to life imprisonment. Their appeals have been consolidated as each raises the same issues dealing with the trial court’s jury instructions.
At the close of the instructions, the court reiterated the possible verdicts. He stated that, if the prosecution met its burden of proof on the charged offense, the verdict should be guilty on that charge. If the prosecution did not meet that burden, the judge instructed, defendants should be found not guilty of first-degree murder. The judge concluded by instructing that if the proofs showed all of the elements of the included offense of second-degree murder, but not of first-degree, the verdict should be guilty on that charge. It is undisputed that the court failed to give an instruction on a general verdict of not guilty. A tentative objection was raised as to this omission, but was dropped when the court, without reference to the stenographer’s notes, remarked that he believed that the instruction had been given.
While the omission of a not guilty instruction was certainly erroneous, we do not find it to mandate reversal of the convictions under the circumstances of the present case. To determine-the impact this error had on the jury, we must look at the instructions as a whole. See People v Hodo, 51 Mich App 628; 215 NW2d 733 (1974). Our review of the entirety of the instructions convinces us that the jury was not confused as to their power to acquit defendants if the prosecution did not prove either the charged or the included offense. The court gave proper instructions on the burden of proof and informed the jury that they should acquit either or both defendants if the burden was not met. We find that these instructions sufficiently mitigated the prejudicial impact of the later omission. People v Minter, 39 Mich App 550; 197 NW2d 916 (1972).
In addition, the trial court’s error did not appear to be intentional. The present case is thus distinguishable from cases where this Court has found reversible error in a trial court’s affirmative exclusion of a not guilty verdict. See People v Gillespie, 54 Mich App 419; 221 NW2d 246 (1974), People v Gibbs, 50 Mich App 517; 213 NW2d 586 (1973).
Defendants also contend that the trial court erred in failing to adequately define the element of malice. The instruction given fully comported with Michigan case law on the definition of malice. People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971).
We do not believe that the court was obligated to go further and clarify the meaning of the words used in that definition, especially in the absence of any objection by defendants.
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Per Curiam.
Defendant Township of Southfield specially assessed plaintiff Acacia Park Cemetery Association for improvements to the Rummel Relief Drain. Plaintiff is a Michigan corporation organized as a rural cemetery association pursuant to MCL 456.101 et seq.; MSA 21.871 et seq. It was assessed a total of $144,981.81 plus interest, to be paid over a 29-year period.
Plaintiff filed a complaint in circuit court seeking to set aside the special assessment and to enjoin the defendant township from attempting to collect it on the grounds that Acacia Park was exempt from paying its share of the special assessment for the drain improvement and that the procedures followed in assessing the cemetery were improper,
On September 6, 1976, plaintiff moved for summary judgment on the basis of GCR 1963, 117.2(3), no genuine issue as to any material fact. The trial court granted plaintiff’s motion on February 3, 1977, on the ground that plaintiff was exempt from the special assessment. Defendant Township of Southfield appeals as of right.
The sole issue before the Court is whether or not the Acacia Park Cemetery Association is exempt from liability for special assessments, such as that levied by the Township of Southfield. The rural cemetery act provides in pertinent part:
"All the lands of said corporation enclosed and set apart for cemetery purposes, and all the rights of burial therein, shall be wholly exempt from taxation of any kind whatsoever.” MCL 456.108; MSA 21.878.
The General Property Tax Act at MCL 211.7; MSA 7.7 also provides for an exemption.
"The following property shall be exempt from taxation:
"Sixth, All lands used exclusively as burial grounds, and the rights of burial therein, and the tombs and monuments therein, while reserved and in use for the purpose. The stock of any corporation owning such burial grounds shall not be exempt.”
Generally, a constitutional or statutory exemption is considered an exemption from ordinary taxes only and not from special assessment liability for local improvements. 70 Am Jur 2d, Special or Local Assessments, § 45 p 880; 84 CJS, Taxation, § 229, p 445.
Michigan is in accord with the general policy, as is confirmed in Big Rapids v The Board of Supervisors of Mecosta County, 99 Mich 351; 58 NW 358 (1894).
"Other property is also exempt from taxation, such as churches, hospitals, cemeteries, etc., but as to these there is no implied exemption; * * * It has therefore been repeatedly held that, when these are mentioned as exempt in a general tax law, the exemption applies only to the taxes mentioned in the general law, and not to those which are of a private and local character, such as assessments for sewers, sidewalks, and the like, which are made according to the benefits conferred. This is the well-established rule, to which it is unnecessary to cite authorities.” 99 Mich at 353.
See also The Lakeshore & M S R Co v Grand Rapids, 102 Mich 374; 60 NW 767 (1894), and In re Petition of Auditor General, 226 Mich 170; 197 NW 552 (1924).
The rule that an exemption from general property taxes does not extend to special assessments does not stand isolated, however. As defendant points out there is another policy which conflicts with, or at least limits, the liability of a cemetery association for special assessments liability.
In Avery v Forest Lawn Cemetery Co, 127 Mich 125; 86 NW 538 (1901), the Court set forth this second policy.
"It is the settled policy of this State, in common with the universal sentiment of mankind, to preserve and maintain the burial places of the dead. The legislature has, by express enactment, prohibited the sale, except for burial purposes, or mortgaging, of lands set apart for cemetery purposes. It has also in express terms provided for the exemption from levy and sale on execution, or upon any other final process of a court, of all cemeteries, etc., while in use as repositories of the dead. This was within the power of the legislature to do, and so careful has the legislature been to preserve such properties for burial purposes that it has also in express terms taken it out of the power of the court of chancery to decree satisfaction of any judgment out of such exempt property.” 127 Mich at 129-130.
Confronting one another, then, are the rule that exemption from general taxation does not include exemption from special assessment liability and the policy of preserving and protecting the burial places of the dead. We do not believe this latter policy forecloses application of the "no exemption from special assessment” rule. An examination of the relevant cases which have developed the law discloses the reason for our belief.
In Woodmere Cemetery Ass’n v Detroit, 192 Mich 553; 159 NW 383 (1916), plaintiff had incorporated in 1869 under the original rural cemeteries act. Defendant city paved one of the streets bordering on plaintiff’s property and assessed plaintiff for part of the cost. Plaintiff refused to pay the tax and the city purchased the property at a tax sale. Plaintiff did not redeem the property but brought suit to set aside the assessment and the tax sale. The trial court set aside the assessment and tax sale, holding in part that the defendant city could not collect against cemetery property by sale because cemetery property could not be diverted from burial use.
By a divided panel, the Supreme Court affirmed the trial court, stating:
"The obvious purpose of the act cannot be accomplished if the land of a cemetery association may be sold in an adversary or adverse proceeding. It is impossible to reconcile the purpose to bestow burial rights in land, and to punish any interference therewith, with a purpose to disturb those rights whenever a special improvement is made in the vicinity of the land.” 192 Mich at 561.
For purposes of this case, it is significant that the Court noted: "It is impossible to consider whether the property of complainant is exempt from the particular tax or assessment, apart from the remedy provided for the collection of tax.” 192 Mich at 559.
The opinion of the Court concerned itself solely with a sale of burial land to satisfy a special assessment. The exemption and the remedy were considered as one. Following the state policy of preserving the burial places of the dead, the Court held that, as the remedy was the sale of those burial places, the cemetery was necessarily exempt from the assessment because those burial places could not be sold.
It is paramount that the holding of Woodmere be read in context. Contrary to plaintiffs assertion, Woodmere does not stand for the rule that the property of rural cemeteries is exempt from special assessment. Rather, it supports the much more limited concept that a cemetery is exempt from a special assessment when the only means of paying the assessment is through proceeds from the sale of burial land.
Guided by this principle, the Court next considered the matter in White Chapel Memorial Ass’n v Willson, 260 Mich 238; 244 NW 460 (1932). In White Chapel, plaintiff cemetery was levied against by Oakland County for road and drain assessments. The cemetery sued the Oakland County Treasurer, and the auditor general sued the cemetery for the sale of lands to pay the assessments. The cases were heard together. The Court framed the issue as follows: "The question presented in these cases is whether this land was liable to a Covert road tax levied thereon for the years 1927 and 1928, and a drain tax for the year 1927.” 260 Mich at 241.
The Court was again concerned with the sale of lands to satisfy special assessments. After determining that the lands were within the contemplation of the statute, the Court set aside the assessment but only because the assessment was to have been paid from the proceeds of the sale of land set aside for burial purposes.
The limited holdings of Woodmere and White Chapel were somewhat expanded in Forest Hill Cemetery Co v Ann Arbor, 303 Mich 56; 5 NW2d 564 (1942). Forest Hill was not organized pursuant to the rural cemetery act, but the exemption of the General Property Tax Act did apply. The cemetery had been specially assessed for the paving of roads which bounded it. The city attempted to reach land as well as the personal property of the cemetery in satisfaction of the special assessment. Plaintiffs personal property consisted principally of funds which were reserved and earmarked for the care and upkeep of the cemetery. The Court concluded that Ann Arbor could not collect the special assessment by levy and sale of plaintiffs personal property. It found that:
"It is impossible to reconcile the State’s policy to 'preserve and maintain the burial places of the dead’ with any policy permitting the levy and sale of any part of the cemetery company’s personal property which is necessary for the care and maintenance of the cemetery.” 303 Mich at 62. (Emphasis in original.)
Thus, in Forest Hill the Court enlarged state policy from one of preserving only burial lands to one of protecting not only the lands but the funds obtained and accumulated for the care and maintenance of those lands.
In the most recent case, Royal Oak v Roseland Park Cemetery Ass’n, 22 Mich App 651; 177 NW2d 702 (1970), the plaintiff had levied a special assessment against defendant, a rural cemetery corporation, for the costs of constructing a sidewalk adjacent to defendant’s property. When the cemetery failed to pay the assessment, the plaintiff city brought suit to collect the delinquency. The city was granted summary judgment. Defendant contended on appeal that it was not subject to suit because it was exempt from special assessments.
The Court did not agree. It acknowledged Wood-mere and Forest Hill but held that, inasmuch as Roseland Park did not allege that it lacked assets apart from its land and perpetual care fund, the cemetery did have assets from which the special assessment could be paid.
Implicit in the Court’s opinion is the belief that exemption from general property taxation does not extend to liability for special assessments. Yet the. Court is not unmindful of the policy in Michigan of preserving burial rights. That policy is not offended by the Court’s resolution. It allows the plaintiff city to seek a personal judgment holding defendant liable in debt in order to collect the special assessment from assets other than land and the cemetery’s perpetual care fund.
Case law in Michigan supports the decision in Roseland Park. Our Supreme Court cases have refused to permit the sale of land to satisfy a special assessment. The Supreme Court, at least in the case of nonprofit cemeteries, has not permitted the use of funds reserved for the care and maintenance of burial lands to be used for the satisfaction of special assessments. When such property comprises the only available assets from which an assessment can be satisfied, the courts have necessarily found the cemetery exempt from special assessment liability. But when other assets are available for collection, no such exemption exists.
We deal here not with the question of collection but solely with the question of exemption. In Woodmere, White Chapel and Forest Hills, the two questions were intertwined. When, as in the case before us, they are not, we hold that no exemption from special assessment exists. The means and manner of collection are a matter for another suit.
Reversed. No costs, a public question. | [
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After Remand
Per Curiam.
Defendant’s plea of guilty to armed robbery, MCL 750.529; MSA 28.797, was tendered and accepted on the day set for trial. Some four days later, the defendant wrote the trial judge, in part:
"Your hon: I am not trying to be funny or nothing but I would like to change my plea again. I want to plea not guilty. I don’t have a reason for this other than the fact that I want to just plea not guilty for a little while longer until I make up my mind what I want to do. Thank You!”
At sentencing, some nine days thereafter, defendant again requested to withdraw his plea and claimed he had pled guilty under duress. The request was denied, the trial court "finding that the reason is totally and completely frivolous, and the Court is satisfied of your guilt in this matter”. From his life sentence defendant appealed. This Court, at 66 Mich App 594; 239 NW2d 427 (1976), lv den 396 Mich 866 (1976), remanded for a hearing on the issue of coercion. Upon his review of the testimony presented at the evidentiary hearing, the trial court found:
"This court in these type of hearings must use its own experience as well as its knowledge of human beings in forming the necessary judgment to decide credibility. What the defendant has claimed as to the threats to force a plea of guilty must really rest on his own credibility versus the credibility of Messrs. Krause and Johnson. This court, even if there was a reasonable doubt or even a suspicion of doubt that these threats or promises of any kind were made to the defendant to get -him to plead guilty, would without hesitation grant his motion to withdraw the plea of guilty. This court has not even the shadow of a doubt that any officer or anyone else who appears in the record of this case or in this hearing used any promises or threats to secure a plea of guilty by the defendant.
"It finds without question that the defendant freely and voluntarily made his plea of guilty on his own volition knowing it might mean life imprisonment, although perhaps hoping it would not come to that.
"It finds, using the words of the Court of Appeals’ opinion, that defendant’s claims are merely allegations and there is no credible evidence of coercion.
"This court does not want to burden an already sizeable record in quoting from the transcript of the guilty plea taking procedure before Judge Hughes, though it certainly urges anyone reviewing this matter to read it. This court itself has had many hundreds of pleas taken before it through the years and seldom has it seen a more proper and clear plea taking than that of the defendant. The record leads to the conclusion that the defendant knowingly and voluntarily pled guilty being fully aware life imprisonment could well be, as in time it did become, the punishment.”
The court concluded its findings as follows:
"In conclusion in these findings, three questions face a conscientious judge in taking or reviewing a plea of guilty.
"One, does and did the defendant fully understand all his rights under the laws of this nation and state?
■ "Two, does and did the defendant admit in open court voluntarily enough facts to beyond a reasonable doubt and even in guilty plea cases positively prove his guilt of the crime to which he is pleading?
"Three, is and was the plea voluntarily and knowingly made without any promises, threats or coercion of any kind?
"This court from this hearing and the records in this case without any hesitation answers all three questions in the affirmative.
"Having found no coercion or any reason whatever to permit the defendant to withdraw his plea or to set the plea of guilty aside, this court is returning through its clerk to the Court of Appeals for any further processing of this case and, of course, its files and for any further action that that court deems necessary or advisable.” (Emphasis added.)
From the myriad of confusing decisions dealing with guilty plea withdrawals generally and the burden of proof on motions to withdraw specifically, we can posit the following as the rule: doubts regarding substantiation of the reasons for withdrawal are to be resolved in the defendant’s favor, People v Moomey, 53 Mich App 576; 220 NW2d 210 (1974), People v Malone, 33 Mich App 179; 190 NW2d 112 (1971); however, where, as in this case, the record leaves no room for doubt that the reasons are lacking in substance, a trial court finding to this effect will not be disturbed on appeal. See People v Pulliam, 10 Mich App 481; 157 NW2d 302 (1968), People v Morgan, 63 Mich App 686; 235 NW2d 154 (1975), People v Cantu, 20 Mich App 695; 174 NW2d 601 (1969), and People v Fenn, 23 Mich App 560; 179 NW2d 247 (1970).
Affirmed. | [
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D. F. Walsh, J.
The relevant facts of this case are ably reported in our colleague’s dissenting opinion and are adopted here. We find no error, however, in the trial court’s entry of accelerated judgment, GCR 1963, 116.1, dismissing plaintiffs’ suit against the City of Utica on the grounds of governmental immunity.
The act of a policeman in making an arrest is an activity "in the exercise or discharge of a governmental function”. MCL 691.1407; MSA 3.996(107). The suggestion that it might not be was expressly rejected by the majority in Thomas v Department of State Highways, 398 Mich 1, 13-14; 247 NW2d 530 (1976):
"Under the guise of 'judicial refinement’, the Kav anagh/Fitzgerald opinion has sought to impose rather novel standards for governmental immunity. For example, the opinion suggests that if a police commission plans a particular type of war on crime, that is a governmental function, but if a police officer under that plan performs the traditional police function of arresting a criminal, that is not a governmental function. This certainly does not in any way correspond to the meaning the Legislature intended.” (Emphasis added, footnote omitted.)
Moreover we find the case before us to be distinguishable from Kriger v South Oakland County Mutual Aid Pact, 399 Mich 835; 250 NW2d 67 (1977), relied upon in the dissenting opinion. In Kriger the police officer assailants were not involved in the governmental function of making an arrest but were engaged in an unprovoked assault.
The judgment of the trial court is affirmed. No costs, a public question.
A. C. Miller, J., concurred.
In the Court of Appeals opinion in Kriger v South Oakland County Mutual Aid Pact, 49 Mich App 7, 9; 211 NW2d 228 (1973) the facts were stated to be as follows:
"On August 25, 1970, a disturbance took place at Memorial Park in Royal Oak, Michigan. Police were ordered to the scene to restore order. Plaintiff, a 17-year-old amateur photographer, had been observing the altercation from a vantage point across the street. Suddenly and without provocation, three police officers assaulted and beat him, causing severe and lasting injuries. The assailants were not attempting to arrest plaintiff. The incident was recorded by newspaper photographers and TV cameramen and later published and broadcast. The officers involved could not be identified.” (Emphasis added.) | [
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Per Curiam.
Charged with armed robbery, MCL 750.529; MSA 28.797, defendant Dale Jones was convicted of the offense by a jury on November 4, 1976. The prosecutor filed a supplemental information, charging defendant as a second felony offender, MCL 769.10; MSA 28.1082. Sentenced on December 20, 1976, to a term of 20 to 40 years in prison, defendant appeals as of right.
Defendant charges numerous errors to the trial court. We need address ourselves at length to only two of these allegations.
Defendant was charged with and convicted of the armed robbery of a Howard Johnson Motel. The prosecutor introduced evidence of three other armed robberies in which, according to the testimony of three separate witnesses, defendant par ticipated. Defendant contends the introduction of such evidence was error and not, as the prosecutor claimed, admissible under the similar acts statute.
MCL 768.27; MSA 28.1050, the similar acts statute, states:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
The trial judge instructed the jury that they could utilize the evidence of similar acts for two purposes:
"First, such testimony can aid you in determining whether the defendant was engaged in an intentional plan of robbery. * * * Second, such testimony can help you in resolving the question of identification of the defendant as the man who robbed Charles Benenati.”
Defendant objects that, though the statute allows similar acts to be used to establish intent, the statute requires that the intent must be "material” to the case. Defendant is correct. See People v Spillman, 63 Mich App 256, 260-261; 234 NW2d 475 (1975), rev’d on other grounds, 399 Mich 313; 249 NW2d 73 (1976), and cases cited therein. But it is arguable, reviewing the trial court’s instruction, that the similar acts were not introduced to show intent, but to show an intentional plan. Evidence of a plan may be material if a connection is established between the facts and circumstances of the similar bad acts and the charged offense. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).
But apart from the intentional plan element, the prosecutor used the similar acts to try to establish identity. Though not mentioned in the statute, it is permissible to prove identity through the use of similar acts.
" 'Identity’ which is always an essential element in a criminal prosecution is not mentioned in the statute but clearly may be proved by the use of similar acts evidence. People v Kelly, 386 Mich 330; 192 NW2d 494 (1971).” People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976).
See, also, People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977).
The matter of identity was a paramount issue in the case. Jones’ entire defense was that Charles Benenati, the victim, has intentionally or inadvertently misidentified him.
In this case, the prosecution, for the purpose of showing identity, introduced evidence of three other robberies. One of the robberies was of a grocery store; one was of a Holiday Inn and one was of another Howard Johnsons. In using evidence of similar acts other offenses are admissible to
"prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.” McCormick on Evidence (2d Ed), § 190, p 449.
In this case the similarities between the robbery at issue and the robberies at the Holiday Inn and the other Howard Johnsons are legion. As both sides point out:
1) All three occurred in relatively the same time period.
2) All three occurred in the same area.
3) All three involved a hotel.
4) All three involved use of a weapon (though as defendant points out the weapons were different).
5) All three involved assailants in their twenties.
6) In all three, the assailants had afros.
7) All three involved a man in a dark coat.
8) All three occurred in the late evening.
9) All three involved a man who pulled the lapel of his coat over his face.
10) All three involved money being taken from a cash register.
11) All three involved a victim who was told to stay on the floor until the assailant left.
Defendant argues that a distinctive pattern was not formed. We do not agree.
After concluding that no pattern was formed, defendant, referring to all the similarities which he himself acknowledges, asks, "Just how else would an assailant act?” In a multitude of ways, is the obvious reply. Defendant admits to marked similarities in these three robberies, from the description of the assailant to the covering of his face with his coat lapel to the type of business robbed to the time and area of the robbery.
"[T]he inference of identity arises when the marks common in the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” People v Haston, 69 Cal 2d 233, 246; 70 Cal Rptr 419; 444 P2d 91 (1968).
The inference of identity here arises from the grave similarities between the three robberies of the three hotels. While no one factor in itself is unique, in combination they form a singular pattern which suggests that the perpetrator of the first two robberies is the perpetrator of the robbery at issue.
We cannot say that the trial judge abused his discretion in admitting evidence of the two other hotel robberies. It was relevant and its probative value, i.e., to show identity, outweighed its potential prejudicial effect to the defendant. People v Smedley, 37 Mich App 325; 194 NW2d 383 (1971).
The prosecution also introduced evidence of a grocery store robbery for the purpose of showing identity. This robbery bore little similarity to the hotel robberies, both uncharged and charged. No distinctive similarities existed which would be sufficiently probative of the defendant’s identity to allow the admission into evidence of the grocery store robbery. On the contrary, the dissimilarities were notable. Whereas in the charged offense there was but one assailant, in the grocery robbery there were two; in the grocery store robbery the assailant personally took the money, while in this case the clerk handed the money to the assailant; in the grocery store case, the victim’s personal cash was not taken, but in this case it was; in the grocery store robbery the assailants did not attempt to disguise their appearances, while in this case the assailant covered his face; whereas in the grocery store case bystanders were present, in the charged offense no bystanders were present.
The trial court abused its discretion by allowing in evidence of the grocery store robbery. Material evidence of similar acts must be excluded when its prejudicial impact substantially outweighs its probative value. People v Corbeil, 77 Mich App 691; 259 NW2d 193 (1977), citing People v Oliphant, supra. This evidence should not have been admitted. But its impact was harmless beyond a reasonable doubt. Other evidence in the case, including that of the two other hotel robberies, pointed overwhelmingly to defendant’s guilt. People v Fisher, supra, at 14, People v Wilkins, supra, at 272.
We conclude that the admission of evidence of the two hotel robberies was proper under MCL 768.27, and that though the admission into evidence of the grocery store robbery was an abuse of discretion, such error was harmless beyond a reasonable doubt.
Defendant also claims he is entitled to have his conviction as an habitual offender, second felony, vacated by this Court on the ground that the prior conviction on which it was based was unconstitutional. This claim of unconstitutionality has never been presented to the trial court.
In 1970, defendant pleaded guilty to unarmed robbery. The transcript of his plea discloses that defendant was not advised that he was waiving his right to confront his accusers, his right to remain silent, his right to be presumed innocent and his right to have compulsory process. The plea process was inadequate and erroneous even under the standards extant at the time. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972) (the standards of which have been held applicable to any plea taken after the decisional date of Boykin). At a minimum the trial court should have advised defendant of his right to confront his accusers and his right to remain silent.
The prosecutor does not argue that the plea, as taken, was not in violation of defendant’s constitutional rights. Rather, he urges that because appellant did not raise the alleged unconstitutionality at the trial court level, he does not have standing to collaterally attack the 1970 conviction on appeal.
It is true that there are a number of decisions in the Court of Appeals which state that defendant cannot attack a conviction under the habitual criminal statute on the basis that his prior conviction was invalid when the claim was never presented or asserted in the trial court. The issue cannot be raised for the first time on appeal. People v Hendrick, 52 Mich App 201; 217 NW2d 112 (1974), People v Covington, 70 Mich App 188; 245 NW2d 558 (1976), People v Mays, 77 Mich App 389; 258 NW2d 87 (1977).
However, the issue may be raised at the trial level. See People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Once defendant has attacked the invalid plea in the trial court, he may present the issue of sentencing to the Court on appeal. Contrary to the prosecutor’s contention, Moore does not stand only for the position that an out-of-state conviction may be attacked. It also directs that an in-state conviction may likewise be attacked. We therefore remand the case to the trial court in order for appellant to present the issue of the unconstitutionality of his 1970 guilty plea.
We briefly address others of the issues plaintiff presents. He claims that it violates the double jeopardy clause to admit under the similar acts statute evidence of another crime of which defendant has already been acquitted. People v Oliphant, supra, decided this issue adversely to the defendant.
Defendant’s contention that the prosecutor vindictively retaliated against defendant by supplementing him simply because he chose not to plead guilty and to exercise his right to a trial has been adequately addressed in Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978).
Finally, defendant claims that the habitual offender statute is unconstitutional. Not having objected on this ground at either the hearing on the habitual offender information or the sentencing, the issue has not been preserved for appellate review in the absence of manifest injustice. See People v Penn, 70 Mich App 638; 247 NW2d 575 (1976).
Remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Defendant was convicted of unlawful manufacture of marijuana, MCL 335.341(1)(c); MSA 18.1070(41)(1)(c). Sentenced to two years’ probation with the first 30 days to be spent in the county jail, defendant appeals as of right.
On appeal, defendant raises seven issues—one of which is dispositive.
The prosecutor’s case against defendant comprised of the following. A Midland County Sheriffs Department Sergeant, Mark Bush, observed defendant and Nancy Jo Morrison drive up to the area he had under observation. Bush testified that defendant got out of the car with Ms. Morrison and checked some plants which were growing in a patch near where they had parked. He further testified that defendant then took some material from a bag he was carrying and packed it around the base of the plants. Bush recalled that he then walked over to where the two were standing and talked to Ms. Morrison for a short while. Bush then testified that when he started walking toward defendant, Ms. Morrison shouted that there was a police officer present and defendant discarded the bag which contained the material he had packed around the plants. Bush said that he retrieved the bag and placed both defendant and Ms. Morrison under arrest. The bag and plants were confiscated. Bush also stated that he did not see either defendant plant anything and he did not know who planted the confiscated plants.
At trial, Bush described the plants as marijuana —which he had seen before. He stated that he believed that the confiscated bag contained fertilizer.
The prosecution presented other evidence. Then, the defense called defendant as its first witness. He testified that he went to pick berries at the place where he was later apprehended. Defendant denied planting, cultivating or fertilizing any of the marijuana plants which were found in the area. He further testified that the bag of fertilizer was already at the scene when he arrived.
On cross-examination, defendant was asked, over objection, if he "ever cultivated marijuana plants at or near [his] residence”. The trial court indicated it would "allow the testimony as bearing on the design, plan, scheme, so forth”. To the jury, the trial court explained:
"I will permit the asking of the question. I will say to the jury that the Court is allowing evidence here or at least questions as to previous knowledge or previous possible—I don’t know exactly what the question is going to be nor what the answer is going to be, but such questions are permissible for the purpose of showing motive, intent, scheme or design. In other words, in connection with the offense that’s charged here, evidence of other like type of things are admissible for that purpose. They are not admissible, however, for the purpose of showing his guilt of this particular offense.”
Defendant denied the allegation and the defense rested.
The prosecutor then called as a rebuttal witness, Detective James Wesolowski. Detective Wesolowski testified outside the presence of the jury so that the trial court could rule on the admissibility of his testimony.
Wesolowski testified that on May 22, 1975, he found marijuana plants growing on the porch of defendant’s residence. The detective stated that he then went up to the apartment. Upon admittance, he stated that he noticed an ashtray with marijuana seeds in it. Detective Wesolowski testified that after a positive field test, he arrested defendant and Ms. Morrison. Eventually, they both pleaded guilty to possession of marijuana.
The trial court admitted the testimony after ruling that it was also admissible to impeach defendant as well as bearing on potential motive, intent, scheme or design.
On appeal, defendant renews his objection to the admissibility of the Wesolowski rebuttal testimony. Unless the testimony, including that of the misdemeanor conviction for possession of marijuana, is somehow admissible as "similar acts” evidence, its inclusion was error. See People v Renno, 392 Mich 45; 219 NW2d 422 (1974), forbidding the use of misdemeanor convictions solely for the purpose of impeachment. We believe that to the extent defendant’s objection goes to "similar acts” testimony, this issue is controlled by People v Nathaniel Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). Wilkins sets out the analytical process to be followed in determining the admissibility of evidence of this type. Application of that process to the facts of this case leads inexorably to the conclusion that the rebuttal testimony of Detective Wesolowski concerning the May 22, 1975, incident and its aftermath and the initial question to defendant—which prompted the Wesolowski rebuttal —should not have been allowed into evidence.
Initially for a proper foundation to our discussion of similar acts, it is instructive to note Wilkins, 82 Mich App at 265:
"In Michigan, evidence of a defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).
" 'This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.’ People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).”
Wilkins further notes that "a limited number of statutory and judicial exceptions” have developed. As in Wilkins, supra, this case involves the exceptions enumerated in MCL 768.27; MSA 28.1050:
" 'In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident bn his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contempora neous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.’ ” 82 Mich App at 266.
"Similar acts” evidence, though, is only admissible if it satisfies judicially-imposed requirements, catalogued in Wilkins, supra: 1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced, 2) there must be some special circumstances of the prior bad act which tends to prove one of the statutory items, and 3) defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of defendant’s guilt of the charged offense.
Although we find that the first requirement was met here, we must conclude that the nature of the proposed evidence was not in compliance with the second requirement. Regarding that requirement, Wilkins, supra, offers the following example:
"* * * if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob.” 82 Mich App at 267.
,
This case is but a factual variation on the Wilkins hypothetical. One incident, arguably involved with marijuana cultivation, is being used to show defendant’s inclination to commit the charged offense. Thus, we quote with approval from Wilkins, supra, 82 Mich App at 267:
"The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense.” (Footnote omitted; emphasis in original.)
The requisite showing was not made here. Thus, as in Wilkins, supra, fn 4:
"The result of admitting such evidence without the requisite connection with the charged offense is to admit precisely the kind of evidence condemned in the cases quoted at the beginning of this discussion, i.e., evidence relevant only to the defendant’s propensity to commit the offense. McCormick, Evidence (1972), § 190, at 453 (2d ed), Stone, The Rule of Exclusion of Similar Fact Evidence America, 51 Harv L Rev 988, 1007 (1938).”
Therefore, the admission of testimony regarding the May 22 incident constituted error on the part of the trial court.
Having found error on the part of the trial court in admitting testimony of the May 22 incident and its legal aftermath, it is still necessary to determine whether the error requires reversal. Wilkins, supra, at 272, notes:
"The pertinent standard involves a dual inquiry: (1) Was the error so offensive to the maintenance of a sound judicial system as to require reversal? (2) If not, was the error harmless beyond a reasonable doubt? People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977).”
We conclude for the reasons stated in Wilkins, supra, that the error was not so intrinsically offensive to the maintenance of a sound judicial system as to require reversal.
However, we cannot find the error harmless beyond a reasonable doubt. We quote with approval this Court’s construction of the phrase in People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975):
"If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried.”
Without the rebuttal testimony, the prosecution’s case against defendant is largely limited to the testimony of the arresting officer. We cannot find his testimony (which included the admission that he did not see either defendant plant anything) so persuasive that we can conclude that not even one juror might have voted to acquit' had the assailed testimony not been admitted.
Thus, this case must be reversed and remanded to the trial court for a new trial. Resolution of the above issue being dispositive, it is unnecessary to discuss the remaining issues raised on appeal.
Reversed and remanded.
An expert witness testified that his analysis of the confiscated plants indicated that they were marijuana. Additionally, the officer who impounded defendant’s vehicle stated that the confiscated plants appeared to be marijuana.
We disapprove of the prosecution’s characterization of the substance of the bag as "fertilizer”, without eithér having the substance analyzed or qualifying Bush as an expert for purposes of identification of fertilizer. Defendant may have characterized the bag as fertilizer precisely because Bush had so testified. | [
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Bashara, P. J.
Defendant appeals from a jury verdict convicting him of first-degree murder. The information alleged an open charge of murder, but cited the first-degree murder statute.
It is claimed by defendant that there was insufficient evidence presented to support the issuance of a complaint and warrant for his arrest. When arraigned on the information, defendant entered a plea without raising this objection. Consequently, if there was any defect in the complaint and warrant, it was thereby waived. People v Licavoli, 256 Mich 229, 231; 239 NW 292 (1931), People v Dowd, 44 Mich 488; 7 NW 71 (1880), People v Bohm, 49 Mich App 244, 250; 212 NW2d 61 (1973), lv den, 397 Mich 877 (1976).
A pre-trial motion to quash the information was made by defendant on the basis that insufficient evidence was presented at the preliminary examination on the element of premeditation and deliberation to permit a trial on the charge of first-degree murder. Defendant contends that denial of that motion was erroneous. In conjunction with this claim, defendant further argues that it was error for the magistrate to submit defendant for trial on a charge of murder without specifying the degree.
As to the latter contention, it is important to recognize that the purpose of an information is to advise the accused of the offense with which he is charged. People v Rios, 386 Mich 172, 175; 191 NW2d 297 (1971), People v Gould, 237 Mich 156, 164; 211 NW 346 (1926). In People v Treichel, 229 Mich 303; 200 NW 950 (1924), the Court held that an information charging the defendant with murder, but not specifying the degree or circumstances, was a sufficient basis for finding him guilty of either first- or second-degree murder. Id. at 307-308. Accordingly, the information in the instant case was sufficient to advise the defendant that he must prepare to defend himself against both first- and second-degree murder.
This conclusion also finds support from the case of Sneed v People, 38 Mich 248 (1878), where it was held that an indictment charging the defendant with "murder” was sufficient to encompass first-degree murder. Id. at 251-252. We, therefore, conclude that the magistrate was not required to specify the degree of murder charged, even though a request for such particularization was made by the defendant. When the charge encompasses first-degree murder the ultimate finding as to degree is for the jury. See MCL 750.318; MSA 28.550; cf. People v Carter, 395 Mich 434, 438; 236 NW2d 500 (1975).
We also find that the evidence presented at the preliminary examination as to premeditation and deliberation was sufficient to warrant a denial of defendant’s motion to quash the information. Although the evidence presented by the prosecution was entirely circumstantial, that alone would not preclude the jury from finding the element of premeditation and deliberation. People v Hoffmeister, 394 Mich 155, 158-159; 229 NW2d 305 (1975). The defendant’s state of mind may be inferred from his conduct within the context of the circumstances shown by the evidence. Id.
In the instant case, testimony was presented which, if believed by the jury, would establish that the defendant and decedent left the decedent’s residence together in a bronze compact automobile, borrowed by defendant from his friend. Defendant stated, in the presence of one witness, that he and the decedent were going to an area near Lake Orion. Approximately 20 to 30 minutes thereafter, another witness, while on his property in a secluded area near Lake Orion, heard three gun shots. He then observed a bronze compact automobile drive out from a nearby field and speed away from the area. When the witness went over to the area from which he observed it drive away, he found the decedent’s body.
Crime laboratory investigators obtained tire tread impressions and measurements from the area where decedent’s body was found. Those impressions and measurements matched the tread style and wheel base of the car defendant borrowed from his friend.
Additional circumstantial evidence was presented as to the distances allegedly traveled by defendant, the time required to traverse those distances, and the sequence of events before and after the occasion of decedent’s death. It is our conclusion that this array of evidence was sufficient to allow a trier of fact to infer that the defendant planned the excursion to a secluded area with the intent to kill the decedent. Therefore, the court’s denial of defendant’s motion to quash the information was proper. Proof of the corpus delicti and defendant’s guilt may rest upon circumstantial evidence. People v Barron, 381 Mich 421, 426; 163 NW2d 219 (1968), People v Hawksley, 82 Mich 71, 73; 45 NW 1123 (1890).
At trial the prosecutor, in his opening statement, indicated that he would show the motive for the murder was to collect the proceeds of the insurance on decedent’s life. As part of the motive evidence, the prosecutor called the decedent’s wife as a witness. He attempted to elicit testimony showing her close relationship with defendant. The prosecutor then asked whether she had previously stated to a named friend that she would share the life insurance proceeds from decedent’s death with whomever she could find to kill him. She denied making any statement of that nature.
One of the following prosecution witnesses was the friend of the decedent’s wife named in the latter inquiry. She testified, over the defendant’s objection, that approximately 9 to 12 months prior to his death, decedent’s wife had made the claimed statement. The trial court instructed the jury that they were to consider such testimony only for the purpose of assessing the credibility of decedent’s wife. Defendant maintains that in permitting the prosecutor to impeach the credibility of his own witness, the trial court committed reversible error.
Our state’s jurisprudence continues to adhere to the archaic common law prohibition against a party’s impeachment of his own witness’s credibility. People v White, 401 Mich 482, 508; 257 NW2d 912 (1977). Notwithstanding the resounding criticism of the rule and its abrogation in numerous jurisdictions, it has been codified, along with its exceptions, in our recently adopted rules of evidence. The exceptions are not applicable to the instant case. Consequently, it was error for the trial court to allow the prosecution to impeach the credibility of its witness.
However, our inquiry cannot cease with that conclusion. We must assess whether that error resulted in undue prejudice to defendant’s right to a fair trial, or whether it was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972), People v Smith, 363 Mich 157, 164; 108 NW2d 751 (1961).
In People v White, supra, the impeachment evidence was found to be so prejudicial that the jury could not be relied upon to follow the admonition of the trial court’s instruction limiting its use to credibility assessment. Id. at 510. The evidence consisted of testimony by a cofelon, given in a previous trial, that he and defendant committed the offense with which the defendant was charged. The Court referred to the supporting case of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), which involved utilization of a codefendant’s confession in a joint trial, admitting that he and the petitioner had committed the charged offense.
The Bruton decision was premised upon a perceived violation of the defendant’s Sixth Amendment right of confrontation. However, the United States Supreme Court also made the following observation:
" 'Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.’ We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. 'A defendant is entitled to a fair trial, but not a perfect one.’
"It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v Denno, supra [378 US 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964)], there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Id. at 135 (citations omitted).
Accordingly, our inquiry is, essentially, whether the inadmissible evidence in the case under review is of a nature that the "human limitations” of the jury could reasonably be anticipated to preclude them from adhering to the limiting instruction of the trial court. That instruction enjoined them not to consider the testimony as substantive evidence, but only that the decedent’s wife made a prior inconsistent statement. We conclude that introduction of the impeachment testimony, though error, was not reversible error.
The impeachment testimony pertained only to the motive of decedent’s wife for hastening her husband’s demise. Yet the prosecutor was unable to present evidence even remotely suggesting that the decedent’s wife enlisted the defendant’s service in achieving that objective. Further, the trial court’s instruction that the testimony was not to be considered for the truth of what was said, in conjunction with the defense counsel’s skillful cross-examination eliciting the witness’s disbelief in the statement, significantly militates against any adverse effect upon the jury.
The foregoing factors, considered with the otherwise commendably and adroitly presented case by the prosecutor, leads us to conclude that any error was harmless beyond a reasonable doubt.
Defendant’s contentions with respect to the jury’s verdict are unavailing, being resolved by People v Rabin, 317 Mich 654, 668; 27 NW2d 126 (1947), cert den, 332 US 759; 68 S Ct 60; 92 L Ed 345 (1947). Similarly, the remaining claims of error are without merit.
Affirmed.
Allen, J., concurred.
MCL 750.316; MSA 28.548.
Id.
The Court’s decision in Sneed was predicated upon the provisions of 2 CL § 7916, which is now MCL 767.71; MSA 28.1011, and states:
"In all indictments for murder and manslaughter it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased; and it shall be sufficient in manslaughter to charge that the defendant did kill the deceased.”
This provision is made applicable to informations by MCL 767.2; MSA 28.942.
See, e.g., Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973), United States v Norman, 518 F2d 1176 (CA 4 1975), United States v Freeman, 302 F2d 347 (CA 2 1962), Johnson v Baltimore & O R Co, 208 F2d 633 (CA 3 1953), 1 Morgan, Basic Problems of Evidence, pp 69-71 (1954), 3A Wigmore, Evidence (Chadbourn Rev, 1970), §§ 896-899, pp 658-666. In Chambers the United States Supreme Court observed:
"Although the historical origins of the 'voucher’ rule are uncertain, it appears to be a remnant of primitive English trial practice in which 'oath-takers’ or 'compurgators’ were called to stand behind a particular party’s position in any controversy. Their assertions were strictly partisan and, quite unlike witnesses in criminal trials today, their role bore little relation to the impartial ascertainment of the facts.”
"Whatever validity the 'voucher’ rule may have once enjoyed, and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process.” Id. at 296 (footnotes omitted).
Professor Wigmore has referred to the rule as a "primitive notion, resting on no reason whatever, but upon mere tradition, and irrationally forbidding any attempt to question the utterances of one’s own witness * * * ”, Wigmore, supra, § 898.
See, e.g., FR Evid 607, Ill Rev Stat (1967), ch 110, § 60, GL, c 233, § 23 (Mass), § 20-2-4 NM Stat Annot 1953 (2d Repl Vol 4), McKinney’s Cons Laws of NY, Book 7B, 4514, CPLR Cal Evid Code, § 785.
MRE 607 provides:
"The credibility of a witness may be attacked by
(1) an opposing party; or
(2) the calling party if
(A) the calling party is the prosecutor and he is obliged to call the witness,
(B) in a civil case, the witness is an opposite party or employee or agent of an opposite party, or
(C) the witness’s testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party’s case.” | [
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On Remand
D. E. Holbrook, Jr., J.
On February 24, 1975, defendant was convicted by a circuit court jury of first-degree murder contrary to MCL 750.316; MSA 28.548. Defendant appealed that conviction as of right to this Court raising the single contention that the people had not presented sufficient evidence of premeditation and deliberation to support the conviction for first-degree murder. In a memorandum opinion we affirmed defendant’s conviction having found sufficient evidence to support the verdict. Defendant then applied for leave to appeal to the Michigan Supreme Court. On August 31, 1977, the Supreme Court ordered the case "REMANDED to the Court of Appeals as on leave granted to consider the adequacy and accuracy of the instructions on first degree murder”, 401 Mich 806 (1977). Thus superseded, in this case, is the normal rule that appellate review of these unobjected to instructions would be precluded by GCR 1963, 516.2.
In the instant case the trial court instructed the jury as to first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter, not guilty by reason of insanity, and not guilty verdicts. The trial court defined murder and then instructed:
"If you come to the conclusion that the Defendant is guilty of murder, as I have defined it, it will be your duty to determine whether she is guilty of murder in the first degree, or murder in the second degree. The difference between murder in the first degree, and murder in the second degree is this. Murder in the first degree is a killing done wilfully and with premeditation. While murder in the second degree, the element of premeditation is absent.
"To convict the Defendant of murder in the first degree, it must appear that the killing was wilful and premeditated. It is not necessary that any definite period of time should have elapsed between the forming of such intention, and the striking of the blow which killed the deceased, providing the blow was premeditated, and the Defendant acted wilfully. On the other hand, if the killing was done under a sudden impulse, with malice, without premeditation, or previously formed intention, the offense would be murder in the second degree. As I have stated before the difference between the two offenses is that murder in the first degree, the element of premeditation is present, while in murder in the second degree, the element of premeditation is not present.”
The Court then elaborated on "premeditation” and then instructed the jury:
"If you believe from the testimony, beyond a reasonable doubt, that the Defendant at the time charged in the Information, being of sound mind, wilfully and unlawfully killed Lila Edwards with malice aforethought, either expressed or implied, under the definitions as I have given you; that is, that she had thought the matter out, and reached a conclusion, regardless of the length of time during which she entertained it, that she would kill Lila Edwards, or would inflict upon her some great bodily harm, less than the crime of murder, but with which from the nature of the instrument and the manner of its use might seriously involve the life of T.ila Edwards, then your verdict should be that she is guilty of murder in the first degree.” (Emphasis supplied.)
While the instructions are less than perfect they are sufficient to support defendant’s conviction for first-degree murder. It is true the trial court did not use the "magic” word "deliberation”, but a close examination of the trial judge’s instructions indicates that an appropriate definition of "deliberation” was given. In People v Vail, 393 Mich 460, 468-469; 227 NW2d 535 (1975), the Supreme Court quoted with approval from then Judge Levin’s opinion in People v Morrin, 31 Mich App 301, 328-330; 187 NW2d 434 (1971):
"to deliberate is to measure and evaluate the major facets of a choice or problem.”
We conclude that this definition, to a lay juror, is little different than the language used by the trial judge—"that she had thought the matter out, and reached a conclusion”.
While it is clearly preferable for the judge to use the term "deliberate”, we believe the court’s instructions in this case adequately informed the jury that they had to find that the defendant premeditated and deliberated before she could be found guilty of first-degree murder.
We also conclude that the trial judge correctly instructed that "malice” was a permissible inference and that the malice instruction was similar to instructions upheld in People v Rosemary Gibson, 71 Mich App 543, 551-554; 248 NW2d 613 (1976), lv den, 400 Mich 854 (1977), and People v Fabian, 77 Mich App 52, 58; 257 NW2d 673 (1977).
Affirmed. | [
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Per Curiam.
Defendant appeals from a Workmen’s Compensation Appeal Board (WCAB) decision affirming an award of compensation to plaintiff by the administrative law judge. This case is submitted on a stipulation of facts.
On May 7, 1969, Norman Chambo, a full-time police officer, was in uniform in his own vehicle on the most direct route from his home in Detroit to his duty station also in Detroit. The route took him through part of the City of Dearborn. At about 3:50 p.m., he was involved in an accident in Dearborn. He incurred injuries which forced him off work until September 7, 1969, when he returned to his prior job.
It is a mandatory requirement, subject to trial board action that a police officer: (1) Live in the City of Detroit; (2) Carry the city owned weapon with him at all times; (3) Carry the city owned badge with him at all times; (4) Respond to a crime being committed whether on duty or not; (5) Keep himself physically and mentally alert at all times to respond to a call for "help”. The wearing of a uniform to and from work, while not mandatory, is recommended and encouraged by the city.
The city has denied liability on the basis that, since he was coming to work, his injuries did not arise out of and in the course of his employment. Mr. Chambo filed a petition for hearing on May 8, 1973. A hearing was held on July 3 and 11, 1974, before an administrative law judge. In a decision dated July 11, 1974, the judge awarded plaintiff benefits of $98 per week from May 8, 1969, to September 6, 1969.
The Workmen’s Compensation Appeal Board affirmed the judge’s decision on October 26, 1976, in a 3-2 decision. The dissenting opinion would have reversed because Officer Chambo was outside the City of Detroit when the accident occurred.
Defendant made application for leave to appeal to this Court contending that the administrative law judge incorrectly applied the statutory and case law to these facts and reached an erroneous decision. The city further contends that the appeal board erred as a matter of law in granting compensation to Officer Chambo. Defendant’s application for leave to appeal was granted April 27, 1977.
Defendant’s appeal presents us with an issue of first impression: Is a police officer, in uniform, carrying a city owned gun and badge in his privately owned vehicle on the most direct route between his Detroit residence and his Detroit duty station which takes him through a part of Dear-born, entitled to worker’s compensation benefits for injuries sustained in Dearborn while enroute to work? On the narrow scope of the facts presented we hold that the police officer is not entitled to worker’s compensation benefits, and reverse the WCAB.
The WCAB determination that plaintiffs injuries sustained in an auto accident arose out of and in the course of employment is a question of law and not conclusive on this Court. Pappas v Sport Services, Inc, 68 Mich App 423, 427; 243 NW2d 10 (1976), lv den, 397 Mich 825 (1976).
The issue, while raised for the first time in this state, has been dealt with at the appellate level in other states. The opinions from the various courts are not in agreement.
In Michigan the general rule is that employees going to or from work are not covered by the worker’s compensation act. In Burchett v Delton-Kellogg School, 378 Mich 231, 236; 144 NW2d 337 (1966), an exception to this rule was supplied in the following formula, known as the dual-purpose rule:
"If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, then the dual-purpose rule applies.”
The dual-purpose rule allows recovery when the employee is still "acting within the scope of his employment, carrying out the orders of his employer and performing some duty to further the latter’s business”. Burchett, supra at 235.
Police officers, because of the nature of their job and since in many cases they are expected to be available 24 hours a day, have been allowed recovery in some jurisdictions. See Warg v Miami Springs, 249 So 2d 3 (Fla, 1971), Sweat v Allen, 145 Fla 733, 200 So 348 (1941), Garzoli v Workmen's Compensation Appeal Board, 2 Cal 3d 502; 86 Cal Reptr 1; 467 P2d 833 (1970), Jasaitis v City of Paterson, 31 NJ 81; 155 A2d 260 (1959), Mayor & Alderman v Ward, 173 Tenn 91; 114 SW2d 804 (1938). See generally 1 Larson, Workmen’s Compensation Law, § 15.43, p 4-60, n 64, § 16.12, pp 4-105 to 4-106, nn 42-43. Other jurisdictions have denied recovery. Walker v State Accident Insurance Fund, 28 Or App 127; 558 P2d 1270 (1977), Blackley v Niagara Falls, 284 App Div 51; 130 NYS2d 77 (1954), McKiernan v New Haven, 151 Conn 496; 199 A2d 695 (1964), Simerlink v Young, 172 Ohio St 427; 178 NE2d 168 (1961). See generally 1 Larson, Workmen’s Compensation Law, supra.
To justify his claim to entitlement of benefits, plaintiff argues that the city has benefited from the requirements of being a police officer in the City of Detroit referred to above. In Stark v L E Myers Co, 58 Mich App 439, 443; 228 NW2d 411 (1975), lv den, 394 Mich 814 (1975), the Court noted that one of the considerations relevant to determining whether an injury to an employee on the way to work was sufficiently employment related was "whether the employer derived a special benefit from the employee’s activities at the time of the injury”.
The narrow facts of this case refute the benefit argument of the plaintiff. Plaintiff was injured outside the city limits of Detroit, and was not injured while actively participating in police con duct. Under these facts the city did not benefit from having the officer in uniform and on call since he was outside the jurisdiction wherein he could function with the authority of a police officer.
In a Florida case cited by the plaintiffs, Sweat v Allen, supra, the Supreme Court of Florida upheld a finding of entitlement to worker’s compensation granted to a deputy sheriff who was on call all day and night. The sheriff was assigned as an assistant jailer. His regular hours were from 7 a.m. to 7 p.m. One morning while he was walking from his home to a bus line to go to work, he was struck by a dairy truck and was severely injured. Compensation was granted and upheld, the court stating:
"The case at bar is not that of an ordinary workman going to work; for by the very nature of the service the claimant performed, he was continuously intrusted with certain duties, namely, to protect the peace and safety of the community and apprehend those guilty of its violation. His personal life was subservient at all times to call of official service; he was, so to speak, on guard twenty-four hours a day, with no increase in salary in proportion to the time devoted. This high duty of the office rested upon the claimant and was a part of his employment notwithstanding the fact that he was immediately assigned as the jailer, for the word 'employment’, as used in the Workmen’s Compensation Act, refers to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. Wirta v North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964.” 200 So at 350.
See Warg v Miami Springs, supra, 249 So 2d at 5, Miami Beach v Valeriani, 137 So 2d 226, 228-229 (Fla, 1962).
The Sweat case was not without dissent, however. The dissent was concerned that the plaintiff "was not performing any service growing out of and incidental to his employment”. 200 So at 353. The dissent foresaw the danger of a deputy sheriff recovering for injuries received while at home, a party, or on a personal mission. This is certainly a danger which requires us to emphasize that recovery may be allowed in some instances, but a line must be drawn within reason to avoid absurd results in future cases.
We think the reasoning set forth in a subsequent Florida case which distinguishes Sweat v Allen, supra, is applicable here. Miami Beach v Valeriani, supra. In Valeriani, the plaintiff was a police officer of the City of Miami Beach. At the request of his employer he also had been commissioned as a deputy sheriff of Dade County. On his way to work as a Miami police officer, he was assaulted at least a mile from the Miami Beach City limits while attempting to make an arrest. The court held that the injuries resulting from the assault did not arise out of and in the course of his employment with the Miami Beach Police Department. The court stated:
"The facts in the Sweat v. Allen decision distinguish it from the facts in the case at bar. There Allen, even though on his way to work, was in a position to carry out his duties as a deputy sheriff of Duval County and make an arrest if necessary and proper at the place where he was injured because it was in Duval County. Here Valeriani, a Miami Beach detective, was not in a position to make an arrest at the place where he was injured as a police officer of Miami Beach but only as a deputy sheriff of Dade County because he had no power to make an arrest outside of Miami Beach for a violation of the Metropolitan Dade County Traffic Code. This we believe is the essential point of difference which caused this Court to affirm an award of compensation benefits to Allen and requires us to deny them to Valeriani. Claimant, according to his own testimony, was acting as a deputy sheriff of Dade County in attempting to make an arrest and we are not here concerned with any possible compensation claim against Dade County, but only one against the City of Miami Beach.” 137 So 2d at 229.
We find that since plaintiff was in the City of Dearborn when he was injured, that he is in almost the same situation that confronted Valeriani. He was not in a position to benefit the City of Detroit. We hold that where the plaintiff is not involved in any activity that may be considered connected with his employment as a Detroit police officer,—i.e., his presence in the City of Dearborn where he was injured,—benefits will be denied. Walker v State Accident Insurance Fund, supra, Blackley v Niagara Falls, supra, Simerlink v Young, supra. But see Jasaitis v City of Paterson, supra. The benefits noted in the Jasaitis opinion, however, are not applicable where the officer is outside the City of Detroit and the citizens of Detroit are not benefiting. Cf. Krasnoff v New Orleans Police Dept, 241 So 2d 11 (La, 1970).
Our holding is supported by the recent Oregon decision, Walker v State Accident Insurance Fund, supra, which cited the following passage from the New York case of Blackley v Niagara Falls, supra:
"' * * * So far as the argument that he was subject to call twenty-four hours a day is concerned, the simple answer is that he had finished his regular work and had not been called for anything further. Moreover on the basis of his own admission he was not engaged at the time of the accident in any work connected with his duties as a policeman. To say that any accident which he sustained when not on post duty was covered because he was subject to call and required to act as a policeman should the occasion require, is somewhat unrealistic. If, as in the case here, he was injured at a time when he was off active duty and was engaged in an activity in no way connected with his duties as a policeman, it cannot be said with any semblance of logic that the injury arose out of his employment.’ Matter of Blackley v. City of Niagara Falls, 284 App. Div. 51, 53, 130 N.Y.S.2d 77, 79 (1954).” (Footnote added.)
We specifically limit the application of our holding to the instant facts, and do not rule on what the result would be if plaintiff was within the city limits of Detroit. The benefits to the city might weigh in plaintiff’s favor for compensation under those facts.
Reversed. No costs, a public question being involved.
The Krasnoff Court stated:
"We entertain no doubt, under the circumstances, that the accidental injury to plaintiff arose out of and in the course of his employment. At the time of the accident plaintiff was not in the position of, say, an off-duty officer injured while changing his own car’s tire, whose actions and injury would be unrelated to his employment as a policeman. Here we believe plaintiff was injured precisely because he was engaged in discharging the obligations of his employment, and his accidental injury was a compensable one because arising out of and in the course of his employment, R.S. 23:1031. Any other conclusion would invite 'off duty’ police officers to ignore rape, robbery, mayhem, murder, and any other imminent damage to a citizen or his property.”
The fact that an officer is on his way home from work rather than going to work is not a material difference between the cases. Warg v Miami Springs, supra, 249 So at 5. | [
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R. B. Burns, P. J.
The issue presented in this case in whether the Private Security Guard Act of 1968, MCL 338.1051 et seq.; MSA 18.185(1) et seq., imposes vicarious liability upon a security guard agency or its insurer for damages caused by the wrongful act of an agency security guard where the act was not within the scope of the agency’s business. We hold that it does not.
Security guards Reitz and Smith deliberately set fire to the Aquinas College Faculty Arts Building in order to provide an excuse for not making rounds. Reitz was employed by Aquinas College, and Smith was employed by Engineered Protection Systems, Inc. and assigned to duties at Aquinas College. Ronald Watson, an art department professor who lost personal property in the fire, brought this action against Reitz, Smith, Aquinas College, Engineered Protection, and Engineered Protection’s insurer, California Union Insurance Company. Aquinas College cross-claimed against the other defendants. Both Watson and Aquinas College (hereinafter plaintiffs) alleged that the Private Security Guard Act of 1968 made Engineered Protection and California Union (hereinafter defendants) vicariously liable for the action of Smith. Defendants asserted as an affirmative defense that Smith’s action was outside the scope of employment. Plaintiffs moved for summary judgment under GCR 1963, 117.2(3), and defendants moved to strike the allegation of liability under the Private Security Guard Act, GCR 1963, 115.2. The trial court' denied plaintiffs’ motion and granted defendants’ motion. Properly labeled, however, it appears that the trial court granted summary judgment, GCR 1963, 117.2(3), in favor of defendants. GCR 1963, 117.3. We affirm.
Unless the Private Security Guard Act modified the common law, defendants are not liable, for "[u]nder the doctrine of respondeat superior there is no liability on the part of an employer for torts intentionally or recklessly committed by an employee beyond the scope of his master’s business”. Bradley v Stevens, 329 Mich 556, 562; 46 NW2d 382, 385; 34 ALR2d 367, 371 (1951).
Plaintiffs rely upon two sections of the act. Section 9(1), which requires as a condition of licensing the filing of a bond or policy of insurance, provides in part:
"The bonds shall be taken in the name of the people of the state, and a person injured by the wilful, malicious, and wrongful act of the licensee or any of his agents or employees may bring an action on the bond or insurance policy in his own name to recover damages suffered by reason of the act.” MCL 338.1059(1); MSA 18.185(9)(1). (Emphasis supplied.)
Section 17(1) provides:
"A licensee may employ as many persons as he deems necessary to assist him in his work of alarm system contractor or private guard or agency and in the conduct of his business, and at all times during the employment may be accountable for the good conduct in the business of each person so employed.” MCL 338.1067(1); MSA 18.185(17)(1). (Emphasis supplied.)
It is plaintiffs’ theory that these two sections create a cause of action independent of the common law. They reason as follows:
"It is a familiar rule of construction that it will not be presumed that the legislature intended to do a useless thing and that if possible every part of a statute must be given effect.” Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782, 785 (1959).
Unless the emphasized "may” in § 17(1) is read as "shall” the section merely restates the obvious, since an employer is accountable at common law under the doctrine of respondeat superior. This would be a useless act. If read as "shall” the section creates a cause of action. The conduct the employer will be accountable for is that set forth in § 9(1): "wilful, malicious, and wrongful act[s]”. Neither section limits liability to acts within the scope of employment. Since Smith’s act was wilful, malicious and wrongful, the employer and his insurer are liable.
Plaintiffs’ analysis is defective. "[Statutes will not be extended by implication to abrogate the established rules of common law.” Silver v International Paper Co, 35 Mich App 469, 472; 192 NW2d 535, 536 (1971), see Bandfield v Bandfield, 117 Mich 80, 82; 75 NW 287, 288 (1898). From the Legislature’s use of the words "may” and "shall” in the act it is readily apparent that it understood the permissive-mandatory distinction between the two words. See particularly the remainder of § 9(1). The Legislature’s use of the word "may” in §17(1) indicates that it intended liability to be dependent upon the existence of liability at common law. Since codification of the common law is not a useless act, we see no reason to adopt plaintiffs’ strained interpretation of the act.
Affirmed. Costs to defendants. | [
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J. H. Gillis, P. J.
Defendant was convicted by a jury of armed robbery, contrary to MCL 750.529; MSA 28.797, and sentenced to serve 15 to 30 years in prison. He now appeals as of right, raising seven allegations of error, of which five merit discussion by this Court.
This is the second time that this case has come before this Court. Accordingly, facts will only be presented when warranted by our discussion of the issues. For a more detailed description of the facts, see People v Drew, 67 Mich App 295; 240 NW2d 776 (1976).
Defendant first contends that the trial court erred in failing to conduct an evidentiary hearing regarding the admissibility of a witness’s identification of defendant.
Defendant was accorded an evidentiary hearing prior to his first trial. The trial court found that the witness’s identification was admissible. This Court upheld the trial court’s determination regarding the admissibility of the witness’s testimony identifying defendant when this case was previously before this Court. As this Court stated:
"Under the circumstances in the case at bar, we believe that the prosecution showed by clear and convincing evidence that Mrs. Gossett (Phillips) had an independent basis for her identification of the defendant. Therefore, we ñnd no error in the lower court’s decision to admit her identiñcation testimony.” People v Drew, supra, 299. (Emphasis supplied.)
Defendant has presented no new evidence that would cause the trial court to determine that the witness’s testimony would not be admissible. This Court’s prior ruling in the instant case was and is "the law of the case”. People v Bergin, 63 Mich App 526; 234 NW2d 687 (1975), People v McDonald, 239 Mich 253; 214 NW 186 (1927). We find no error in respect to this issue.
Defendant next contends that it was error for the trial court to preside over defendant’s second jury trial after having presided at defendant’s first jury trial on the same charge.
It is well established that no error can be predicated on a trial judge’s failure to disqualify himself from presiding over a trial unless the defendant timely moves for such disqualification. People v Dudley, 393 Mich 762; 223 NW2d 297 (1974), People v Stockford, 59 Mich App 423; 229 NW2d 484 (1975). In the instant case, defendant made no such motion, and, accordingly, we find no error.
Defendant further contends that the trial court erred in failing to grant his motion for mistrial based upon the prosecutor’s line of questioning regarding "mug shot” photographs and pictures received from police sources. We disagree.
Our review of the record reveals that the testimony was elicited for the purpose of establishing what pictures were used in the photographic lineup which identified defendant. The testimony was not particularly inflammatory nor was it deliberately injected into the proceedings to prejudice the defendant. Under such circumstances we find no reversible error. See People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), People v Hadley, 67 Mich App 688; 242 NW2d 32 (1976).
The penultimate issue which this Court will address concerns the prosecutor’s comments during his closing arguments in respect to defendant’s prior convictions.
Defendant claims that the references made by the prosecutor to his prior convictions were improper and require reversal of his conviction. We disagree.
It is well established that a prosecuting attorney can relate the evidence adduced at trial and draw conclusions therefrom during closing arguments. People v Davis, 57 Mich App 505; 226 NW2d 540 (1975).
The prosecutor stayed within these bounds by limiting his reference in regard to defendant’s prior convictions to the issue of defendant’s credibility. See People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).
Defendant’s final allegation of error concerns an instruction given by the trial court which was first requested and later withdrawn by defense counsel.
The instruction at issue was to inform the jury to weigh defendant’s prior convictions in connection with his credibility only. Defense counsel withdrew his request for the instruction, apparently not wanting to remind the jury of defendant’s past convictions. The trial court indicated that the instruction would not be given. However, the trial court later gave the instruction at issue.
Although it was error for the trial court to first grant defense counsel’s request not to give an instruction and later give that very instruction, it was not reversible error.
The standard for harmless error is found in People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974):
"The standards by which we measure error to determine whether it is reversible, or merely harmless, have become well settled.
" 'Where it is claimed that error is harmless, two inquiries are pertinent. First, is the error so offensive to maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?’
"People v Mobley, 390 Mich 57, 65; 210 NW2d 327, 332 (1973), People v Robinson, 386 Mich 551, 563; 194 NW2d 709, 713 (1972), People v Wichman, 15 Mich App 110, 116; 166 NW2d 298, 302 (1968).”
A review of the record discloses that this error was truly harmless beyond a reasonable doubt. The instruction given by the court was in favor of defendant since it was to insure that prejudice did not result in the jurors’ minds from defendant’s prior felony convictions. The error was essentially in favor of defendant.
We also note that the evidence adduced at trial was overwhelming in respect to defendant’s guilt.
Under such circumstances, we find the error harmless beyond a reasonable doubt.
Affirmed.
Bashara, J., concurred. | [
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] |
Bashara, J.
Plaintiff is the widow and guardian of the minor children of Richard W. Frasher, who was killed in an automobile accident on October 11, 1973. At the time of his death the decedent was covered by a no-fault automobile insurance policy issued by the defendant. Plaintiff and the children are dependents of decedent for purposes of survivors’ loss benefits. Plaintiff-widow has since remarried. Plaintiff filed a timely claim for benefits. The insurance provided by the maximum survivors’ loss benefits would not exceed the sum of $1,000 per 30-day period for a period of three years. This amount, however, was reduced by $650, the amount plaintiff received in Social Security benefits. This deduction was made pursuant to MCL 500.3109; MSA 24.13109 which provides as follows:
"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”
"(2) An injured person is a natural person suffering accidental bodily injury.”
Plaintiff received only $350 per month. A complaint was filed in the circuit court alleging breach of the insurance contract by not paying the maximum benefits allowed in the contract.
Defendant raised MCL 500.3109(1); MSA 24.13109(1) as an affirmative defense, asserting that as a matter of law defendant was entitled to deduct from any benefits paid to plaintiff all benefits paid to the plaintiff pursuant to the laws of any state or Federal government agency.
Plaintiff then moved for summary judgment pursuant to GCR 1963, 117.2(2) and 117.2(3), alleging as one ground that MCL 500.3109(1); MSA 24.13109(1), which provides for the deduction of governmental benefits from the personal protection insurance benefits, is unconstitutional as applied to plaintiff.
Each party filed briefs in support of their respective positions and on April 6, 1976, the trial judge issued his opinion finding the clause in question as well as legislation authorizing such clause to be unconstitutional. An order for stay before taking an appeal was entered on July 15, 1976; claim of appeal was filed the same date. A formal order incorporating the lower court’s opinion was entered by the court on September 13, 1976. This was dispositive of count I only of plaintiff’s com plaint. Count II of plaintiffs complaint, which contains allegations of fraud, has not been decided and is being held in abeyance pending the outcome of the Court of Appeals’ decision in this matter.
Defendant argues that the trial court erred reversibly in granting summary judgment for the plaintiff and holding MCL 500.3109(1); MSA 24.13109(1) of the no-fault act to be unconstitutional.
A panel of this Court has reached the same conclusion as the trial judge, O’Donnell v State Farm Mutual Automobile Insurance Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted, 397 Mich 848 (1976). However, we do not agree with the conclusion reached by the majority in O’Donnell, supra.
In mandatory terms, the Legislature, by its enactment of the no-fault automobile insurance provisions, established a minimum level of disability benefits for Michigan citizens who suffer adverse financial consequences from personal injury automobile accidents. The establishment of that minimum level is maintained by § 3109(1).
All benefits derived from governmentally promulgated programs are combined under that section to reach the predetermined minimum benefit level. Those who desire to enhance that benefit provision may do so by voluntarily entering into private contractual arrangements. The constitutional implications of this scheme were also analyzed in the dissenting opinion in O’Donnell. With that reasoning and result, we agree.
Reversed and remanded for proceedings consistent with this opinion.
J. H. Gillis, P. J., concurred. | [
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Per Curiam.
This is an appeal by leave granted from a denial of General Motors’ motion for an order decreeing Edwin Cohen, d/b/a J & I Service Station, to be an active defendant in the retrial of a case remanded from this Court. See Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974).
Plaintiff brought a wrongful death action against Cohen and General Motors alleging the failure of a truck wheel bearing due to negligent installation by Cohen’s employee and negligence and breach of warranty by a General Motors subsidiary in manufacturing the bearing. The jury returned a verdict against General Motors of $315,000 and found no cause of action against Cohen.
General Motors alone appealed. On appeal, this Court held that the trial court had erred in excluding evidence relevant to the issue of whether Cohen’s employee had exercised due care and whether the truck was in safe running order. The Court held:
"Because the evidence excluded was pivotal to one of GM’s defenses and would also have been important in assessing the credibility of adverse witnesses and the validity of their claims, GM is entitled to an opportunity to introduce such evidence at a new trial.” Id. 541.
The case was "reversed and remanded for new trial”.
In the present appeal, General Motors contends that this language had the effect of reversing the no cause of action verdict for Cohen and reinstating him as an active defendant.
We believe Whinnen v 231 Corporation, 49 Mich App 371; 212 NW2d 297 (1973), controls the issue before us. Whinnen was a slip-and-fall case. Plaintiff sued the municipality, abutting property owner and lessee of contiguous property. The jury returned a verdict of $11,000 against the owner and no cause of action against the municipality and lessee. Only the owner appealed; no cross-appeal was filed. This Court, finding evidentiary errors which could have affected the liability of both the lessee and owner, reversed as to the owner only:
"We vacate the judgment entered upon the verdict of the jury and remand to the trial court for a new trial as to defendant-appellant 231 Corporation. Absent a cross-appeal by plaintiff as to the judgment of no cause as to the other two named defendants, or a specific appeal by this appellant of the no cause judgments as to its co-defendants in the trial court, we hold those judgments are res judicata as to the City of Hancock and Metropolitan Life Insurance Company. We remand for a new trial as to appellant 231 Corporation only.” 49 Mich App at 378-379.
See, also, Vorrath v Garrelts, 49 Mich App 142; 211 NW2d 536 (1974).
General Motors relies on decisions from other jurisdictions holding that an appellate court may, when the interests of justice so require, order a retrial as to non-appealing defendants. We need not decide whether we will follow such rule, however, for even assuming that rule has validity in Michigan, we see nothing in this Court’s opinion in the prior appeal indicating that the Court intended to order retrial as to Cohen. Retrial as to a non-appealing party, under the rule advanced by General Motors, may be ordered, but it should not be presumed. As the Court did not order that Cohen be a party to the retrial, we hold that he is not.
In addition, General Motors has failed to demonstrate the injustice of a new trial without Cohen as a party. General Motors will not be precluded from raising its main defense: that the cause of the accident is attributable to another’s negli gence, not any breach of warranty or negligence by General Motors. See, e.g., Love v Brumley, 30 Mich App 61; 186 NW2d 19 (1971).
Affirmed. Costs to defendant-appellee.
No claim of appeal or cross-appeal against Cohen was filed by-plaintiff. See GCR 1963, 807.1. No cross-claim was filed by General Motors against Cohen. In this situation, there was no appeal of the no-cause-of-action verdict for Cohen on plaintiff’s claim versus Cohen. General Motors could appeal only the jury verdict against it in favor of plaintiff, even though Cohen was designated "appellee” by General Motors on documents filed with this Court and served on Cohen.
See, e.g., Isay v Cameron, 229 So 2d 916 (Ala 1969). See, generally, 166 ALR 563.
See GCR 1963, 820.1(7). | [
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Beasley, J.
Plaintiff seeks indemnification from defendant arising out of a jury verdict against plaintiff in the amount of $350,000 in a personal injury case. The trial court granted summary judgment to plaintiff in the sum of $400,227.38, that being the sum paid by. plaintiff to satisfy the personal injury judgment together with costs and fees. The trial judge’s written opinion indicates the summary judgment was based on a theory of "vouching in”, i.e., defendant was bound by the facts established in the personal injury action and those facts entitle plaintiff to indemnification as a matter of law. Defendant appeals as a matter of right.
Defendant claims that, for two reasons, the doctrine of "vouching in” was inapplicable here. First, defendant says the identity of interest necessary to application of vouching in was lacking. In support, defendant claims plaintiff was sued on separate counts of both breach of warranty and negligence. This means the injured car purchaser could have recovered on a negligence theory and not on a breach of warranty theory, in which case, vouching in would not be applicable. Second, defendant says plaintiffs warranties to the purchaser of the car ran not only to the portion of the power steering mechanism manufactured by defendant, but also to the whole car. Defendant’s point in this regard is that the car purchaser could have recovered on a theory of breach of warranty respecting a part other than the portion of the power steering mechanism furnished by defendant.
These claims do not pass muster. In the personal injury action, the car purchaser specifically alleged that Bendix Corporation manufactured the portion of the steering mechanism which was allegedly defective and the proximate cause of the accident. No change appears to have been made by Ford Motor Company in the steering mechanism assembly parts furnished by defendant. The warranty relied upon by the car purchaser did not differ from the warranty given by defendant to plaintiff.
While plaintiff warranted the entire car to its purchaser, the claims both here and in the personal injury case were limited to the portion of the steering mechanism assembly furnished by defendant.
In the personal injury case, the negligence count was abandoned and the case went to the jury only on the implied warranty count. Morse Chain Co v Formsprag Co, 380 Mich 475, 481; 157 NW2d 244 (1968), is controlling of these issues. In Morse, the Court said:
"We think it is the law that with respect to articles in which the quality or condition has not changed in passing from the hands of the vendor to vendee (which did not occur here at all) and ultimately to the subvendee, when the warranties of quality between the respective parties were the same, the judgment in suit for breach thereof by subvendee against the vendee in which the vendor was tendered the defense, is binding against the vendor, in a suit by vendee, on the issues litigated in the first suit as to such breach of warranty and the resultant damages.”
Last, defendant claims plaintiffs tender of suit was unseasonable and unreasonable under the Uniform Commercial Code. Defendant claims the tender came only five days before trial of the personal injury case. Defendant refused the tender of defense and chose not to defend the product liability case. While, in many situations, five days notice might be insufficient, in this case, defendant had been on notice for over a year of the alleged manufacturing defect and had participated in discovery.
Defendant settled the day before receiving the tender of defense. It seems clear defendant was thoroughly prepared on the very issue that was litigated and was on notice of all claims asserted. For these reasons, we find that plaintiff’s tender of suit was seasonable and reasonable whether considered in view of the requirements of the common law doctrine of "vouching in” or the codification of that doctrine in the Uniform Commercial Code. We decline to find that the tender of defense was not timely given.
We are satisfied that in accordance with Morse, defendant was properly vouched in. The judgment entered on the jury’s verdict in the personal injury case against this plaintiff, including the findings implicit therein, is binding against defendant in the within case. This defendant is not entitled to relitigate those issues here. The grant of summary judgment in favor of plaintiff was not clearly erroneous.
Affirmed, with costs.
One week before the personal injury trial, Bendix settled with the car purchaser for $49,000.
See, MCL 440.2607; MSA 19.2607 and MCL 440.1204; MSA 19.1204.
Plaintiffs letter, dated May 16, 1973, stated:
"I have been instructed by Ford Motor Company to advise you as the attorney for Bendix that, in the event that trial of this matter results in judgment against Ford, that Ford Motor Company will seek indemnity against Bendix for the judgment it is ultimately required to pay, together with attorney fees and other trial expenses.
"While I realize that it is close to the trial date, I also know that you have done most of any necessary trial preparation, in anticipation of defending the case for Bendix, even though I now understand the suit against Bendix by the plaintiff has been settled. If it is Bendix’ desire to do so, it or you as its attorneys may assume the defense of the pending suit against Ford, in which event I will, of course, as will Ford and its employees and expert witnesses, cooperate fully.”
MCL 440.2607(5)(a); MSA 19.2607(5)(a). The Uniform Commercial Code practice commentary prepared by the able and experienced Professor Roy L. Steinheimer, Jr., states:
“Subsection 2607(5)(a) sets up a statutory procedure for 'vouching in’ a seller who is answerable over to a buyer for a breach of warranty or other obligation on which the buyer is being sued by a subsequent buyer. This is an improvement on the common law 'vouching’ procedures recognized by the Michigan decisions.” 21 MCLA p 586. | [
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Per Curiam.
Defendant was arraigned on two counts of first-degree criminal sexual conduct. A plea bargain was reached whereby defendant agreed to plead guilty to one count of first-degree criminal sexual conduct provided that the maximum sentence the court could impose would be 15 years. On January 10, 1977, the court took the guilty plea under advisement.
On February 7, 1977, the date set for acceptance of the plea and sentencing, defendant moved, after the plea was accepted but before sentencing, to withdraw his plea. He asserted he had not committed the offense with which he was charged. The trial court denied the motion.
Withdrawal of a guilty plea must be considered with great liberality. People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975). The motion to withdraw a plea should be granted when a defense of innocence is asserted at the time of the request, when the request is not obviously frivolous and when the request is made before sentencing. People v Flanagan, 72 Mich App 613; 249 NW2d 872 (1976), People v Thomas, 66 Mich App 594; 239 NW2d 427 (1976). Cf. People v Bencheek, 360 Mich 430; 104 NW2d 191 (1960).
In the instant case, the defendant’s motion to withdraw was made before sentencing and was made with an assertion of innocence. It was not obviously frivolous. Since motions made in such circumstances are treated with great liberality, it was an abuse of discretion not to grant the motion to withdraw the plea. The case is remanded for an order allowing withdrawal of the plea and a new trial.
We are not persuaded that the Supreme Court’s order in People v McClain, 402 Mich 824; 260 NW2d 287 (1977), reversing the judgment of this Court appearing at 81 Mich App 84; 264 NW2d 1 (1976), requires a different result in this case. In McClain the obvious reason for the defendant’s sudden desire to withdraw his plea was the change in sentencing judges. Defendant’s reason in McClain bordered on the frivolous. It was certainly not legitimate. Defendant’s reason here was not frivolous. The factual pattern in McClain is unique and should not be used to fashion new rules concerning the withdrawal of guilty pleas.
Remanded for proceedings consistent with this opinion. | [
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D. E. Holbrook, Jr., P. J.
In this case we must make the difficult choice of allocating a loss between an innocent party and a party who made an innocent mistake.
There is no dispute about the basic facts. Defendants approached the plaintiff savings and loan institution about obtaining a residential mortgage loan of $34,500. Plaintiff’s representative told defendants that to repay a 25-year mortgage loan at a 9% interest rate the monthly payment would be $251.76. This same combination of figures appears in the mortgage loan application, the mortgage commitment letter and in the mortgage note itself. The figures in the loan application were undoubtedly dictated by plaintiff’s representative and the other two documents were prepared by plaintiff.
Stated quite simply, the problem is that this combination of figures is hopelessly inconsistent— payments of $251.76 per month for 300 months will not pay off a $34,500 loan at a 9% interest rate. Defendants sold their former home and entered into a building agreement for a new home. When the first mortgage payment was due, plaintiff discovered the inconsistency and demanded that defendants execute a new note and pay the amount, $289.53 per month, which plaintiff claims should have been used in the first place. When defendants refused plaintiffs demands, plaintiff filed suit.
The complaint requested a declaratory judgment and a reformation of the contract on the grounds of mutual mistake. Defendants answered, claiming the mistake was unilateral on the part of the plaintiff and that plaintiff was engaging in fraud and deception by demanding a higher monthly payment than agreed. Defendants contend they relied on plaintiff’s calculations and representations that 300 payments of $251.76 would pay off a $34,500 loan at a 9% rate and that plaintiff is estopped from demanding any greater monthly amount. In order to correct the inconsistent figures, defendants requested the interest rate be reformed so that 300 monthly payments of $251.76 would discharge their $34,500 obligation.
In a written opinion the trial judge agreed with defendants.
"This is a proceeding which is equitable in nature and the Court feels that the burden must be placed on the party responsible for the error, and whose superior position of knowledge and control requires it to assume resulting hardship or economic loss, since it is too late to undo the transaction.
"This Court is of the opinion that the mortgage obligation should be reformed to provide an interest rate which will satisfy the loan obligation, within the specified twenty-five (25) years at the specified payment of Two Hundred Fifty One and 76/100 ($251.76) Dollars.”
An order of declaratory judgment was entered consistent with the judge’s opinion. We agree with the trial court.
This Court reviews equity cases de novo, but does not reverse or modify unless convinced it would have reached a different result had it occupied the position of the trial court. Mazur v Blendea, 74 Mich App 467, 469; 253 NW2d 801 (1977), Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975).
A court of equity may reform a contract where there is clear evidence of a mutual mistake, Ross v Damm, 271 Mich 474, 481; 260 NW 750 (1935), Kidder v Collum, 61 Mich App 281, 283; 232 NW2d 384 (1975), or in other appropriate circumstances, Najor v Wayne National Life Ins Co, 23 Mich App 260; 178 NW2d 504 (1970), lv den, 383 Mich 802 (1970).
" 'A written instrument may be reformed where it fails to express the intentions of the parties thereto as the result of accident, inadvertence, mistake’ ”. 23 Mich App at 272.
It is clear the inconsistent terms in the mortgage note cannot be reconciled and that at least one term must be reformed. Unfortunately there is no perfect solution. Either the defendants will be required to pay almost $40 a month more than they anticipated and for which they budgeted or the plaintiff will be forced to absorb a loss due to a lowered interest rate (approximately 7-3/8% rather than 9%).
The combination of a number of equitable considerations leads us to conclude that the interest rate, rather than the monthly payment, should be reformed. As noted above plaintiff’s representative told defendants what the terms would be and defendants applied for a mortgage loan on the basis of those terms. Plaintiff prepared the mortgage commitment letter and the mortgage note which essentially confirmed the inconsistent figures. Defendants were led to believe that payments of $251.76 per month would satisfy their loan obligation.
Calculations of the proper monthly payments to satisfy a long term debt at a specified interest rate are quite difficult to make and indeed plaintiff admits it resorts to tables to determine payment amounts. Plaintiff is in the business of lending money and engages in such mortgage transactions all the time. As a matter of course plaintiff calculates interest rates and determines payment schedules. Defendant Richard Przybylowicz, according to the loan application, has an eleventh grade education and is employed as a surface grinder at a tool and die shop. We find a helpful analogy in the case of Hetchler v American Life Ins Co, 266 Mich 608; 254 NW 221 (1934), in which an insurance company made some erroneous calculations of the date of coverage under a policy and advised the insured by letter that he was to be covered through a certain date. The insured died before that date and, discovering its error, the insurance company refused to pay the beneficiaries. In concluding the insurance company was estopped from denying liability on the policy, the Court said:
"The fact that the representations of the company here relied upon were not made fraudulently, but were due solely to a mistake in computation, does not operate to prevent the raising of an estoppel. It is commonly held that although the party making the representations was ignorant or mistaken as to the real facts, if he was in such a position that he ought to have known them, ignorance or mistake will not prevent an estoppel. [Citations omitted.] In the instant case defendant had all the facts and figures before it from the time of the first letter to the insured until his death, almost six years later. Under the circumstances, the error was the result of defendant’s own negligence, and knowledge of the real facts must be imputed to the company.
"It cannot be said that the insured was negligent in not discovering the error, or that he was charged with knowledge as to the time when his policy could expire. He had a right to rely on defendant’s statements in the two letters written to him by the company. It is well-nigh impossible for the ordinary layman to understand the intricacies of actuarial accounting. The insurance company itself even deemed it necessary to have its figures checked by a university professor. The alleged mistake is not a palpable one that could be easily discovered.” Hetchler, supra, at 613-614.
The calculation of the proper monthly payment on a long term debt is also quite complicated and the plaintiffs error was not one easily discoverable by defendants. Defendants justifiably relied on plaintiff’s expertise in setting a payment schedule and on plaintiffs repeated representations that $251.76 a month would repay the loan.
While plaintiff argues the parties contemplated a 9% interest rate and that therefore the interest rate should control the monthly payment figure, we believe the ordinary consumer applying for a mortgage loan is more concerned with a monthly payment which will fit within the purchaser’s budget. A consumer has no control over the mysterious fluctuations in interest rates but he or she can decide whether a monthly payment is or is not affordable. Defendants contemplated a contract which would require them to pay $251.76 a month.
We address several of plaintiffs arguments. Plaintiff argues vigorously that a court is without power to make a new contract never contemplated by the parties. All the cases cited by plaintiff, however, militate just as strongly against plaintiffs prayer for reformation of the monthly payment—to an amount never contemplated by defendants. Plaintiff next argues that the "scrivener’s mistake” doctrine allows a court of equity to correct human error. In order for this doctrine to apply the scrivener must be acting for both parties. Miles v Shreve, 179 Mich 671, 679; 146 NW 374 (1914). Since the mistake was one made by plaintiffs employee, the "scrivener’s mistake” doctrine is not available to plaintiff. Finally plaintiff relies on Drysdale v Marheine, 240 Mich 529; 215 NW 329 (1927), which allowed reformation of an option based on an error in mathematical computation. We find this case distinguishable on the grounds that the error involved was so glaring— requiring one party to pay $150,000 rather than $38,890—that there was no question that there was a simple copying mistake. The instant case is much more like Hetchler, supra, where the erroneous calculation was not obvious and not easily checked by a layman.
Balancing the equities on each side leads us to conclude the interest rate on the mortgage note should be reformed so that the defendants will discharge their obligation by making 300 monthly payments of $251.76. Recognizing the potential for fraud in cases where a party deliberately conceals an error from the other contracting party, we narrowly confine our holding to the combination of factors in this case.
Finally plaintiff contends its motion to amend its complaint to add a count for recision was improperly denied by the trial court. In general, leave to amend is to be freely given when justice so requires, GCR 1963, 118. In plaintiff’s motion for rehearing the trial judge stated that basically he had made a decision on the merits since there was really no factual dispute. Recision would have been an appropriate and actually a preferred remedy had defendants not sold their former home and entered into a building agreement for their new home. Since there was no way to restore defendants to their prior position, recision was not an available option and the trial judge did not abuse his discretion in denying plaintiff’s motion for leave to amend.
Affirmed. | [
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Per Curiam.
Defendant was convicted by a jury of arson. After sentence, he appeals by right.
On appeal, defendant raises five issues, only one of which has any merit.
Although defendant frames the issue somewhat differently, the real question is: Was there sufficient evidence upon which the jury could find the defendant guilty beyond a reasonable doubt?
Mere opportunity of a defendant to commit arson is insufficient to support a conviction of arson. To obtain a conviction under the statute, it is necessary to show that a dwelling house was burned by, or at the urging of, or with the assistance of, the defendant and that the fire was wilfully or maliciously set.
In the within case, there was expert testimony that the fire was started by human means with the use of an accelerant such as paper. But, from that testimony, an inference that the fire was negligently started by defendant or defendant’s wife or defendant’s friend appears equally as plausible as the prosecution’s inference that the fire was wilfully and maliciously set by the defendant. There was no evidence that defendant had a motive to burn his rented house trailer.
The total evidence offered by the prosecution indicates mere opportunity to commit arson. Unaccompanied by indication of a motive, there is insufficient evidence here to support the guilty verdict.
Reversed.
MCL 750.72; MSA 28.267.
People v Smock, 63 Mich App 610; 234 NW2d 728 (1975).
People v Davis, 34 Mich App 678; 192 NW2d 76 (1971). | [
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Butzel, J.
The presiding judge of the Wayne circuit court assigned to the Hon. Theodore J. Richter, a judge of that court, the settlement of a case made and in the process of appeal to this court. The Hon. Clarence M. Browne, Saginaw circuit judge, had heard and re-heard the case, made findings of fact and law, filed an opinion, and directed a decree. The time within which to settle the case had been extended to March 19, 1933. Judge Browne was in his home circuit, when, on February 20, 1933, the date to which the settlement had been adjourned, the case was settled by Judge Richter; defendant’s counsel not being present. On the following day, the latter filed a motion, supported by affidavit, to set aside and strike the settlement from the record. This motion was granted. Plaintiff has filed an appeal, in the nature of a mandamus, to direct the trial judge to vacate his order setting aside and striking from the records the settlement of the case-made.
Defendant was appellee in the main case, in which a money decree was rendered on a cross-bill against plaintiff as cross-defendant. Defendant’s attorney showéd in the affidavit, filed in support of the motion, that he was ill on February 20, 1933, and for that reason was not in court when the case-made was settled by the judge; that in as much as the time had been extended within which to settle the case-made, respective counsel had not yet agreed what should be included in the case-made, and he had telephoned to the office of plaintiff’s attorney two days before that he had prepared 63 pages of amendments and had not yet received other portions of the record, he had every reason to believe that the settlement would be adjourned to enable the attorneys to try to agree on the record; that only a very small portion of the testimony was included and a very large part, as well as many exhibits and pleadings, necessary for the proper presentation of the case, excluded from the case as settled. Plaintiff, however, claims that the case-made was settled on the day it was adjourned to; that all pertinent testimony has been included. Neither we nor the Wayne circuit judge, who did not hear the case, can at present determine whether the omitted portions of the testimony and exhibits should have been included in the ease-made. Section 6, Court Rule No. 66 (1931), provides that when the judge who heard the cause is absent from a circuit, another judge of the same court or any other circuit may settle the case for review. However, when disputed questions arise, and counsel cannot agree, it is not at all improper to refer the settlement of the case to the judge who tried the case, if he will be available within a reasonable time. Section 4, Court Rule No. 66, supra, provides that a case settled in an action in equity shall set forth the substance of all the evidence taken and read at the trial and all of the proceedings had during the trial under the provisions of the judicature act, chap. 17, § 5 (3 Comp. Laws 1929, § 14159), etc. Section 5, Court Rule No. 64 (1931), provides that errors in any transcript or other portions of the record on appeal may be corrected at any time before transmission to the appellate court on motion of the lower court, and thereafter, by motion of the appellate court. Judge Richter had the right to set aside and strike the settlement of the ease-made from the record on the showing made. There was no abuse of discretion in his so doing. Cross-plaintiff has a right to include in the case-made all portions of the record and such exhibits and pleadings as are necessary for a proper presentation of the case. The circuit judge was absolutely correct in setting the settlement aside and striking it from the record. His action is affirmed, and plaintiff’s motion denied; costs to abide the result of the main case.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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. McDonald, C. J.
Harris B. Tuttle and Olive Tuttle are husband and wife. At the time the cause of action arose they were residing in Rochester, New York, in a home the title to which they held by the entireties. Their household goods were owned jointly. An automatic gas heater manufactured and sold by the defendants was installed in their home. Early one morning the heater exploded, damaging the building and furniture and seriously injuring Mrs. Tuttle. On the theory that the heater was negligently constructed and functioned improperly, they brought three suits in the Wayne county circuit court to recover their damages. Mrs. Tuttle brought suit to recover for her personal injuries. Mr. Tuttle brought suit to recover for medical services to his wife and for loss of her services; and both joined in a suit to recover damages to the building and the furniture..
The defendants filed a motion to dismiss each of these three suits on the ground that damages to the real and personal property for which the third suit was brought can be recovered in the other two suits; that Olive Tuttle has a single cause of action for property damages and personal injuries; that Harris B. Tuttle has a single cause of action for property damages and loss of services of his wife; that the third or joint suit was unnecessary and is a violation of the law as to splitting causes of action, and, therefore, should be dismissed. The motion to dismiss the other suits is based on the claim that they were started simultaneously, and, therefore, mutually abate each other.
The circuit judge found that the suits were not started simultaneously and refused to dismiss the individual suits, but dismissed the joint suit on the ground that it split the causes of action.
The plaintiffs appealed from the judgment entered. The defendants cross-appealed in this suit against that part of the court’s order whereby it was found that the third suit was not begun simultaneously with the other two suits.
The damages which the plaintiffs seek to recover in these suits arose out of a single tort. The question is, Did it give rise to a single cause of action or to two causes of action? If the cause of action is single, it cannot be split and made the subject of several suits. If, as plaintiffs claim, they have two causes of action growing out of the tort, one for injury to the person and the other for injury to property, the joint suit can be maintained without splitting a cause of action. Their rights in this respect are governed by the laws of New York, where the property damaged is located. Under the laws of Michigan, there would be but a single cause of action for damages to entirety property. Neither party has any separate interest. Their interests are one. Neither can maintain a separate suit to recover damages for injury thereto. In New York the interests of husband and wife in entirety property are those of tenants in common with the right of survivorship. It follows that in New York a husband and wife have separate causes of actions for injuries to real property. Mastrofrancisco v. Mohawk Gas Co., 201 App. Div. 586 (194 N. Y. Supp. 436); Goodrich v. Village of Otego, 216 N. Y. 112 (110 N. E. 162).
So in the instant case the plaintiffs have separate causes of action for property damages. But there is involved something more than damages to property. Mrs. Tuttle has a cause of action for personal injuries and Mr. Tuttle has a cause of action for loss of her services and for expenses. In Michigan, damages for injury to person and property as the result of a single tort give rise to but a single cause of action. In New York two causes of action arise, one for injuries to the person and one for injuries to property. Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40 (62 N. E. 772, 57 L. R. A. 176, 88 Am. St. Rep. 636).
The New York civil practice act (1 Bliss N. Y. Ann. Code, § 484) provides that these causes of action may be united in one suit, but the provisions of the civil practice act are procedural and do not govern the practice in Michigan. • The substantive law of New York gives the injured party two causes of action and that controls' in this case. We know of no rule of procedure in Michigan which makes it mandatory for a party to combine different causes of action in one suit. In this case the plaintiffs had a right to sue separately for their personal injuries and their injuries to property. In doing so they did not split their causes of action. Splitting a cause of action consists in dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. That was not done in this case. Under the laws of New York, where their interests are several, the-plaintiffs have a right to maintain both causes of action by independent suits in this State.
The judgment of dismissal of the joint suit is reversed, with costs to the plaintiffs.
The judgment in respect to the individual suits is affirmed.
Clark, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
Defendant Underhill was an insurance agent, appointed by plaintiff Spencer, general agent of the Security Mutual Life Insurance' Company. ’The other defendants are sureties on bonds given by Underhill to plaintiff and the company. The action is on the bonds. On trial before the court, plaintiff had judgment against Underhill for $2,168.67, admittedly owing. But the sureties had judgment of no cause of action. Plaintiff reviews the. latter judgment.
The bonds secure Underhill’s engagement to account for and pay to' plaintiff and the company all moneys belonging to them respectively, “including any advances or other indebtedness,” at time and in manner provided by the agency contract or as required by the company.
The agency contract provided that the company would loan and advance to Underhill -the sum of $40 per week—
“for expenses in soliciting insurance and performing such other services in connection therewith as are required by the terms of contract above mentioned. ’ ’
Plaintiff advanced Underhill various sums and also reimbursed the company for all loans it had made to him.
Plaintiff tried the case on the theory that the bonds covered all Underhill’s debts to plaintiff and the company. His proof consisted principally of a book account of Underhill’s debits and credits, without explanation of items except as to cash. Defendants contended the bonds secured only moneys of plaintiff or the company coming into the hands of Underhill and misappropriated by him. The court properly held against both contentions and that agency business liabilities, but not loans for personal purposes, were covered by the bonds. Utter v. Leach, 214 Mich. 31. It denied plaintiff judgment against the sureties for failure of proof that the items were of the protected character.
As to most of the items, there was no showing of their advance for agency business, or, as noted by the court, alternative proof of actual use of the money in the business. However, from the record before us we think the advances of $40 per week were established because they were made under the contract, in the course of office routine, sometimes by clerks, without special direction or understanding, and their misapplication by Underhill to personal use, if he misapplied them, did not change their character nor the liability of the sureties for them.
Nevertheless, plaintiff is not entitled to recover for all the $40 advances because the account shows contemporaneous credits to Underhill. On the other hand, there • are many debits other than such advances, so that, without explanations, the credits which should be applied to the advances cannot be identified and a definite balance reached. The record offers no opportunity to make final disposition of the case and it must be reversed, with new trial.
On new trial, the other questions raised doubtless will be met by definite testimony which will permit their fair consideration.
It is only just to the circuit court to say that perhaps we have not the same record which was before it. Defendants claim the record omits some of the testimony and have moved to dismiss the appeal or amend the record. In their briefs they set up questions and answers which they claim were omitted and which wpuld strongly support the findings of the court. Plaintiff elected to review on bill of exceptions, and defendants, although offered ample opportunity, failed to propose amendments, as required by the rules. Instead they adopted obstructive and unwarranted procedure. In their briefs they indulge in the improper practice of arguing from matters not in the record. Their motion is denied, with costs.
Judgment against Underhill will stand because, no appeal from it was taken. The judgment in favor of the sureties will be reversed, with new trial, and without costs to either party.
McDonald, C. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Clark, J.
In this action at law for damages for fraud in the sale of shares of stock, defendant had directed verdict and judgment thereon. Plaintiff has appealed. The following from plaintiff’s notice of appeal:
“Plaintiff did not introduce testimony proving the falsity of the alleged misrepresentations for the reason that defendant’s answer to paragraph 4 failed to specifically deny the falsity of said misrepresentations and further failed to set forth the substance of the matters relied upon to support said denial. Thus defendant failed to comply with Court Rule No. 23, § 2 (1931). The case should therefore have been submitted to the jury on the proofs as submitted and admissions as made.”
Paragraph four of the declaration averred:
“That all of said above-mentioned representations were false and known to be false by said defendant.”
The answer to paragraph four:
_ “Answering paragraph 4 of plaintiff’s declaration, that the defendant did not make the representations of fact therein charged, and, therefore, did not know they were false. ’ ’
And the answer is further replete with denials of the fraud and misrepresentations averred. Such answer could not be treated as an admission.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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Butzel, J.
Plaintiff, Ernest Sickels, claims compensation for an injury lie received on July 15,1927, while working in the wood-working department of defendant, the Packard Motor Car Company. A fragment of steel, loosened when a hammer contacted with a steel cutter, struck plaintiff in the right eye and caused him considerable pain. He immediately repaired to defendant’s hospital for treatment by the head nurse, who made a written record of the accident. She provided him with some medication to apply to the eye, and, with the assistance of his wife and fellow employees, he followed -the prescribed treatment during the succeeding 10 days, during which time he also visited the hospital three additional times. The company’s record shows that he was discharged, as cured, by the hospital 13 days after the accident. The injury, however, did not prevent his return to work on the day following the accident. He lost no time until 1932, when he was laid off owing to decreased production. No notice was given to the department of labor and industry, either of this accident or of two minor ones during the following four months, when minute foreign substances, which lodged in the same eye, were on both occasions removed without difficulty. Claimant was told by the head nurse on July 28, 1927, the date of his final treatment for the first injury, that the eye was in good condition, but that there was a small scar remaining, as evidence of the injury. He also noticed the scar, and claims that from that time on the vision in the right eye became increasingly defective. The existence of a well-advanced cataract was discovered by the plant physician in April, 1929, when claimant objected to the bandaging of his left eye, which had suffered a slight injury, on the ground that he could not see out of his right eye.
Claimant filed his petition for compensation three years later, alleging that the eye had become absolutely useless. The cataract is of such a nature that claimant cannot distinguish light from darkness. The medical testimony largely favors defendant’s claim that the loss of vision was not due to the injury. Were we a fact-finding body, guided by the testimony of experts, we might reach a different conclusion from that of the board, who awarded compensation to claimant. The testimony shows that cataracts may be due to senility, disease, or other causes, and that, as a rule, one resulting from a blow to the eye leaves vision sufficient to distinguish light from darkness. The fundus or back of plaintiff’s right eye gave signs of diseased condition. There was no trace of a scar or foreign substance in the eye, but the testimony indicated that this was not positive proof of the absence of an injury of sufficient severity to cause the development of a cataract.
An eye specialist of very high standing and long years of experience testified that the fact that claimant was 55 years of age at the time of the hearing, that the injury was not sufficient to incapacitate him from working the day following the accident, that the fundus of the eye showed a diseased condition, that there was no scar on or foreign substance in the eye, etc., demonstrated that the cataract was not due to the accident. Another expert, however, testified that, in his opinion, the accident was at least a contributing cause of the cataract. In view of this latter testimony and that of claimant, we cannot say that there was no competent evidence in support of the claim. On this account we must affirm the award, unless there are other errors. White v. Morgan & Wright, 217 Mich. 499; Hayes v. Boutell, 253 Mich. 628.
Defendant claims that it did not receive timely and proper notice of the accident. While it is true that claimant gave no formal notice of the accident until almost five years after it occurred, he did report the accident within 10 minutes of its occurrence, and due record was made at the company’s hospital. We believe that this was sufficient under the circumstances. See Shafer v. Parke, Davis & Co., 192 Mich. 577.
In claimant’s notice and application for compensation, he incorrectly stated that the accident occurred in 1929. At the hearing, with the consent of defendant, he was permitted to amend so as to substitute ‘ ‘ 1927 ’ ’ for ‘ ‘ 1929. ’ ’ Defendant was not misled by the mistake; it consented to the amendment, and may not now complain.
The award is affirmed, with costs to claimant.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, J., took no part in this decision. | [
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North, J.
Varying phases of this litigation appear in Miller v. City of Detroit, 244 Mich. 38; Miller v. City of Detroit, 250 Mich. 633; Blanchard v. City of Detroit, 253 Mich. 491; and Salisbury v. City of Detroit, 258 Mich. 235. In the decision last above noted we affirmed the order of the circuit judge transferring the suit from the equity to the law side of the court. A so-called amended declaration was filed, which recited that plaintiffs adopted their former' bill of complaint as their declaration with one additional paragraph by way of amendment, which recited:
“The several plaintiffs paid to defendant such illegal and void assessments on their respective lots in the amounts and on the date set forth in the schedule * * * referred to in the stipulation of facts heretofore filed, and severally claim judgment for the sums paid by each * * * together with interest thereon. ’ ’
Defendants filed an amended plea, in which it was asserted that all the payments were voluntarily made, not under protest; that plaintiffs were not entitled to the interest demanded on payments made; and further, defendants urge the defense of res judicata and the statute of limitations (3 Comp. Laws 1929, §13976). No objection is made to the trial of plaintiffs’ several claims in one suit at law. The parties entered into a stipulation of facts which contains the following:
“Tax receipts and records of the city of Detroit show that the parties plaintiff * * * paid, * * * as special assessments for the paving * * * the amounts set forth ánd as indicated upon Exhibit A attached to the answer filed in this cause.”
Upon trial before the court without a jury, defendants had judgment on the ground that the decision of the court in Miller v. City of Detroit, 250 Mich. 633, was res judicata of the respective claims of these plaintiffs, and further, “that the statute of limitations has run against the claims of the plaintiffs.” Plaintiffs have appealed.
The trial court was in error in holding that our former decision was res judicata. We there pointed out specifically several controlling controverted issues of fact, and because of such issues held that mandamus was not available to plaintiffs. In part our decision was bottomed on the proposition that mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts, and further, that:
“ ‘The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.’ State v. New Haven & Northampton Co., 45 Conn. 331, 343.” Miller v. City of Detroit, 250 Mich. 633, 636.
Our decision in the Miller Case is not res judicata of the issues here presented. This is rather clearly indicated by the action of this court in the former Salisbury appeal (258 Mich. 235), wherein an order transferring this cause from the equity to the law side of the court was affirmed. Transferring the Cause would have been an idle ceremony if it had already been previously adjudicated.
Are the alleged rights Of -pldiiitiffs barre'd by thé statute of limitations (3 Comp. Lawé 1929, § 1397b) 1 Appellees assert that “the statüté of limitations runs from the date of the assessment and not from the date of the payment, as contended by plaintiffs.” This contention cannot be sustained. These plaintiffs had no right of action against defendants to recover moneys paid to the municipality on void assessments until such payments were first made. It follows that the statute of limitations began to run on the date of payment, not before. As bearing upon' the question of plaintiffs’ cause of action being barred, see 3 Comp. Laws 1929, §§ 13976, 13982, and Backus v. Kirsch, ante, 73.
Judgment reversed, and a new trial granted. Costs to appellants.
McDonald,- C. J., and Clark, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
In Oyler v. Fenner, 253 Mich. 417, we affirmed a decree of the circuit court granting plaintiffs specific performance of an oral land contract, involving the premises in the suit at bar.
• This action at law was brought by the vendees in the mentioned oral land contract to recover damages for trespass, claimed to have been committed by defendants in turning cattle upon the premises, to the injury and destruction of peach, plum, and pear trees, grape vines, red raspberries, strawberries, black caps, currant bushes, shrubbery, flower beds, chestnut trees and seedlings, growing thereon. Defendants have appealed from a joint judgment against them for the sum of $705. In the circuit court defendants moved to dismiss on the grounds that the declaration did not state a joint cause of action in favor of plaintiffs, nor against the defendants, and did not fix the time of the alleged trespass. The motion was without merit.
The declaration alleged a trespass committed by the three defendants, stated the character thereof, fixed the year, and averred damages occasioned to both plaintiffs. If defendants desired more specific information the rules for obtaining the same should have been employed.
It is claimed that the damages awarded were excessive. The damages are within the range of testi mony and we do not feel called upon to make reassessment.
At the time of the trespass, plaintiffs were in possession of the premises under a partly-performed verbal contract to purchase, later validated by court decree. That plaintiffs were not living upon the premises the year of the trespass and that their title was in litigation became of no moment upon the mentioned validation but probably explains, to some extent, the invasion committed.
The three defendants turned the cattle upon the premises. The damages assessed by the court were occasioned by such cattle. Title to the premises was in litigation, and defendants evidently were of the opinion that plaintiffs had no rights they were hound to respect. Plaintiff Elizabeth Oyler is a sister of defendants.
Whether the cattle were owned by Charles Fenner alone was not of controlling moment upon the joint liability of William and George, for all three defendants joined in committing the trespass.
The judgment is affirmed, with costs to plaintiffs.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Sharpe, J.
The deceased, a resident of the city of Detroit, executed a last will and testament on July 20, 1932. In it she made certain bequests to three sisters and a niece and nephew living in Germany, and some other bequests, and left the residue of her estate to a niece named Paula Sistig Stevens, of Detroit. Philip Buchanan was named as executor thereof. She passed away on the following day.
On July 27th Buchanan filed a petition for the probate of the will. The estate was said to consist of about $7,500 in real estate and $25,000 in personalty. An order for the hearing thereof was duly made and publication had. On December 1st, Fritz Hailer, an attorney, acting under a claimed power of attorney executed in Germany by Eugenia Karlin, one of the heirs at law of deceased, appeared and filed objections to its allowance, and asked for* its certification to the circuit court. Such order was made and a bond filed by Hailer duly approved.
On April 20, 1933, the attorneys for the executor appeared in the court of Judge Merriam, who at that time had jurisdiction under the rules of that court in miscellaneous and ex parte matters, and filed what purported to be consents by all the heirs who were living in Germany to the probate of the will, and asked for its allowance. Judge Merriam suggested that the attorneys who had appeared for Eugenia Karlin should have notice of the petition. He adjourned the matter until the afternoon, when such attorneys appeared and objected to the hearing at that time.'
It appeared that a motion to dismiss the certification of the will was then pending before Judge Brennan, and, against the protest of the attorneys for the executor, Judge Merriam transferred the petition to him for hearing, and, when the matter came on before Judge Brennan, the attorneys for the executor declined to take part therein, announcing that they would appeal from the order so transferring it. This court allowed the appeal, and it is now before us for decision.
The local rule on which counsel rely reads as follows:
“5. Presiding judge in the miscellaneous division.
“(a) Exclusive authority; alternate.
“Ño judge other than the judge presiding in the miscellaneous division shall perform any duty or exercise any powers or authority imposed by these rules upon such judge, unless requested so to do by the presiding judge; provided, that each judge presiding in the miscellaneous division shall elect an alternate who shall perform the duties and exercise the powers of such judge when the latter is absent - or unavailable.
£ £ (b) Ex parte orders:
“Ex parte orders, excepting writs of habeas corpus, shall be issued only by the judge presiding in the miscellaneous division.”
It seems clear to us that there was no violation of this rule by Judge Merriam. When the attorneys for the foreign heir came into his court in the afternoon, it was then apparent that the petition would be contested and that the judge had no right to make an ex parte order admitting the will to probate. There-was no abuse of discretion on his part in assigning it for hearing to Judge Brennan, before whom a contested motion in the same suit was pending.
The conclusion reached renders it unnecessary to consider the motion of appellee to incorporate additional matter in the record on this appeal, and it is denied, without costs.
The appeal is dismissed, with costs to appellee.
McDonald, C. J., and Clark, Potter, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
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Clark, J.
From dismissal of judgment creditor’s bill plaintiff has appealed.
The facts will be implied from statement of the question which is: May a creditor of'the husband alone have right by appropriate process to seize rents and income of entireties property? The answer is “No,” on the authority of American State Trust Co. v. Rosenthal, 255 Mich. 157, in which earlier decisions are discussed.
The facts do not make a case where the husband has placed funds or property in an entireties estate in fraud of his creditors, so Morse v. Roach, 229 Mich. 538; Lemerise v. Robinson, 241 Mich. 528, and like cases are not in point.
Affirmed, with costs.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
Defendant Hopkins' invented a power-operated bumping tool for working sheet metal, and, September 6, 1930, under written agreement, defendants Newell, Warren, and Gray became interested with him in the production of the tool for commercial purposes and to operate under the name of Hopkins Pneumatic Power Company, as a joint venture or copartnership, with designated interests. In the agreement it was stated that Newell, Warren, and Cray should arrange for the payment of the necessary expenses and for whatever credit might be deemed advisable in connection with tools, machinery, and labor for getting out demonstrator’s tools for distributors and dealers, and for getting the tools into production, including the expense of putting the same on the market. The parties contemplated the formation of a corporation later if deemed advisable. No such corporation, however, was formed. September 19, 1930, defendants Cray and Warren, together with others, but not including defendants Hopkins and Newell, formed the J. F. Warren Sales Company, a Michigan corporation. January 6, 1931, Mr. Hopkins gave plaintiff company a purchase order for the making of 100 tools for “Hopkins Pneumatic Tool Company.” This order was on the stationery of the J. F. Warren Sales Company, “Hopkins Pneumatic Tool Division.” The tools were made by plaintiff and partly paid for by checks of the J. F. Warren Sales Company. This suit was brought against the defendants under their obligation as joint venturers or co-partners.
Defendants contend that the purchase order was that of the J. F. Warren Sales Company and that corporation is liable.
The issues were tried by the court and judgment rendered against defendants.
It was stipulated in the joint venture agreement that the ‘ ‘ parties will operate under the name of the Hopkins Pneumatic Tool Company, # * * and if the parties mutually decide to incorporate, that this agreement may be assigned by the parties to such corporation, but not otherwise, without the consent of the parties.” No such corporation was formed and we find no assignment by the parties to the J. F. Warren Sales Company.
In the purchase order given plaintiff by Mr. Hopkins it was stipulated that the tools, jigs, and fixtures were to be the property of the Hopkins Pneumatic Tool Company, and, in the joint-venture agreement it was provided that, “in the event of failure or dissolution of the company (Hopkins Pneumatic Tool Company), the first party (Mr. Hopkins),, shall have the entire ownership in such tools, jigs, and machinery as are on hand ■ at such time.”
Before making the tools, the president of plaintiff company made some investigation, and claims that he was assured by defendant Cray that the, J. F. Warren Sales Company was merely financing ' the venture. This was denied by Mr. Cray and brought a sharp issue of fact into the case.
The record has been read and brings us to agreement with the conclusion of the circuit judge. It would be of no benefit to enter upon a review of the evidence.
The judgment is affirmed, with costs to plaintiff.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Btjtzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Clark, J.
Plaintiff has appealed from judgment on verdict directed in an action for damages for fraud in the sale of securities.
The measure of damages in such case is the difference at time of sale in value of the securities as they were represented and as they were. On this matter plaintiff was put to proof and failed, the only evidence worthy of note being that some months later a receiver was appointed for the' corporation issuing the securities.-- This was insufficient to support an assessment of damages, as the trial court correctly held.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. | [
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North, J.
Defendant’s motion to quash the information filed against him was granted on the ground that the statute (1 Comp. Laws 1929, §§ 4693 to 4754 inclusive) under . which . defendant was charged is unconstitutional. The people’s appeal is from this holding. The pertinent portions of this statute, commonly known as the uniform motor vehicle act, read:
Title — “An act to regulate the operation of vehicles on highways; providing for traffic signs and signals; defining the power of local authorities to enact or enforce ordinances, rules or regulations in regard to matters embraced within the provisions of this act; providing for the enforcement of this act and for penalties for violations thereof; to make uniform the law relating to the subject matter of this act and to repeal certain acts and sections of acts.
“Sec. 30. Duty to stop and report in event of accident.
“(a) The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section fifty-six of. this act.
“(b) The driver of any vehicle involved in an accident resulting in damage to property shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section fifty-three-a of this act.
“(c) The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to property shall also give his name, address, and the registration number of his vehicle, also the name and address of the owner, and exhibit his operator’s or chauffeur’s license to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person.
“(d) The driver of every motor vehicle involved in an accident resulting in a vehicle or vehicles becoming so disabled as to be incapable of being propelled in the usual manner, or resulting in personal injury or death of any person shall report such accident to the nearest or most convenient police station or police officer within forty-eight hours after such accident. The officer receiving such report shall forthwith forward the same to the commissioner of public safety on forms to be prescribed by him. Such report shall not be available for use in any court action, but it shall be for the purpose of furnishing statistical information as to the number and cause of accidents.” (1 Comp. Laws 1929, § 4722.)
“Seo. 53. Penalties for Misdemeanors.
“(a) It shall be unlawful and constitute a misdemeanor for any person to violate any of the provisions of this act unless such violation is by this act or other law of this State declared to be a felony.
“(b) Every person convicted of a misdemeanor for a violation of any of the provisions of this act for which another penalty is not provided shall for a conviction thereof within one year be punished by a fine of not more than one' hundred dollars or by imprisonment in the county or municipal jail for not more than ten days; * * * (the section also includes the penalty for second and third or subsequent convictions).” (1 Comp. Laws 1929, § 4745.)
Section 54 provides the penalty for driving while under the influence of intoxicating liquor or narcotics.
Section 55 provides the penalty for reckless driving.
“Seo. 56. Penalty for failure to stop in event of accident involving injury or death to a person.
“Every person convicted of knowingly or wilfully violating section thirty of this act relative to the duty to stop in the event of certain accidents shall be punished by imprisonment in the county or municipal jail for not less than thirty days nor more than one year, or in the State prison for not less than one nor more than five years, or by fine of not less than one hundred dollars nor more than five thousand dollars or by both such fine and imprisonment. The secretary of State shall have the power to suspend the operator’s or chauffeur’s license of the person so convicted for as long a period as he sees fit.” (1 Comp. Laws 1929, § 4748.)
Defendant asserts unconstitutionality:
(1) Because the act embraces more than one object, and subdivisions (c) and (d) of section 30 of said act embrace subjects not included in the title.
(2) Because section 30 is so “vague, indefinite, uncertain and ambiguous” that it takes liberty and property without due process of law. This objection is also made to sections 53 and 56 when read by themselves or in connection with section 30. And further because section 30 compels all persons without regard to their culpability to perform the things enumerated therein, it takes liberty and property without due process of law.
(3) Because the act by the uncertainty of its language delegates to the court and jury legislative power to create or define the offense charged, con-' trary to article 5, § 1, of Michigan’s Constitution, which provides that the legislative power of the State of Michigan is vested in the senate and house of representatives.
(4) Also because subdivisions (c) and (d) of section 30 compel the accused-person to perform acts and give information that may compel him to be a witness against himself in a criminal case contrary to article 2, § 16, of Michigan’s Constitution, which reads: “No person shall be compelled in any criminal case to be a witness against himself.”
1. The insufficiency of the title is not stressed in defendant’s brief, except the contention is made that subdivisions (c) and (d) of section 30 “require something to be done by the accused after the operation of the motor vehicle has ceased.” This has reference to the requirement that the driver of a motor vehicle involved in an accident shall give certain specified information, render assistance in certain cases, and make report of the accident. Decision in the trial court was not based upon this contention and we think it is not well-founded. It is self-evident that the subdivisions (c) and (d) of section 30 are germane to the general purpose of this act, which is “to regulate the operation of vehicles' on the highways,” etc. It is well within the purport of the title of the act to include provisions governing the conduct of parties incident to highway accidents.
2. In support of his contention that section 30 should be held invalid because it is so vague, indefinite, uncertain, and ambiguous as to result in depriving one of his liberty and property without due process of law, defendant stresses a lack of certainty in the meaning of the following words or expressions as used in this statute: “Accident;” “involved in an accident;” “immediate stop;” “re- suiting in injury or death to any person or damage to property;” “reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary;” and “involved in an accident resulting in a vehicle or vehicles becoming so disabled as to be incapable of being propelled in the usual manner.” A contention so similar in character as to be controlling here was made in behalf of the defendant in People v. McMurchy, 249 Mich. 147. Justice Btttzel, writing for the court, quoted (p. 176) with approval the following from Connally v. General Construction Co., 269 U. S. 385 (46 Sup. Ct. 126):
“The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is noj; easy of statement. But it will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, Hygrade Provision Co. v. Sherman, 266 U. S. 497, 502 (45 Sup. Ct. 141); Omaechevarria v. Idaho, 246 U. S. 343, 348 (38 Sup. Ct. 323), or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, Nash v. United States, 229 U. S. 373, 376 (33 Sup. Ct. 780); International Harvester Co. v. Kentucky, 234 U. S. 216, 223 (34 Sup. Ct. 853), or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U. S. 81, 92 (41 Sup. Ct. 298, 14 A. L. R. 1045), ‘that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.’ ”
Justice Butzel added (p. 178):
“As pointed out in the opinion upholding the constitutionality of the law in the Maki Case (245 Mich. 455), there are many crimes on our statute books which must be defined by the use of words of a general and flexible meaning, and the existence or nonexistence of the essential elements of these crimes becomes a question of fact to be determined in each case. It is not possible to use any but general terms for describing the following statutory crimes: wilful, deliberate and premeditated killing; committing an assault with a deadly weapon. * * * It is necessary to apply the rule of reason or common understanding to many statutes in order to carry out their purpose.”
It would be little short of judicial nonsense to hold that the State in defining offenses must use such simple or exact terms that they cannot possibly be misunderstood or distorted into uncertainty. If the language used conveys the intended meaning with reasonable certainty it is sufficient. Terms held to be sufficiently definite, clear, and explicit to meet the requirements of important business contracts and to be the medium of vesting property rights are not less sufficient when used in defining unlawful acts.
There is no occasion for departure from the well-established law that penal statutes must be expressed in clear and definite terms.
“In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the legislature intended to prohibit and punish, otherwise it will be void for uncertainty. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.” 16 C. J. pp. 67, 68.
“And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Construction Co., supra, 391.
But in connection with the context and subject-matter of this statute, the expressions above quoted in the instant case have such a fixed and well-understood meaning as not to render section 30 of the act invalid, notwithstanding determination of the exact meaning of some of these words or phrases may require the exercise of judgment. In Cline v. Frink Dairy Co., 274 U. S. 445 (47 Sup. Ct. 681), Chief Justice Taft, quoting with approval from Nash v. United States, 229 U. S. 373 (33 Sup. Ct. 780), said:
“The law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.”
See, also, People v. Dow, 155 Mich. 115.
Defendant also asserts there is such uncertainty in the penal provisions of the act as renders it invalid. In this case the people evidently intended to charge defendant under subdivision (a) of section 30 with leaving the scene of an automobile accident which resulted in personal injury to another. If found guilty of this charge he would be sentenced under the provisions of section 56. If properly informed against there would be no uncertainty as to the act with which defendant is charged or the statutory penalty. If there is uncertainty in the instant case, it is due to a faulty information which adds to the above-noted Offense the further charge in the same count that the defendant “did fail and neglect to give his name, address,” etc. Clearly this latter portion of the information charges violation of subdivision (c) of section 30, which is punishable as a misdemeanor under subdivision (b), section 53. While no question is raised as to the impropriety of charging defendant with two separate offenses in the same count, one a felony and the other a misdemeanor, we point it out as a source of uncertainty as to the possible penalty. People v. Marks, 255 Mich. 271; People v. Lahey, 256 Mich. 250. Obviously successful attack on the validity of this statute cannot be based on faulty pleadings. We do not find the statute invalid by reason of its being “vague, indefinite, uncertain or ambiguous,” either in its provisions wherein the criminal acts are defined or in those wherein the penalties are specified. The legislature has fixed the conduct which is penalized, specified the penalty; and no unusual difficulty is apparent in the administration of the law by the courts. As to the application of the various penal clauses of this uniform motor vehicle act, see State v. Hanno, 58 S. D. —, (238 N. W. 23). If, however, the circumstances of a particular prosecution under this statute should develop uncertainty as to which penal clause was applicable, the accused would be entitled to have the lesser of the two penalties administered. People v. Lockhart, 242 Mich. 491.
Appellee’s brief points out that the “act itself does not use the words, ‘knowingly’ or ‘wilfully’ or words of similar import” incident to penalizing one
who leaves the scene of an accident without complying with the statutory provisions. The observation is not applicable to failure to stop in the event of an accident involving injury or death' to a person which is specifically made punishable under section 56, because the latter section provides ‘ ‘ every person convicted of knowingly or wilfully violating section thirty * * * shall be punished,” etc. There are many other offenses embodied in the act, such as driving without proper lights, exceeding the speed limit, failure to give the information specified in section 30 before leaving the scene of the accident, etc. Of such statutory offenses we have said:
“When a statute does not make intent an element of the offense, but commands an act to be done or omitted which, in the absence of the statute, might have been done or omitted without culpability, ignorance of the fact, or state of things contemplated by the statute, will not excuse its violation.” (Syllabus) People v. Welch, 71 Mich. 548 (1 L. R. A. 385).
In People v. Roby, 52 Mich. 577 (50 Am. Rep. 270), Chief Justice Cooley said:
“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule * * * Many statutes which are in the nature of police regulations * * * impose criminal penalties irrespective of any intent to violate them. ’ ’
In People v. Snowberger (syllabus), 113 Mich. 86 (67 Am. St. Rep. 449), we said:
“It is competent for the legislature, under the police power, to provide for the protection of the public health by making it an offense punishable by fine and imprisonment to sell adulterated food or drink, irrespective of the seller’s knowledge of the adulteration. ’ ’
To the same effect see People v. Sybisloo, 216 Mich. 1 (19 A. L. R. 133), and People v. Cramer, 247 Mich. 127.
As noted above, this statute, in part at least, is a police regulation. The fact that it provides punishment for certain specified acts without including the element of intent or knowledge does not render the act unconstitutional.
The point is urged by defendant that one who without culpability is involved in an automobile accident by being required to render assistance to those injured is deprived of liberty and property without due process of law. While not controlling, it is worthy of note that such provisions are common to motor vehicle acts of many States, and such have been in the statute of .this State almost from its earliest enactment. See section 18, Act No. 196, Pub. Acts 1905. One who enjoys the rights and benefits afforded by organized society must expect to make his contribution thereto. Due to human imperfections, it is not always possible to exactly equalize or proportion between members of society the contribution required of them respectively or to provide a specific quid pro quo. A property owner must pay school taxes though he may not have a child or other relative attending a public school. A private citizen may be required without compensation to aid the sheriff in serving process or preserving the peace (3 Comp. Laws 1929, §§ 13696 and 16578). In so doing, the citizen is deprived of his time and subjected to unusual risk without compensation; but that, as in the other like cases, is his contribution to society, for which he with others receives and enjoys the protection of person and property afforded by organized government. So, under this section of the statute, in case of accident, A is required to act the part of a Good Samaritan to B, and A’s compensation is his right as a member of organized society to expect and demand in case of his injury like assistance from others. In final analysis, it is a humanitarian police regulation and is nonetheless valid as such notwithstanding it may require the time or property of one who finds himself within the provisions of the law.
“That attribute of sovereignty known as ‘police power,’ though difficult of definition, includes the power of legislation deemed essential for protection of the public peace, good order, morals, safety, and health.” Locke v. Ionia Circuit Judge, 184 Mich. 535.
“Statutes enacted by the legislature in the exercise of the police power, for the promotion or preservation of the public safety, health or morals, may sometimes impinge upon the liberty of individuals by restricting their use of their property, or abridging their freedom in the conduct of their business.” Black’s Interpretation of the Law, §115.
It is settled in this State that use of automobiles on public highways is subject to regulation under the police power. Stapleton v. Independent Brewing Co., 198 Mich. 170 (L. R. A. 1918A, 916); Bowerman v. Sheehan, 242 Mich. 95 (61 A. L. R. 859). And under the police power, if public welfare or public safety requires regulation of the use of such property, the otherwise private right of unrestricted use must yield to the public exigency. People v. Smith, 108 Mich. 527 (32 L. R. A. 853, 62 Am. St. Rep. 715). Further, in passing upon the validity of the provisions of this uniform motor vehicle act, it must not only be viewed as a police regulation, but also as an enactment under which one is granted the privilege or license of operating a motor vehicle upon the public highways. By constitutional provisions, the control of highways is vested in the State and its municipal subdivisions. Michigan Constitution, art. 8, §§ 26-28.
In accepting the license from the State, one must also accept all reasonable conditions imposed by the State in granting the license. The State has seen fit to impose as such conditions the various provisions embodied in section 30. These provisions are not only humanitarian, but obviously contribute to the mutual welfare and safety of all users of the highways. If these conditions prescribed in the statute impose something of a burden upon certain persons under certain conditions, the bearing of such burden is not unlike that required of other licensees. It is elementary law, where special privileges are granted by the State, special duties in connection therewith may be exacted without providing compensation therefor. For example, a doctor licensed to practice medicine is required by statute to prepare and file without compensation birth certificates containing certain information which the licensed physician must secure. People v. Cramer, supra. So, under the motor vehicle act, the licensed autoist may be required to report an accident without compensation and to give of his time and make use of his property in rendering apparent necessary assistance in the specified cases of automobile accidents. And these conditions may be lawfully imposed on the autoist as a licensee regardless of whether he is chargeable with responsibility for the accident in which he is involved. The right to impose the condition is not based upon culpability, but instead it is incident to his status as a licensee.
3. The foregoing sufficiently embodies our reasons for holding against defendant’s contention that the act, by the uncertainty of its language, delegates to the- court and jury legislative power to create or define the offense charged, contrary to article 5, § 1, of Michigan’s Constitution, which provides that the legislative power of the State of Michigan is vested in the senate and house of representatives.
4. Does the statute (subdivisions [c] and [d] of section 30) compel one to be a witness against himself and therefore violate the Constitution, art. 2, § 16? "We think not. Subdivision (c) does not require one to reveal any fact or circumstance that is incriminating in any way. If one were testifying as a witness he certainly could not decline to answer or give such information as is required in this section on the ground that it was incriminating, because it is not. So far as the owner of the automobile is concerned, reference to the record obtainable from the license plates which he must carry on his machine would give the same information as required by section (c). "We know of no decision that goes so far as to challenge the validity of a statute requiring display of license plates as a means of identification. People v. Schneider, 139 Mich. 673 (69 L. R. A. 345, 5 Ann. Cas. 790). Subdivision (d), which requires report of an accident, expressly provides: “Such report shall not be available for use in any court action.” Clearly this provision saves subdivision (d) from the objection urged. Neither subdivision (c) nor (d) of section 30 impinges upon the constitutional inhibition of compelling one charged with an offense to be a witness against himself. Similar provisions have been sustained in various jurisdictions. See Woods v. State, 15 Ala. App. 251 (73 South. 129); People v. Rosenheimer, 209 N. Y. 115 (102 N. E. 530, 46 L. R. A. [N. S.] 977, Ann. Cas. 1915A, 161); Ex Parte Kneedler, 243 Mo. 632 (147 S. W. 983, 40 L. R. A. [N. S.] 622, Ann. Cas. 1913C, 923); State v. Masters, 106 W. Va. 46 (144 S. E. 718). For numerous other cases see note 42 C. J. p. 1384.
As against the objections urged, we are of the opinion that the act in question is valid. Defendant’s motion to quash should have been denied.
The case is remanded to the circuit court, with direction to vacate the order quashing the information and discharging the defendant from custody, and to proceed with the prosecution and final disposition of the charge made against defendant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Ford Motor Company sued John M. Blair, doing business as Blair Construction Company, to cancel construction contracts and for an accounting. Blair answered, and by cross-bill claimed substantial damages. The parties arbitrated the dispute between them, and an award was made that Ford Motor Company owed Blair $437,294.77. The award provided Ford Motor Company should not be obligated to pay Blair until he had caused to be discharged certain mechanics’ liens filed against the Ford Motor Company by Blair’s creditors, and had satisfied the claims of other creditors who had sued Blair and garnisheed Ford Motor Company. The National Bank of Commerce petitioned to intervene, claiming an assignment of all moneys due Blair from Ford Motor Company to secure the repayment to it of $95,984.68 and interest, which Blair owed it. Leave to intervene was granted. Edward N. Barnard obtained an order directed to Ford Motor Company, Blair, and National Bank of Commerce, to show cause why the court should not decree Blair owed Barnard $218,647.38, and that Barnard had a lien on the money owed by the Ford Motor Company to Blair, being the $437,294.77 above mentioned, for attorneys ’ fees, compensation, and services rendered pursuant to a contract between Blair and Barnard. Appellants ask leave, as judgment creditors of Blair, who had garnisheed Ford Motor Company, to intervene. From an order denying appellants’ right to intervene, they appeal. Ford Motor Company, as appellee, says it is a mere stakeholder, ready and willing to distribute the fund to those to whom it legally belongs, asking only that it be permitted to pay in accordance with the order and decree of a court of competent jurisdiction and be discharged from further liability. When it pays, the Ford Motor Company is entitled to be protected. Phases of this litigation were before the court in Ford Motor Co. v. Wayne Circuit Judge, 247 Mich. 538; McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305 (77 A. L. R. 807); R. C. Mahon Co. v. Ford Motor Co., 256 Mich. 255. Plaintiff filed a bill in the nature of a bill of interpleader, asking to be relieved of the liens filed, by creditors of Blair, confirmation of the award of the arbitrators, and to bring all claimants to the fund before the court. Its right to do so was denied in Ford Motor Co. v. Wayne Circuit Judge, supra, on the authority of Lanning v. Stiles, 176 Mich. 275, where it is said:
“To entitle a complainant to file a bill of inter-pleader the following essential facts must appear: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded; (2) all adverse claims or titles must be dependent or derived from a common source; (3) the complainant must not have nor claim any interest in the subject-matter; (4) complainant must have incurred no independent liability to either of the claimants. 1 Pomeroy’s Equitable Remedies, § 43 et seq.; 23 Cyc. pp. 7, 11, and cases cited in notes.”
In that case it was pointed out that the lienors were not parties to the arbitration proceeding, which did not conclude them; they might assert liability beyond the fund arising from the award made; all adverse claims did not arise from a common source ; and separate hearings might be required on separate bills to enforce distinct liens which were not in all cases on the same structures. The question of the right to file a bill of interpleader or a bill in the nature of a bill of interpleader is not here. Appellants seek only to intervene in this proceeding; to oppose the liens asserted by National Bank of Commerce and Mr. Barnard. The right to intervene is based on 3 Comp. Laws 1929, § 14019. Such right did not exist at common law. Stratford Arms Hotel Co. v. General Casualty & Surety Co., 249 Mich. 518. When granted by statute such statute was declared to be' remedial in its nature and to be liberally construed. Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1929, § 13522 et seq.); McMillan v. School District, 200 Mich. 280; Detroit & Northwestern Mich. B. & L. Ass’n v. Oram, 200 Mich. 485.
In this case the Ford Motor Company is not interested in who obtains the money awarded by arbitration. It is willing to pay to whomsoever the court legally determines such money should be paid. It is a mere stakeholder. Whether the National Bank of Commerce, Mr. Barnard, or appellants receive the money is of no interest to it. Blair, the prin cipal defendant, is not interested. He owes his creditors on the Ford Motor Co'mpany job more than the amount of the award of the arbitrators. So long as the amount of the award is applied to reduce his indebtedness to his creditors he is indifferent which creditors receive payment, and as to the order of their payment if he can pay and expects to pay; and he is equally indifferent if he cannot pay and does not expect to pay his creditors. National Bank of Commerce and Mr. Barnard claim liens upon the fund arising from the award of the arbitrators. If these liens are allowed and are paid, the amount available to pay appellants will be reduced. Appellants, within the rule of Chandler v. Preston, 207 Mich. 244, have such an interest in this proceeding and in the fund in question as to be entitled to intervene. The decree of the trial court is reversed, with costs, and leave to appellants to intervene granted.
Clark, C. J., and McDonald, Sharpe, North, Fead, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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Wiest, J.
In this jurisdiction a receiver may not be sued without leave of the court of which he is a ministerial officer. In re Guaranty Indemnity Co., 256 Mich. 671. Plaintiff herein, in the court of common pleas, without leave, replevined oil containers in the possession of the receiver for the Motor Oil Corporation, and upon trial the receiver waived return of the property and took judgment for the value thereof. Plaintiff appealed to the circuit court. The appeal was dismissed, and the receiver brought suit against the surety on the appeal bond, obtained judgment, issued execution, and filed a bill in aid of execution.
Plaintiff stored the containers on the premises of a friend, and the friend, without leave to do so, turned the same over to defendant herein upon his debt to that corporation. Plaintiff then brought this suit to recover damages for conversion by defendant, and, upon trial by jury, had verdict, and this is an appeal from a judgment entered in favor of defendant notwithstanding the verdict.
To establish his right to the oil containers, plaintiff relied upon the judgment against him in the re-plevin suit for their value. The trial judge held that judgment a nullity for' want of leave to sue the receiver.
Was the judgment in favor of the receiver in the replevin suit void? The judgment in the replevin suit was neither void nor voidable. If it appeared that plaintiff therein had no right to sue out the writ, but by the writ property had been taken and, delivered to plaintiff, the court, by virtue of the replevin statute (3 Comp. Laws 1929, §§ 16148, 14844), had power to order return of the property or enter, at the receiver’s election, judgment in his favor for its value.
As said in Forbes v. Washtenaw Circuit Judge, 23 Mich. 497:
“The property having be.en taken under the writ, the court, whose process was used, must have power to redress the mischief, and could order a return. But the statute allows the defendant, if he chooses, to take judgment for its value. ’ ’
Upon dismissal of the writ of replevin and waiver of return of the property, it was the duty of the justice to enter judgment in favor of defendant therein for its value, if so requested. People, ex rel. La Barr, v. Osborn, 38 Mich. 313.
In Humphrey v. Bayn, 45 Mich. 565, the writ of replevin was quashed, yet right to have return or judgment for value remained.
In Johnson v. Dick, 69 Mich. 108, due service of the writ was not made, and the suit was dismissed, but this did not end power to enter judgment for the value of the property taken.
It was the duty of the receiver to take judgment, either for return of the property seized or for its value. Plaintiff needed leave in order to bring replevin, but the receiver needed no leave to take judgment against plaintiff. The judgment in the replevin suit for the value of the containers vested rights of the receiver thereto in plaintiff, and, as defendant herein came into possession of the containers without right, the judgment in the circuit court is reversed, with costs to plaintiff, and the case remanded to the circuit court to enter judgment for plaintiff in accord with the verdict of the jury.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Butzel, J.
Michael Leonard, plaintiff, a Grand Rapids representative of a large insurance company, also solicited business through the Detroit office of the company. On October 2, 1929, while in Detroit, he called upon Abraham Ghysels, a former resident of Grand Rapids who had moved to Detroit and was employed by the brokerage firm of Don M. Woodruff & Company, defendants herein. During the previous four years, Leonard had been purchasing stock, sometimes for cash and occasionally on margin, from a number of brokerage houses. On his visit to Ghysels ’ office, his interest was aroused in Grand Rapids Savings Bank stock, which had been rapidly and continuously advancing in price, and the market in which was very active. Ghysels told Leonard that he purchased stock in the Grand Rapids Savings Bank for his wife because of the report that the bank would be merged with the Union Commerce Group of Detroit. Rumors of large bank mergers were rampant and there was much speculation in bank stocks at the time. The following day plaintiff gave defendants, through Ghysels, a firm order to purchase 10 shares of the stock at the market, which he was informed was around $1,225 per share. Defendants executed the order, together with another one for a like number of shares, by purchasing 20 shares from E. H. Collins & .Sons, brokers, for $1,215 per share, and charged plaintiff such cost plus $10 a share for commission, thus making the total price $12,250. There appears to be no dispute over the reasonableness of the commission charged. Under the proposed plan of merger, 5 shares of Union Commerce Group stock were to be exchanged for each share of Grand Rapids Savings Bank stock. Testimony shows that defendants had additional stock on hand, some of it being held for the account of Mrs. Ghysels, but they had at all times a sufficient number of shares, either in the form of stock or interim depositary receipts, for the exchange of the Guardian Union stock, as hereinafter stated, to enable them to make deliveries to all customers who had purchased the stock.
Plaintiff' paid $3,000 on the purchase price, and deposited as additional collateral 20 shares of Peoples Wayne County Bank stock, and, subsequently, 100 shares of Winters & Crampton Class “A” stock. ' The proposed merger of the Grand Rapids Savings Bank with the Union Commerce Group did not materialize, but a merger with the Union Guardian Group was thereafter planned, the latter company being a large holding company into which the Union Commerce Group was also merged. The new merger proposed had proceeded so far that on November 15, 1929, 7,469 out of the 7,500 shares of Grand Rapids Savings Bank had been deposited with the Guardian Trust Company as depositary, so that - they might be exchanged for stock of Guardian Detroit Union Group, Inc., if certain conditions were met. In that event 5 shares of Guardian Detroit Union Group, Inc., stock were to be issued for each share of Grand Rapids Savings Bank stock. The exchange was to be made on or before December 1, 1929, but the time was later extended to February 1, 1930. Defendants deposited all of the stock held by them, including the 10 shares purchased for plaintiff, and received depositary receipts of the Guardian Trust Company. The record indicates that plaintiff contemplated and desired the stock he bought to be exchanged. On October 11, 1929, he wrote defendants that “if the market on Union Commerce stock improves, I would like to protect myself. Perhaps this will be possible in a day or two some place over 250.” There is no showing, however, that he either directly gave or withheld his consent to the depositing of his shares for exchange into stock of the Guardian Detroit Union Group, Inc.; on the other hand, there is every indication that defendants acted in the best of faith in trying to look after plaintiff’s interests and they together with the holders of over 99% per cent, of the Grand Rapids Savings Bank deposited the stock for exchange if certain conditions were met. While negotiations for the exchange were pending, the first stock market crash of 1929 occurred, with a large decline in prices of stock.
On December 13,, 1929, plaintiff went to the American National Bank of Grand Rapids, with whom he claims he made arrangements for a loan, and asked it to send defendants a letter, a copy of which plaintiff had prepared and left with the bank. In this letter which the bank sent, it requested defendants to send a draft on plaintiff for the balance due and attach to the draft the 10 shares of Grand Rapids Savings Bank stock and the other stock deposited by plaintiff to protect his margin account. It further stated that the payment of the draft was conditional on defendants’ waiver of all claims .against plaintiff on account of purchases for his-account of some other stock not involved in the present suit, and claimed to have been bought without plaintiff’s authority. It further qualified the letter by stating:
“If drawn for the proper amount and accompanied by the proper certificates for the stocks in question, we have no doubt the draft will be honored.”
Upon the arrival of the draft, plaintiff went to the bank, examined the accompanying certificates, and, the same day, brought suit against defendants for the $3,000 and interest and the value of the collateral deposited with defendants, and at the same time garnisheed the American National Bank of Grand Rapids. Ghysels phoned Leonard the following day, and told him he had been assured by the Grand Rapids Savings Bank that Leonard could exchange the depositary receipt for Grand Rapids Savings Bank stock, but Leonard refused to give him any satisfaction. Another witness also testified that a day or two later he offered on behalf of defendants to give plaintiff Grand Rapids Savings Bank stock, and plaintiff statéd he had no interest in the matter. Plaintiff denies this conversation.
Defendants ask us to infer from the nature and sequence of events that the demand for the forwarding of the draft and securities was solely for the purpose of enabling plaintiff to bring suit and garnishment proceedings. There is no direct evidence to substantiate this claim. We do hold, however, that there was no unqualified tender of payment. The letter of the bank to defendants contained certain conditions, and only stated that it was the belief of the bank that plaintiff would pay the draft. A tender, to be effective, must be without qualification or condition. Zells v. Stockwell, 171 Mich. 268, 270; Noyes v. Wyckoff, 114 N. Y. 204 (21 N. E. 158); United States v. World’s Columbian Exposition, 56 Fed. 630; Irvin v. Gregory, 13 Gray (79 Mass.), 215. The tender was insufficient.
Plaintiff claims that defendants had no right to exchange the stock for Guardian Detroit Union Group, Inc., a Michigan corporation, even if there was authority to exchange it for Union Commerce Group, a Delaware corporation, and the attempt to exchange it without plaintiff’s consent amounted to convér sion, whereby defendants became liable. The trial judge rendered a judgment in favor of defendants against plaintiff for the balance due them, and gave them a lien on the stock held by them as security.
A number of questions are raised on appeal. They have been answered in the foregoing statement of facts, with the exception of the question of whether defendants became liable to plaintiff upon depositing the 10 shares of stock for exchange into 50 shares of Guardian Union Group, Inc., stock. No valid tender on the part of plaintiff has been shown. Defendants may have been at fault, even though they acted in good faith, in depositing the stock conditionally for exchange. They did this at their own risk. Had a valid tender of payment been made and an interim receipt been offered him, or had the stock been exchanged without plaintiff’s consentía different question would arise. The exchange, however, did not take place, and at the time of trial defendants had on hand the 10 shares of stock or its equivalent representing plaintiff’s purchase. See Eastman v. Kendall, 256 Mich. 215.
The judgment in favor of defendants is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Btjtzel, J.
Defendants Lester Briggs and Max Koch operated a public bathing beach near Detroit, Michigan. On July 28, 1927, plaintiff George H. Gray paid for a ticket which entitled him to a locker and to the use of defendants’ beach. The water near the beach was shallow, and defendants maintained a pier extending out into Lake St. Clair about 1,400 feet, at the end of which a springboard had been placed. Plaintiff’s claims are as follows: After donning his bathing suit, he ran out to the end of the pier. He was not warned by signs, or otherwise, as to the depth of the water below the end of the springboard, and he made no investigation as to the depth. He saw other people diving into the water and assumed that it was of a sufficient depth so as to permit of safe diving. After waiting his turn, he took two or three quick steps out to the end of the springboard, jumped heavily on to the end of the springboard, and did what is known as the jack-knife dive into the water. This dive is not an unusual one, hut does require deeper water than other kinds of dives. On the first dive, he struck his head against the ground below the water. He was taken out of the water unconscious and removed to the Ford Hospital, where it was found that two or three vertebrae in the neck had been fractured. He suffered intense pain in the hospital. He was laid* on a Bradford frame with the pulley around his neck so as to stretch it and he was in a cast for a considerable period of time. Defendants claim that there were signs placed along the pier indicating the depth of the water, which ranged from 4 to 4% feet at the end of the pier; that a hole had been dug under the springboard so that the water there was approximately 5% feet in depth; that there was a sign on or near the spring-hoard indicating the depth of the water; that plaintiff had already dived several times, and that a life guard had cautioned him in regard to the manner in which he dived into the water. As a result of the accident, plaintiff was at first paralyzed, liad no use of the left arm and left leg, and could not move the fingers of Ms left hand. It was not until a year and a half after the accident that he was able to resume work. He then was able to work about one-half of the time. At the time of the trial, the left foot was in a slightly dropped position and he dragged the toes while walking; the left hand was crippled so that he was unable to open the fingers, and the right side was numb. Plaintiff’s condition was described by one of the medical experts as being similar to that of one who had suffered from infantile paralysis. The jury rendered a verdict in plaintiff’s favor for $12,250. Numerous errors are assigned on appeal.
Defendants contend that it was contributory negligence as a matter of law for plaintiff to dive in the manner indicated without knowing or making any effort to ascertain the depth of the water. The trial judge reviewed the testimony, and properly instructed the jury that unless they found that plaintiff had been warned by numerous signs and by the life guard, as asserted by defendants and denied by plaintiff, the latter had a right to assume that it was safe for him to use the diving board in the usual and customary manner. Turlington v. Tampa Electric Co., 62 Fla. 398 (56 South. 696, 38 L. R. A. [N. S.] 72, Ann. Cas. 1913D, 1213); Johnson v. Hot Springs Land & Improvement Co., 76 Ore. 333 (148 Pac. 1137, L. R. A. 1915F, 689); Bass v. Reitdorf, 25 Ind. App. 650 (58 N. E. 95).
Further error is charged because the jury was permitted to determine the reasonable and suitable depth of water over which to erect a springboard, it being claimed that there was no evidence as to what constitutes a reasonably safe and suitable depth. The testimony on behalf of plaintiff showed that the water was 3% feet to 4 feet in depth at the place where he dove, and that the usual depth of the water under diving boards, both at beaches and pools at the Y. M. C. A., public schools, etc., is from 6 to 8 feet. This was sufficient testimony to warrant the submission of the question to the jury.
Defendants requested the court to charge the jury as follows:
“You are instructed that it is the duty of the plaintiff to mitigate his damages as much as possible, and that in considering the question of permanent injuries you must consider the medical testimony to the effect that a minor operation upon the ankle will probably restore to the plaintiff complete use of the anide and remove the present disability. You therefore are instructed that you cannot consider the condition of the ankle as it is at present as constituting a permanent injury. In considering the injury to the wrist you must also consider the possibility of an improvement in it by reason of medical attention. Outside of the wrist no other permanent injury may be considered.”
The court gave the instruction in the following modified form:
“Now,, there has been some testimony in this case with reference to an operation or operations which may relieve the condition of the plaintiff in this case. You are instructed that it is the duty of the plaintiff to mitigate his damages as much as possible, and that in considering the question of permanent injuries, you must consider the medical testimony which has been introduced in this case as to the effect of an operation upon the ankle and the probable result of such an operation. And, likewise, in considering the question of damages, and this duty of the plaintiff to mitigate his damages, you are also to consider the probable effect of an operation upon his hand or wrist, and probable effect of that operation. You cannot, at this time, consider these conditions as permanent injuries without considering also the effect of a possible operation, and the fact that it is the duty of 'the plaintiff to mitigate the damages in this respect.”
There was testimony to show that the use of the ankle could probably be restored by an operation consisting of transplantation of tendons at an expense of $250 to $500, and requiring hospitalization for several weeks. Both medical experts of plaintiff and defendants agreed upon the advisability of the operation. Plaintiff’s medical expert said that the spastic condition of the left ankle causing the toes to drag “will remain more or less constantly permanent.’.’ The medical experts of both parties agree that the operation would not restore complete normality. There was no error in refusing defendants’ request to charge in regard to the permanency of the injuries, and the judge’s charge, as given, gave defendants all that they were entitled to.
It is further claimed that the verdict was excessive; that plaintiff was an insurance salesman and at times earned as high as $40 a day after the injury. His testimony shows his monetary loss during* the time he was completely disabled. When we take this into consideration, together with the pain and suffering* plaintiff endured, the large medical and hospital bills he was obliged to pay, and the seriousness and the permanency of his injuries, at least in part, even if the ankle can be repaired at some cost, we do not believe that the verdict is excessive.
The judgment is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Fead, J.
In Miller v. Bick, 240 Mich. 608, is a statement of the facts of this case, only a few of which need to be repeated.
In 1923, defendant had a contract to’ construct a dam. Two of his subcontractors purchased some tractors and trailers from plaintiff Miller under instruments which, in form, were title-retaining contracts, but in law passed title with chattel mortgages back to plaintiff. In the fall, the subcontractors had financial troubles and were unable to pay their material and labor bills. Plaintiff, diligently but unsuccessfully, had sought payment of his claims, and in October sent J. M. Stephenson to obtain money or take the machinery.
Defendant, learning that the subcontractors were not paying their bills, sent his attorney, William Manchester, to investigate and “fix it up, whatever it is.” Manchester and defendant’s superintendent at the dam, Henry Bossard, determined to take control of the subcontractor’s work and complete it, using their machinery, as defendant could do under the contracts, and account for the contract price less cost. They so arranged with the subcontractors.
On October 20th, Stephenson, Manchester, and Bossard had a conversation, of about five minutes, which is the basis of plaintiff’s claim in suit. Stephenson’s version of the conversation, including additions from his thrice telling, was:
“I went up, and Mr. Bossard I had met before and talked to him, and Mr. Bossard when I went in asked me what my troubles was and I told him I was up on a little matter' of collection of notes that were past due and the banks were objecting and had to have the money and it would have to be taken care of or we would have to repossess the stuff and pay them off. Mr. Manchester spoke up and he says, ‘Do you want that equipment out there or the money?’ I said, ‘We’want the money.’ Mr. Manchester- said, ‘Go ahead and file a list with Mr. Bossard and there will be a meeting within the next 10 days or so and it will be taken care of.’ (That is, get our money.) I gave him a list of the ones past due. I went back and madé out a list and mailed to Mr. Bossard, and made another trip and asked Mr. Bossard if he had received the list and he said he did.”
Defendant’s claim, in effect, is that Manchester told Stephenson he could take the machinery, and, if he filed a list with Bossard, plaintiff would share pro rata in the final returns of the subcontracts.
Plaintiff’s contention is that the quoted conversation created a contract by defendant, through his authorized -agent, to pay plaintiff the amount- of the subcontractors’ notes given for the equipment’; and that it was not within the statute of frauds, as an oral promise to pay the debt of another, because it rested upon the independent consideration, running directly from plaintiff to defendant and for the latter’s benefit, that the machinery be left on the job for defendant’s nse in working ont the subcontracts.
There was no present' consideration for the alleged promise, as the testimony fails to show an agreement of forbearance by plaintiff. Nor was Manchester’s promise conditioned, in terms, on plaintiff’s forbearance to take the machinery so that his neglect to take it would constitute an acceptance of the promise and complete a contract by furnishing the independent consideration. From the words used, the promise was naked.
The practical construction given the conversation by the subsequent conduct of the parties lends no aid to plaintiff’s claim. There was no evidence that Stephenson communicated to plaintiff, or that the latter recognized that he and Manchester had made a contract to leave the equipment either temporarily or permanently. The machinery remained on the job until February or March, when plaintiff took possession of all that would operate, but no one testified that it was left there in pursuance of a promise or agreement to forbear. In November, December, and January, Stephenson and Bossard had correspondence and conversations, as did plaintiff and defendant. . At the first opportunity, defendant denied liability for the subcontractors’ debts. In neither conversation nor correspondence did plaintiff or Stephenson claim that defendant or Manchester had promised to pay the debts, nor did either recognize an obligation to leave the machinery on the job for defendant’s use. In the summer of 1924, plaintiff claimed defendant owed him $800 for the broken-down machinery which he did not remove. Plaintiff sued the subcontractors for the debts. At the first trial of this suit plaintiff claimed defendant had converted the machinery to his own use on October 20th. Under the facts, that claim was a denial of an agreement by him that defendant could use the machinery.
There being no direct promise to forbear, no showing that such forbearance as occurred was in pursuance of agreement, and no recognition by plaintiff of obligation to forbear, plaintiff wholly failed to prove that an independent consideration ran to defendant for the promise. It was void under the statute of frauds.
We also agree with the circuit court that Manchester’s authority to make a promise to pay the mortgage debts was not shown. Such authority was denied b'y both defendant and Manchester. Plaintiff’s case in this respect rests upon defendant’s general instruction to Manchester to investigate the subcontractors’ troubles and “fix it up, whatever it is.” This general instruction must be considered in connection with the functions of an attorney-at-law and may be fairly construed only to authorize him to take such legal measures as he may determine advisable. An attorney is not a business agent of his client and cannot bind his client in financial matters without express authority therefor. See 6 C. J. p. 656 et seq.
Counsel further present a rather involved situation as to the practice. On the trial, defendant made motion for directed verdict and decision was reserved under the statute (3 Comp. Laws 1929, § 14531 et seq.). By stipulation of counsel and order of court 20 days were allowed defendant to present a motion non obstante or for new trial. Immediately after verdict, however, judgment was entered for plaintiff. Within the 20-day period, defendant filed preliminary notice of appeal, evidently to save his rights, and also filed motion for judgment non obstante and motion for new trial. Plaintiff objected to hearing the motions on the ground that, by the notice of appeal, under Court Rule No. 56, the case was transferred to the Supreme Court and the circuit court had lost jurisdiction of it. The court granted the motion non obstante, and, in the entry of judgment for defendant, recited that the prior judgment for plaintiff had been entered inadvertently and by mistake and ordered it vacated. Plaintiff appealed from the second judgment. Defendant formally abandoned its first notice of appeal and took cross-appeal, asking, if the second judgment be reversed, that the first judgment be also reversed, with or without a-new trial, as the court may determine. Plaintiff contends that the court had no jurisdiction to hear the motion non obstante and enter the second judgment.
The appellate rules do not impair the power of the trial court to correct its records to set out truly its proceedings. The court had authority to vacate the judgment inadvertently and prematurely entered. Wulff v. Bossler, 199 Mich. 70; Stanaback v. McFadden, 225 Mich. 452; Sheltrown v. Railroad Co., 245 Mich. 58; Kintz v. Galvin, 219 Mich. 48. The order of vacation was not, in effect, to set aside a valid judgment, but rather to correct the records to show that no judgment had been entered. The first judgment entry having been set aside, the notice of appeal fell with it.
Judgment for defendant affirmed, with costs.
Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Clark, C. J., and McDonald, J., did not sit. | [
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North, J.
This record presents a matter of practice only. The United States Mortgage Bond Company is in the hands of a receiver. The National Bank of Commerce of Detroit, appellant herein, as a creditor holding collateral, filed its claim. It also petitioned the circuit judge to modify an injunction issued in the receivership proceeding whereby the creditors were restrained from disposing of collateral held incident to obligations of the United States Mortgage Bond Company. The bank alleged it had applied on the amount otherwise due it “various deposits, of the United States Mortgage Bond Company” and filed its claim in the receivership for the balance alleged to be due it. The receiver answered the bank’s petition and also filed a cross-petition asserting that $74,043.'36 of the amount the bank was attempting to apply on or set off against its claim was in fact a trust fund in the hands of the United States Mortgage Bond Company. An order was issued by the circuit judge to the bank “and all parties interested * * * in said special account” to show cause why the alleged trust fund should not be paid over to the receiver to be by it allocated to the various persons to whom the same belonged. From the circuit judge’s order denying appellant’s motion to dismiss this cross-petition of the receiver, the appeal under consideration was taken.
The character of the deposit which the bank seeks to use as a set-off and the issues here presented are stated by the trial judge as follows:
“The receiver has filed an answer to the petition filed by the bank and in that answer it sets up that the special account is composed of funds which were collected by the United States Mortgage-Bond Company in a representative capacity. It further sets up that it was expressly agreed between the bank and the United States Mortgage Bond Company that this was to be a special account and that the funds were applicable only for the benefit of the beneficiaries entitled thereto.
“The fund is composed of collections made in connection with certain bond mortgages. The trustee under these bond mortgages appointed the United States Mortgage Bond Company its fiscal agent for the purpose of receiving collections. Such collections were made and they are now in the hands of the National Bank of Commerce to the amount of upwards of $74,000. The bank has filed a motion to dismiss the answer of the receiver, as above outlined.
“It is argued in support of this motion that dissolution proceedings are special statutory proceed ings, and that the court has no general chancery-power. It is further argued that the receiver is not the real party in interest in this proceeding and in fact has no standing in court to question the right of the bank to apply the fund in -question to the indebtedness of the United States Mortgage Bond Company to it. * * *
“The bank has filed its claim herein, setting up that it is a creditor to a certain extent, and it has established its claimed balance by applying the amount of the fund in question in reduction of the general indebtedness of the United States Mortgage Bond Company. This is obviously an assertion on the part of the National Bank of Commerce that it has a right to make such application. Having stated the amount of its account by making such application it would seem that the propriety of that application is certainly an issue in this proceeding. The bank, therefore, in my judgment, is estopped from questioning the power of the court to hear and determine the rights of the parties here instead of in an independent suit instituted by the trustee under the bond mortgages.
“As a matter of fact, the trustee is a party to this proceeding. Some at least of the individual holders of bonds have interfered (intervened) through the medium of bondholders’ committees, so that bondholders are in part individually represented here.
“It is further argued that the receiver is not the real party in interest so as to give it a standing in court in connection with the determination of the question of the right to those funds. This argument is based upon the proposition that the beneficial interest in the funds lies in the individual bondholders either in their individual capacity or as-represented by the trustee of the several bond mortgages. The United States Mortgage Bond Company was not the trustee under these mortgages. It was, however, created fiscal agent in the mortgage indentures for the purpose of collecting payments on principal and interest and for other purposes. The hank had full knowledge of the terms under which these collections were made, and the account for the purpose of this motion was created in the form in which it stands for the express purpose of segregating and keeping separate the funds so collected. * * * The only concern that the hank can possibly have is whether or not it has a right to apply (as a set-off) this fund which is composed of moneys not belonging to the United States Mortgage Bond Company but benefit cially belonging to holders of the bonds secured under the trust indenture. * * * Inasmuch as all of the parties at interest are before the court in such a way at least as to permit of the presentation to the court of all phases of the controversy, I can see no reason for holding that the parties must depart from their proceeding as it is now framed under the pleadings as now filed and begin a new plenary action in chancery. * * *
“I think * * the hank by filing its petition and setting up that it had already applied the amount of this deposit in reduction of its general credit as against the United States Mortgage Bond Company asserted that it had a right to make that application. Having so asserted that right to make the application, certainly it cannot complain now that such application is challenged on behalf of. the receiver and of the trustee under the bond mortgages.”
In accord with the above-quoted opinion of the circuit judge, we can see no reason for holding that the matters here in issue cannot be properly adjudicated under the issue as framed in the receivership proceeding. Clearly, appellant asserted in the receivership proceeding the very right which the receiver challenges by its cross-petition. It is true, as asserted by appellant, that the receiver as such did not succeed to the rights of the trustee under the bond mortgages, Wallace v. Guaranty Trust Co., ante, 342. But for the proper administration of his trust it was absolutely necessary that the receiver should accurately determine the amount of appellant’s claim against the United States Mortgage Bond Company. This could not be done without adjudicating the right of appellant to make the set-off which is challenged by the receiver. It was a proper matter for consideration and determination in the receivership proceeding. Citizens’ Savings Bank v. Ingham Circuit Judge, 98 Mich. 173.
The order of the circuit judge denying appellant’s motion to dismiss the receiver’s cross-petition is affirmed. Costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Per Curiam:.
Chrysler Leasing Corporation and Agency Rent-A-Car, Inc., third-party plaintiffs, appeal as of right from the order of accelerated judgment in favor of Steven Monnier and P. F. Collier Company, the third-party defendants, on the basis of res judicata, GCR 1963, 116.1(5). They also appeal the order of summary judgment in favor of defendant Collier, granted pursuant to GCR 1963, 117.2(1), for failure to state a claim upon which relief can be granted. We reverse.
Plaintiff, William Beck, riding as a passenger, was injured when a car owned by Chrysler, leased to Agency, and driven by defendant Westphal, left the road and turned end-over-end on M-21 near St. Johns, Michigan. Beck, Westphal and Monnier were employees of Collier Encyclopedia Company. Monnier rented the vehicle from Agency in order for defendant Westphal and plaintiff Beck to sell Collier Encyclopedias in Michigan. The vehicle was entrusted to Westphal by Monnier.
On February 9, 1979, Agency filed a property damage complaint against Monnier in the Milwaukee County Circuit Court, through which Agency sought to recoup the amount of property damages sustained to the rented automobile. The basis for the suit was the provision in the rental agreement that Monnier would not permit persons not covered by his insurance policy to drive the vehicle and would not permit the vehicle to leave Wisconsin. Monnier did not respond to the action and, accordingly, on June 11, 1979, a default judgment was entered against him for the economic damage to the rental car, $4,696, with costs and disbursements.
On June 1, 1979, ten days before Agency caused the default judgment to be entered on the property damage case in Milwaukee, plaintiff Beck filed his personal injury action in the Clinton County Circuit Court.
On September 5, 1980, appellants filed their third-party complaint against appellees. In that third-party complaint, they sought indemnity and contribution for all damages for which they could be held liable in the event plaintiff Beck was successful in his action. Summary judgment was granted in favor of Collier as to the contribution claim by Chrysler and Agency on the ground that the Worker’s Disability Compensation Act provided the exclusive remedy. This is not appealed. Furthermore, accelerated judgment was granted to both Collier and Monnier for the reason that the present suit is barred under the doctrine of res judicata by virtue of the default judgment entered for the recovery of the value of the rental automobile. Finally, summary judgment was granted in favor of Collier for failure to state a claim of common-law indemnity upon which relief could be granted.
Appellants initially argue that, because the accident in the instant case occurred in Michigan, the law of Michigan is to be applied in determining whether the present action was merged into the recovery for the value of the automobile in Milwaukee County. Moreover, they argue that the instant indemnity action is based on the equitable principal of restitution, where the wrongful act of one results in liability being imposed upon another, so that it is distinct from a contract action and did not merge in the previous property damage judgment.
A judgment which merges a cause of action in the state where it was rendered has a like effect in another state. Such recognition is required by the Full Faith and Credit Clause of the United States Constitution, which requires that a foreign judgment be given "the same effect that it has in the State of its rendition”. Johnson v Haley, 357 Mich 411, 418-419; 98 NW2d 555 (1959). See, also, Bonesteel v Todd, 9 Mich 371; 80 Am Dec 90 (1861).
Thus, we must examine the law of res judicata as applied in Wisconsin. In determining whether there is an identity of causes of actions or claims, Wisconsin has adopted the "transactional view” of a claim or a cause of action. Landess v Schmidt, 115 Wis 2d 186, 192; 340 NW2d 213 (1983). In discussing the "transactional view”, the court relied upon 1 Restatement Judgments, 2d, § 24, p 196, which reads as follows:
"(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
"(2) What factual grouping constitutes a 'transaction’, and what groupings constitute a 'series’, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” (Emphasis as in Landess.)
The court also quoted a portion of Comment a from that section, which reads as follows:
"The present trend is to see [the concept of] claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.” (Emphasis as in Landess.)
In this connection, appellees contend that, because both the judgment for the recovery of the value of the automobile and the instant contractual indemnity claim arose out of the same operative facts, the present claim is merged into the former judgment. The trial court so ruled in grant ing accelerated judgment. Had appellants’ contractual indemnification claim accrued at the time suit was brought and judgment rendered for the destruction of the automobile, appellees’ argument that the present indemnmity suit was merged in the prior judgment would appear correct. However, under the transactional view, among the criteria relevant to a determination of whether the facts are so woven together as to constitute a single claim, are their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes. Although the proofs in the indemnity action would be substantially similar to those in the action for the value of the vehicle destroyed in the accident, and both the action in Milwaukee County Circuit Court and the instant one were based on the rental agreement, an action for indemnity had not accrued at the time the first action was brought in Milwaukee County Circuit Court.
An action for indemnification does not accrue until liability is legally imposed. See 41 Am Jur 2d, Indemnity, §§ 29, 31, pp 720-722. Because the doctrine of res judicata relates to matters which were litigated or might have been litigated in a former proceeding, DePratt v West Bend Mutual Ins Co, 113 Wis 2d 306, 310; 334 NW2d 883, 885 (1983), and because no cause of action for indemnity had arisen at the time the suit for the value of the automobile was filed in Wisconsin, thereby making any action on the indemnity or contribution claim premature, see 42 CJS, Indemnity, § 25, p 603, the doctrine of res judicata does not bar the instant case.
Appellees cite Cohan v Associated Fur Farms, Inc, 261 Wis 584; 53 NW2d 788 (1952), for the proposition that, in Wisconsin, where a suit has already been brought on the original cause of action and the plaintiff thereafter seeks different relief from the same party in the nature of indemnity, res judicata applies even where that party had no actual notice of its potential liability to another before it had obtained judgment against the original defendant. In Cohan, however, the Court held that, where a party had already filed suit and recovered damages for breach of warranty, it could not thereafter sue again for breach of warranty for damages incurred through its sales to a subvendee, even though it had no notice of damages for sales to such subvendee at the time the original suit was filed. 261 Wis 596-598. Thus, its entire breach of warranty action was in existence when it initiated suit, although the extent of its damages was unknown.
In the instant case, the Underlying negligence action was not settled until March, 1982. Accordingly, not only was the amount of probable loss unknown, but appellants had no presently-existing cause of action which could have been litigated along with the suit for the destruction of the automobile. Parties are only required to bring actions for which their rights have accrued. Under the circumstances presented in this case, the lower court erred in granting accelerated judgment on the basis of res judicata.
As to the order of summary judgment, appellants analyze the instant case pursuant to GCR 117.2(3). It appears, however, that the motion was brought pursuant to GCR 1963, 117.2(1). Accordingly, we accept as true the well-pled facts in plaintiffs’ (appellants’) complaint in order to test the legal sufficiency of the pleadings. Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179; 230 NW2d 363 (1975).
Appellants argue that plaintiff Beck’s underlying complaint alleged a cause of action under the owner’s liability statute (an allegation of "passive” negligence) against them and "active” negligence on the part of defendant Collier. Thus, appellants conclude, a proper situation for indemnification has been presented.
A party seeking indemnity must be free from "active” (or causal) negligence. McLouth Steel Corp v A E Anderson Construction Corp, 48 Mich App 424; 210 NW2d 448 (1973). In order to determine whether the indemnitee was "actively” or "passively” negligent, we must look to the primary plaintiff’s complaint. If that complaint alleges "active” negligence on the part of the person seeking indemnification, such person is not entitled to common-law indemnity. Peeples v Detroit, 99 Mich App 285, 292-293; 297 NW2d 839 (1980).
Plaintiff Beck’s complaint alleges, as against third-party plaintiffs Agency and Chrysler in ¶ 7, as follows:
"That at the aforementioned time, place, and date, the 1978 Dodge automobile driven by defendant, Dennis R. Westphal, was owned in whole or in part by defendant, Chrysler Leasing Corporation, and defendant, Agency Rent-A-Car Inc., and was driven by defendant, Dennis R. Westphal, with the knowledge and consent of said defendants.”
Collier claims that as a matter of common verbiage that paragraph alleges active negligence. However, we find this allegation to be indistinguishable from a claim under the owner’s liability statute, MCL 257.401; MSA 9.2101, which provides that an "owner shall not be liable * * * unless said motor vehicle is being driven with his or her express or implied consent or knowledge”. Such liability by operation of the automobile owner’s liability statute is a passive or secondary liability for purposes of determining whether a party has a right to indemnification, Gulick v Kentucky Fried Chicken Mfg Corp, 73 Mich App 746, 750; 252 NW2d 540 (1977), so that plaintiff’s complaint does not allege active negligence with respect to appellants.
Collier asserts on appeal that Reed v St Clair Rubber Co, 118 Mich App 1; 324 NW2d 512 (1982), stands for the proposition that an allegation of negligent entrustment is an allegation of active negligence. Reed, however, dealt with negligent entrustment of inherently dangerous materials. Such a decision is distinguishable from the instant case — an essential element of negligent entrustment where "inherently dangerous” materials are involved is the failure of the principal to see that all appropriate precautions are taken to insure that the inherently dangerous activity will be properly performed. Duhame v Kaiser Engineering of Michigan, Inc, 102 Mich App 68, 72-74; 300 NW2d 737 (1980), lv den 411 Mich 955 (1981). Reed, supra, is inapposite.
Appellees next argue that a passively negligent party may not sue another passively negligent party for indemnification. This Court held in Provencal v Parker, 66 Mich App 431, 438-439; 239 NW2d 623 (1976), that if liability attaches to a party only by virtue of respondeat superior, such establishes mere passive negligence, and that a third-party plaintiff is not entitled to indemnification from the third-party employer of the actively negligent party.
Paragraphs 14 and 15 of plaintiffs’ complaint allege as follows:
"In his capacity as an employee of P. F. Collier Company, Monnier had a duty to third parties including Chrysler Leasing Corporation and Agency Rent-A-Car, Inc., to exercise a standard of care of a reasonable man in same or similar circumstances and refrain from allowing the vehicle to be driven beyond the state of Wisconsin and allowing the vehicle to be driven by an inexperienced unlicensed driver.
"Notwithstanding such duty, defendant Monnier individually and in his capacity as an agent or servant of P. F. Collier Corporation was negligent in allowing the vehicle to leave the state of Wisconsin, and allowing the vehicle to be used, for the business purposes of P. F. Collier and to be used by a driver not licensed or experienced when Monnier and/or Collier had knowledge of the dangerous propensities of the driver in question.” (Emphasis added.)
Appellants argue that the underscored portions set forth a claim of active negligence on the part of third-party defendant Collier. In Provencal, supra, the Court stated that a passive tortfeasor is entitled to indemnification where the actor against whom indemnification is sought is "actively negligent in failing to supervise and control his employees”. 66 Mich App 438. In Provencal, no such negligence was found since the negligent activity fell outside the scope of that which the employer had a duty to supervise or control. Here, however, the complaint alleges that Collier allowed the vehicle to be used for business purposes by an unlicensed driver when Collier had knowledge of the dangerous propensities of the driver in question. For purposes of GCR 1963, 117.2(1), these factual allegations must be taken as true. Borman’s v Lake State Development, supra. Moreover, the activity involved herein was clearly within the scope of appellees’ duty to supervise. Accordingly, we cannot say that this allegation is not one of active negligence. The claim of negligence in the instant case against appellees goes beyond the doctrine of respondeat superior and is, therefore, distinguishable from Provencal, supra. Appellants have stated a claim for common-law indemnity. However, we express no opinion as to the ultimate validity of their claim.
Reversed and remanded for proceedings consistent with this opinion. | [
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Per Curiam:.
Plaintiff appeals as of right from the order granting defendant’s motion for partial accelerated judgment pursuant to GCR 1963, 116.1(5) as to his claim for loss of consortium. This action arose when plaintiffs wife, Julia, was seriously injured, both mentally and physically, in a roll-over type accident involving her 1974 CJ-5 Jeep on July 13, 1977. Plaintiff was appointed guardian of Julia’s estate due to her mental incompetency on October 5, 1977.
On June 29, 1981, plaintiff filed a complaint both individually and as Julia’s guardian against Jeep Corporation and American Motors Corporation. Jeep/AMC filed a motion for accelerated judgment on the grounds that the action was barred by the statute of limitations, MCL 600.5805(9); MSA 27A.5805(9). Plaintiffs response in opposition to the motion was that, because Julia was legally insane, the statute of limitations was tolled under MCL 600.5851(1); MSA 27A.5851(1). After discussion, the parties agreed to stipulate that Jeep/AMC’s motion be denied and an order to this effect was signed and approved as to form and content by both attorneys. Neither the motion, response to the motion nor the order specified whether it addressed the plaintiffs cause of action as an individual or as guardian for Julia’s estate or both. Plaintiff contends it applied to both while Jeep/AMC contends it only applied to the action for Julia’s estate.
On May 23, 1983, Jeep/AMC’s motion for change of venue was granted and venue was changed to Gratiot County. Plaintiff filed an amended complaint on July 25, 1983, to add the Gratiot County Board of Road Commissioners (Gratiot County) as a codefendant. Jeep/AMC answered plaintiff’s amended complaint and asserted the statute of limitations as an affirmative defense. On September 23, 1983, Jeep/AMC filed a motion for accelerated judgment and specifically requested that plaintiffs claim for loss of consortium be dismissed, as the applicable period of limitation had run and was not tolled. Plaintiff objected on the grounds that Jeep/AMC had already given a consent judgment and that the running of the period of limitation had been tolled.
The circuit court held that the plaintiff’s claim for loss of consortium was not tolled and was therefore barred, but Julia’s estate’s claims were tolled due to her mental incapacity. The circuit court did not find the previous order signed by both parties to be a bar. Partial accelerated judgment was granted to Jeep/AMC and Gratiot County. Plaintiff is appealing as an individual only, and he contends that the order previously signed was a bar to relitigation of this issue and that the running of the period of limitation was tolled by Julia’s insanity as to his claim as an individual for loss of consortium.
Plaintiff argues that, because Jeep/AMC had signed an order which they approved as to content and form, the order is the equivalent of a consent judgment. We agree and find that such order cannot be attacked or altered absent proof of a mistake, inadvertence, surprise or excusable neglect. 7 Callaghan’s Michigan Pleading & Practice (2d ed), § 45.09, pp 106-107, GCR 1963, 528.3, and Bohn v Bohn, 26 Mich App 270; 182 NW2d 107 (1970), lv den 384 Mich 790 (1970). In the instant case Jeep/AMC asserts that the order only refers to Julia’s estate’s claims and not to any claims plaintiff has as an individual. Our review of the record reveals that the order does not specifically define to which claim or claims it refers. However, in the Gratiot County motion for accelerated judgment, Jeep/AMC states:
".7. That pursuant to GCR 116.1, these defendants properly raised their motion for Accelerated Judgment as to both plaintiffs on August 18, 1981.” (Emphasis supplied.)
This paragraph indicates that, at the time Jeep/ AMC brought the first motion for accelerated judgment, they considered their motion to apply to both actions. As Jeep/AMC prepared the order themselves, they are responsible for such orders. We cannot allow Jeep/AMC to complain as to the content and form of an order, signed by both parties and approved as to form and content. Accordingly we find that the trial court erred in granting Jeep/AMC accelerated judgment and that ruling is reversed as to Jeep/AMC only.
Plaintiff contends that the grant of accelerated judgment for Gratiot County is also in error. Plaintiff’s claim is that his action for loss of consortium is a derivative cause of action which arises under the action of Julia’s estate and that the tolling provisions of MCL 600.5851; MSA 27A.5851 are applicable. Therefore we must determine if plaintiff’s claim is one that "arises under” his wife’s claim. We have decided upon the meaning of "arising under” only once before, in Walter v City of Flint, 40 Mich App 613, 616; 199 NW2d 264 (1972), where we said:
"The phrase 'claiming under’ in subsection 1 refers to a person who stands in place of the person who first sustained an injury, and who seeks to maintain the injured person’s claim in his stead. However, one who maintains a separate but related cause of action is not 'claiming under’ the original injured person.”
Accordingly, we find no error in the trial court’s decision to hold plaintiff’s claim for loss of consortium as being barred by the statute of limitations, and affirm the grant of accelerated judgment as to Gratiot County.
Affirmed in part and reversed in part. Costs to appellant against Jeep/AMC. Costs to appellee Gratiot County against appellant. | [
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Per Curiam.
Defendant Reliance Insurance Company appeals as of right from the grant of plaintiff’s motion for summary judgment, GCR 1963, 117.2(1). The trial judge held that Reliance, as plaintiff’s workers’ compensation carrier who had paid medical benefits, was not entitled to share in plaintiffs recovery from a third-party tortfeasor.
Plaintiff was severely injured in an accident on a construction site. A pump malfunctioned, causing a 30-foot boom carrying concrete to collapse from a height of 20 feet. The collapsing boom crushed him. The boom and pump were permanently attached to a large concrete truck, which was parked on the site. It was pumping concrete to the second floor at the time that the pump failed. The truck was owned by defendant Cross Concrete Pumping Co., Inc.; plaintiff was employed by the Emmanuel Company. Defendant Reliance provided Emmanuel’s workers’ compensation coverage; it paid $150,562.42 in benefits due to plaintiffs on-the-job injuries.
Plaintiff sued Cross Concrete. The suit was settled. Plaintiff gave Cross a release on August 11, 1981, and a covenant not to sue on August 13, 1981. Cross agreed to pay plaintiff $750,000. The documents which embodied the settlement agreement indicated that the settlement covered any and all damages arising from the accident. No reference was made in these documents or in the pleadings before the court to motor vehicles or to no-fault automobile insurance.
Subsequently, plaintiff sought a declaratory judgment that the workers’ compensation insurer was not entitled to any part of the settlement proceeds. Both the insurer, Reliance, and Cross Concrete were named as defendants. In its answer, Reliance asserted the validity of its workers’ compensation lien on the settlement proceeds recovered by plaintiff.
Plaintiff moved for summary judgment, claiming that the settlement did not include recovery for damages (primarily medical benefits) paid by the workers’ compensation insurer. The trial judge granted the motion, relying on the Supreme Court’s decision in Great American Ins Co v Queen, 410 Mich 73; 300 NW2d 895 (1980).
In Queen, supra, the Supreme Court held that a workers’ compensation insurance carrier is not entitled to reimbursement for its payments which substituted for no-fault benefits otherwise payable. Queen holds that payment of workers’ compensation benefits which do not substitute for no-fault benefits gives rise to a right of reimbursement from third-party tort recoveries in the same manner as does the payment of workers’ compensation benefits where no-fault benefits are not involved. Queen, p 97.
Reliance first claims that the accident in the present case was not a motor vehicle accident for which no-fault benefits are payable. Reliance argues that Queen is therefore inapplicable and Reliance is entitled to reimbursement under § 827 of the Worker’s Disability Compensation Act, MCL 418.827; MSA 17.237(827). We disagree.
Plaintiff’s complaint alleged that Cross Concrete owned the defective truck which injured plaintiff when its boom collapsed on him. Thus, plaintiff’s action against Cross Concrete, the third-party tortfeasor, must have been brought pursuant to § 3135 of the no-fault act, MCL 500.3135; MSA 24.13135. Section 3135(1) provides:
"A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”
Since the settlement is silent, we presume that the settlement compensated plaintiff for noneconomic losses. Keys v Travelers Ins Co, 124 Mich App 602, 605; 335 NW2d 100 (1983). Additionally, the truck which injured plaintiff was a motor vehicle. It was designed to be operated upon a public highway by power other than muscular power and had more than two wheels. MCL 500.3101(2)(c); MSA 24.13101(2)(c). Plaintiff’s injury was caused by the collapse of a boom which was physically attached to the truck. The boom collapsed while concrete was being unloaded. Although not being used for transportation, the cement truck was being used for its intended purpose, i.e., job site delivery of cement. Unloading is a use incident to the primary transportational function of such vehicles and does not divest them of their character as motor vehicles or transform a motor vehicle accident into a construction-site accident for which no-fault benefits are not payable. Johnston v Hartford Ins Co, 131 Mich App 349, 354-356; 346 NW2d 549 (1984), lv den 419 Mich 905 (1984). Since plaintiff was injured in an accident for which no-fault benefits were payable, Queen is applicable.
Plaintiff was injured on June 13, 1980. The circuit court rendered its decision granting plaintiff summary judgment on August 16, 1983. Thus, most if not all monies paid by Reliance during that interval necessarily had to be paid in substitution for no-fault benefits. Such benefits which substitute for no-fault benefits are not recoverable. Queen, supra, p 97. However, Reliance claims that it is entitled to a credit for future workers’ compensation benefits not paid in substitution for no-fault benefits. Under § 827 of the Worker’s Disability Compensation Act, an amount recovered from a third-party tortfeasor for noneconomic losses is treated as a credit in favor of the compensation carrier for future compensation payments. Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975). In Queen, the Court held that "[w]hen the carrier pays benefits which do not substitute for no-fault benefits, because they exceed no-fault benefits in amount or duration, it should be treated like all other workers’ compensation carriers and be entitled to reimbursement out of any third-party recovery”. Queen, supra, p 88. Whether Reliance is entitled to a credit, because the benefits it paid plaintiff exceeded no-fault benefits in amount or duration, involves a question of fact which makes summary judgment inappropriate under GCR 1963, 117.2(1). Consequently, we remand for a determination of the amount of Reliance’s interest in benefits paid or payable over and beyond no-fault benefits.
In summary, we hold that this case is controlled by Queen, and that, under Queen, Reliance may not be reimbursed for any medical, wage, or other benefits which substitute for no-fault benefits. However, we further hold that Reliance is entitled to a lien as to benefits paid which exceed no-fault benefits in duration or amount. Therefore, we affirm the trial court’s application of Queen, but reverse and remand for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.
Reversed and remanded.
In this respect, this case differs from Johnston v Hartford Ins Co, supra. In Johnston, plaintiff’s action was against his own no-fault insurance carrier for personal protection insurance benefits. Johnston, therefore, dealt with §§ 3105 and 3106 of the no-fault act, MCL 500.3105; MSA 24.13105, MCL 500.3106; MSA 24.13106. In Johnston, the Court concluded that the crane which injured plaintiff was a motor vehicle under § 3101 but that the accident did not arise out of the use of a motor vehicle as a motor vehicle. Johnston, supra, pp 358-361. In the present case, plaintiff’s action is brought pursuant to § 3135, which does not contain the additional phrase "as a motor vehicle” that is contained in § 3105. | [
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Per Curiam.
Defendant, convicted on his plea of guilty of breaking and entering an unoccupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, was sentenced to a term of six to ten years imprisonment and appeals his sentence as a matter of right.
Defendant committed this offense while on furlough status from the Michigan Department of Corrections. His plea resulted from a plea bargain wherein the prosecuting attorney agreed to reduce the original charge of breaking and entering an occupied dwelling, a 15-year maximum offense, to breaking and entering of an unoccupied dwelling, a 10-year maximum offense. Additionally, the prosecutor agreed to dismiss a supplemental information charging the defendant as a third felony offender, MCL 769.11; MSA 28.1083. The supplemental information would have had the effect, if conviction resulted, of doubling the maximum possible sentence.
Defendant assigns two claims of error to the sentencing procedure. Defendant first claims that the trial court failed to comply with the Michigan Supreme Court sentencing guidelines requirement that requires the judge to specify reasons for departure from the sentencing guidelines. The sentence range of the guidelines was 12 to 30 months, considerably less than the 72 to 120 months imposed by the judge. Defendant argues that the trial judge did not specify the reasons for the departure and, therefore, the case should be remanded for proper sentencing. This Court does not agree.
The sentencing guidelines contain a statement of purpose which in part reads as follows:
"Sentencing guidelines are intended to assist the sentencing judge charged with the very difficult duty of imposing sentence.
"* * * It is anticipated that there will be disagreements with the conclusions of the advisory committee. In such instances, the judge may wish to depart from the sentencing guideline ranges. Such departures are encouraged and, to improve the sentencing guidelines, when this occurs the judge is asked to specify the reasons for the departure.”
Accompanying the guidelines manual is a multiple copy form entitled "Sentencing Information Report”, which each circuit court and recorder’s court judge is required to fill out when imposing a sentence for an offense that is included in the guidelines. Near the bottom of the form is an area entitled "Departure: (Above/Below) Please Specify Reasons:”.
In filling out the sentencing information report in the area designated "Departure” the trial court stated "Subject on furlough from prison when crime committed. Also, offense reduced from 15 years to 10 years for plea bargaining purposes.” Thus, the trial court did explain its reasoning for departure. A copy of this form was filed with the court record.
Section 27 of the sentencing guidelines manual, paragraph 3, states in part:
"Departure reasons must be placed on the record and on the sentencing information report (SIR).”
In providing for appellate review of the sentencing process the Supreme Court in People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983), required a trial court to articulate on the record its reasons for imposing the sentence. The sentencing judge in this case stated the reasons on the record but did not specifically articulate why he was departing from the sentencing guidelines. We do not believe the sentencing guidelines manual requires the sentencing judge to specifically articulate on the record at the sentencing why departure is made from the recommendations of the sentencing manual. The departure requirements are accomplished when set forth in the sentencing information report form and filed as a part of the court record.
Defendant’s second claim of error is that the trial judge committed error by using defendant’s plea bargain as a factor in issuing a more severe sentence than that suggested by the sentencing guidelines. The defendant argues that plea bargain is constitutionally permissible, that he has not been found guilty of the greater offense and that the trial court erred in using the plea bargaining agreement as a reason for issuing a more severe sentence.
This Court disagrees. The record at sentencing reveals that the judge did not use the plea bar gaining as a means of imposing a greater sentence but rather considered the facts of the crime as one of the bases for determining the sentence. This Court has ruled that the trial court can give consideration to criminal conduct not resulting in conviction, so long as the information is accurate. People v Moore, 70 Mich App 210; 245 NW2d 569 (1976). This Court finds no error.
Affirmed. | [
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] |
Per Curiam.
Defendant appeals on leave granted from his misdemeanor conviction of operating a motor vehicle under the influence of intoxicating liquor.
City of Troy Police Officer Robert Redmond testified at trial that on January 4, 1983, he observed a red 1979 Pontiac swerve onto the left shoulder of the 1-75 freeway. Officer Redmond followed the vehicle for 2-1/2 miles, during which time he noticed further erratic driving. In addition, the car accelerated to 70 miles per hour while negotiating a 50 miles-per-hour curve.
Officer Redmond stopped the vehicle at an exit ramp, and the defendant exited from the car to meet the officer. The officer indicated that defendant had a strong odor of intoxicants on his breath and that his eyes were glassy and bloodshot. With out informing defendant of his Miranda rights, Officer Redmond asked the defendant whether he had been drinking. Defendant replied affirmatively, and when asked how much he had to drink, defendant stated "too much”. After failing several sobriety tests, defendant was arrested and taken to the police station, where a Breathalyzer test indicated a blood-alcohol level of .16 percent.
On appeal, defendant argues that the trial court erred in denying his motion to suppress testimony concerning the replies to Officer Redmond’s roadside questioning. Defendant argues that the trial court mistakenly believed that persons in custody for misdemeanor offenses need not be informed of their Miranda rights, and cites the recent United States Supreme Court decision in Berkemer v McCarty, 468 US —; 104 S Ct 3138; 82 L Ed 2d 317 (1984), in support. Our review of this record and the Berkemer decision convinces us that the defendant’s claim of error should be rejected.
At the outset, we cannot accept the defendant’s claim that his motion was denied in the belief that the Miranda rule is inapplicable to misdemeanor offenses. Although the trial judge admitted to being uncertain of the law on this point, he specifically stated that this issue did not have an effect on his ruling. Rather, the lower court concluded that the very purpose of the questioning was to determine whether a crime had been committed. Under these circumstances, the trial court believed the Miranda rule was inapplicable, and thus denied the motion to suppress defendant’s roadside statements.
We affirm the trial court’s denial of the motion to suppress. In doing so, we rely entirely on Berkemer v McCarty, supra, cited by defendant to support his position. The facts of Berkemer are nearly identical to the present case in all material respects. There, the Ohio State Highway Patrol stopped a car which was observed weaving in and out of the highway lane. As here, the Berkemer defendant was asked if he had been drinking, to which he replied that he had consumed two beers and smoked several joints of marijuana. Berkemer, 104 S Ct 3142.
The United States Supreme Court initially ruled that the safeguards prescribed by Miranda are entirely applicable where the accused has allegedly committed a misdemeanor traffic offense. 104 S Ct 3148. Nonetheless, the Court found that the police officer’s roadside questioning did not constitute a "custodial interrogation” and thus the Miranda rule had not been triggered. Rather, the traffic stop was held to be more analogous to a "Terry stop” than a formal arrest due to the similarly noncoercive aspects of the two. For example, "the detention of a motorist pursuant to a traffic stop is presumptively temporary and brief’, and in the majority of cases does in fact last only a few minutes. 104 S Ct 3149. Further, since the traffic stop occurs in public view and is conducted by at most two officers, the danger that the detainee might "speak where he would not otherwise do so freely” is at a minimum. 104 S Ct 3149-3150.
As in Berkemer, the facts of this case strongly support the conclusion that Officer Redmond was under no obligation to inform the defendant of his Miranda rights prior to conducting the roadside questioning. The questioning occurred within minutes of the stop, at a time when the officer had an insufficient basis for concluding that the defendant was operating his automobile under the influence of intoxicants. Just as is involved in the typical Terry stop, the defendant’s erratic driving supported only a reasonable suspicion that the defendant had ingested more alcohol than allowed under state law. Further, defendant was never informed prior to the questioning that he was under arrest or that the detention would be other than brief. Thus, just as in Berkemer, even if Officer Redmond intended to arrest the defendant from the outset, this fact would not automatically trigger the applicability of the Miranda rule since "[a] policeman’s unarticulated plan has no bearing on the question whether a suspect was 'in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation”. 104 S Ct 3152. Since the facts before us cannot reasonably be distinguished from those presented in Berkemer, we conclude that the defendant was not in custody for the purposes of the Miranda rule, and thus the trial court correctly denied defendant’s motion to suppress his responses to Officer Redmond’s questions.
Defendant also claims to have received ineffective assistance from his attorney. This argument is based upon the representation that the arresting officer failed at trial to identify the defendant as the driver of the automobile in question. The defense counsel moved to dismiss the charges on this basis after the jury retired for deliberations, but the motion was denied on the grounds that defendant had taken the stand and admitted to having been the driver of the car. The trial judge also noted that the motion should have been brought at the close of the prosecution’s proofs, in which case the option to reopen the proofs to correct the defect would have existed. Defendant thus argues on appeal that the failure to bring a timely motion to dismiss constituted the ineffective assistance of counsel, pursuant to People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).
At the outset, we note that at the close of the prosecution’s case a motion for directed verdict, rather than a motion to dismiss the charges as argued by defendant, would have been the appropriate course of action. Further, we fail to see any merit to this claim since the record reveals that defendant was indeed identified as the driver of the car stopped by Officer Redmond. While testifying, the officer repeatedly referred to defendant by name. When asked what led him to believe that defendant was driving the car, the witness responded: "I could see him when we got on at Fourteen Mile Road[,] that there was a male driving, female on the passenger side of the car.” We also note that the identity of the driver was never in question at trial. Therefore, a motion for directed verdict for failure to establish the elements of the charge would surely have been denied. The defense counsel’s failure to so move could not have affected the defendant’s chances for acquittal, and thus the ineffective assistance claim is rejected.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). | [
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Per Curiam.
Appellants’ parental rights in her minor child were terminated pursuant to MCL 712A.2(b); MSA 27.3178(598.2)(b) and MCL 712A.19a; MSA 27.3178(598.19a) after hearings in Wayne County Probate Court, Juvenile Division. The termination was affirmed after a rehearing. Appellant’s delayed appeal to this Court is by leave granted.
Appellant claims that the lower court erred when it terminated appellant’s parental rights before investigating possible placement with relatives. This panel adopts the standard of review stated in In the Matter of Irving, 134 Mich App 678; 352 NW2d 295 (1984), and In the Matter of Brown, 139 Mich App 17; 360 NW2d 327 (1984). Our review of the record indicates that the lower court’s findings were not clearly erroneous. The Department of Social Services established through clear and convincing evidence that appellant did not have a reasonably fixed domicile and that it was unable to locate appellant. The department was unsuccesssful in its attempt to contact appellant’s sister in order to work out a plan of care for the child. Appellant’s mother refused to care for the child. While it is the policy of this state to keep children with their natural parents whenever possible, MCL 712A.1; MSA 27.3178(598.1), In the Matter of Brown, supra, it is the best interests of the child which are to be considered in making dispositional decisions. In the Matter of Brown, supra; In the Matter of Schejbal, 131 Mich App 833; 346 NW2d 597 (1984). The child has been in the care of the state since shortly after birth. The appellant has not exercised her right to visitation and has not contributed to the department’s attempts to investigate the appellant’s home and her ability to care for the child. The appellant has abandoned four other children who have become wards of the state. With these facts in mind, and with the rest of the record before us, we are not left with the definite and firm conviction that a mistake was made by the lower court in terminating the appellant’s parental rights.
The termination of parental rights is affirmed. | [
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Per Curiam.
Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. He was acquitted of a charge of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to serve from 10 to 25 years in prison, with credit for time served from February 8, 1982.
Defendant first claims that the district court judge erred in binding defendant over to circuit court for trial because there was insufficient evidence presented at the preliminary examination to establish probable cause to believe defendant committed the offense.
A reviewing court will not disturb a magistrate’s determination at a preliminary examination unless there is a clear abuse of discretion. People v Doss, 406 Mich 90; 176 NW2d 9 (1979). Positive proof of guilt is not required.
During the preliminary examination a state police fingerprint expert testified that he had found at least eight identifying characteristics which linked defendant’s palm print to the palm print found at the scene of the crime. The expert also testified, however, that he could not list the specific identifying characteristics because he did not make a record of the markings. Defense counsel requested that the court adjourn for lunch so that he could obtain a magnifying glass with which the witness could re-examine the prints and testify as to the specific characteristics, thus allowing defense counsel to cross-examine him on those characteristics. That request was refused.
These facts do not establish a clear abuse of the examining magistrate’s discretion. It is not the object of the preliminary examination to determine a defendant’s guilt or innocence. Rather, if evidence conflicts or raises a reasonable doubt of a defendant’s guilt, such question should be left for the jury upon trial. People v Doss, supra, p 103.
The only purpose of a preliminary examination is to establish whether or not there is probable cause to bind over the defendant to circuit court. Here the testimony of the fingerprint expert constituted suificiently credible evidence to support the magistrate’s conclusion that there was probable cause to believe that defendant was the perpetrator of the crime.
Defendant next contends that his conviction should be vacated and charges against him dismissed with prejudice for failure of the prosecutor to comply with Michigan’s 180-day rule. MCL 780.131 et seq.; MSA 28.969(1) et seq.
Defendant was arrested on an unrelated charge on December 12, 1981, and lodged in the Washtenaw County Jail. The warrant for defendant’s arrest in the instant case was issued on December 15, 1981. The warrant was not filed in district, court until February 8, 1982, and was executed on that date. Trial began on August 3, 1982, 232 days after the warrant was issued and 175 days after the arrest.
An individual detained in a local facility, and against whom a parole hold has been filed, is not an inmate of a penal institution to whom the 180-day rule applies. People v Sanders, 130 Mich App 246; 343 NW2d 513 (1983); People v Wright, 128 Mich App 374; 340 NW2d 93 (1983).
Therefore, the relevant inquiry is whether defendant’s parole was revoked more than 180 days before his trial commenced. People v Rose, 132 Mich App 656, 659; 347 NW2d 774 (1984); People v Wright, supra, p 378. Defendant’s parole was revoked on March 19, 1982, after he was sentenced on the unrelated felony charge from Washtenaw County. Since this is less than 180 days before the commencement of trial in the instant case, we find that the 180-day rule was not violated.
Defendant also claims that the trial court erred in determining the amount of defendant’s credit for time served prior to sentencing.
A defendant is entitled to credit against a sentence for time served in jail pending trial on an unrelated activity where the authorities in the case in question have placed a "hold” on the defendant. People v Turner, 130 Mich App 646; 344 NW2d 34 (1983); People v Major, 106 Mich App 226; 307 NW2d 451 (1981); People v Coyle, 104 Mich App 636; 305 NW2d 375 (1981), lv den 415 Mich 851 (1982). Defendant is entitled to receive credit for time served at least from the date that the Battle Creek authorities placed a "hold” on him at the Washtenaw County Jail.
Defendant asserts that he is entitled to receive credit for time served from the date on which the warrant was issued, rather than the date on which a "hold” was placed or the date he was formally arrested on the instant charges. There is a conflict in this Court on that issue. In People v Coyle, supra, and People v Turner, supra, this Court followed the view that a defendant is entitled to credit for time served from the time at which a "hold” could have been placed upon the defendant. That is, a defendant is entitled to credit from the date on which a warrant has been issued and the authorities know where the defendant is being held. The Battle Creek authorities knew of defendant’s incarceration in the Washtenaw County Jail on December 15, 1981, the same day the warrant was issued. Thus, under this Court’s view in Turner and Coyle, defendant would be entitled to credit for the time served since December 15, 1981.
The majority in People v Major, supra, however, took the view that a defendant is entitled to credit for time served only from the date on which the "hold” was actually placed. Thus, under the holding in Major, defendant would be entitled to credit from the date on which the Battle Creek authorities actually placed the "hold” on defendant with the Washtenaw County Jail. The record does not disclose on what date that event occurred.
Prior to the actual placing of a "hold” on defendant, the authorities in Battle Creek had no control over defendant’s incarceration. Defendant could have posted bail in Washtenaw County and would have been free to leave. Thus, until the hold was placed, defendant’s incarceration in Washtenaw County was wholly unrelated to his difficulties in Battle Creek. For these reasons, it is our opinion that the rule established in People v Major is the better rule. Defendant is entitled to credit for time served only from the date upon which the Battle Creek authorities placed a "hold” upon defendant. Since this date cannot be determined from the record, the case is remanded to the trial court for a determination of when the "hold” was placed upon defendant. Credit shall be given accordingly.
Finally, defendant claims that he is entitled to a remand to determine whether the trial court relied on an unconstitutional prior conviction when sentencing defendant.
A constitutionally infirm conviction may not be considered in the sentencing of a defendant. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974). A conviction based upon a guilty plea is invalid if the defendant was not advised by the trial court before the acceptance of the plea that he has the right not to incriminate himself. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969); People v Jaworski, 387 Mich 21, 30; 194 NW2d 868 (1972).
The presentence report reviewed by the trial court before sentencing contained defendant’s 1971 conviction for manslaughter. The transcript of defendant’s arraignment on the manslaughter charge indicates that defendant was not advised of his right to remain silent. Defendant’s January 11, 1971, conviction for manslaughter based upon a guilty plea was, therefore, constitutionally invalid. On remand the trial judge shall determine whether he took this invalid conviction into account in fixing sentence. If the trial judge resolves that question in the affirmative, then he shall resentence defendant accordingly. People v Moore, supra, p 440.
Defendant’s conviction is affirmed and the case is remanded to the trial court for determination of when the Battle Creek Police Department placed a hold on the defendant and a redetermination of the amount of credit due defendant for time served. In addition, the trial judge will specify whether he relied upon the unconstitutional conviction in sentencing. | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order granting defendant insurance company’s motion for summary judgment pursuant to GCR 1963, 117.2(1) (failure to state a claim upon which relief can be granted).
The facts well pled in plaintiffs complaint, and taken as true for purposes of this appeal, show that on January 24, 1982, plaintiff was operating a motor vehicle insured by defendant in Dade County, Florida. Her husband was a passenger at the time. While operating this vehicle, she and her husband were followed home by robbers who accosted her and her husband after she parked the vehicle in their driveway. Plaintiffs husband was then shot by the robbers while he was still sitting in the automobile. He died from the injuries he received in this shooting.
Plaintiff later tried to amend her complaint to state that highway robbery is prevalent in Dade County. For purposes of this appeal, we conclude that these facts are also true because of the nature of the trial court’s ruling. In other words, the trial court held that, despite this proposed amendment, it would still grant defendant’s motion for summary judgment.
Based upon the above facts, we affirm the trial court’s judgment.
MCL 500.3105(1); MSA 24.13105(1) provides:
"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”
This provision has been interpreted as meaning that there must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and this causal connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975), lv den 395 Mich 787 (1975).
Other decisions by this Court have held that a person assaulted while sitting in a motor vehicle is not entitled to no-fault benefits as herein sought. See, e.g., Ciaramitaro v State Farm Ins Co, 107 Mich App 68, 69-70; 308 NW2d 661 (1981), lv den 413 Mich 861 (1982) (plaintiff’s decedent was killed by an armed assailant while conducting his normal door-to-door produce business from his truck); Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213, 221-222; 290 NW2d 414 (1980) , lv den 409 Mich 919 (1980) (plaintiff forced to the curb by her estranged husband, trapped in her car, and then shot by her husband several times by a revolver); Hamka v Automobile Club of Michigan, 89 Mich App 644, 645; 280 NW2d 512 (1979) (plaintiff struck in the nose by a pedestrian’s fist while plaintiff was sitting in his car at an intersection); O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526, 530; 280 NW2d 583 (1979), lv den 406 Mich 1014 (1979) (plaintiff shot in the hip while trying to evade an assailant entering the passenger side of his car). At this time, we are not prepared to depart from the reasoning expressed in those opinions.
Plaintiff’s reliance upon Saunders v Detroit Automobile Inter-Ins Exchange, 123 Mich App 570, 572; 332 NW2d 613 (1983), and Man v Detroit Autombile Inter-Ins Exchange, 111 Mich App 637, 639-640; 314 NW2d 719 (1981), lv den 414 Mich 903 (1982), is misplaced. In each of those cases, the injuries were sustained while the automobile was actually moving on the highway. To this extent, the causal connection between the injuries sustained in the automobile was more than incidental or fortuitous. In this case, on the other hand, plaintiff’s decedent’s fatal injuries occurred while he was sitting in the subject automobile, which was parked in plaintiff’s driveway. Accordingly, we are not faced with a highway robbery situation as argued on appeal.
Likewise, plaintiff’s reliance upon Gajewski v Auto-Owners Ins Co, 414 Mich 968; 326 NW2d 825 (1982), rev’g 112 Mich App 59; 314 NW2d 799 (1981) , is also misplaced. There, plaintiff was injured when a bomb attached to his automobile exploded as he turned the ignition key to start the car. In reversing this Court’s majority, the Supreme Court adopted Judge Cynar’s dissenting opinion at 112 Mich App 62-63. The injuries in Gajewski would not have occurred absent use of a motor vehicle as a motor vehicle; viz., turning the ignition key is identified with the normal manner of starting a vehicle. Thus, there was a direct causal connection between the use of the motor vehicle and Gajewski’s injuries. In this case, on the other hand, the injuries could have resulted whether plaintiff was sitting in the vehicle or not. The fact that plaintiff and her decedent were followed home does not change this result.
Accordingly, the trial court’s granting of defendant’s motion for summary judgment under GCR 1963, 117.2(1) is affirmed.
Affirmed. No costs, a question of statutory interpretation being involved.
Partrich v Muscat, 84 Mich App 724, 727-730; 270 NW2d 506 (1978).
We recognize that there is now a conflict on this Court regarding whether an injury from an assault, made upon a commercially insured vehicle, can be compensated under the no-fault act. Contrast Ciaramitaro, supra, with Thornton v Allstate Ins Co, 135 Mich App 160, 166; 351 NW2d 910 (1984) (plaintiff, a taxicab driver, was paralyzed from the neck down when wounded during an armed robbery by a passenger of his taxicab). However, we need not address this question because plaintiff’s automobile was not a commercially insured vehicle. We cite Ciaramitaro in the main text only as support for the general proposition that persons assaulted in their automobiles cannot recover no-fault benefits absent special circumstances. | [
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Gribbs, J.
Respondent mother appeals by leave granted from an order of the probate court, juvenile division, terminating her parental rights. We reverse._
The Department of Social Services petitioned the probate court to take permanent custody of respondents’ children pursuant to the juvenile code. MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. The petition alleged that respondent father had deserted and abandoned the children, MCL 712A.19a(b); MSA 27.3178(598.19a)(b), and that both respondent parents had neglected the children in the past and that there was a reasonable probability of neglect in the future. MCL 712A. 19a, subds (e) and (f); MSA 27.3178(598.19a), subds (e) and (f).
Background
On July 22, 1983, at the first pretrial hearing on permanent wardship, the probate court raised the option of a voluntary release of parental rights (apparently under the Adoption Code, MCL 710.21 et seq.; MSA 27.3178[555.21] et seq.) in lieu of proceedings based on neglect (see MCL 710.28; MSA 27.3178[555.28]):
"The Court: * * * Now, you understand, do you not, that if — I will appoint attorneys for either of you if you want to contest this petition. And, if you are indigent I will appoint attorneys for you. On the other hand, you may not want a trial of this matter; you may be quite willing to allow the court to assume permanent jurisdiction over the children; that will be a matter only you can decide.
"The Court: * * * Again, you are not on trial but we —understand this, you are not on trial, you are not being charged with child neglect.
"Mrs. Cullen: No, I understand.
"The Court: That’s another section; and I don’t think there is any intention on anyone to pursue that. They are looking to release these children so that these children end up with some opportunities and permanency, all right.
"But this — by the way, don’t ever interpret what I am saying being one way or the other. I am not on Mr. Rutowski’s [representing the Department of Social Services] side; I am not on your side, I sit in the middle because I have to decide this case if it goes to issue. They are asking you to give up your rights to these children so they can permanently plan for them. That means severing your parental rights, cutting them off and placing the children for adoption.”
The court further informed the respondents:
"Now, the other thing is if either one of you gives the waiver, frankly, if you change your mind within 20 days, you may do so. After 20 days it is final.” (See MCL 710.64; MSA 27.3178[555.64] of the Adoption Code).
At the hearing, respondent father orally released his parental rights. Respondent mother expressed confusion and reluctance to release her rights to the children. The court then appointed an attorney to represent her and ordered a continuance to give her additional time to decide whether or not she would relinquish her parental rights.
On August 1, 1983, at the second hearing, respondent mother orally released the rights to her children. On the same day, the probate court issued an order on a juvenile code form, indicating that respondents had consented to the minor children becoming permanent wards of the court, that respondents’ parental rights were terminated, and that the children were committed to the Michigan Department of Social Services for adoptive or placement purposes. The order also contained the following language:
"Further it is ordered, That in the event no appeal is taken or request for re-hearing filed within ninety (90) days from the date of this order the minors may be placed for adoption.” (See MCL 712A.21; MSA 27.3178[598.21], amended by 1983 PA 105, § 2, of the juvenile code).
On October 31, 1983, respondent mother requested the appointment of counsel to appeal from the order. On November 10, 1983, respondent mother filed a petition for rehearing and the matter was reheard on December 20, 1983. Respondent mother argued that she was misled into believing that she had 90 days within which to withdraw her release. She argued that since the probate court told her at the first hearing that she had 20 days in which to change her mind, and the order issued on the date of the second hearing stated that she had 90 days in which to file an appeal or request a rehearing, she believed that she had 90 days within which to revoke the release. She further argued that she did not understandingly, knowingly or voluntarily waive her parental rights. She contended that she was pressured by the court into relinquishing her parental rights, did not confer with counsel in person prior to the second hearing, and was unaware that she would be unable to see her children in the future. At the conclusion of the rehearing, the probate court reviewed the evidence, determined that respondent mother’s release was properly given, and denied the petition to set aside the order of termination.
Discussion
Respondent mother appeals from the probate court’s denial of her petition to set aside the order, raising the same arguments presented at the rehearing. However, we need not address the substance of her claims because we find on different grounds that no valid release was given by respondent mother. Without a valid release, the probate court could not order the voluntary termination of her parental rights.
In the case at bar, the Department of Social Services sought the involuntary termination of respondents’ parental rights pursuant to the juvenile code. In the Matter of Kenneth Jackson, Jr, 115 Mich App 40, 51; 320 NW2d 285 (1982). The juvenile code provides for the placing of a child in the permanent custody of the court upon the court’s finding of abandonment, desertion or neglect, as was alleged in the petition brought by the Department of Social Services. MCL 712A.19a; MSA 27.3178(598.19a). However, what the probate court was apparently seeking to accomplish was a voluntary release of parental rights pursuant to the Adoption Code. MCL 710.28; MSA 27.3178(555.28).
Under the Adoption Code, the parents may voluntarily relinquish their parental rights to the Department of Social Services or a child placing agency. MCL 710.22(k); MSA 27.3178(555.22)(k); MCL 710.28, subds (l)(a) and (5); MSA 27.3178(555.28), subds (l)(a) and (5). Such a release is accomplished by the execution of a separate instrument before a probate judge or referee, accompanied by a verbatim record of testimony related to the execution of the release. MCL 710.29(1); MSA 27.3178(555.29X1). Prior to the execution of the release, there must be such investigation as the court deems proper, the court must fully explain to the parents their legal rights and that the release voluntarily relinquishes perma nently their rights to the child, and, if the child is over five years of age, the court must determine that the child is best served by the execution of the release. MCL 710.29(5); MSA 27.3178(555.29X5).
Upon the execution of the release by the parent, the court must immediately issue an order terminating the rights of the parent, and if the rights of both parents have been terminated, the court must issue an order committing the child to the department or the child placing agency to which the release was given. MCL 710.29(6); MSA 27.3178(555.29)(6). The parent has 20 days after the entry of the order in which to seek a rehearing. MCL 710.64; MSA 27.3178(555.64); MCL 710.29(9); MSA 27.3178(555.29)(9). The probate court has discretion to grant the rehearing and allow the parent to revoke the release. Id.; DeBoer v Child & Family Services of Michigan, Inc, 76 Mich App 641; 257 NW2d 200 (1977); see, also, In the Matter of Michael Brent Hole, 102 Mich App 286; 301 NW2d 507 (1980).
Once the release is executed, the department or placing agency assumes the role of the parent. After a petition for adoption has been filed, a full investigation occurs and a report of the investigation is forwarded to the court. MCL 710.46; MSA 27.3178(555.46). The department or agency gives the consent to the adoption, MCL 710.43, subds (l)(a)(ii), (b), and (d); MSA 27.3178(555.43), subds (l)(a)(ii), (b), and (d), which is accomplished by the execution of a separate instrument. MCL 710.44(3); MSA 27.3178(555.44)(3). The court then examines the report and, after determining that the consent is genuine, that the person consenting has legal authority to consent, and that the best interests of the adoptee will be served by the adoption, the court enters an order terminating the rights of the parent. MCL 710.51(1); MSA 27.3178(555.51X1).
In the case at bar, the release of respondent mother did not comply with the requirements of the Adoption Code. The probate court received the oral release of respondent mother, then issued an order on a juvenile code form indicating that the respondents had consented to the children becoming permanent wards of the court, committing the children to the Department of Social Services, and terminating the parental rights of the respondents. The order gave respondents 90 days to appeal, the time period (prior to amendment) for appealing involuntary terminations pursuant to the juvenile code. MCL 712A.21; MSA 27.3178(598.21), amended by 1983 PA 105, §2. Moreover, the court expressly declined to find that the parental releases were in the best interests of the children, who were both over five years of age, as required by MCL 710.29(5); MSA 27.3178(555.29X5), apparently believing that such a finding was only required in an involuntary termination proceeding:_
"The Court: I can’t guarantee that. The only thing I can guarantee is that these children — let me say there is a shortage of children, all right; and, of course, we screen parents — prospective parents — very carefully, Rebecca, and we do not — we let the best parents— frankly we are very selective — and so they’re going to go to a good home. That’s the only thing I can guarantee. But, of course, you are the natural mother and you know we have — apparently the Department of Social Services, not me, I am neutral in this matter; we [Department of Social Services] take a view that think that the child is — deserves better than apparently what it has been getting and they want to give it to a better home and he, or she or both, may end up with a better opportunity.
"The Court: * * * I am not judging you, now, all I am concerned about — I mean, you could be the best parents in the world or the worst parents in the world, my focal point is the children; what’s the best interest of the children. I have not decided that yet, I haven’t heard the case. I mean — the petition would not be drafted by the Department of Social Services if they did not feel like the children would be better off severed — terminated from natural parents * * (Emphasis added.)
The absence of a duly executed release by respondent mother, the failure of the probate court to find that the release would be in the best interests of the children, and the probate court’s failure to distinguish the Adoption Code from the juvenile code mandates a finding that the release of respondent mother was legally inadequate and therefore void. Thus, the order terminating respondent mother’s parental rights pursuant to the invalid release is reversed.
Reversed.
Respondent father does not appeal from the termination of his parental rights.
See MCL 710.22(j); MSA 27.3178(555.22)(j); MCL 710.24; MSA 27.3178(555.24); MCL 710.26; MSA 27.3178(555.26).
Under the Adoption Code, parents may also directly consent to the adoption of their children. MCL 710.43(l)(a); MSA 27.3178(555.43)(l)(a). After such investigation as the court deems proper, and after the court has fully explained to them their rights and the fact that the consent voluntarily relinquishes permanently their rights to the children, the parents may execute a separate instrument giving their consent to the adoption. The consent must be executed before a probate judge or referee and a verbatim record of testimony related to the execution of the consent must be made. MCL 710.44, subds (1) and (6); MSA 27.3178(555.44), subds (1) and (6). After the court receives a report of investigation, MCL 710.46; MSA 27.3178(555.46), determines the génuineness of a consent to the adoption, the legal authority of the parents to consent, and the best interests of the child, the court enters an order terminating the parental rights of the consenting parents. MCL 710.51(1); MSA 27.3178(555.51X1). | [
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Beasley, J.
This case involves interpretation of the Open Meetings Act of 1977.
At the regular meeting of May 9, 1977, the Cadillac City Commission recessed and held a closed meeting to discuss the city residency policy for city employees. The closed meeting, which lasted slightly over an hour, was held at the request of the city manager with the approval of the city attorney. Then the commission resumed in open meeting, announced a new residency policy and indicated an ordinance would be formulated to implement the policy.
In 1967, the city had adopted a residency policy which permitted municipal employees to reside in four adjoining townships in addition, of course, to residency in the city.
In 1974, in a collective bargaining agreement obtained by way of statutory compulsory arbitration, the police officers association succeeded in getting permission to reside in four additional townships outside of the city. In March, 1977, a fireman sought permission to reside permanently in Herring Township, which had been one of the four townships in which residence was permitted under the 1967 policy.
Although the labor contract with the firemen does not cover residency, the 1967 policy had been altered previous to the labor contract to prohibit firemen from living outside the city.
On May 24, 1977, plaintiff prosecutor commenced action against defendant city commission for a declaratory judgment limiting closed sessions in these circumstances to the time of actual negotiations, invalidating the policy resulting from the closed session, and enjoining noncompliance.
Defendants filed a motion for summary judgment, plaintiff answered and also requested summary judgment. The parties agreed the case could be decided on the pleadings and exhibits, and the trial court then rendered an opinion that the closed session violated the open meetings statute and that an injunction would be granted preventing "further discussion on ordinance matters under the guise of collective bargaining negotiations”.
Defendants appeal as of right.
The issues to be resolved are: was the closed session of the Cadillac City Commission on May 9, 1977, at which a new residency policy for city employees was formulated, held in violation of Michigan’s Open Meetings Act, and, if so, do the facts justify issuance of an injunction?
Michigan’s new Open Meetings Act replaces the repealed 1968 statute which had required certain governing bodies to be open to the public at any meetings where public action was taken. The new sunshine law provides that all meetings of the public bodies described in the statute shall be open to the public. The only exceptions where the speci fied public bodies may meet in: closed session are the eight situations defined in § 8.
In some states, the legislatures have expressed in their statutes a desire that their new sunshine laws be interpreted liberally in favor of openness. While the Michigan Legislature has not chosen to expressly so provide, in the light of the provisions newly enacted and of the legislative history, we interpret the new open meeting legislation with similar liberality. In so doing, we construe the closed session exceptions strictly to limit the situations that are not open to the public.
At issue here is only subsection (c) of § 8, which provides:
"Sec. 8. A public body may meet in closed session only for the following purposes:
"(c) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agree ment when either negotiating party requests a closed hearing.”
In the within case, the stated reason for the closed session was to discuss the matter of residency of municipal employees, including policemen and firemen, each of which had separate labor contracts which did not expire until December, 1977. Immediately following the closed meeting, the commission resumed the open meeting and announced a new policy, requiring all city employees to reside in the city as of January 1, 1978, except those then living outside the city.
As a result of the trial court judgment and injunction, no further action has been taken by defendant commission.
We are not without sympathy for the plight of the legislative bodies of home rule cities and their attorneys in dealing with required residency of municipal employees questions. The recent history of residence requirements as a condition of municipal employment indicates it has become a mandatory subject of collective bargaining.
We are also aware that with respect to police unions and fire unions, where collective bargaining reaches an impasse, compulsory arbitration is available to impose a labor contract on the parties by operation of law. The labor contract between Cadillac police officers and the City of Cadillac was arrived at by compulsory arbitration, which labor contract contains an expanded residence provision, i.e., four additional townships were added to the four specified in the 1967 policy. It seems safe to conclude that the residency provision in the labor agreement resulting from compulsory arbitration was imposed over the objection of and against the wishes of the City of Cadillac.
Against this background, we believe that defendant commissioners should, at some stage, be permitted to meet in closed session to discuss and arrive at strategy for its collective bargaining position relating to residency of municipal employees without being required to disclose every innuendo and consideration to the adversary unions. We would not consider such a desire to be a guise to avoid compliance with the sunshine statute.
At the same time, we indicate our whole-hearted approval of the objectives of the open meeting law.
In Florida, the supreme court has interpreted that state’s statute as providing that preliminary labor negotiations may be conducted in private. It may be that our Legislature should broaden the exception in our statute to permit closed sessions to formulate collective bargaining plans at any time, but we consider that a legislative matter better decided within the framework of the legislative process.
As indicated, we believe the Michigan Open Meetings Act of 1977 is entitled to a broad interpretation to promote openness in government.
We interpret § 8(c) to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. In the within case, there was involved a mandatory collective bargaining subject. Collective bargaining was not to begin until August for renewal of the labor contract which was to expire December 31. Under the circumstances, we do not consider the May meeting of the city commission qualified for exemption from the provisions of the Open Meetings Act. We interpret negotiation sessions under § 8(c) to refer to actual collective bargaining sessions between employer and employee.
Insofar as the declaratory judgment finds the closed session of May 9, 1977, in violation of the open meetings statute, we affirm.
As to the question of whether the facts in the within case justify issuance of an injunction, we note that injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is real and imminent danger of irreparable injury.
On the record before us, we decline to find defendant commissioners’ actions a guise or a subterfuge. On the contrary, we believe defendant commissioners acted in good faith in reliance upon advice from their city attorney.
Under the circumstances of this case, we see no reason to continue the injunction. We assume defendant commissioners will comply with the open meetings law as its meaning unfolds. The injunction will be vacated.
Affirmed in part, reversed in part; no costs, a public question being involved.
D. F. Walsh, P. J., concurred.
MCL 15.261 et seq.; MSA 4.1800(11) et seq., effective March 31, 1977.
The identification of sunshine with open government was a result of Fla Stat Ann Sec 286.011, which is entitled "Government in the Sunshine Law”. The designation apparently is an attempt to characterize government under the statute as government operating in the sunshine of public scrutiny rather than the shadows of bureaucratic secrecy.
MCL 15.268; MSA 4.1800(18).
73 Mich L Rev 1192, n 1321 (1975):
"See, e.g., Ind. Code § 5-14-1-1 (1971); Mont. Rev. Codes Ann. § 82-3401 (1966); Wash. Rev. Code §42.30.910 (1974). See also Common Cause Proposed Act, supra note 1309, § 1; 36 Op. Ore. Atty. Gen. 543, 544 (1973). Cf. Ark. Stat. Ann. §12-2802 (1968); Cal. Govt. Code §§ 11120 (West Supp. 1975), 54950 (West 1966); Ill. Rev. Stat. ch. 102, §41 (1973); Me. Rev. Stat. Ann. tit. 1, §401 (1964); Nev. Rev. Stat. § 241.010 (1973); N.J. Stat. Ann. § 10:4-1 (Supp. 1974); N.C. Gen. Stat. § 143-318.1 (1974); Utah Code Ann. § 52-4-1 (1970); Wis. Stat. Ann. § 66.77(1) (1974 West’s Wis. Legis. Serv. 332).”
Sunshine laws are frequently considered a recent innovation in government, but they are not new to Michigan, which adopted sunshine legislation as early as 1895. As indicated by C. J. McNeil, Director, Michigan Legislative Service Bureau, in a 1962 letter, "section 5.1703 of chapter 48 of the Michigan code is our Compiled Law section number 88.7, and the language is in the original Act No. 215 of the Public Acts of 1895.” The section referred to has to do with meetings of city councils and states: "All meetings and sessions of the council shall be public.”
For background of events leading to the passage of the Michigan Open Meetings Act of 1977, see Sunshine or Shadows: One State’s Decision, 1977 Det Col L Rev 613, 619-621.
MCL 15.268; MSA 4.1800(18).
See the following cases, all of which deal with the constitutionality, validity and applicability of residency provisions in municipal charters, ordinances, policies and labor agreements in varying ways.
State, County & Municipal Employees Local 339 v Highland Park, 363 Mich 79; 108 NW2d 898 (1961), Williams v Detroit Civil Service Commission, 383 Mich 507; 176 NW2d 593 (1970), rev’g 15 Mich App 55; 166 NW2d 309 (1968), Park v Lansing Board of Education, 32 Mich App 752; 189 NW2d 60 (1971), Detroit Police Officers Association v Detroit, 385 Mich 519; 190 NW2d 97 (1971), Detroit Police Officers Association v Detroit, 41 Mich App 723; 200 NW2d 722 (1972), Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974), rev’g in part and aff'g in part, Detroit Police Lieutenants and Sergeants Association v Detroit, 56 Mich App 617; 224 NW2d 728 (1974), Gantz v Detroit, 392 Mich 348; 220 NW2d 433 (1974), Rockwell v Crestwood School District Board of Education, 393 Mich 616; 227 NW2d 736 (1975), Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), Pontiac Police Officers Association v Pontiac, 397 Mich 674; 246 NW2d 831 (1976).
MCL 423.231 et seq.; MSA 17.455(31) et seq.
See, MCL 15.263(8)(e); MSA 4.1800(13)(8)(e), which provides the Open Meetings Act shall not apply to an arbitrator or arbitration panel "when deliberating the merits of a case”.
Bassett v Braddock, 262 So 2d 425, 426-428 (Fla, 1972). The colorful language employed by the Florida Court is instructive:
"Such 'intensity’ of the 'sunrays’ under the statute, as urged by this appeal, could cause a damaging case of 'sunburn’ to these employees or to the public which elected the Board.
"[M]eaningful collective bargaining * * * would be destroyed if full publicity were accorded at each step of the negotiations. * * * The public’s representatives must be afforded at least an equal position with that enjoyed by those with whom they deal. The public should not suffer a handicap at the expense of a purist view of open public meetings, so long as the ultimate debate and decisions are public and the 'official acts’ and 'formal actions’ specified by the statute are taken in open 'public meetings.’
"Every action emanates from thoughts and creations of the mind and exchanges with others. These are perhaps 'deliberations’ in a sense but hardly demanded to be brought forward in the spoken word at a public meeting. To carry matters to such an extreme approaches the ridiculous; it would defeat any meaningful and productive process of government. One must maintain perspective on a broad provision such as this legislative enactment, in its application to the actual workings of an active Board fraught with many and varied problems and demands.” (Footnotes omitted.)
After all, the Open Meetings Act became effective March 31, 1977, and the closed session complained of occurred less than six weeks thereafter on May 9, 1977. This timing, together with obtaining legal advice from the city attorney, does not indicate any pattern of intentional violation such as to require injunctive relief. | [
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T. M. Burns, J.
Plaintiff Northern Plumbing and Heating, Inc., appeals by right from the trial court’s grant of summary judgment to defendant Phoenix Contractors, Inc., under GCR 1963, 117.2(3). Summary disposition of Northern’s claims against Phoenix was improper and is reversed.
I
The underlying facts of this controversy arose out of bidding for construction contracts on the waste water treatment plant additions for the City of Cheboygan. Defendant Henderson Brothers, Inc., planned to bid as the general contractor for this project and solicited bids from various mechanical subcontractors, including Northern and Phoenix. In its bid to the city, Henderson listed Northern as a subcontractor, and this was done on the belief that Northern was the low bidder for the mechanical subcontracting work.
What happened from the time of the submission of the bid by Henderson listing Northern as a subcontractor until Henderson signed the contract with the city with Phoenix as the subcontractor, forms the basis of this action and should be submitted to a jury for factual determination.
II
Northern filed this suit against Henderson and Phoenix, claiming that it had a contract with Henderson to do the mechanical subcontracting work based on the custom in the trade and alleging a conspiracy between Henderson and Phoenix to breach that contract, tortious interference by Phoenix with the contract, and, alternatively, if no contract was found, tortious interference by Phoenix of an advantageous business relationship with Henderson. In this appeal, only Northern’s claims against Phoenix are involved.
In response to the complaint, Phoenix filed motions for accelerated judgment, GCR 1963, 116.1(5), based on the statute of frauds, MCL 566.132; MSA 26.922, and summary judgment, GCR 1963, 117.2(3), claiming there were no genuine issues of material fact with regard to the happening of acts of interference by Phoenix employees or causation, i.e., that Henderson did not contract with Northern, or that Henderson breached its contract with Northern, if one existed, solely for its own reasons, rather than any act by Phoenix.
After the parties had taken some depositions and submitted affidavits, the trial court granted Phoenix’ motion for summary judgment. In doing so, the court assumed the existence of a contract but held that there was no showing that Phoenix had interfered with or caused Henderson to breach that contract. In effect, the court ruled that it was solely Henderson’s decision not to proceed with Northern as the subcontractor on the Cheboygan project. In doing so, the court erred.
III
The courts are liberal in finding that genuine issues of material fact do exist, especially in tort cases, and a motion under rule 117.2(3) should be granted only where it is obvious that the nonmoving party’s case is subject to some deficiency which cannot be overcome at trial. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973).
In ruling that no issue of fact exists, the court must be careful to avoid substituting a trial by affidavit and deposition for trial by jury. Freeman v Massachusetts Mutual Life Insurance Co, 27 Mich App 572; 183 NW2d 832 (1970). The court is not allowed to make findings of fact or to weigh the credibility of affiants or deponents. Bilicki v W T Grant Co, 382 Mich 319; 170 NW2d 30 (1969), Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976) . The test is not whether plaintiff has presented facts sufficient to show a jury submissible case in response to the motion, but rather, whether there are genuine issues of material fact. Smith v Woronoff, 75 Mich App 24; 254 NW2d 637 (1977).
With these principles in mind, it is held: that issues of fact do exist in regard to the existence of a contract, any acts of interference by Phoenix, and whether those acts were the cause of Henderson’s decision not to use Northern on this project. See, Hutchings v Dave Demarest & Co, 52 Mich App 274; 217 NW2d 72 (1974). The depositions of Phoenix’ and Henderson’s agents do tend to show that Henderson acted entirely on its own in proceeding with Phoenix as the subcontractor, but Northern’s president’s deposition raises the opposite inference. It is not for us or the trial court to decide this matter, but for the trier of fact. Given that the trial court allowed only a short period for plaintiff to show the existence of fact issues, it is not surprising that a complete case was not presented at the motion hearing.
IV
Since the trial court assumed the existence of a contract, it never reached the question of the statute of frauds, and the effect it would have on the tortious conduct alleged by plaintiff against Phoenix.
Northern alleged three distinct torts against Phoenix; (1) a conspiracy to breach a contract between Phoenix and Henderson, (2) tortious interference with an existing contract by Phoenix, and (3) tortious interference with an advantageous business relationship. The statute of frauds is not a bar to the second and third actions.
A. Conspiracy
Where there is an allegation that a contracting party and a stranger to the contract have conspired to cause a breach of that contract, the plaintiff must show a writing sufficient to satisfy the statute of frauds. Jaques v Smith, 62 Mich App 719; 233 NW2d 839 (1975), lv den, 395 Mich 829 (1976). If the contract is not enforceable against the contracting party, he would have committed no wrong in not performing the contract, and neither would a stranger to the contract. 16 Am Jur 2d, Conspiracy, § 50. Different considerations apply to the other allegations in this case.
B. Tortious interference with an existing contract
To prevail on this theory, plaintiff must show that a contract existed, that it was breached, that Phoenix instigated the breach and that it did so without justification. Dassance v Nienhuis, 57 Mich App 422; 225 NW2d 789 (1975).
There is a division in the authorities concerning whether the interfering third party may rely on a contract defense, such as the statute of frauds, to defeat this action. See, 45 Am Jur 2d, Interference, § 9, p 286. Our Supreme Court has not specifically held for either position but in Coronet Development Co v F S W, Inc, 379 Mich 302, 313; 150 NW2d 809 (1967), the Court stated:
"We are not unmindful of the strongly urged contention of plaintiff that the inducing of the breach of a contract, even though the contract be unenforceable under the statute of frauds, is actionable. With the proposition in general terms we have no disagreement. The authorities cited in support thereof sustain it.”
The statute of frauds is not a bar to this type of action. This is a tort, not dependent on the enforceability of the contract per se, but rather, on the stranger’s interference with it. Plaintiff must still show all of the elements for contract formation, that is, that a contract existed, but it is not necessary to show that the contract is enforceable in an action at law against the other contracting party.
C. Tortious interference with advantageous business relationships
"The basic elements which establish a prima facie tortious interference with a business relationship are the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted. One is liable for commission of this tort who interferes with business relations of another, both existing and prospective, by inducing a third person not to enter into or continue a business relation with another or by preventing a third person from continuing a business relation with another.” 45 Am Jur 2d, Interference, § 50, p 322.
Since this tort is not necessarily based on contract, the statute of frauds would be no bar.
V
The heart of this case is whether genuine issues of material fact exist relating to contract formation, whether Phoenix engaged in any acts of interference with the contract if one existed, or with an advantageous business relationship if no contract existed, and whether those acts induced Henderson to end its relationship with Northern. It is held that there are questions of fact, the summary judgment is reversed and the matter is remanded for trial. The type of actions alleged by Northern are not well developed in this state, and plaintiff should be allowed to proceed to trial. Hutchings v Dave Demarest & Co, supra. Whether Northern will ultimately prevail depends on the facts that it will be able to present at trial, not on affidavits and depositions.
Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.
M. J. Kelly, J., concurred.
The hearing on these motions and plaintiffs request for an injunction was originally held on December 17, 1976. After plaintiff withdrew his application for an injunction, the court adjourned the proceedings until January 3, 1977, for the taking of depositions.
At the adjourned hearing, plaintiff presented testimony on the issues of contract formation (industry practice) and the relationship of Phoenix’ bid to Northern’s concerning which was lower. The depositions of employees and officers of the various companies involved were also presented, but it is clear that not everyone that plaintiff would call in the trial was heard from at this hearing.
Williams v De Man, 7 Mich App 71; 151 NW2d 247 (1967), did not deal specifically with the statute of frauds question. The court there found that, in fact, no contract existed and held that there must be a contract, something which is not disputed here. The question isn’t whether there must be a contract, but whether that contract is subject to contract defenses by a noncontracting party.
It is not entirely clear from the report of Coronet Development Co v F S W, Inc, supra, whether the Court was dealing with a conspiracy case exclusively or also a claim of interference by noncontracting parties, or both. The language quoted would seem to apply only where the allegation is against only a noncontracting party. | [
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D. E. Holbrook, Jr., J.
Plaintiff Martin Moldovan was injured when he was struck by an unoccupied forklift truck which unexpectedly went into reverse. Basing his claim on negligence and sev eral breach of warranty theories, plaintiff sued defendants Allis Chalmers Manufacturing Company and Fraza Equipment Company. Essentially plaintiffs claim was grounded on the failure of a safety valve device which, plaintiff contends, should have prevented the forklift from operating when unoccupied. After a 15-day trial the jury returned a verdict of no cause of action as to both defendants. Plaintiff appeals, raising 12 allegations of error.
First, plaintiff contends the trial judge should have disqualified himself since the judge had recently been found liable for $395,000 in a Federal court civil suit. Plaintiffs counsel argue their ignorance of this judgment until the day of final argument precluded a timely motion for disqualification as required by GCR 1963, 405. Plaintiff argued this issue in his motion for a new trial, which was denied. Regardless of when counsel discovered the judgment, the argument is without merit. Plaintiff has established none of the eight possible grounds for disqualification under GCR 1963, 405.1 and has not shown "actual prejudice” of the trial judge. Irish v Irish, 59 Mich App 635, 639; 229 NW2d 874 (1975), Armstrong v Ann Arbor, 58 Mich App 359, 369-370; 227 NW2d 343 (1975), lv den, 394 Mich 783 (1975). In the new trial hearing, the trial judge’s remarks indicate that, if anything, he was favorable to plaintiffs case—that he felt plaintiff should recover something for his injury and that perhaps the defendants could have been pressured into a $400,000 settlement (plaintiff rejected a $200,000 settlement offer). The jury, however, found no liability on the part of either defendant. We find no reversible error.
Second, plaintiff complains of several incidents of harsh treatment of plaintiffs counsel in front of the jury. In any hotly contested 15-day trial there are bound to be episodes of judicial impatience with aggressive counsel. The standard of review, however, is whether such exchanges resulted in denying plaintiff a fair and impartial trial. St. Louis v Fisher & Co, Inc, 1 Mich App 55, 58; 134 NW2d 290 (1965). Taken alone and out of context, certain portions of the record could just as easily be used to show trial court bias against the defendants. We must review the record as a whole and we conclude plaintiff was not denied a fair trial.
Third, plaintiff contends the trial judge violated a pretrial order (issued by a different judge) to exclude any reference to plaintiff’s prior sex-related convictions. The violation occurred when the trial judge refused to excise certain references to the sex offenses in a video-tape deposition of plaintiff’s psychiatric witness. Initially we note that one aspect of plaintiff’s claimed injury was impairment of his sex drive and, indeed, plaintiff’s psychiatric witness concluded that plaintiff’s sex drive was impaired. However, the psychiatrist also stated that plaintiff’s sexual problems stemmed in part from his earlier sex offense incidents. The trial judge gave plaintiff the option of introducing the entire video-tape or excluding it totally. Plaintiff opted to let in the entire tape and now appeals. We uphold the ruling of the trial judge for several reasons: a) GCR 1963, 605 permits trial court discretion to require an expert witness to set forth the "data” upon which the expert’s conclusions are based, b) a person’s prior criminal record is relevant if a psychiatrist relied upon it in forming an opinion, People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975), c) in light of plaintiff’s claim of impaired sexual drive, the defense was entitled to have all of plaintiff’s psychiatric witness’s data placed before the jury, see GCR 1963, 302.4(4), and, d) the pretrial judge did not know plaintiffs psychiatrist was going to testify as to plaintiff’s prior history before he (the pretrial judge) made his exclusionary ruling. In light of all these factors the trial judge properly exercised his discretionary power to modify the pretrial order and such a modification will not be overturned absent clear abuse. Hanlon v Firestone Tire & Rubber Co, 391 Mich 558, 564; 218 NW2d 5 (1974), State Highway Comm v Redmon, 42 Mich App 642, 645-646; 202 NW2d 527 (1972).
Fourth, plaintiff argues the trial judge erred by refusing to allow a representative of plaintiffs employer to read statements written on an accident report form (Form 100). The judge ruled the statements hearsay and refused to allow them to be read. However, he offered to allow the form in to show the accident took place and had been reported but refused to admit any statements as to how the accident happened. Plaintiff decided not to introduce the form at all and now appeals. The trial judge ruled correctly. The statements were written by someone no longer employed by plaintiffs employer and were written before the company representative was employed by plaintiffs employer. Since the employer was a third party intervenor and not an adverse party the statements were not admissible as admissions against interest. Nor were they admissible under the "business entry” exception to the hearsay rule. MCLA 600.2146; MSA 27A.2146. There are some ambiguities in that statute. Wade v Bay City, 57 Mich App 581; 226 NW2d 569 (1975), appeal dismissed, 394 Mich 755 (1975). The form is admissible to show the accident occurred and that the employer had knowledge of the accident, but the written conclusions or statements detailing how the accident occurred—a critical fact issue at trial —would be excludable hearsay. In Central Fabricators, Inc v Big Dutchman Division of US Industries, Inc, 398 Mich 352; 247 NW2d 804 (1976), the Michigan Supreme Court quoted with approval from the United States Supreme Court case Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), which held statements contained in an accident report were not admissible under the Federal business entry statute. For a number of reasons accident reports are distinguishable from other types of so-called business records. We conclude the trial judge ruled correctly on the limited admissibility of the accident report.
Fifth, plaintiff complains the entire deposition of a former Allis Chalmers employee should have been admitted under either the adverse witness rule, or GCR 1963, 302.4(3), or as an "excited utterance”. A review of the judge’s ruling indicates that he excluded portions of the deposition on the grounds that they were speculation and conjecture. The admissibility of depositions is governed by the rules of evidence, GCR 1963, 302.4 and 302.5, and the trial judge properly exercised his discretion in refusing to admit speculative deposition testimony. Plaintiff further complains the trial judge abused his discretion by refusing to grant a continuance so plaintiff could bring the deposition witness to court to testify. The record indicates the plaintiff wished to bring the witness in near the close of trial and the judge felt taking the witness out of order so late in the trial would unduly confuse the jury. Granting a continuance is within the discretion of the trial judge and we find the judge did not abuse his discretion.
Sixth, plaintiff complains he should have been allowed to read selected portions of depositions of witnesses who had already testified and had been excused. The record indicates the judge denied plaintiffs request since plaintiff should have cross-examined the witnesses about their deposition statements when they were on the stand rather than wait until they were excused to read selected highlights from the deposition. Plaintiff claims GCR 1963, 302.4(2) allows the use of depositions "for any purpose”. We do not think this broad language removes the trial judge’s control of the proceedings and we conclude the trial judge properly refused to let plaintiffs counsel introduce favorable excerpts of deposition testimony after the witnesses were excused.
Seventh, plaintiff argues the trial judge erred when he refused to permit co-counsel for plaintiff to divide the duties in conducting the lawsuit. The record indicates no specific request by plaintiffs attorneys to engage in a "division of labor” method. A review of the instances cited by plaintiff reveals the trial judge was acting well within his discretion in limiting arguments before the court. Plaintiffs argument is without merit.
Eighth, plaintiff complains the trial judge erred in excluding in-court experiments with a model of the allegedly defective valve and in excluding plaintiffs witness’s testimony of out-of-court experiments with a model valve. As to the in-court experiments, the trial judge refused to allow the experimentation because the conditions were not sufficiently similar to the allegedly defective valve on the date of the accident. The model valve was mounted on a board, not on a forklift, and plaintiffs expert conceded he had never seen the forklift in question nor had he compared the model valve with the allegedly defective valve. We con- elude the trial judge did not abuse his discretion. Nor did he abuse his discretion in excluding testimony of the out-of-court experiments where plaintiffs expert could not testify that every part of the model valve met specifications. Admission of test results is within the wide discretion of the trial court. Taylor v Hannon-Colvin Post 180 of American Legion, 6 Mich App 398, 405; 149 NW2d 210 (1967), Pohlod v General Motors Corp, 40 Mich App 583; 199 NW2d 277 (1972).
Ninth, plaintiff argues that a pretrial order which excluded any reference to workers’ compensation benefits was violated. A review of the record indicates there was no mention of workers’ compensation, therefore the pretrial order was not violated and the trial judge was correct in refusing to give any curative instruction which may have resulted in exposing the fact of worker’s compensation benefits.
Tenth, after retiring, the jury returned with a question for the trial judge and the plaintiff claims the «judge erred where he responded to the question by having testimony read to the jury. Reading testimony back to the jury is within the wide discretion of the trial judge, Klein v Wagenheim, 379 Mich 558, 561; 153 NW2d 663 (1967), People v Howe, 392 Mich 670, 675; 221 NW2d 350 (1974), and the trial judge did not abuse that discretion in having pertinent testimony read to the jury.
Eleventh, plaintiff contends he should have been granted a new trial since after trial plaintiff located an expert witness who supposedly could rebut testimony of defendants’ expert. GCR 1963, 527.1(6) governs new trials based on newly discovered evidence. Plaintiff has shown no factual basis to show the. evidence is material, not cumulative or that it could not have been discovered before trial. See Parlove v Klein, 37 Mich App 537, 542; 195 NW2d 3 (1972), lv den, 387 Mich 780 (1972). Denials of new trials based on newly discovered evidence will not be reviewed absent gross abuse of discretion, People v Hill, 21 Mich App 178, 180; 175 NW2d 305 (1970), and since all plaintiff really shows is that the new evidence might impeach defendants’ expert, plaintiffs argument must fail. Pociopa v Olson, 13 Mich App 324, 327; 164 NW2d 413 (1968), lv den, 381 Mich 797 (1969).
Twelfth, plaintiff urges the trial court erred by refusing to admit evidence of a post-accident design change in the safety valve. The record indicates defense counsel gave plaintiffs expert a model for illustration purposes, the expert took the model apart and discovered a different sized spring than used in the allegedly defective valve. Defendants immediately objected, the jury was excused and arguments heard, and the judge ruled the evidence of the design change was inadmissible. Excluding evidence of subsequent repairs or design changes is based on sound policy grounds. Unlike the situation in Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976), admission of evidence of a design change would offend the policy grounds behind the exclusionary rule. Here the evidence would have been prejudicial to a party defendant. The policy grounds for excluding design changes to show negligence are equally applicable in a products liability setting. Phillips v J L Hudson Co, 79 Mich App 425; 263 NW2d 3 (1977).
Affirmed. Costs to appellees.
Beasley, P. J., concurred. | [
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Per Curiam.
Plaintiffs ward, Bertha Lehto, gave her niece, Angela Lovell, a deed to her farm, retaining only a life estate. Plaintiff brought suit for cancellation of the deed, alleging undue influence and failure of consideration. The trial court held that the deed was a valid gift. We affirm.
In this chancery case we review de novo, examining the entire record, weighing all of the evidence and subjecting the trial court’s findings of fact to closer scrutiny than we would employ on review of a jury verdict. Kar v Hogan, 399 Mich 529, 546; 251 NW2d 77, 82 (1976), Tuttle v Department of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). Consideration is given to the trial court’s opportunity to better judge the credibility of witnesses who appeared before it. GCR 1963, 517.1. The trial court’s findings of fact will not be set aside unless clearly erroneous; that is, unless we are left with a definite and firm conviction that a mistake has been made. GCR 1963, 517.1, Tuttle v Department of State Highways, supra, Mazur v Blendea, 74 Mich App 467, 469; 253 NW2d 801, 802.(1977).
Prior to 1972, Mrs. Lehto lived on the farm with her husband. They had no children, but Mrs. Lehto did have sisters, a brother and numerous nieces and nephews, some of whom lived in the vicinity. Although the Lehtos visited with many relatives and friends, they saw Mrs. Lovell and her husband most, visiting them on holidays and often for dinner on Sundays. Mrs. Lovell was Mrs. Lehto’s favorite "fair-haired niece”.
The Lehtos’ income consisted of social security and soil bank payments. To qualify for soil bank payments, Mr. Lehto kept several acres of the farm in crops each year. Mr. Lehto handled all of the couple’s financial affairs.
Mrs. Lehto suffered a stroke in 1969, and was comatose for nearly a week. During her hospitalization Mrs. Lovell, who worked at the hospital, helped care for her. Mrs. Lehto subsequently made a good physical recovery, but suffered thereafter from forgetfulness. This caused her to have difficulty managing some things, particularly financial matters. Occasionally her imagination would get away from her, causing her to say things which were not true. A doctor who examined her in 1974 concluded that she was alert as to time and place, but exhibited "slight paranoid tendencies” and overconcern with financial matters.
In 1971, Mr. and Mrs. Lehto executed similar wills, leaving to each other the farm, but providing that if either predeceased the other, then Mrs. Lovell would receive the farm. They did so because Mrs. Lovell had shown them more consideration than anyone else, and because she had cared for Mrs. Lehto in the hospital. Mrs. Lovell was informed of the provision they had made for her in the will.
Mr. Lehto died June 6, 1973. Mr. Lovell took Mrs. Lehto to the local social security office in order to adjust benefits. The office suggested that Mrs. Lehto appoint someone to accept and deposit her social security checks for her. Mrs. Lehto appointed Mrs. Lovell, who had not requested the appointment but nonetheless consented to it. She opened a joint account, in order that she would be able to write checks on the account should Mrs. Lehto become incapacitated. Mrs. Lovell thereafter deposited the social security in the account, and Mrs. Lehto wrote checks on the account to pay her bills. For several years after Mr. Lehto’s death, Mr. Lovell helped Mrs. Lehto by planting several acres of crops per year to qualify Mrs. Lehto for soil bank payments, mowed her yard and repaired her barn.
On August 10, 1973, Mrs. Lehto deeded her farm to Mrs. Lovell, retaining a life estate. The circumstances surrounding the transfer were disputed at trial.
Dennis Keleher testified that he was Mrs. Lehto’s attorney, and had had a conference with her several days prior to the transfer, either in person or by telephone. Mrs. Lehto had requested that he draft a new will, eliminating reference to her deceased husband, changing the residuary beneficiaries, naming Mrs. Lovell executrix, and continuing unchanged the grant to Mrs. Lovell of the farm. On August 10 Mrs. Lehto came to his office, in the company of Mr. and Mrs. Lovell, and executed her will. Mrs. Lehto was concerned about avoiding the cost of probating the farm, and "they” had agreed upon an immediate conveyance to Mrs. Lovell, with a life estate remaining in Mrs. Lehto. Mr. Keleher made sure that Mrs. Lehto understood the significance of what she was doing, taking substantial time to explain that the conveyance would be irrevocable, and explaining alternate methods of accomplishing her intent. Someone had mentioned that Mr. Lovell was doing some work for Mrs. Lehto, so he suggested a contract requiring Mr. Lovell to continue the work in exchange for the conveyance. Mrs. Lehto rejected this alternative because the cost of preparing the contract would be too great. The instructions regarding the deed came from Mrs. Lehto, not the Lovells, and he noticed nothing which would indicate incompetency or undue influence.
Mrs. Lehto testified that she had the will made out, but Mr. and Mrs. Lovell didn’t like it, so they rushed her down to Mr. Keleher’s office, not stopping to see if anyone would go with her. On the way there, Mrs. Lovell told her that they would take care of her for the rest of her life. When they arrived, Mr. Keleher had the deed already prepared, so that the Lovells had cooked up the transfer with Mr. Keleher beforehand. She asked Mr. Keleher what was on the paper, but she didn’t understand what he said. All of his advice was so complicated she didn’t understand a word of it. Something was said about the Lovells taking care of her, but Mrs. Lovell spoke up and said she wouldn’t take care of her. Mrs. Lehto was afraid that, if she didn’t sign the deed, she would lose her soil bank money. "I thought they would do that for me, so I signed it.” Indeed, it was her intent that, in exchange for giving Mrs. Lovell the farm in both the 1971 and 1973 wills, the Lovells would care for her for the rest of her life.
Mrs. Lovell testified that, on August 10, Mrs. Lehto called and asked her to take her to Mr. Keleher’s office. Mrs. Lehto had asked Aunt Elsie to take her, but Aunt Elsie had other commitments. They had no conversation regarding either the will or the deed on the way to the office, and she did not know why they were taking Mrs. Lehto to the office until they had arrived.
Mr. Lovell testified that they took Mrs. Lehto to Mr. Keleher’s office to have her will "verified”. Neither he nor his wife told Mrs. Lehto that, if she didn’t sign the deed, she would lose money. They made no promise to care for her.
Mr. Keleher’s secretary testified that she typed out the deed the same day Mrs. Lehto and the Lovells came to the office.
At some point subsequent to the execution of the deed, the relationship between Mrs. Lehto and the Lovells soured. Mrs. Lehto had been writing checks to pay her bills, but was continuously overdrawing her account. Mrs. Lovell determined that a different arrangement was necessary, so she started putting the checks in her own account, paying Mrs. Lehto’s bills, and keeping track of Mrs. Lehto’s money in a ledger. When Mrs. Lehto requested money for a special purpose, she would give it to her. Mrs. Lovell took care of Mrs. Lehto’s bills in this manner from December 1974 to February 1976.
Mrs. Lehto became dissatisfied with this economic relationship. First, she did not have readily available "pin” money, and could not give money at her church. She had to ask Mrs. Lovell for everything, and Mrs. Lovell seemed unresponsive. Further, she was unhappy that she had to continue to pay taxes and insurance on the property, even though the Lovells "owned it”.
Perhaps the culmination of Mrs. Lehto’s dissatisfaction was an incident involving the sale of some Christmas trees. Mrs. Lehto testified that a man came to her and asked to buy some Christmas trees. He went out and marked some trees, and later returned and removed them. She didn’t recall how many trees he took, or how much he paid. When the Lovells came over and she told them about the man, they "gave me heck”, pinched her, and pulled at her clothes, saying she had no business selling the trees. The Lovells testified that Mrs. Lehto had previously become confused regarding payment on the sale of a tractor. They did not object to the sale of the Christmas trees, but asked her why she did not confide in them so they could help account for the trees. Mrs. Lehto became very belligerent, and it became necessary for Mr. Lovell to restrain her by holding her arms down. They didn’t pinch her or pull at her clothes.
Mr. Keleher saw Mrs. Lehto again September 30, 1974, and determined that Mrs. Lovell was no longer the "fair-haired niece”. It seemed that Mr. Lovell had not plowed, so that Mrs. Lehto did not receive payment from the soil bank. Mrs. Lehto was also dissatisfied with Mrs. Lovell’s handling of her money, and wanted to manage her own affairs.
The trial court found that the deed was intended as a gift, and that there was no contract for the Lovells to care for Mrs. Lehto. There was no undue influence exerted. After the deed was legally executed, Mrs. Lehto simply changed her mind, and that was not a proper basis for relief.
"To establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient. Nelson v Wiggins, 172 Mich 191; 137 NW 623 (1912). However, in some transactions the law presumes undue influence. The presumption of undue influence is brought to life upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction.” Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77, 78-79 (1976).
The presumption was brought to life in the instant case. Mrs. Lovell was Mrs. Lehto’s favorite niece, and had her trust and confidence. Because of her faulty memory, Mrs. Lehto was dependent upon Mrs. Lovell to handle her financial affairs. Mrs. Lehto was dependent upon Mr. Lovell for a substantial portion of her income. There was, therefore, a fiduciary relationship between Mrs. Lovell and Mrs. Lehto. Mrs. Lovell benefited from the transaction, by acquiring an immediate interest in the property. Mrs. Lovell had an opportunity to influence Mrs. Lehto’s disposition of her property during the trip to Mr. Keleher’s office.
Establishment of the presumption created a "mandatory inference” of undue influence, shifting the burden of going forward with the evidence to defendant. Kar v Hogan, supra at 541-542; 251 NW2d at 80-81. Mr. and Mrs. Lovell testified that they did not attempt to influence Mrs. Lehto’s disposition of her property. This rebuttal evidence turned the presumption into a "permissible inference”. The presumption is substantive evidence of undue influence; specifically, the factors giving rise to the presumption are circumstantial evidence that undue influence occurred. Kar v Hogan, supra, In re Wood Estate, 374 Mich 278, 290-291; 132 NW2d 35, 43-44; 5 ALR3d 1, 15 (1965). The burden of persuasion remains on plaintiff throughout. Kar v Hogan, supra. We therefore weigh the evidence of undue influence pro and con, to determine whether plaintiff has met his burden of persuasion.
There are corroborative facts tending to support the permissible inference of undue influence. Mrs. Lehto did not request her attorney to prepare a deed during the initial conference, but left the disposition of the property in the will intact, except for reference to her deceased husband. This would seem to indicate that she thought of the deed between the time of the initial conference and the time when she arrived at the office with the Lovells. This in turn suggests that the Lovells requested or pressured her for the disposition. The reason advanced by Mrs. Lehto to her attorney, of avoiding the cost of probate, would seem to be a factor of greater concern to the Lovells than Mrs. Lehto. Mrs. Lehto testified that the Lovells were to care for her, and she was afraid that she would lose income if she did not sign the deed. Finally, it seems illogical for Mrs. Lehto to attempt to dispose of the same property by two different methods, the will and the deed, on the same day.
There are, however, substantial factors tending to counter the inference. First, Mrs. Lovell was the natural object for such a gift. She was Mrs. Lehto’s favorite niece, had cared for her in the hospital, and showed concern for her welfare. She was kind enough to handle Mrs. Lehto’s financial affairs, an apparently thankless task. Mrs. Lovell’s husband was directly responsible for a substantial portion of Mrs. Lehto’s income, repaired her barn, and kept her lawn mowed. Mrs. Lehto had obviously intended Mrs. Lovell to eventually get the property, as evidenced by the 1971 and 1973 wills.
Second, although Mrs. Lehto was forgetful, and thus incapable of handling her day to day financial affairs, there is no indication that she lacked the capacity to decide to make a gift, or understand the significance of making such a gift. Mr. Keleher testified that she understood what she was doing, and took pains to explain her actions to her to insure that she understood. Mr. Keleher did not see any sign of incompetency or undue influence.
Third, it appears the decision was left to Mrs. Lehto. Mr. and Mrs. Lovell testified that they did not know why they were taking Mrs. Lehto to Mr. Keleher’s office, and did not attempt to influence her. Mr. Keleher testified that Mrs. Lehto indicated what she wanted, and it was with Mrs. Lehto that he discussed alternatives, which she rejected.
We must discount Mrs. Lehto’s testimony of a conspiracy to do her out of her property, and of undue influence. First, her story that the deed was prepared before she arrived, and hence a result of an agreement between Mr. Keleher and the Lovells, appears conjectural and conflicts with that of the other witnesses, including the disinterested secretary of Mr. Keleher. Mrs. Lehto was not "rushed” to the office, but driven there at her request. Although Mr. Keleher’s advice may have seemed incomprehensible by the time of the trial, Mr. Keleher was satisfied that she understood it at the relevant time.
Upon reviewing the entire record, we are satisfied that the transaction was intended as a gift. Although Mrs. Lovell or her husband may have suggested a present conveyance to avoid probate costs, rather than wait to receive the property through the will, such suggestion would not have amounted to undue influence. All concerned anticipated that Mrs. Lovell would receive the property upon Mrs. Lehto’s death, and Mrs. Lehto discounted the irrevocability of the gift or the need for a contract to bind the Lovells to her. Although the desire to be cared for by the Lovells may have been Mrs. Lehto’s motivation, it was uncontroverted that Mrs. Lovell indicated in Mr. Keleher’s office that she would not be bound to care for Mrs. Lehto for the rest of her life. Mrs. Lehto eventually became resentful of the Lovell’s interference in her financial affairs, and her poor memory, resentfulness, tendency to paranoia, and her predisposition to say things which just are not true resulted in the allegations leading to this action.
We have not been left with a firm and definite conviction that the trial court erred in concluding that there was no undue influence.
The deed was valid even absent consideration. Cf. Kar v Hogan, supra at 545; 251 NW2d at 82.
Affirmed. Costs to defendant. | [
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On Remand
Per Curiam.
In People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), the Supreme Court, holding that manslaughter was not a necessarily included lesser offense of murder, reversed our prior decision in People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), and People v Van Wyck (On Rehearing), 76 Mich App 17; 255 NW2d 754 (1977), and remanded the case for our determination of "whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter”.
The record contains slight but sufficient evidence to present a jury question. See Maher v People, 10 Mich 212, 221-224; 81 Am Dec 781 (1862), and People v Holmes, 111 Mich 364, 370; 69 NW 501 (1896).
While the record does not conclusively establish mitigating circumstances, it does not clearly establish a lack of passion unlike People v Younger, 380 Mich 678; 158 NW2d 493 (1968), and unlike People v Bryant, 70 Mich App 279, 285; 245 NW2d 716 (1976). We cannot say that "there is no evidence to find the existence of manslaughter”. The people’s case contained evidence from which a jury could have found provocation and the influence of passion even though such a finding would have been inconsistent with the apparent defense theory. See People v John Willie Williams, 26 Mich App 218, 221-225; 182 NW2d 347 (1970).
Because the evidence would have supported a conviction of manslaughter, we reverse the defendant’s conviction and remand to the trial court for entry of a judgment of conviction of manslaughter and resentencing. However, if the prosecuting attorney is persuaded, in his discretion, that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge of second-degree murder.
Reversed and remanded.
D. L. Munro, J., did not participate. | [
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] |
Per Curiam.
On January 13, 1977, defendant was sentenced to a term of three years in prison at Milan Federal Correctional Institution on a charge of possession of stolen mail. On January 14, 1977, a letter was sent to the clerk of the Washtenaw County Circuit Court advising him of defendant’s sentence and whereabouts. On January 24, 1977, the prosecutor filed a detainer with the Milan Federal Correctional Institution pursuant to Art IV(a) of the interstate detainer act, MCL 780.601; MSA 4.147(1). Trial was scheduled for January 31, 1977, but on that day defendant changed his plea to guilty. Sentencing was set for February 4, 1977, and defendant was returned to the Milan Federal Correctional Institution. The date set for sentencing was adjourned twice at the request of the probation department.
On February 10, 1977, defendant filed a motion to dismiss under Art IV(e) of the Interstate Agreement on Detainers for the reason that he had been returned to Milan Federal Correctional Institution prior to being sentenced. This motion was denied. An amended motion was filed and was also denied. Sentence was passed on March 18, 1977, and de fendant received a concurrent sentence of 1-1/2 to 10 years in prison. Defendant appeals as of right.
The issue on appeal is whether the word "trial” in the Interstate Agreement on Detainers includes the imposition of a sentence. This is a case of first impression. Art IV(e) of the agreement reads,
"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”
The agreement used the word "trial” and the commissioners in using this word must have intended to convey its normal meaning. Normally, trial involves the determination of guilt and ends with that determination, People v DeVine, 271 Mich 635; 261 NW 101 (1935), 75 Am Jur 2d, Trial, § 3, p 122, 88 CJS, Trial, § 2, p 21, 42A Words & Phrases, Trial, Conclusion, p 171. In connection with the use of the word "trial”, the statute says, "[i]f trial is not had * * * [the] indictment * * * shall not be of any further force or effect”. The function of the indictment is to charge the accused and that function ceases with the determination of guilt.
In Michigan cases, outside of the Interstate Agreement on Detainers, the distinction between trial and sentencing is well established, see People v Funk, 321 Mich 617, 621; 33 NW2d 95 (1948), People v DeVine, supra, MCL 771.1; MSA 28.1131. Also, the goals behind the Interstate Agreement on Detainers supports this interpretation. The main goal of the agreement is to remove the harmful uncertainties concerning the defendant’s release that are caused by the filing of detainers concerning unprosecuted crimes. Although the imposition of a sentence can also create uncertainties as to the prisoner’s future, the main concern of the agreement is with the uncertainty which results from unprosecuted charges. As the Court noted in Buchanan v Department of Corrections, 50 Mich App 1, 3-4; 212 NW2d 745 (1973),
"[t]he evil sought to be ended by the agreement on detainers is the oppressive delay in trial or hearing on matters concerning a prisoner already confined, and the corrosive effect on prisoner morale and the rehabilitative process in general arising from a myriad of untried or unheard allegations of other wrongdoing.” (Emphasis supplied.)
The uncertainty caused by the delay in sentencing is minimal when compared with the uncertainty resulting from untried charges. Therefore, we hold that the word "trial” as used in MCL 780.601; MSA 4.147(1), refers to the determination of defendant’s guilt and that the trial ends with that determination.
In any event, appellant did not suffer any prejudice by being returned to Milan before sentencing. There was no uncertainty as to the sentence in this case. The guilty plea was entered pursuant to a plea-bargain agreement by which defendant was to receive a sentence of 1-1/2 to 10 years in prison. This agreement was carried out and so defendant was already aware of his sentence when he was transferred back to Milan.
Affirmed. | [
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M. F. Cavanagh, P. J.
Defendant board of education rendered a decision discharging plaintiff, a tenured teacher. This decision was sustained by the circuit court, and plaintiff appeals.
The issues on appeal concern the propriety of the procedures followed below, and require that we recount the rather complex proceedings in detail.
On April 12, 1972, the school district’s superintendent filed dismissal charges against plaintiff with the board. A copy of the charges together with a letter reciting plaintiff’s rights under the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., were mailed to plaintiff’s home on April 14, 1972. The letter instructed plaintiff to request a hearing, if desired, within ten days from the date of the letter. However, plaintiff was in the hospital at this time and did not return home and pick up his mail until April 28, 1972, 14 days after the letter’s date.
As of May 30, 1972, 46 days after the letter was mailed to plaintiff, he had not requested a hearing. The board, noting that the tenure act required it to hold any hearing within 45 days of the filing of charges, MCL 38.102; MSA 15.2002, concluded that plaintiff did not desire a hearing. The board proceeded to act upon the charges and adopted a resolution dismissing plaintiff.
Upon notification of his dismissal, plaintiff, by letter dated June 2, 1972, requested a hearing before the board. The board refused a hearing on the ground that the 45-day period had expired.
Plaintiff appealed to the state teacher tenure commission. The commission’s decision stated the sole issue as whether plaintiff had made a timely request for a hearing before the board. The commission found against plaintiff, and granted the board’s motion to dismiss.
Plaintiff then filed an appeal in circuit court, seeking reinstatement with back pay or, in the alternative, a remand for further proceedings. The court found that plaintiff had justifiably assumed that his right to a hearing was lost when he received, 14 days after its mailing, a letter directing him to request a hearing, if desired, within ten days. The court further found that the delay before plaintiff did request a hearing was not unreasonably long. The court then reversed the commission and remanded the case for a hearing before the local board. No appeal from this adverse determination was taken by the defendant board. The court’s opinion also stated that it would "hold in abeyance” a decision on plaintiffs request for reinstatement and back pay "until said hearing is held and results of same forwarded to the Court”.
On May 7, 1976, after lengthy hearings, the board again resolved to discharge plaintiff. The board’s attorney then delivered to the circuit court the board’s decision and a transcript of the hearings. The court, after reviewing these documents and briefs of counsel, entered an order upholding the board’s action.
Plaintiff then moved the court for a rehearing, requesting that the court set aside its order and permit plaintiff to exhaust his administrative remedies by obtaining tenure commission review of the board’s decision on the merits. The court denied the motion, indicating that even if plaintiff were to prevail before the tenure commission the case would come back before the court and that the court agreed with the board’s disposition. Plaintiff appeals from the order denying a remand to the tenure commission.
The teacher tenure act prescribes the procedure for review of a school board’s decision to discharge a tenured teacher. The act specifically provides the tenured teacher with the right to review by the tenure commission. MCL 38.121; MSA 15.2021. The commission hears the case de novo. Luther v Board of Education of the Alpena Public Schools, 62 Mich App 32, 35; 233 NW2d 173, 175 (1975). It may take new evidence, "make an independent finding of facts, opinionate upon the same, and enter an order accordingly”. Rehberg v Board of Education of Melvindale, Ecorse Township School District No. 11, 345 Mich 731, 740; 77 NW2d 131, 135 (1956). The commission is "vested with duty and authority to determine, anew and as original questions, all issues of fact and law theretofore decided by the controlling board”. Long v Board of Education, District No. 1, Fractional, Royal Oak Township and City of Oak Park, 350 Mich 324, 327; 86 NW2d 275, 276 (1957).
The commission’s decision is in turn appealable to the circuit court. MCL 24.301; MSA 3.560(201), MCL 600.631; MSA 27A.631. However, the court’s reviewing power is limited:
"When a court reviews an administrative tribunal decision, it reviews the original record to determine if the decision is supported by competent, material and substantial evidence, and will overturn a decision only when such decision is contrary to law, or is not supported by the necessary competent, material and substantial evidence.” Detroit v General Foods Corp, 39 Mich App 180, 190; 197 NW2d 315, 321 (1972). (Emphasis in original.)
See also, Long v Board of Education, District No. 1, Fractional, Royal Oak Township and City of Oak Park, supra, 350 Mich at 326; 86 NW2d at 276.
Review of a tenured teacher’s discharge is further limited by the rule that an administrative agency’s decision is not subject to judicial review until the aggrieved party has exhausted all administrative remedies. See MCL 24.301; MSA 3.560(201). See generally Judges of the 74th Judicial District v Bay County, 385 Mich 710, 727-728; 190 NW2d 219, 226 (1971). Because tenure commission review is available to a tenured teacher discharged by the board, the doctrine of exhaustion requires resort to this remedy before the case is reviewable in circuit court. Compare Long v Board of Education, District No. 1, Fractional, Royal Oak Township and City of Oak Park, supra, 350 Mich at 326; 86 NW2d at 276, with Caddell v Ecorse Board of Education, 17 Mich App 632, 635-636; 170 NW2d 277, 279 (1969).
The circuit court first heard the instant case on appeal from the tenure commission. The court acted fully within its power in remanding the matter to the board for a hearing on the merits. However, the court erred by directing that the results of this hearing were to be forwarded directly to the court. The order impermissibly expanded the appellate jurisdiction of the circuit court at the expense of plaintiffs right to administrative review.
Defendant contends that plaintiff lost his right to tenure commission review by failure to make timely application and by waiver through acquiescence in the circuit court’s assertion of jurisdiction.
As to timely application, the statute requires that appeals to the tenure commission be taken within 30 days from the date of the board’s decision. MCL 38.121; MSA 15.2021. Here it has been many more than 30 days since the school board decision of which plaintiff complains.
However, in proper circumstances the 30-day period may be tolled. Biberstine v Port Austin Public School District No. 9, 51 Mich App 274, 278-279; 214 NW2d 729, 732 (1974), lv den, 392 Mich 766 (1974). The statute of limitations on an action at law is held to be tolled where a suit is commenced and jurisdiction over the defendant is obtained. MCL 600.5856; MSA 27A.5856. Smith v Bordelove, 63 Mich App 384, 386; 234 NW2d 535, 536 (1975), lv den, 395 Mich 772 (1975). A similar rule is appropriate where, as here, a court order truncates administrative review and brings the dispute into court. See Barczak v Rockwell International Corp, 68 Mich App 759, 766 et seq., 244 NW2d 24, 27 (1976) (dissenting opinion of M. F. Cavanagh, J.). Defendant can hardly contend that it was prejudiced by lack of timely notice of the claim which it was called upon to defend. Accordingly, we hold that the court’s erroneous assertion of jurisdiction tolled the limitations period for appeal to the tenure commission.
We turn to defendant’s claim that plaintiff waived his right to tenure commission review. A valid waiver requires an intentional relinquishment of a known right. Book Furniture Co v Chance, 352 Mich 521, 526; 90 NW2d 651, 655 (1958). From plaintiffs compliance with the court’s order it may fairly be inferred that he desired the benefit of any favorable ruling which the court might make. However, nothing in this record persuades us that plaintiff intentionally exchanged his right to de novo review before the tenure commission and subsequent judicial review for the court’s extrajurisdictional review of the board’s decision. Plaintiffs motion for remand to the tenure commission is strong evidence to the contrary. We find no waiver of the right to a hearing before the tenure commission.
Finally, defendant urges us to affirm the lower court on the ground that it reached the correct result, notwithstanding unsound reasons. See Bostrom v Jennings, 326 Mich 146, 157-158; 40 NW2d 97, 102 (1949). Defendant argues that the court erred by remanding the case for a board hearing, and that, for this reason, there was no error in refusing a remand for a tenure commission hearing.
Defendant’s argument assumes that the right to a hearing before the tenure commission is condi tinned on exercise of the right to a prior hearing before the school board.
We have reservations about applying a right result-wrong reason analysis in this context. See GCR 1963, 807. These reservations aside, defendant has cited, and we have found, no authority requiring a board hearing as a prerequisite to a tenure commission hearing. Nothing in the teacher tenure act or the tenure commission’s rules so provides. See MCL 38.71 et seq.; MSA 15.1971 et seq., 1976 AACS, R 38.131 et seq. We conclude that, even if the court erred in ruling that plaintiff was entitled to a hearing before the board (a question upon which we express no opinion), this would not excuse error in denying plaintiff tenure commission review.
The circuit court is reversed. If demand is made within 30 days, plaintiff’s appeal shall be heard by the teacher tenure commission. This disposition makes it unnecessary to consider plaintiff’s request for back pay.
Reversed and remanded. No costs. | [
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Bronson, P. J.
Plaintiff suffered a back injury in 1969, while employed by defendant, for which he was compensated under the Workmen’s Compensation Act. On September 5, 1973, plaintiff filed a petition for a hearing against defendant-employer and the Second Injury Fund for total and permanent disability benefits, claiming the loss of industrial use of both legs. Plaintiff claimed that the total and permanent disability was caused by the original injury and subsequent deterioration of his condition. The Workmen’s Compensation Appeal Board unanimously found that plaintiff had established loss of industrial use of both legs as of April 22, 1971, as a result of a deterioration of a condition caused by the original injury. The board also held that the "one-year-back” rule, MCL 418.833(1); MSA 17.237(833)(1), did not apply.
The Second Injury Fund appeals by leave granted the board’s determination that the one-year-back rule does not apply to the case at bar.
MCL 418.833(1); MSA 17.237(833)(1) (the one-year-back rule) provides:
"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.”
Some discussion of prior cases dealing with this provision is necessary for a complete understanding of the complex issue before us.
A reading of these cases discloses initially that the term "further compensation”, as used in MCL 418.833(1); MSA 17.237(833)(1), is a term of art. It is given meaning by the cases interpreting it and, contrary to the dissent’s approach, is not susceptible to interpretation based on its common meaning.
The first case construing the term "further compensation” in the context of the Workmen’s Compensation Act was Palchak v Murray Corp of America, 318 Mich 482; 28 NW2d 295 (1947).
In Palchak, plaintiff suffered an eye injury in 1943 and was compensated for the injury. Plaintiff filed a petition in 1945 based on the deterioration of the 1943 injury. The defendant asserted that it had not received proper notice and that a proper claim had not been made. The Court affirmed an award for plaintiff, stating:
"The case at bar does not involve distinct injuries sustained in an accident, but rather two results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff’s claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply.” 318 Mich at 493-494.
This language was interpreted in Morgan v Lloyds Builders Inc, 344 Mich 524; 73 NW2d 880 (1955), to mean that a claim based on a deteriorated condition is not a petition for "further compensation”.
Morgan also involved an eye injury. Plaintiff was compensated for his loss caused by the injury, and later filed an application for an adjustment because of a subsequent difficulty, which resulted in loss of vision of that eye. Defendant raised the defense of lack of notice. The Court concluded that the one-year-back rule did not apply.
After quoting the previously quoted language in Palchak, the Court said:
"We find that the petition entitled, 'application for hearing and adjustment of claim,’ filed by the plaintiff, dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye.” 344 Mich at 528-529.
Morgan was discussed in Loucks v Bauman, 356 Mich 514; 97 NW2d 321 (1959). In Loucks plaintiff received compensation for an amputation of his right leg. He later filed for an adjustment due to total disability based on the unstable condition of his remaining leg, which had been injured in the same accident.
After citing the one-year-back rule, three justices wrote:
"In the instant case, plaintiff speaks of a further development, after loss of the left leg, in that the 'increased weight-bearing due to the loss of Louck’s left leg directly contributed to and aggravated the unstable condition of his right leg.’ The appeal board made no such finding of fact that the disability of the right leg was a further development, and there is no testimony to support such theory in the appendix. On the contrary, the appeal board expressly found that plaintiffs total disability resulted from both the amputation of the left leg and the unstable condition of the right leg which had existed since the date of his accidental injury on June 20, 1947. This is, then, according to the finding of fact of the appeal board, not a case of a further development, resulting in a disability which did not exist when compensation was allowed for the loss of the left leg, but, rather, an application for further compensation for a disability existing from the date of injury, on which an award of compensation may not, under the quoted language of the statute, be made for any period more than 1 year prior to filing the application on November 12, 1954.” (Emphasis added.) 356 Mich at 516-517.
The one-year-back rule was applied in Loucks because plaintiffs application was for "further compensation”—for a separate and distinct injury rather than a further development from a single injury. We deduce from the above-discussed cases the general rule that "further compensation” is a term of art, as used in the act, meaning compensation for separate and distinct injuries, but not including compensation for injuries resulting or developing from a single original injury.
More recent cases are by and large in accordance with this general rule.
In Adcox v Northville Laboratories, Inc, 381 Mich 600; 166 NW2d 460 (1969), the one-year-back rule was applied because:
" 'In our opinion, this testimony supports the finding that plaintiff did not sustain the burden of proving a "further and subsequent development,” that is, one injury with 2 distinct results. See Palchak v Murray Corporation of America (1947), 318 Mich 482, 493.’ ” 381 Mich at 610, fn, quoting Adcox v Northville Laboratories, 11 Mich App 13, 18; 160 NW2d 587 (1968).
I.e., because the WCAB found as a fact that the plaintiff’s condition was not a result of the original injury, his petition was one for "further compensation” which was subject to the one-year-back rule.
Drake v Norge Division, Borg-Warner Corp, 48 Mich App 88; 210 NW2d 131 (1973), is additional authority for our interpretation of the term "further compensation”.
Plaintiff in Drake suffered a heart attack and was awarded compensation for total disability. He then filed a petition seeking additional benefits, alleging total and permanent disability due to the loss of industrial use of both arms and legs as a result of the heart attack. The WCAB granted additional compensation, finding that plaintiff had lost the industrial use of his legs as a consequence of his work-related heart attack. This Court affirmed, noting that there was evidence in the record to support that claim, quoting the language from Palchak which we quote above and stating:
"Plaintiff in the case at bar is not alleging a second and separate injury sustained at the time of the first injury. There was but a single injury in this case.” 48 Mich App at 95.
Thus, on facts almost identical to the case at bar this Court has held that the one-year-back rule did not apply.
To repeat, the cases above consistently hold that "further compensation” means compensation for a distinct injury; "further compensation” does not encompass a petition for compensation based on separate results or consequences of a single injury.
Appellant relies heavily on Baldwin v Chrysler Corp, 67 Mich App 61; 240 NW2d 266 (1976). This reliance is misplaced.
In Baldwin, plaintiff had lost the use of his right leg due to polio. He then lost his left leg in a work-related injury for which he received specific loss benefits. Twenty-five years after those benefits expired, plaintiff petitioned for total and permanent disability benefits. The Court of Appeals applied the one-year-back rule without citation of any authority or discussion. Baldwin should probably be confined to its facts because of the lack of discussion of this issue as well as the unusual circumstances under which it arose. However, Baldwin also is distinguishable from the case at bar because there plaintiffs claim does not appear to have been based on a result or development from the original injury, but was a request for additional benefits based solely on the original injury. In contrast, the case at bar is squarely within the holding of prior cases that a claim based on a separate result or deterioration from an injury is not one for "further compensation”. See Drake v Norge Division, supra; Loucks v Bauman, supra; Morgan v Lloyds Builders Inc, supra; Palchak v Murray Corp, supra.
Applying prior law to the case at bar is relatively easy. The WCAB did not apply the one-year-back rule here because plaintiffs claim was based on a demonstrated deterioration in condition as a result of an original injury. Thus, plaintiffs claim was not one for "further compensation” under MCL 418.833(1); MSA 17.237(833)(1) and the Palchak-Morgan-Loucks-Drake line of cases. We find evidence supporting the WCAB’s finding of fact. Therefore, we hold that the WCAB correctly declined to apply the one-year-back rule.
This result is sound from a policy standpoint as well.
First, it has long been held that the Workmen’s Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), Hite v Evart Products Co, 34 Mich App 247; 191 NW2d 136 (1971), Dean v Arrowhead Steel Products Co, Inc, 5 Mich App 691; 147 NW2d 751 (1967).
Second, "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons”. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968).
Finally, assuming that the legislative purpose of the one-year-back rule is to provide notice to defendant and prevent stale claims, see White v Michigan Consolidated Gas Co, 352 Mich 201, 219; 89 NW2d 439 (1958), this policy is not served by limiting the recovery of a plaintiff who suffers an injury and who later suffers additional consequences of the original injury and immediately files for additional compensation. In such a case there is no problem of a plaintiff unjustifiably delaying his claim. For example, the Court in White noted:
"If one thing is clear about this record, it is that plaintiff since May 20, 1952, [the date plaintiff filed for a hearing on adjustment of claim] has consistently and vigorously claimed compensation by every means at his command. The notice of claim and litigation for it has been continuous. We do not believe the legislature could have intended the limitation to be effective in such a situation.” 352 Mich at 212. Cf. Baldwin v Chrysler Corp, supra.
Affirmed. Costs to appellee.
T. M. Burns, J., concurred.
This issue was not waived by defendant’s failure to argue it before the WCAB, as defendant, satisfied with the referee’s decision, had no reason to anticipate a need to argue it. See White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958).
We note that Palchak and Morgan were disputes over notice to an employer and did not involve the Second Injury Fund. Nevertheless, the result they reach is relevant to the issue before us.
See MCLA 418.833(1); MSA 17.237(833)(1).
Justice Edwards, concurring, agreed with this holding:
"I agree with the Chief Justice that the findings of fact of the appeal board indicate that this was a claim for further compensation due to another injury which occurred at the same time as the original accident, rather than a subsequent development from the original injury (cf., Morgan v Lloyds Builders, Inc, 344 Mich 524) or a change in physical condition after the original adjudication (cf., White v Michigan Consolidated Gas Co., 352 Mich 201).” 356 Mich at 531-532.
See Hlady v Wolverine Bolt Co, 325 Mich 23; 37 NW2d 576 (1949). We intimate no view on the correctness of the Baldwin decision; a consideration of its validity must await the proper case. | [
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Danhof, C. J.
Plaintiff alleges that on June 7, 1976, he was injured in the course of his employment while driving his employer’s truck which was covered under a no-fault motor vehicle insurance policy issued by the defendant to the plaintiffs employer. As a result of the injury, plaintiff received workers’ disability compensation benefits paid by the employer’s workers’ compensation insurance carrier (not the defendant). On May 9, 1977, plaintiff filed suit against defendant seeking to recover no-fault personal protection insurance benefits, MCL 500.3114(3); MSA 24.13114(3). Based on the contention that § 131 of the Worker’s Disability Compensation Act (MCL 418.131; MSA 17.237[131]), provided that plaintiffs exclusive remedy was through that act, defendant moved for and was granted accelerated judgment. GCR 1963, 116.1(2).
Section 131 of the Worker’s Disability Compensation Act reads:
"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.”
The defendant in the instant case, unlike the defendant in Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), is not plaintiffs employer as defined in § 131. Conse quently, that exclusive remedy provision does not operate to bar the instant circuit court action. Therefore, accelerated judgment, based on § 131, was improper and must be reversed.
The statutory schemes of workers’ disability compensation and no-fault motor vehicle insurance provide an employee, such as the plaintiff, who is injured in the course of employment while occupying an employer-owned motor vehicle covered by a no-fault policy issued by an insurance company, at least two potential avenues of recovering compensation. The employee may obtain workers’ disability compensation benefits and also may obtain no-fault benefits. During oral arguments before this Court, plaintiff’s attorney stated in part: "There is an offset proviso within the statute * * * that offset permits the no-fault carrier to not have to double pay * * * We’re certainly not intending to double dip.” This author thoroughly agrees with the view that the plaintiff should not obtain a double recovery. Both of these potential sources of recovery are creatures of the Michigan Legislature and both are paid for by the employer. The Legislature was aware of the possibility of duplicative recovery when it enacted the no-fault motor vehicle insurance act. The problem was addressed in §3109(1) (MCL 500.3109[1]; MSA 24.13109[1]) which reads:
"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”
In Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218; 261 NW2d 554 (1977), § 3109(1) was held to be void where it operated to reduce, by the amount of workers’ disability compensation bene fits received, the no-fault benefits payable under a no-fault insurance policy purchased by the employee. The opinion reads in part at 224-225:
"If the subtraction rule functions as intended, it denies recovery on no-fault policies for the purpose of lowering premiums. * * * [W]orker motorists are forced to purchase insurance on which the law denies them a right of recovery, so that other insureds may enjoy lower premiums for insurance on which they can recover.
"We perceive no way in which this allocation increases premium savings. Forcing a given class to purchase. insurance upon which they cannot recover will tend to reallocate wealth, but will do so in a manner unrelated to any identifiable legislative policy. We do not regard the random redistribution of wealth as a legitimate legislative objective, sufficient to justify the discriminatory effect of § 3109(1).”
The holding and rationale of Pollock do not apply to the situation in the instant case where an employee seeks recovery of benefits provided by a no-fault policy purchased by the employer.
In O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted 397 Mich 848 (1976), § 3109(1) of the no-fault act was declared unconstitutional where its application resulted in deduction of Federal Social Security benefits from no-fault personal injury protection benefits otherwise payable. O’Donnell reads in part at 496:
"Section 3109(1) is very broad—it covers any collateral governmental source. No-fault systems in other states include collateral source set-off provisions, but in Illinois and Florida, for example, the set-off provisions apply only to workmen’s compensation benefits. It might be argued that the latter type of set-off provision is reasonable because the workmen’s compensation ben efits are provided without cost to the beneficiary, while private collateral source benefits are not. Cf. Grace v Howlett, supra, [51 Ill 2d 478; 283 NE2d 474 (1972)], Chief Justice Underwood, dissenting. The argument is persuasive.
This analysis applies to the facts of the instant case. Application of § 3109(1) in the instant case would be valid. Therefore, if on remand plaintiff succeeds in establishing an entitlement to no-fault personal protection benefits, in my view an off set for worker’s disability compensation benefits recovered should be made as provided for in § 3109(1).
Reversed and remanded for further proceedings. Costs to plaintiff.
"This type of no-fault set-off provision (reducing no-fault benefits by workmen’s compensation benefits received) has been upheld by the Florida Supreme Court. Lasky v State Farm Insurance Co, 296 So 2d 9, 21 (Fla, 1974).” | [
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Per Curiam.
Defendant appeals from a summary judgment granted to plaintiff in a declaratory judgment action. On October 9, 1974, Mrs. Taylor was killed while a passenger in her own car which was being driven by Rick Kirgis when the car left the road and struck a tree. At the time of the accident, Mrs. Taylor had in effect an insurance policy issued to her by plaintiff. Because Rick Kirgis resided with his father at the time of the accident, he was covered under his father’s policy issued by Home Mutual Insurance Company.
Decedent’s husband was appointed special administrator of her estate, and he commenced suit in Bay County Circuit Court on May 12, 1975, seeking relief against, inter alia, Rick Kirgis. Because Mrs. Taylor’s insurance policy extended coverage to permissive users of her vehicle, Mr. Kirgis demanded that plaintiff defend him in that action.
Plaintiff then filed a complaint for a declaratory judgment claiming that it had no duty to defend or insure Mr. Kirgis because of an exclusion in the policy issued to Mrs. Taylor which provided:
"Exclusions—Section 1
"This insurance does not apply under:
"(h) Coverage A [residual liability insurance], to bodily injury to any insured or any member of the family of any insured residing in the same household as the insured. ”
The policy defined insured as follows:
"Insured—The unqualified word 'insured’ includes * * * (4) any other person while using the owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED OR SUCH SPOUSE AND ARE WITHIN THE SCOPE OF SUCH PERMISSION.”
Defendants answered the complaint, and plaintiff then filed a motion for summary judgment under GCR 1963, 117.2(3), claiming that there were no material issues of fact, but only questions of law. Briefs were filed, and following oral argument and supplemental briefs, the court entered an opinion granting the motion for summary judgment.
We adopt Judge (now Justice) Levin’s dissenting opinion in Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513, 524; 194 NW2d 193 (1971), as well as the well-written opinion in Allstate Insurance Co v Defrain, 81 Mich App 503; 265 NW2d 392 (1978), and, on the basis of those two cases, we reverse and hold that plaintiff is under a duty to defend.
Costs to appellant. | [
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Per Curiam.
The defendant herein secured accelerated judgment on plaintiff’s malpractice claim. Defendant’s motion was granted on grounds of governmental immunity. The appropriate order was entered and plaintiff appeals by right.
At the outset, we note that defendant’s motion for accelerated judgment on the grounds of governmental immunity should have been a motion for summary judgment. McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976), Butler v Wayne County Sheriff’s Dept, 75 Mich App 202, 203; 255 NW2d 7 (1977). However, the plaintiff was not prejudiced by the mislabeling of defendant’s motion as the motion averred that plaintiff had failed to state a claim upon which relief could be granted and because the defendant had governmental immunity.
Plaintiff’s initial challenge to the constitutionality of the governmental immunity statute has been rejected by this Court. See Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677; 256 NW2d 240 (1977), and cases discussed therein.
Plaintiff also contends that the operation of a community owned hospital is not a governmental function which is immune from tort liability. This precise question was recently decided against the plaintiff in White v Detroit, 74 Mich App 545; 254 NW2d 572 (1977).
"While other areas may require us to use our 'creative genius’ to resolve the issue of 'governmental function’, Thomas v Department of State Highways, [398 Mich 1, 11; 247 NW2d 530, 533 (1977)] an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function. Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950), Nicholson v Detroit, 129 Mich 246; 88 NW 695 (1902), Knight v City of Tecumseh, [63 Mich App 215; 234 NW2d 457 (1975)], Lockaby v Wayne County, 63 Mich App 185, 190-191; 234 NW2d 444, 446 (1975), Snow v Freeman, [55 Mich App 84; 222 NW2d 43 (1974)]. We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability.” White, supra, at 548.
The trial court’s decision is affirmed. Costs to defendants. | [
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Danhof, C. J.
Defendant was jury convicted of armed robbery in violation of MCL 750.529; MSA 28.797, and was subsequently sentenced to a term of 7-1/2 to 20 years in prison. Defendant appeals as of right raising four issues.
Defendant argues that the absence of counsel at his parole revocation hearing, which took place after his arrest but before his trial on the robbery charge, required the per se exclusion of any testimony concerning that parole revocation proceeding or its result at the robbery trial. The prosecution did not present any such testimony at defendant’s trial however.
Defendant further argues that the in-court identification of the defendant by the complaining witness was tainted by the impermissibly suggestive pretrial identification procedure which occurred during the parole revocation hearing. Defendant made a pretrial motion to suppress the in-court identification. Assuming that the defendant is correct that the parole revocation hearing con stituted an impermissibly suggestive identification procedure, the record discloses clear and convincing evidence that the witness had a prior independent basis for his in-court identification. That basis was his observation of the robber at the scene of the crime both shortly before and during the robbery. Applying the test set out in People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), reveals that the factors favoring a finding of an independent basis include the witness’s opportunity to observe the robber before and during the crime under good lighting conditions with no distractions; the fairly short time between the crime and the trial; the previous proper identification of defendant’s photograph in a nonsuggestive identification situation; the accuracy of the witness’s description of the defendant given shortly after the crime occurred; and the fact that the witness identified no one other than the defendant as the robber. Some factors do undercut the identification including the witness’s excited state during the robbery; his failure to identify defendant’s picture shortly after the robbery; and the witness’s own testimony which appears confused at points. Defendant places great emphasis on a small part of this testimony which appears to contain an unequivocal admission by the witness that he could not have identified the defendant had he not seen him at the parole revocation hearing. A fair reading of the record shows, however, that the witness misunderstood the question asked of him. The witness subsequently explained that he had not' finished his answer and that the parole hearing had no effect on his ability to identify the defendant whom he could have identified as the robber even if he had not seen him at the parole hearing. Our own reading of the question posed to the witness reveals that it contains three negatives and could easily have confused the witness. The record supports a finding of an independent basis and therefore it was not error to allow the witness to make an in-court identification of the defendant.
Defendant also contends that the prosecutor’s unobjected to statement in closing argument that the evidence was "uncontradicted and unrebutted” was an improper comment on the defendant’s failure to testify. There is no merit to this contention. People v Jacoboni, 34 Mich App 84, 86; 190 NW2d 720 (1971), People v Franklin, 70 Mich App 343, 348; 245 NW2d 746 (1976).
Defendant also argues that the prosecutor’s questioning of his alibi witnesses to determine if defendant was employed at the time of the robbery was improper. We agree. However, we do not find reversible error here because there was no objection at the trial, the questions were few, the subject was not mentioned in closing argument, and there has been no showing of manifest injustice. See People v Martin, 75 Mich App 6, 13-14; 254 NW2d 628 (1977), and People v Kincade, 61 Mich App 498, 506-507; 233 NW2d 54 (1975).
Affirmed.
Allen, J., concurred. | [
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J. H. Gillis, J.
On April 9, 1975, while walking in the City of Lincoln Park, plaintiff Margaret Bouser tripped on a curb constructed higher than the adjoining sidewalk, causing her to fall. She suffered permanent injury from a fracture of the left fibula and left tibia.
On August 26, 1976, plaintiffs started a lawsuit in Wayne County Circuit Court against the City of Lincoln Park, G. A. Morrison Company (the construction firm) and Pate, Hirn and Bogue, Inc. (the architectural firm). Plaintiffs alleged that defendant city was guilty of negligence and willful and wanton negligence in hiring the architects and the construction company, and failing to inspect, maintain and repair the sidewalk. The other defendants were alleged to have provided a defective and dangerous curb and sidewalk and failed to warn foreseeable users of the curb and sidewalk of the hazard.
On October 28, 1976, defendant, Pate, Hirn and Bogue, Inc., filed a motion for summary and/or accelerated judgment, contending that MCL 600.5839; MSA 27A.5839 establishes a six-year statute of limitations for personal injury claims arising from the performance, furnishing of designs or supervision of construction by registered engineers and licensed architects; that plaintiffs’ claim accrued more than ten years after the completion of the sidewalk and its turning over to the city; and that the claims were therefore barred. On December 2, 1976, plaintiffs filed a reply asserting that MCL 600.5839; MSA 27A.5839 is unconstitutional.
The trial judge upheld the view of defendant Pate, Hirn and Bogue, Inc. Plaintiffs appeal.
It is well settled that the Legislature of this state has the authority to abolish a cause of action which has not accrued. Const 1963, art 3, § 7. Statutes enacted pursuant to this authority are statutes of abrogation. See Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973).
Plaintiffs contend that the statute at issue in the instant matter is one of limitation which cannot abolish a cause of action before it accrues. We disagree.
The Dyke case, supra, indicates that the legislative intent underlying the enactment of the statute is a key factor to consider in determining whether a statute is one of limitation or abrogation.
The Legislature has set forth rather unambiguous language in MCL 600.5839; MSA 27A.5839 concluding that the 6-year period in which actions may be brought begins to run at the time of occupancy of the completed improvement or upon acceptance of such improvement.
"No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.” MCL 600.5839(1); MSA 27A.5839(1). (Emphasis supplied.)
Hence, the statute expressly prohibits any suits six years after the individual accepts the improvements. Accordingly, the statute is one of abrogation in respect to claims which accrue after the designated six-year period.
Plaintiffs’ brief on appeal rejects this analysis on the basis of the Dyke case, supra.
However, the statute construed to be one of limitation in the Dyke case does not specifically state when the period within which to maintain an action begins to run. Instead, it concludes that the limitation period begins to run when the cause of action accrues.
"No person may bring or maintain any action to recover damages for injuries to persons * * * unless, after the claim ñrst accrued * * * he commences the action within the periods of time prescribed by this section.” MCL 600.5805; MSA 27A.5805. (Emphasis supplied.)
As noted by Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 151; 200 NW2d 70 (1972):
"Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run.”
A careful reading of the statute at issue in the Dyke case indicates that the Legislature did not intend to eliminate a cause of action before it accrued. The purpose of the enactment was to limit the period in which actions could be maintained after they accrued.
However, the distinct language of the statute in the instant matter strictly prohibits any actions six years after occupancy or acceptance of the improvement. The statute does not concern itself with when the cause of action accrues. Accordingly, the plain language of the enactment leads us to the conclusion that the Legislature intended to abrogate any cause of action arising under the statute after the specific six-year period has run.
To hold otherwise, would require us to ignore well-settled principles of statutory construction.
"A statute may be judicially construed if the language used is ambiguous or the statute is susceptible of two or more meanings. Royal Oak School Dist v Schulman, 68 Mich App 589; 243 NW2d 673 (1976). The primary rule of statutory construction is to determine and effectuate the Legislature’s intent. Williams v Secretary of State, 338 Mich 202; 60 NW2d 910 (1953), Chesapeake & Ohio R Co v Public Service Commission, 59 Mich App 88; 228 NW2d 843 (1975). Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. Schoolcraft County Board of Commissioners v Schoolcraft Memorial Hospital Board of Trustees, 68 Mich App 654; 243 NW2d 708 (1976).” King v Director of the Midland County Department of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977).
Statutes should also be construed as to avoid constitutional infirmity.
An application of the aforementioned principles to the instant statute leads us to the conclusion that the statute is constitutional as applied to plaintiffs’ claim.
Affirmed. Costs to appellees.
Bashara, P. J., concurred.
Also see Bean v McFarland, 280 Mich 19; 273 NW 332 (1937), Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970).
See Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972).
"Since '[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought * * * ’, Price [v Hopkin], supra, [13 Mich 318 (1965)], a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abolishing his right to bring suit.
"Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action.” Dyke v Richard, 390 Mich 739, 746-747; 213 NW2d 185 (1973).
See Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978), which also deal with the constitutionality of MCL 600.5839; MSA 27A.5839. See also People v Harrington, 396 Mich 33; 238 NW2d 20 (1976).
Plaintiff has no standing to challenge the statute at issue on equal protection grounds and, therefore, we will not address this issue. | [
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Per Curiam.
Defendant appeals his conviction by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and two counts of assault with intent to murder, MCL 750.83; MSA 28.278. Evidence was introduced by the prosecution to show that the charges arose from the perpetration of a larceny by defendant and his wife.
While stopped at a gas station, defendant’s wife went into the station and took money from the cash register. In their attempt to escape, defendant and his wife were subdued by the station owner. He took them back into the station and telephoned the sheriffs office for assistance.
Other persons had gathered inside the station as a result of the disturbance. Before the sheriff arrived, defendant obtained a gun from his wife. According to the testimony of those in the station, defendant displayed the weapon and threatened to use it if anyone attempted to stop his escape. Unfortunately, someone made such an attempt. The resulting gunfire left one person dead and two others wounded.
Defendant contends that he should not have been bound over for trial because there was insufficient evidence presented at the preliminary examination as to his intent to kill. It is unnecessary to entangle ourselves in the differing perspectives of this Court on the mens rea element of felony murder. We find that the foregoing witness testimony as to defendant’s demeanor at the station, which was presented at the preliminary examination, was sufficient to establish the requisite elements of the charge under either People v Till, 80 Mich App 16; 263 NW2d 586 (1977), or People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). See People v Paille #2, 383 Mich 621; 178 NW2d 465 (1970), People v Carr, 370 Mich 251; 121 NW2d 449 (1963).
After the selection of the jury, but prior to the presentation of any evidence, defense counsel learned that one of the jurors was acquainted with an investigating officer who was to testify at trial. A voir dire of that juror was held in camera with the prosecutor, defendant, and defense counsel present. The juror explained the nature of that acquaintance and unequivocally disavowed that it would influence her determination of the case. Defense counsel expressed his satisfaction in allowing the juror to continue as a member of the jury.
At the conclusion of the trial the juror greeted the officer in question with an embrace. Thereafter, defendant made a motion for new trial on the grounds of juror misconduct, which was denied. Defendant claims that the motion should have been granted, since his right to a jury trial was prejudiced by the participation of a biased juror.
Claims of juror misconduct or bias are entitled to the strictest scrutiny, because of the significant character of the right to trial by an impartial jury. Even against such a standard, however, we are unable to discern any impairment of this valuable right under the instant circumstances. The testifying officer was formerly employed and resided at the farm of the juror’s parents. She saw him only on the occasion of visits to her parents’ home. The juror’s affirmation of her impartiality leads us to conclude that the trial judge, who was in a superior position to observe her demeanor on voir dire, made a proper ruling. See United States v Russo, 480 F2d 1228 (CA 6, 1973), cert den, 414 US 1157; 94 S Ct 915; 39 L Ed 2d 109 (1974).
The testimony of one of the assault victims was introduced at trial by means of a video taped deposition taken at the hospital where the witness was confined for treatment of his injuries. Defendant objected to its admission on the grounds that the hospital setting made it unduly prejudicial. The claim of undue prejudice and irregularities in the deposition procedure specified in GCR 1963, 315 are urged on appeal.
Notably, defendant does not contend that the deposition contained inaccuracies or alterations or that it introduced inadmissible material into evidence. Consequently, we will not find it to be inadmissible merely because the procedures outlined by the court rule were not followed with absolute precision. Those procedures are designed to assure the substantive integrity of the deposition and will not form a basis for contending prejudicial error, absent some allegation challenging that, integrity.
Here, the defendant and defense counsel were present at the taking of the deposition. The objections made during the deposition were ruled upon by the trial court, and inadmissible material was excluded. As to the hospital environment, the trial court concluded that any resulting prejudice was significantly outweighed by the substantive value of the testimony and the importance in affording the jury an opportunity to observe the witness’s demeanor. We do not find an abuse of discretion in that ruling.
Defendant’s remaining contentions warrant no further discussion than to state that they are without merit on the basis of the record presented.
Affirmed. | [
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Beasley, J.
Defendant, Billie Joe Orsie, was convicted by a jury, under count one, of attempting to break or enter a safe with intent to commit larceny in violation of MCL 750.531; MSA 28.799 and, under count two, of wilfully or maliciously burning a building in violation of MCL 750.73; MSA 28.268. Under count one, he was sentenced to not less than 10 nor more than 15 years in prison and, under count two, he was sentenced to not less than 6 years 8 months nor more than 10 years, the sentences to run concurrently. He appeals as of right, raising two issues which he claims require reversal.
First, defendant claims there was no sufficient foundation upon which to admit tracking-dog evidence. In accordance with the majority view, Michigan admits tracking-dog evidence. But, four conditions precedent must be satisfied before such evidence is admitted. They are: 1) it is necessary to show that the handler is qualified to handle the dog; 2) it must be shown that the dog was trained and accurate in tracking humans; 3) it is necessary to show that the dog was placed on the trail where circumstances indicate that the culprit was; and 4) it is necessary to show that the trail had not become stale when the tracking occurred.
Defendant claims foundation was lacking as to the dog’s training and accuracy in tracking humans.
Review of the record tends to support defendant’s assertion. However, no objection was made at trial by defendant respecting the qualifications of either the tracking dog or his owner-trainer. We are, therefore, left without evidence concerning the experience of the tracking dog and his owner-trainer. Since no objection was made, perhaps defense counsel was satisfied as to their qualifications and, thus, waived his right to object.
Failure to object to admission of evidence precludes appellate review; the question is deemed not preserved for appellate review.
Under MCL 769.26; MSA 28.1096, improper admission of evidence is not a basis for reversing or granting a new trial unless "after an examination of the entire cause it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”. In this case, there was not any manifest injustice in admitting the tracking-dog evidence. The testimony indicated that the officer could visually follow the tracks in the snow of shoes similar to those worn by defendant. The shoes left a distinctive print in the snow which was fully described in the testimony. The trail led from the location of the crime to the basement of an apartment building where defendant was apprehended hidden on a ledge. Thus, while the tracking-dog evidence may be described as cumula tive, its addition to the overwhelming proofs against defendant did not constitute a miscarriage of justice.
Defendant also claims that the circumstantial evidence used to convict him constituted piling inference on inference based on the same evidence.
In support, defendant cites People v Atley. As indicated in Atley, the "no inference upon an inference” doctrine is a difficult concept at best.
In Atley, supra, the Court continues to pay lip service to the now generally discredited "no inference upon an inference” terminology. Indication of the ill repute in which this doctrine is held, is the following from Wigmore on Evidence:
"It was once suggested that an 'inference upon an inference’ will not be permitted, i.e. that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by several Courts, and sometimes actually enforced.” (Footnotes omitted.)
"There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. * * * In these and innumerable daily instances we build up inference upon inference, and yet no Court (until in very modern times) ever thought of forbidding it.”
A similar view is expressed in People v Eaves, citing with approval. 5 ALR3d 104-105, which states:
"The discussion of the legal effects of presumptions and inferences has evoked perhaps as much cloudy thinking and confusion of terminology as any other area of the law.
"The origin of the so-called rules against basing an inference upon an inference or a presumption upon a presumption is obscure, but statements and applications thereof appeared early in the reports and, despite the almost unanimous criticisms of legal scholars and of those courts which have gone into the matter at any length, the 'rules’ have shown amazing vitality, * * * .” (Footnotes omitted.)
In Atley, a jury convicted defendant of three counts; one, conspiracy to sell marijuana, two, unlawful possession of marijuana, and three, unlawful control of marijuana. The trial judge vacated and dismissed the Convictions for unlawful possession and unlawful control of marijuana and reduced the sentence on the conspiracy conviction. The Supreme Court reversed the conviction saying it was not "a fair inference” to infer the ultimate fact of conspiracy to sell from joint acquisition. The underlying theory of the cases that use the no inference on an inference terminology is well and accurately stated in People v Helcher, which cites an often quoted Indiana case as follows:
" 'What is actually meant by the statement found in many cases, that an inference cannot be based upon an inference, is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.’ Shutt v State (1954), 233 Ind 169 (117 NE2d 892, 894), quoted approvingly in People v Eaves (1966), 4 Mich App 457.” (Footnote omitted.)
Similarly, while we exercise the caution suggested in the Atley footnote, we find the statement in the Federal case of Dirring v United States clear and instructive:
"The defendant cautions us against 'piling inference upon inference.’ As interpreted by the defendant this means that a conviction could rarely be justified by circumstantial evidence [citation omitted.] The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. [Citations omitted.] If enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking. Reviewing the evidence in this case as a whole, we think the jury was warranted in finding beyond a reasonable doubt the picture of defendant Dirring.”
In short, we express a preference for abandoning the no inference upon an inference terminology because we believe it to be misleading and uncertain of meaning. There is nothing inherently wrong or erroneous in basing a valid inference upon a valid inference. In so indicating, we do not consider that we are acting contrary to precedents established by the Supreme Court which are, of course, binding; on the contrary, we are consistent with the substance of those decisions.
In this case, no objections were made by defendant at trial to the circumstantial evidence that convinced the jury of his guilt. Neither does defendant claim on appeal that objections should have been made at trial and sustained by the trial court. No motion for directed verdict was made by defendant at trial, either on completion of the prosecutor’s proofs or subsequent to both sides resting. No request was made for a jury instruction advising the jury that they were not permitted to pile one inference upon another. Neither was objection made in the trial court to the trial court’s instruction to the jury.
As this Court indicated in People v Horowitz, most arson cases are based upon circumstantial evidence. In affirming a conviction in Horowitz, this Court said:
"As evidence bearing upon the opportunity and motive of defendants to set the blaze, the prosecutor introduced the following facts: that the building was secured from the outside and there was no evidence of a breaking-in; that defendants were on the premises not long before the conflagration began; that it would have been easy for defendants to set the fire, although not physically present, by means of a timing device; that defendants owed three months rent; that they were indebted to the Michigan Department of Revenue for sales tax; that defendants owed $650 to the gas company; and that defendants carried $40,000 in fire insurance.”
Stated simply, the issue here is: was the circumstantial evidence sufficient for the jury to find defendant guilty beyond a reasonable doubt? In this case, the evidence indicates that a police officer saw smoke coming out of a ventilation duct in a Kentucky Fried Chicken building near Sturgis sometime shortly before 5 a.m. on January 15, 1976; that firemen and the assistant manager of the building were called; that the building had been secured around 9:20 the previous night; that a window had been broken during the night; that the store safe had been moved and damaged; that money was missing from the safe; and that there was substantial fire damage to the premises. The evidence also indicates that a police officer discovered footprints in unsullied snow with a distinctive print; that he followed these tracks to the basement of an apartment building; that he was aided by a tracking dog in following the tracks; that defendant was apprehended lying on a ledge in the basement and his tennis shoes made the same distinctive print as seen in the tracks in the snow. In the basement where defendant was apprehended, the officer found a box containing a pair of gloves and some money. There was also evidence which, if believed, indicated that there was white powder on black gloves that defendant was wearing and also on his shoes. An officer from the State Police Crime Lab testified that a comparison of the substance found on the shoes and gloves with samples of the safe insulation taken from the Kentucky Fried Chicken safe indicated that the two could have come from the same source.
A book of K-Mart paper matches was found on defendant’s person at his arrest. There was testimony that a box of K-Mart matchbooks was kept in a desk in the Kentucky Fried Chicken office. There was evidence that the desk had been rifled by the thief-arsonist. A partially burned paper match was found in the safe. That match was tested and compared with the matches found on defendant’s person. There was testimony that the match found in the safe could have come from the matchbook defendant was carrying when arrested.
With respect to the conviction of attempting to break or injure a safe with intent to commit larceny contrary to MCL 750.531; MSA 28.799, the language of the statute insofar as relevant here, is:
"Any person who, with intent to commit the crime of larceny, * * * shall attempt to break, burn, blow up or otherwise injure or destroy any safe, * * * in any building * * * shall, whether he succeeds or fails in the perpetration of such larceny * * * be guilty of a felony * * *."
From the testimony that the safe had been moved, that the safe had been damaged so as to make a hole in the upper left-hand corner of the safe big enough to reach in to the money tray where the cash had been left, a valid inference arises that an attempt had been made to break into the safe.
From the testimony of the assistant manager that there was approximately $100 in currency (bills) and $60 in coin in the safe when he locked it and that when he observed it in its damaged condition around or after 5 a.m. the next morning, none of the $160 in coin and currency was in the safe, a valid inference arises that someone had broken into the safe with intent to commit larceny.
From the testimony that tracks in the snow led from the building where the safe was to the basement of the apartment building where defendant was hidden on a ledge with his leg hanging down and with a box containing a roll of bills and a pair of gloves located about three feet from the ledge where defendant was, a valid inference arises that defendant was the person who had attempted to break into the safe with intent to commit larceny.
Without detailing the other evidence, we conclude that there was sufficient evidence to support defendant’s conviction under MCL 750.531; MSA 28.799.
With respect to the conviction for arson under MCL 750.73; MSA 28.268, the question raised by defendant has more substance. The statute under which defendant is charged provides:
"Any person who wilfully or maliciously burns any building or other real property, or the contents thereof, * * * shall be guilty of a felony * * *
The statutory definition of burn is contained in MCL 750.71; MSA 28.266, as follows:
"The term 'burn’ as used in this chapter shall mean setting fire to, or doing any act which results in the starting of a fire, or aiding, counseling, inducing, persuading or procuring another to do such act or acts.”
The State Police fire expert testified that, based upon his inspection of the subject premises five days after the incident, there had been two separate fires in the building; one in the manager’s office and the other in the storage area at the rear, and that ignition was caused by a human agent. He said the burned paper had been placed on the floor prior to the fire because there was no burning underneath the papers. He concluded ignition of the fires by a human agent because his examination of all burned materials, and materials that had been in the area of the fires’ origins and had been subjected to burning and of the areas of the building where the fires had occurred, revealed no other source of ignition.
Thus, this uncontroverted expert testimony included direct evidence (observation of the physical conditions and facts) and circumstantial evidence (valid inferences by a qualified expert).
Also, there was testimony that in the safe were found bits of brown burned paper toweling and a burned paper match. When arrested, defendant had a matchbook with some of the paper matches missing and a K-Mart matchbook cover. Defendant also had on his person a cigarette lighter which had no lighter fluid. However, while the prosecutor’s expert said the match found in the safe could have come from the book of matches taken from defendant, he was unable to say that it did come from that book.
Thus, the issue is whether this totality of evidence is sufficient for a jury to find defendant guilty of arson under MCL 750.73; MSA 28.268. Compared to Horowitz, supra, the circumstantial evidence is stronger, but the strong evidence of motive found in Horowitz is lacking. In People v Belcher, which is a murder in perpetration of arson case, this Court found credible evidence sufficient to find all of the elements established beyond a reasonable doubt.
Our job here is not to substitute our judgment for that of the jury; we only review to decide whether there was sufficient, credible evidence which, if believed, would establish the elements of the offense.
In People v Smock, the Supreme Court found sufficient evidence to sustain a guilty of arson verdict on inferences that did not appear to carry greater weight than those present here.
We conclude that there was sufficient evidence here, which, if believed, supported a jury verdict of guilty of arson.
Affirmed.
D. F. Walsh, P. J., concurred.
People v Harper, 43 Mich App 500; 204 NW2d 263 (1972); People v Norwood, 70 Mich App 53; 245 NW2d 170 (1976).
People v Harper, supra; People v Norwood, supra.
People v Miller, 16 Mich App 647; 168 NW2d 408 (1969).
392 Mich 298; 220 NW2d 465 (1974).
392 Mich 298, 315; 220 NW2d 465 (1974).
1 Wigmore, Evidence (3d ed), § 41, pp 434-436.
4 Mich App 457, 461; 145 NW2d 260 (1966).
392 Mich 298, 314; 220 NW2d 465 (1974).
14 Mich App 386, 390; 165 NW2d 669 (1968).
People v Atley, supra, pp 315-316, n 2.
328 F2d 512, 515 (CA 1, 1964), cert den, 377 US 1003; 84 S Ct 1939; 12 L Ed 2d 1052 (1964), reh den, 379 US 874; 85 S Ct 27; 13 L Ed 2d 83 (1964).
37 Mich App 151, 157; 194 NW2d 375 (1971), lv den 387 Mich 753 (1972).
People v Ferguson, 60 Mich App 302; 230 NW2d 406 (1975).
37 Mich App 151, 157; 194 NW2d 375 (1971), lv den 387 Mich 753 (1972).
29 Mich App 341, 352; 185 NW2d 440 (1971), lv den 384 Mich 821 (1971).
People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975).
399 Mich 282; 249 NW2d 59 (1976), reversing 63 Mich App 610; 234 NW2d 728 (1975). While there was the additional issue of whether, under MCL 750.73 and 750.71; MSA 28.268 and 28.266, a person can be found guilty as an aider and abetter without showing a guilty principal, the Court found that there was sufficient evidence to support jury verdicts of guilty against the defendants in an arson case even though there was no direct evidence linking defendants with the actual starting of a fire. | [
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Per Curiam.
The present case involves the application of the so-called "one-year back” rule of the Worker’s Disability Compensation Act. MCL 418.833(1); MSA 17.237(833)(1).
Plaintiff Oliver Bailey suffered a work-related injury on July 29, 1967, which rendered him totally disabled. His employer, General Motors Corporation, paid compensation benefits commencing August 4, 1967. On August 18, 1975, Bailey filed a petition for a hearing to determine his eligibility for compensation for total and permanent disability. The hearing referee’s opinion indicated that the parties agreed that plaintiff was entitled to benefits from both General Motors and from the appellant Second Injury Fund. The only dispute below, and on appeal, is the extent of the fund’s liability.
The hearing referee held that the "one-year back” rule did not apply to the case at bar and ordered the fund to pay differential benefits to Bailey from the date of his injury. The Workmen’s Compensation Appeal Board, in a 5-0 decision, upheld the referee’s order. The fund now appeals by leave granted.
The current "one-year back” rule reads as follows:
"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.” MCL 418.833(1); MSA 17.237(833)(1).
The Workmen’s Compensation Appeal Board held that this rule did not limit the fund’s liability to one year prior to the application (August 18, 1974) for two reasons: (1) plaintiff was not required, under the law on the date of his injury, to apply for differential benefits, and (2) plaintiff was not seeking "further compensation” because he had not previously received scheduled benefits for permanent disability and because his eligibility for differential benefits arose from the same injury that was the basis for his initial benefits.
Although our reséarch reveals that the state of the law concerning the application of the rule is at best confusing, there is support for both aspects of the Workmen’s Compensation Appeal Board’s decision.
At the time of plaintiff’s injury (July, 1967), the governing law on eligibility for differential benefits was MCL 412.9; MSA 17.159, which obligated the fund to pay such benefits "without application” by the employee. The statute was amended by 1968 PA 227, which eliminated the "without application” language. See MCL 418.521; MSA 17.237(521). There is authority for the Workmen’s Compensation Appeal Board’s position that the statute in effect on the date of injury governs plaintiff’s entitlement to benefits. Tarnow v Railway Express Agency, 331 Mich 558; 50 NW2d 318 (1951). In Tarnow, supra, the Supreme Court did not apply the "one-year back” rule to a situation where the injury preceeded the adoption of the rule but the petition for benefits was filed after its enactment.
On firmer ground is the Workmen’s Compensation Appeal Board’s finding that the rule was not applicable since plaintiff was not seeking "further compensation” for his injury. In Morgan v Lloyds Builders Inc, 344 Mich 524; 73 NW2d 880 (1955), the employee suffered an eye injury in 1948 and received compensation benefits for loss of wages. Subsequent developments of the eye injury caused him to lose the sight of that eye in 1951. He filed for benefits for loss of vision in 1953. The compensation commission granted benefits to commence from one year prior to the application.
The Supreme Court reversed the commission’s holding to the extent that it applied the "one-year back” rule (then MCL 413.14; MSA 17.188). The Morgan Court stated:
"In Palchak v Murray Corporation of America, 318 Mich 482 [28 NW2d 295 (1947)] (a case involving facts much like the facts in the instant case), we say at pp 493, 494:
" 'The case at bar does not involve distinct injuries sustained in an accident, but rather 2 results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff’s claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply.’
"We find that the petition entitled, 'application for hearing and adjustment of claim,’ filed by the plaintiff, dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye.” 344 Mich at 528.
In Drake v Norge Division, Borg-Warner Corp, 48 Mich App 88; 210 NW2d 131 (1973), the em ployee suffered a heart attack in 1953. He was awarded 750 weeks compensation for total disability. At the conclusion of that time period, he petitioned for differential benefits from the Second Injury Fund, alleging total and permanent disability since the 1953 injury. This Court, citing Morgan, supra, held that the "one-year back” rule did not apply:
"Plaintiff in the case at bar is not alleging a second and separate injury sustained at the time of the first injury. There was but a single injury in this case.” 48 Mich App at 95.
We find the Palchak-Morgan-Drake line of cases to control the case at bar. There is no dispute between the parties that plaintiffs claim for permanent disability benefits arises from the injury suffered in 1967. There is but a single injury here, for which plaintiff seeks compensation different in kind from that previously paid. Under the cited authority the "one-year back” rule is not applicable.
In order to avoid this result, defendant relies heavily upon this Court’s decision in Baldwin v Chrysler Corp, 67 Mich App 61; 240 NW2d 266 (1976). In Baldwin it was held that the "one-year back” rule is not a statute of limitations, which can be waived by a failure to timely raise it as a defense, but rather is a statutory limit on the Workmen’s Compensation Appeal Board’s authority to order the payment of benefits. An argument could be made that under the Baldwin holding the Workmen’s Compensation Appeal Board can never order benefits to be paid for any period prior to one year before the fund’s liability is raised, either by an application or a petition for a hearing.
Recently, however, the Michigan Supreme Court has implicitly overruled the Baldwin decision. In Kleinschrodt v General Motors Corp, 402 Mich 381; 263 NW2d 246 (1978), the Supreme Court held that the rule is a defense that can be waived. The Court expressly rejected the theory that the rule is a jurisdictional limit on the Workmen’s Compensation Appeal Board’s authority to order benefits. 402 Mich at 384.
Under Kleinschrodt, supra, the "one-year back” rule is a defense that, if applicable, cuts off the liability of the fund. Our previous discussion has shown the inapplicability of the rule to the present facts. The order of the Workmen’s Compensation Appeal Board upholding the hearing referee’s decision was not error.
Affirmed.
No costs, a public question being involved.
While the substantive decision in Drake v Norge Division, Borg-Warner Corp, 48 Mich App 88; 210 NW2d 131 (1973), concerning the question of loss of industrial use of the employee’s legs due to a heart attack, was effectively overruled in Triplett v Chrysler Corp, 394 Mich 518; 232 NW2d 168 (1975), the Triplett decision does not affect the Drake Court’s discussion of the "one-year back” rule. | [
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V. J. Brennan, J.
Plaintiffs brought this action on August 4, 1974, alleging violation of various Michigan security laws, fraudulent misrepresentation, and conspiracy in the sale of stock in Farm Estates, Inc. They sought the return of their investments in this corporation. The case was tried in Macomb County Circuit Court on May 4, 6 and 7, June 29-30, and July 1, 2, 7, 14 and 15, 1976.
In an opinion dated February 14, 1977, Judge Raymond R. Cashen ruled that defendant Ott had committed a common law fraud against plaintiff Mitchell Rzepka in failing to disclose to him the corporation’s shaky financial situation and the existence of litigation against it when she sold him $5,000 worth of stock on October 26, 1973. The court also found that commissions had been collected for the sale of stock, which prevented the corporation from claiming a statutory exemption to the registration requirement. MCL 451.802; MSA 19.776(402).
Consequently, the court held defendants Ott, Refior and Casterline liable to plaintiffs Rzepka for $20,000 and plaintiffs Locke for $10,000. A judgment of no cause of action was entered in favor of Farm Estates, Inc. and R and C Investments, Inc. A similar judgment was entered against plaintiff Hacker.
On March 22, 1977, a judgment was entered, altering the amount of liability slightly and also awarding plaintiffs Locke and plaintiffs Rzepka $6,354.76 for costs and attorney fees. On April 11, 1977, amended findings of fact and conclusions of law were entered, holding that Farm Estates, Inc., was also liable for the $10,000 judgment in favor of Locke, the $20,000 judgment in favor of plaintiffs Rzepka and the award of attorney fees. The individual defendants now appeal as a matter of right. GCR 1963, 806.1. Plaintiffs Rzepka have filed a cross-appeal regarding the extent of their recovery.
Defendants, and plaintiffs on cross-appeal, collectively raise three allegations of error in the trial court’s decision. We will deal with only one claim at any length.
Defendants contend the record at trial indicates no proof of their culpable knowledge, even though liability was grounded upon their own act of approving the receipt of commissions for the sale of unregistered stock in violation of MCL 451.701; MSA 19.776(301) and MCL 451.802(b)(9); MSA 19.776(402)(b)(9).
Judge Cashen found defendants’ corporation, Ott, Casterline and Refior jointly and severally liable to plaintiffs Rzepka and Locke for the purchase price of the securities which were not registered as required by MCL 451.701; MSA 19.776(301.). We agree with the court.
On the basis of the evidence presented, we find Judge Cashen was not in error when he inferred that Farm Estates stock was never registered. Moreover, we find uncontroverted the fact that commissions were authorized by the Board of Directors on March 29, 1971, for the sale of corporate stock and that such commissions were reversed on the corporate books effective April 30, 1973. The reversal occurred only after defendant Ott had met with a representative from the Department of Commerce. We also find that Mrs. Ott received a number of commissions pursuant to this authorization including $4,000 on August 6, 1970, paid to Business Management Consultants, one of Ott’s alter-ego corporations, for the sale of stock to Rzepka. Further, Refior testified that he knew of these commissions, and the record is uncontroverted that these commissions were noted in the minutes of the meeting of the Board of Directors on March 29, 1971. At that time, the Board of Directors consisted of Ott, Refior and Casterline.
We also find proper the trial court’s conclusion that the corporate stock did not qualify for the exemption under MCL 451.802; MSA 19.776(402), since commissions were paid on the sale of this stock. Further, nothing in the statute leads us to conclude that returning the commissions would have the effect of retroactively placing the stock within the exemption for the period in which such commissions were collected. Statutory exceptions are to be given a limited, rather than expansive construction. Lee v J H Lee & Son, 72 Mich App 257, 260; 249 NW2d 380 (1976), Northville Coach Line, Inc v Detroit, 379 Mich 317, 329; 150 NW2d 772 (1967) (plurality opinion). Moreover, the narrow view we take here is consistent with the statutory purpose of protecting the public. People v Dempster, 396 Mich 700, 707-708; 242 NW2d 381 (1976).
We also find reasonable Judge Cashen’s conclusion that Ott received commissions on all sales made during the period in which such commissions were authorized, including: the sale on October 14, 1972, of $20,000 worth of stock to Rzepka and the sale on November 1, 1972, of $10,000 worth of stock to Locke. This conclusion is supported by Ott’s admissions as to the receipt of commissions throughout the period and the existence of a commission check of $4,580 for the sale of stock to several persons whose names could not be recalled at trial. Evidence also appears that Ott received a commission in connection with the August 5, 1970, sale of stock to Rzepka, although commissions were not authorized at that time.
Consequently, we find that the sales of stock to Rzepka on August 5, 1970, and October 14, 1972, and the sale of stock to Locke on November 1, 1972 were in violation of MCL 451.701; MSA 19.776(301) and that plaintiffs Rzepka and Locke maintain a valid cause of action against defendants under MCL 451.810(a)(1); MSA 19.776(410)(a)(1).
Having established defendant’s liability as seller under MCL 451.810(a)(1); MSA 19.776(410)(a)(1), we further affirm the court’s finding of liability as to the individual defendants predicated upon MCL 451.810(b); MSA 19.776(410)(b).
The trial court concluded that "no proof’ was advanced to bring the knowledge exception of this section into play. Although this characterization may be extreme, we do hold that the individual defendants have failed to meet their burden of proof under the statute. We find clear the fact that Ott, Casterline and Refior all knew about the commissions which were authorized by them in their positions as members of the Board of Directors. Testimony also appears supporting the proposition that Ott and Casterline knew the stock had not been registered. Although no evidence exists that Refior knew of the stock’s unregistered status, likewise no evidence appears that he "could not have known” of this fact. Since the individual defendants have clearly failed to establish their lack of knowledge, actual or constructive, we find them liable under MCL 451.810(b); MSA 19.776(410)(b) in their positions of directors and officers of the corporation. Their ignorance of blue sky laws is irrelevant for purposes of this statute, as the exception only speaks of the lack of knowledge of "the existence of the facts by reason of which the liability is alleged to exist”. Clearly, under the statute, ignorance of the law is no excuse. See Cola v Terzano, 129 NJ Super 47; 322 A2d 195 (1974). See, also, Anno: What Amounts to Participation by Corporate Officer or Agent in Illegal Issuance of Security in Order to Impose Liability upon Him Under State Security Regulations, 44 ALR3d 588.
We therefore sustain the trial court in granting Rzepka judgment for $20,000 plus interest and Locke judgment for $10,000 plus interest. We find that plaintiffs were entitled to the return of their purchase price. Clearly, they filed suit within two years of the purchase and did not refuse any prior offers or reimbursement. As to the remaining claims, we address them only briefly.
Defendants claim the trial court erred in finding either common-law or statutory fraud based on Ott’s sale of stock to plaintiff Locke without disclosing to him the existence of pending litigation or the corporation’s poor financial condition.
The trial court found that Ott committed common-law fraud in selling $5,000 worth of her stock to Locke on October 26, 1973. The record supports the court’s finding of fraud. See Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). Specifically, Ott’s failure to disclose the bleak financial position of the corporation constitutes adequate support for the action. An affirmative misrepresentation of one’s financial condition has been held adequate in such cases. First State Savings Bank v Dake, 250 Mich 525; 231 NW 135 (1930).
Consequently, assuming Ott had a duty of disclosure as seller, that duty should encompass disclosure of the corporation’s poor financial status. Failure to disclose these facts under the circumstances of this case is tantamount to a representation that the corporation was solvent. Such representation was clearly false; and Ott, as director, officer and creditor of the corporation, obviously knew the representation was false. Such a misrepresentation is clearly material as bearing upon a fact crucial to Locke’s decision to buy. Papin v Demski, 17 Mich App 151, 155; 169 NW2d 351 (1969), aff'd 383 Mich 561; 177 NW2d 166 (1970). We find reliance here where the facts not disclosed are of the sort that would have induced plaintiff not to have acted had he known of them. The corporation’s dire financial condition clearly qualifies under such a test. The trial court reached the correct decision. We find no error.
Plaintiff Rzepka on cross-appeal contends the trial court improperly denied him recovery of the purchase price of the stock he bought in August, 1970, despite the fact that (1) no fiduciary relationship existed between Rzepka and Ott, (2) an action based upon MCL 451.810(a)(2); MSA 19.776(410)(a)(2) was barred by a statute of limitations and (3) plaintiffs have not proven the exis tence of material misrepresentation or the nondisclosure of facts which would have affected plaintiff’s decision to purchase the stock.
The trial court found that plaintiff’s action for statutory fraud was barred by the statute of limitations and that plaintiff’s theory based upon common-law fraud and breach of fiduciary duty were without merit. We agree.
This action was filed on August 4, 1974. The alleged fraud occurred four years previously. MCL 451.810; MSA 19.776(410) provides in part:
"(e) No person may sue under this section more than 2 years after the contract of sale. No person may sue under this section (1) if the buyer received a written offer, before suit and at a time when he owned the security or commodity contract, to refund the consideration paid together with interest at 6% per year from the date of payment, less the amount of any income received on the security, and he failed to accept the offer within 30 days of its receipt, or (2) if the buyer received such an offer before suit and at a time when he did not own the security or commodity contract, unless he rejected the offer in writing within 30 days of its receipt.”
Consequently, plaintiff’s action is barred since the case was commenced more than two years from the date of the sale. We find no merit to plaintiff’s claim and sustain the trial court.
Having reviewed each of the claims of defendants and plaintiffs, we affirm the decision of the trial court.
Affirmed. Neither side to be assessed costs.
This statutory provision reads as follows:
"It is unlawful for any person to offer or sell any security in this state unless (1) it is registered under this act or (2) the security or transaction is exempted under section 402.”
The exemptions appear in MCL 451.802; MSA 19.776(402). This provision reads as follows:
"(a) The following securities are exempted from sections 301 and 403:
"(9) Any transaction pursuant to an offer directed by the offeror to not more than 15 persons, other than those designated in paragraph (8), in this state during any period of 12 consecutive months, whether or not the offeror or any of the offerees is then present in this state, if:
"(A) The seller reasonably believes that all the buyers in this state, other than those designated in paragraph (8), are purchasing for investment; and
"(B) No commission or other remuneration is paid or given directly or indirectly for soliciting any prospective buyer in this state, other than those designated in paragraph (8); but the administrator may by rule or order, as to any security or transaction or any type of security or transaction, withdraw or further condition this exemption, or increase or decrease the number of offerees permitted, or waive the conditions in clauses (A) and (B) with or without the substitution of a limitation on remuneration.”
This statutory provision states in pertinent part:
"(a) Any person who:
"(1) Offers or sells a security or commodity contract in violation of section 201(a), 301, or 405(b), or of any rule or order under section 403 which requires the affirmative approval of sales literature before it is used, or of. any condition imposed under section 304(d), 305(f), 305(g), or 412(g)
"Is liable to the person buying the security or commodity contract from him, who may sue either at law or in equity to recover the consideration paid for the security or commodity contract, together with interest at 6% per year from the date of payment, costs and reasonable attorneys’ fees, less the amount of any income received on the security or commodity contract, upon the tender of the security or commodity contract, or for damages if he no longer owns the security or commodity contract. Damages are the amount that would be recoverable upon a tender less the value of the security or commodity contract when the buyer disposed of it and interest at 6% per year from the date of disposition.” MCL 451.810(a)(1); MSA 19.776(410)(a)(l).
This statutory provision states in relevant part:
"(b) Every person who directly or indirectly controls a seller liable under subsection (a), every partner, officer, or director of such a seller, every person occupying a similar status or performing similar functions, every employee of such a seller who materially aids in the sale, and every broker-dealer or agent who materially aids in the sale are also liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that he did not know, and in exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.” MCL 451.810(b); MSA 19.776(410)(b).
We perceive no grounds to exempt defendants concerning the sales to Rzepka and Locke on October 14 and November 1, 1972, under the limitations provision of MCL 451.810(b); MSA 19.776(410)(b). The present action was brought on August 4, 1974. Nor do we find evidence of a written offer to refund the purchase price and interest which would bar suit under MCL 451.810(e); MSA 19.776(410)(e). | [
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] |
Per Curiam.
Defendant Onekama Consolidated Schools appeals from a pretrial summary judgment granted to plaintiffs, enjoining defendant from issuing its bonds to finance the construction of an elementary school and the improvement of a high school. This litigation was initiated when the defendant decided to issue the bonds, notwithstanding an expression of voter disapproval given in three referendums.
Plaintiffs contend that Const 1963, art 9, § 6 prohibits the issuance of the bonds by defendant without prior approval of the voters where the 15 mill limitation will be exceeded to pay the principal and interest of the bonds. The record indicates, and defendant acknowledges, that ad valorem taxes in addition to the 15 mill limitation will be necessary to pay the bond obligations.
In response, defendant maintains that the second paragraph of that same constitutional provision refutes plaintiffs’ claim. Further, defendant argues that enabling legislation obviates the need for voter approval where the total bond indebtedness of the school district is less than or equal to five percent of the state equalized valuation of all property located within the district, citing MCL 340.77a; MSA 15.3077(1).
While Const 1963, art 9, § 6 provides ad valorem tax limitations and an exemption from those limits for the payment of bonds, it neither addresses nor prescribes criteria for the valid issuance of bonds. Its only relevant intent was to establish unlimited tax support for bond issues of local governmental units. See Convention Comment, 2 MCLA, p 547, Butcher v Township of Grosse Ile, 387 Mich 42, 58; 194 NW2d 845 (1972).
Corporate public units are granted express power under the Constitution to borrow money. Const 1963, art 9, § 13. That power is subject only to the other pertinent constitutional provisions and legislative enactment. Id.
More specifically addressed to the issuance of bonds by a school district is Const 1963, art 9, § 16. The third paragraph of that section provides:
"The term 'qualified bonds’ means general obligation bonds of school districts issued for capital expenditures, including refunding bonds, issued prior to May 4, 1955, or issued thereafter and qualified as provided by law pursuant to Section 27 or Section 28 of Article X of the Constitution of 1908 or pursuant to this section.” (Emphasis added.)
Its fifth and sixth paragraphs, respectively, state as follows:
"Subject to the foregoing provisions, the legislature shall have the power to prescribe and to limit the procedure, terms and conditions for the qualification of bonds, for obtaining and making state loans, and for the repayment of loans.”
"The power to tax for the payment of principal and interest on bonds hereafter issued which are the general obligations of any school district, including refunding bonds, and for repayment of any state loans made to school districts, shall be without limitation as to rate or amount.”
Pursuant to the foregoing constitutional authority, the Legislature enacted § 77a of the School Code of 1955. The record establishes that the bonds sought to be issued by defendant are in compliance with that enactment. Consequently, the bond issue was within the defendant’s constitutional and statutory authority, and defendant’s motion for summary judgment should have been granted.
We have profound appreciation and respect for the trial court’s concern that the will of the people, as expressed through their vote, be honored as the guiding force of our democratic society. However, our decision neither presages a demise of democracy nor constitutes an incursion upon the role of the people as the source of governmental power. It was a vote of the people that adopted our present Constitution, and it is that document that governs the resolution of the merits of this litigation.
Although plaintiffs’ resort to the judiciary is unavailing, other remedies may be pressed upon the Legislature. We retain confidence in that representative forum’s adherence to the principles of democracy.
Since we find the defendant’s proposed bond issue to be within its constitutional and statutory authority, we reverse the judgment of the trial court and dismiss the plaintiffs’ action.
Reversed. No costs, a public question being involved.
The text of that provision pertinent to this controversy reads as follows:
"Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, qualified under Section 6 of Article II of this constitution, voting on the question.”
“The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidences of indebtedness or for the payment of assessments or contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount; or to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority or other authority, the tax limitations of which are provided by charter or by general law.”
Id.
This statute is § 77a of the School Code of 1955, 1955 PA 269, which was repealed and replaced by the School Code of 1976, 1976 PA 451, § 1851. A provision similar to § 77a is contained in the new code at § 144 and, as applied to the facts of this case, has an identical operative effect. See MCL 380.144; MSA 15.4144.
MCL 340.77a; MSA 15.3077(1), which reads in pertinent part:
"The board of a school district of the fourth class operating a K-12 program has the power and duty: * * *
(b) To borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, such sums of money as it deems necessary to purchase sites for buildings, playgrounds, athletic fields or agricultural farms, and to purchase or erect and equip any building which it is authorized to purchase and erect, or to make any permanent improvement which it is authorized to make, and to accomplish this by the issue and sale of bonds of the school district in such form or on such terms as the board deems advisable, or by any other reasonable means. No loan shall be made and no bonds shall be issued for a longer term than 30 years nor for any sum which, together with the total outstanding bonded indebtedness of the district, shall exceed 5% of the state equalized valuation of the taxable property within the district, unless the proposition of making such loans or of issuing bonds has been submitted to a vote of the school tax electors of the district at a general or special school election and approved by the majority of the electors voting on the question. In such case loans may be made or bonds may be issued for the purposes hereinbefore set forth in an amount equal to that provided by Chapter 12 of part 2.”
It should be noted that the Michigan Municipal Finance Commission was joined as a party defendant to these proceedings. That Commission has recognizable expertise regarding bond matters and the constitutional power of municipal units to issue bonds. That Commission has taken a position consistent with this opinion. | [
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T. M. Burns, J.
The issue in this case is whether a guest passenger who was injured in an accident involving an uninsured motorist on April 11, 1974, and has been paid $18,000 after arbitration by the host driver’s insurance company under an uninsured motorist provision in that policy, is barred by an "other insurance” clause in his own policy from seeking arbitration against his own insurer. On the facts of this case, the trial court held he was not, and we agree.
Belcher was injured on April 11, 1974, while a guest passenger in an automobile driven by Harold Lowrey when Lowrey’s automobile was struck by an uninsured motorist. Three other individuals were riding with Lowrey and were also injured. The injured individuals filed claims with Lowrey’s insurer under the uninsured motorist provision in Lowrey’s policy and ultimately submitted them to arbitration. The arbitration of Belcher’s claim resulted in an award of $18,000. There has been no showing that this recovery fully compensated Belcher for the injuries he received in the accident. See, Detroit Automobile Inter-Insurance Exchange v Pulig, 80 Mich App 288; 263 NW2d 52 (1977).
After Belcher received payment from Lowrey’s insurer, he sought arbitration with Aetna under his own policy which also provided uninsured motorist protection. Aetna filed this action for declaratory relief and to restrain arbitration. The trial court determined that the "other insurance” clause which Aetna relied upon was against public policy at the time of the accident and, therefore, not a bar to arbitration. Aetna appealed to this Court.
The paragraphs of the policies upon which Aetna relies provide:
"With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under the uninsured motorists coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
"Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability in this insurance and such other insurance, and Aetna Casualty shall not be liable for a greater proportion of any loss to which this Uninsured Motorists Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”
There are at least three possible theories which would allow Belcher to arbitrate, to some extent, Aetna’s liability even in the face of this clause.
First, the "other insurance available” clause could be construed to mean actually available for payment to Belcher. In this case, others were also injured in the accident, which may have resulted in the "each occurrence” limit being exhausted before the individuals were fully compensated. If this is true, the stated policy limit of $20,000 per individual was not actually available to Belcher. See, Anno: Uninsured Motorist Insurance: Validity and Construction of "Other Insurance” Provisions, 28 ALR3d 551, § 5. Here, that would mean the parties would arbitrate over a maximum of $2,000.
Second, the court could find the clause unconscionable because it has the effect of providing no coverage where, as here, the insured has paid a premium for protection of himself against uninsured motorists and is injured while a passenger in a car with similar coverage.. This theory has gained some favor in this Court. Detroit Automobile Inter-Insurance Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978), Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777, 783; 262 NW2d 904 (1977) (N. J. Kaufman, J. dissenting.) Application of this theory may seem particularly appealing where the primary recovery came from an insurer who had received no premium from the injured person, thus freeing the insurer who has received a premium from any liability if the clause is enforced as written.
A third theory, the one adopted by the trial court in this case, is that the provision is against public policy. For purposes of this case, we accept this narrower ground for imposing liability.
At the time of this accident, April 11, 1974, the provisions of the insurance code requiring uninsured motorist coverage in each policy of insurance delivered in this state, MCL 500.3010; MSA 24.13010 , had already been repealed by 1972 PA 345. However, the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq., was still in effect and applicable to this incident. Under this act, persons injured by negligent uninsured motorists in this state are allowed to recover for their injuries, up to a specified sum, from a fund created by the act.
The purpose of requiring uninsured motorist protection as provided in former § 3010 was to protect the fund by reducing the number of claims against it. Collins v Motorists Mutual Insurance Co, 36 Mich App 424, 433; 194 NW2d 148 (1971), lv den, 388 Mich 812 (1972) (Judge, now Justice, Levin, concurring). The trial court found that the repeal of § 3010 did not necessarily indicate a change in the validity of other insurance clauses while the fund was still vulnerable. We agree.
The legislative intent to protect the fund continues as long as the fund is vulnerable to claims from persons injured by uninsured motorists. See note 4. Therefore, Belcher will be allowed to stack the policies and arbitrate his claim against Aetna. The amount recoverable is, of course, limited to the amount of his loss less the amount previously recovered under Lowrey’s policy, or the policy limit. Cf., Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464, 474-475; 201 NW2d 786 (1972).
Aetna relies on two Michigan Supreme Court cases which have approved this type of provision when former § 3010 was not applicable, in arguing the result suggested here is improper. These cases may be distinguished from the present situation.
In Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562, 566; 153 NW2d 655 (1967), the Court stated:
"We find no statutory or decisional law of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties.”
There is a statute, the Motor Vehicle Accident Claims Act, applicable in this case. It is also noted that the result reached in Horr was to prorate the loss between the two insurers. Aetna is not claiming the loss should be prorated, it is claiming it has no liability at all.
Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich 476; 201 NW2d 792 (1972), may also be distinguished. The defendant in Rowland had issued both of the policies involved in that case. Here, two insurers are involved. The Court did not rely on the "other insurance” clause as Aetna does here, but on an exclusion contained in the policy which specifically stated the insurance provided by the policy did not apply if the injury occurred while the insured was occupying a nonowned automobile which had similar coverage. The exclusion applied and was enforced as written.
Perhaps more significant to our analysis here is the fact that the policy in Rowland was issued on September 25, 1965. This was before the effective date of § 3010 and that section was held not to apply even though the accident occurred after the effective date of the act. The Supreme Court did not discuss the Motor Vehicle Accident Claims Act in Rowland, but we note the policy in issue there was also issued before the effective date of that act. MCL 257.1131; MSA 9.2831.
Thus, the Motor Vehicle Accident Claims Act was not a factor in the Supreme Court’s determination in either Horr or Rowland, and neither was the policy of protecting the fund. As stated above, that policy continues even after the repeal of § 3010. The cases referred to by Aetna do not control this situation.
Affirmed. Costs to appellee.
M. J. Kelly, P. J., concurred.
If the clause does not prevent Belcher from arbitrating his claim against Aetna, it would still make this policy only a secondary source of recovery without apportionment. That is, Lowrey’s policy is primarily liable up to the limit stated therein and this policy acts as excess insurance up to the total amount of the insured’s loss. See discussion in Werner v Traveler’s Indemnity Co, 55 Mich App 390, 395-396; 222 NW2d 254 (1974).
Uninsured motorist coverage applies to people, not automobiles and provides protection wherever an insured happens to be and no matter what he happens to be doing, unless a valid exclusion applies. See, Hickman v Community Service Insurance Co, 78 Mich App 1; 259 NW2d 367 (1977), Bradley v Mid-Century Insurance Co, 78 Mich App 67; 259 NW2d 378 (1977), Ellis v State Farm Insurance Co, 78 Mich App 189; 259 NW2d 421 (1977).
There is no doubt that while § 3010 was in effect the clause in question here would not prevent stacking. Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464, 474-475; 201 NW2d 786 (1972).
By express provision, the act does not apply to accidents after the effective date of 1975 PA 322. MCL 257.1133; MSA 9.2833.
The Legislature also amended § 5 of the act, MCL 257.1105; MSA 9.2805, by adding the last two sentences of that provision by 1974 PA 223 which became effective July 26, 1974. The amendments to § 5 made the act inapplicable to some situations where "no-fault” benefits are available.
Neither of these amendments are applicable to this case. | [
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R. B. Martin, J.
The parties agree on the following facts: On August 16, 1944, Isabelle Worth deeded real estate to James and Grace Fairchild, reserving minerals, oils, gases, ores and stone. On February 14, 1956, Isabelle Worth died. Carl and Doris Worth are her successors in interest. On April 5, 1971, James and Winifred Fairchild, husband and wife, conveyed to John and Etta Bickel, husband and wife. The grantors here, likewise, reserved minerals, oils, gases, ores and stone.
On January 30, 1973, Carl and Doris Worth granted an oil and gas lease to Shell Oil Company.
On September 4, 1974, the Fairchilds granted an oil and gas lease to Dolores Cook.
On November 1, 1974, the Bickels leased oil and gas rights to Getty Oil Company, Skelly Oil Company, Total Leonard, Inc., and Dow Chemical. Getty Oil and Skelly thereupon assigned part of their interest to Saxon.
Plaintiffs brought suit to quiet title to their oil and gas interests under the dormant mineral act, MCL 554.291, et seq.; MSA 26.1163(1), et seq. The Fairchilds and Dolores Cook, by cross-complaints, asserted their rights against all the others.
The trial court, on motions for summary judgment, found Shell Oil Company was the leasehold owner of all the oil and gas rights in the property. All other claimants were denied any interest. Plaintiffs appeal.
This suit tests the constitutionality of the dormant mineral act. We commence by saying that we need not and do not decide the constitutionality of the prospective provisions of the act. The statute was 1963 PA 42 and became effective September 6, 1963. It provides that any person holding any interest in oil or gas in any land, other than the surface owner, shall be deemed to have abandoned such interest unless during any 20 year period such person relative to the land does one of five things:
(1) Secures a drilling permit, or
(2) actually produces or withdraws gas or oil individually or as part of a pool; or
(3) sells, leases, mortgages or transfers such interest by a recorded instrument; or
(4) uses the property subject to such interests for underground gas storage; or
(5) records a notice of interest with the Register of Deeds.
A three-year grace period was provided by the act for persons affected to record their notice to preserve their interests.
The parties agreed that Isabelle Worth and her successors did none of the 5 things above for a period of 20 years. The record shows the January 30, 1973, lease to Shell Oil was recorded on February 20, 1973.
We agree with appellants that in our energy short and energy conscious generation, the legislative act has a real public purpose—to encourage exploration and drilling of new gas and oil wells. Some oil and gas rights, with the passage of time, have become fractionalized and distributed among numerous owners, many who are no longer locatable and perhaps even deceased. No oil company will spend the time and expense of tracing all the possible owners down in order to do expensive exploratory drilling with no guarantee of favorable results.
On the other hand, the gas and oil interest holders have a property right given them by private publicly recorded contracts. These rights are subject to being sold, mortgaged, leased, devised or inherited just as the surface rights are. Whose rights are paramount, the state’s or the individual’s?
A line of cases has discussed the evolution of the doctrine that some impairment of contracts is permissible under the Federal constitution. The basic one is Home Building & Loan Association v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934). It contained a vigorous 4-vote dissent. The Court was confronted with the Minnesota statute giving additional time for redemption from mortgage foreclosure sales during the depression. Such time was given under strict conditions and the statute was to be effective only for a few years.
The majority felt the state reserved the power to protect itself and to act in the best interests of all of its people. This reservation was a part of every contract. The constitutional prohibition of impairment of contract was " * * * not an absolute one and is not to be read with literal exactness like a mathematical formula”. Some criteria were used in determining whether the state could impair the obligation of the contract: (1) the Legislature and the state supreme court found a grave emergency existing requiring state help, (2) the impairing statute was to help the basic interest of society and not just a few individuals, (3) the relief granted was appropriate to the need and granted on reasonable conditions, and (4) the legislation was temporary and with a short given limit in time. We note also that the statute gave some added protection to the mortgagees who were the parties being deprived of their right to enforce their original contract.
In El Paso v Simmons, 379 US 497; 85 S Ct 577; 13 L Ed 2d 446 (1965), Texas, by statute, sold land to raise money for schools. The buyers paid very little down and were obligated to pay very little for a long term of years. If the buyers forfeited their rights because they failed to make payments, they were given an unlimited right to redeem by catching up. When oil and gas discoveries and an increasing population made speculation in oil and gas rights a very profitable thing, the statute was amended to require redemption in five years and the only ones given a right of redemption were the last contract vendees. This was upheld by the United States Supreme Court on the basis of Home Building, supra. The Court believed the statute was "quite clearly necessary” and the measure was a mild one and not too much of a hindrance to the purchaser.
Justice Black dissented. He felt the state could not make a contract under a statute and then by statute repudiate the contract without compensating the injured party. He saw no reason to adopt the balancing principle of Home Building.
The United States Supreme Court in United States Trust Company of New York v New Jersey, 431 US 1; 97 S Ct 1505; 52 L Ed 2d 92 (1977), found an unconstitutional impairment of contract. There the states of New York and New Jersey had, by statute, given bond holders certain rights to a port authority’s revenues. Twelve years later they repealed that statute. By a 4 to 3 vote the Court found it was an unconstitutional impairment of contract. The dissent balanced the rights of the government and the bond holders and found the new statute did no real harm to the bond holders and should be upheld.
Our Court has dealt rather comprehensively with the subject in Washtenaw Community College Education Association v Board of Trustees of the Washtenaw Community College, 50 Mich App 467; 213 NW2d 567 (1973). It accepted the theory of balancing of rights and interests in determining whether a contract could be impaired.
In our particular case, the statute would deprive known property owners of their sub-surface rights without notice, hearing or compensation. The statute was passed in 1963. This was long before any real fossil fuel crisis in this country. By its provi sions, it required the Worths to do something affirmatively within three years or lose their property. When the act became effective as to Isabelle Worth’s successors in interest, there was no grave state emergency requiring state help. The act, at that time, was aimed at helping a few individuals or companies and not all of society. The relief granted could reasonably have required some notice to known interest owners. The relief was not temporary or for a limited time. The property owners’ rights were not protected as they were in the statute in Home Building.
Our chief concern here is that the Worths were a known, identifiable, suable interest holder. They had, by contract, certain property interests in the land. Those property interests were known to all of the other parties to this litigation. Why should other parties be given the Worths’ property interests because the Worths had not used them or filed a notice they still claimed them? Without any grave emergency situation requiring such drastic action, the statute would take property obtained by contract from the Worths and give it to others. Through the recorded chain of title, the Worths’ contractual rights were recognized by the other claimants.
Even in using the "balancing” idea of Home Building, we too must balance certain principles. There is a presumption that legislatively enacted statutes are constitutional. There is a presumption that contracts should not be impaired by legislative acts. Balancing cases have had dissents so the weighing of rights and interests has not always been easy.
We agree with the learned trial judge. The effect and application of this act as to the defendants at bar is prohibited by our state and Federal constitutions as a law impairing the obligation of contract.
Affirmed. | [
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R. M. Maher, J.
Defendant was charged, on May 25, 1973, with first-degree murder. He was tried twice upon this information and both trials ended in a declaration of mistrial by the trial court when the jury could not agree upon a verdict. On August 2, 1974, after the second mistrial, defendant was released on bond of $250. While at large on bail, defendant was convicted in United States District Court of a Federal crime. On April 9, 1975, he was sentenced to a term of 5 years in the Federal prison in Terre Haute, Indiana.
In the meantime, a third trial on the state murder charge was repeatedly delayed until trial was finally set for June 2, 1976. On May 5, 1976, defendant filed a motion to dismiss for want of prosecution, alleging that he had been denied his right to a speedy trial.
Before the motion was filed, the administrator of the Federal prison in Terre Haute, on May 3, 1976, sent a letter to the clerk of Recorder’s Court informing the court of the status of defendant. On May 11, the court clerk responded to the Federal prison, stating that defendant had a June 2, 1976, trial date and referring the Federal authorities to Recorder’s Court Judge Elvin Davenport for further information.
On May 24, 1976, a writ of habeas corpus ad prosequendum was issued, signed by Judge Joseph Gillis of Detroit Recorder’s Court. The writ directed authorities at the Federal penitentiary in Terre Haute to return defendant to Michigan for a third trial in Recorder’s Court on the information charging first-degree murder.
Defendant was released from the Federal prison on June 1 for a June 2 trial date. Defendant’s file also includes records from the Federal prison, disclosing that while defendant was released to Michigan authorities June 1 on the basis of the writ, a "detainer” was not placed on defendant until June 3, 1976, two days after he had been sent to Michigan.
Following the transfer of temporary custody, defendant was placed on trial in Detroit Recorder’s Court on June 2, 1976. The trial was terminated by the trial court’s declaration of a mistrial on June 9, 1976.
On June 17, a new trial date was set for October 6, 1976. The Recorder’s Court discharged the writ of habeas corpus ad prosequendum and the Federal authorities then returned defendant to the custody of the Federal penitentiary at Terre Haute, Indiana.
Some time later, apparently on September 29, 1976, the Michigan authorities again issued a writ of habeas corpus ad prosequendum for the return of the defendant from the Federal penitentiary at Terre Haute to the city of Detroit to stand trial for the fourth time on the information charging defendant with murder of the first degree. The second writ was honored by the Federal authorities and defendant was transported and transferred from the Federal penitentiary to the State of Michigan a second time.
Defendant had, in the intervening time, requested administrative relief from the Federal prison authorities, asking that any subsequent writ from the Michigan officials be denied for failure to comply with the interstate agreement on detainers act. The request was denied and defendant advised to seek relief in the courts or appeal to the Regional Director of the Federal Bureau of Prisons.
After the October 6 trial date was postponed, the defendant filed a motion, on October 29, 1976, to dismiss for loss of jurisdiction, alleging noncompliance with the interstate agreement on detainers act. On December 15, 1976, defendant filed a motion to dismiss, again alleging failure to comply with the detainers act.
A hearing was held on defendant’s motion, after which the information was dismissed. The trial judge also stayed the order, pending the prosecutor’s appeal of the dismissal. This appeal is brought by the prosecutor from the trial court’s dismissal of the first-degree murder information.
The trial court, in its February 3, 1977, ruling, dismissed the information on the grounds that the 180-day rule of Article III(a) of the interstate agreement on detainers act, MCL 780.601 et seq.; MSA 4.147(1) et seq., had been violated. The act is a uniform law enacted by 46 states, the District of Columbia, and the Federal government to facilitate the disposition of charges in one jurisdiction when the accused is incarcerated in another jurisdiction.
To prevent abuses and to protect the constitutional right to a speedy trial, the act contains strict guidelines on the manner and time in which the detainer provisions are to be enforced. Article III of the act provides a prisoner with a procedure for bringing about a prompt disposition of detainers placed against a defendant. Article III(a) states:
"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.” (Emphasis supplied.)
The act thus provides that a prisoner can demand to be brought to trial within 180 days on any untried indictment, information or complaint which is the basis for a detainer lodged against him. Article III furnishes a mechanism, capable of being invoked by a prisoner, to insure the constitutional guarantee of a speedy trial.
The trial court in the case at bar erred, however, when it held that a motion for speedy trial, such as defendant made on May 5, 1976, which made no mention of the detainer act, substantially complied with Article III. While the provisions of the act may guarantee a speedy trial, a mere motion for speedy trial does not constitute the requisite request to dispose of detainers lodged against defendant which exceeded the 180-day provision. The act explains specifically in Article III the actions a defendant must take to initiate the procedures in the statute. A speedy trial motion is an inadequate measure with which to invoke the protection of the act.
"The Agreement provides that all charges must be dismissed if a prisoner is not brought to trial within 180 days after he invokes his rights under Article III. Since this provision places an additional burden on the prosecuting authorities, it is fair to insist that the prisoner satisfy the preliminary requirements * * *. In order to insure that all parties concerned have a fair opportunity to protect their rights, the Agreement requires that a prisoner be informed of his rights under the Agreement and that he inform both the prosecuting attorney and the trial court of his whereabouts and his invocation of Article III procedures.” Edmond v Department of Corrections, 78 Mich App 196, 203; 259 NW2d 423 (1977).
In Edmond, the defendant filed a motion for a speedy trial but refused a direct offer to make a request for trial under Article III. While the Court conceded the possibility that something less than perfect compliance might be sufficient in some cases, it held that "the plaintiff did not sufficiently comply with the requirements of Article III * * * to qualify under a substantial compliance standard”. 78 Mich App at 203.
In People v Butcher, 46 Mich App 40; 207 NW2d 430 (1973), the Court found that for purposes of the act a request for a speedy trial was deficient.
"Defendant next claims that the trial court had no jurisdiction to try the defendant because the proceedings violated the interstate agreement on detainers act, MCLA 780.601; MSA 4.147(1), since he was not tried within 180 days of his request for trial. Assuming the act to be applicable, to hold that defense counsel’s alleged request for a speedy trial made in pretrial conference on February 22, 1971, substantially complied with the act would emasculate the act’s rather specific notice requirements.” 46 Mich App at 44.
Under both Edmond and Butcher, the trial court in the instant case was wrong in holding that the motion limited to the constitutional right of a speedy trial invoked the running of the 180-day provision.
Were we, nevertheless, to assume that the 180-day period allowed in the act began to run as of the date of the speedy trial motion, there was no violation of the rule. The statute states that a defendant must be "brought to trial” within 180 days after he or she sends the required notice and demand for disposition. A trial was commenced on June 2, 1976, less than one month after the speedy trial motion. Defendant contends that the act re quires a full trial, resulting in some verdict, be had by the end of the 180 days. We cannot agree.
The words "brought to trial” mean only that a proceeding must be initiated, not that the case be finally disposed of. A proceeding was commenced within a month of the speedy trial motion. Assuming arguendo that the speedy trial motion was sufficient to trigger the 180-day rule of Article III, there was no violation of the rule.
Defendant also alleges a violation of Article IV(a) which provides:
"(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: And provided further, That there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. ” (Emphasis supplied.)
The trial court did not rule on the error alleged as to IV(a).
Defendant claims he was not granted the required 30-day period. The records of the Federal prison show that while defendant was released on June 1 apparently on the basis of the May 24 writ the actual detainer was not filed until June 3, two days after defendant’s release. If we consider the writ to be the request for temporary custody, at most six or seven days elapsed from the date of the request to the date of the release honoring that request. Even if, as is discussed infra, we consider the May 11 letter from the clerk of Recorder’s Court to Federal prison officials in Terre Haute to be the request for temporary custody, defendant was not given the statutorily mandated 30-day period in which to challenge the detainer.
The issue remaining is whether defendant, having been returned to prison following the third mistrial, could, under the statute, be subjected to a second detainer to effectuate the fourth retrial.
Article IV(e) of the act reads:
"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”'
The prosecutor first argues that, assuming the writ to procure defendant’s presence in Michigan was a detainer, Article IV(e) of the act was not violated since defendant was tried before he was returned. In light of the purposes of the act, we find the prosecutor’s contention untenable. The act is designed to eliminate the shuttling of prisoners back and forth between jurisdictions, a practice which disrupts parole and incarceration arrangements and makes the prisoner’s status uncertain. The act is intended to encourage the expeditious and orderly disposition of charges outstanding against prisoners and to determine the proper status of any and all detainers based on untried indictments, informations, or complaints.
It is inconsistent with these announced purposes to allow Article IV(e) to be satisfied by something short of a final disposition. A trial without some final verdict is unacceptable. Continual retrials, as in this case, can only produce the shuttling back and forth and the uncertainty of a prisoner’s status which the act seeks to avoid. "If trial is not had” must therefore mean a trial which ends in a final verdict, whereby a prisoner can be certain of his status and the status of the charges against him.
In the alternative the prosecution has argued, with support from various Federal circuit courts, that multiple transfers are satisfactory when the mechanism used to gain the transfer is a writ of habeas corpus ad prosequendum. In the instant case, the prosecution claims, defendant’s transfer for the third retrial and the fourth retrial was effected not by a detainer, but by writs which, the prosecution claims, are not detainers.
We find two problems with the prosecution’s analysis. The first is whether, in fact, the third transfer of defendant on June 1, 1976, was effected by a writ or instead by a detainer letter sent on May 11 by the clerk of the Recorder’s Court. That letter was sent in response to a letter from the administrator of the Federal prison in Terre Haute which had informed the clerk of Recorder’s Court of defendant’s status. In his letter, the clerk of Recorder’s Court stated:
"I have received your letter dated May 3, 1976 regarding the above named defendant.
"Please be advised that our computor [sic] whows a Jessie L. Beamon, case #73-03712 arrested for Murder First Degree. Mr. Beamon, if he is the same, has a Trial set for June 2, 1976 before Judge Elvin Davenport.
"Please notify Judge Davenport’s Court for further information.
"Thank you in advance for your cooperation.”
The word "detainer”, as it is used in the agreement, is "a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction”. See Senate Report 91-1356, 91st Cong, 2d Sess, 3 US Code Cong & Admin News, p 4865 (1970).
The letter from the clerk of Recorder’s Court to the Terre Haute officials, though not as formal as some documents, conforms to this definition of detainer. It advises the officials at the Federal penitentiary that Jessie Beamon is wanted to face a charge of murder in the first degree in the State of Michigan. It instructs the officials to contact the court of the judge before whom defendant was to be tried for further information. We believe the letter of May 11, 1976, constituted a detainer and was sufficient to act as the means by which defendant’s transfer from Indiana to Michigan was effected.
There is a second problem with the prosecutor’s alternative argument. Were we to disregard the letter from the clerk of Recorder’s Court, we in any event hold that the writ of habeas corpus ad prosequendum is a detainer. We are not unmindful that certain of the Federal courts of appeal disagree with our conclusion. See Ridgeway v United States, 558 F2d 357 (CA 6, 1977), United States v Scallion, 548 F2d 1168 (CA 5, 1977). But we are likewise aware that other circuits have held a writ of habeas corpus ad prosequendum does constitute a detainer. See United States v Mauro, 544 F2d 588 (CA 2, 1976), United States v Sorrell, 562 F2d 227 (CA 3, 1977). We must agree with the Second and Third Circuits.
We turn for guidance to the definition of detainer employed when the Interstate Agreement on Detainers Bill was introduced in Congress. Representative Kastenmeier made clear then that a detainer is simply a notice filed with the confining institution that criminal charges from another jurisdiction were outstanding and that the prisoner was wanted in order to stand trial on those charges. 116 Cong Rec 13999 (1970) (remarks of Rep. Kastenmeier).
A writ of habeas corpus ad prosequendum conforms to this definition. The writ is a detainer. Were it not, the section of the law at issue, Article IV(e), permitting only one rendition, would be meaningless. United States ex rel Esola v Groomes, 520 F2d 830, 837 (CA 3, 1975). A party to the agreement could simply avoid the requirements of the act by issuing a writ of habeas corpus instead of a detainer.
One of the aims of the agreement, aside from the expeditious disposition of pending charges in another jurisdiction, is elimination of the uncertainties which obstruct programs of prisoner treatment and rehabilitation.
"Sometimes [before the detainer act] the prisoner would automatically be held under maximum security. Sometimes he would be ineligible for special work programs, athletic programs, release for visits to relatives’ death beds or funerals, or special minimum security facilities. Often detainers precluded the granting of parole * * * parole boards and prison authorities found it difficult to formulate the prisoner’s rehabilitative program, since they were forced to act without knowing whether the prisoner would be convicted on the other pending charges.” United States v Ford, 550 F2d 732, 737-739 (CA 2, 1977).
A writ of habeas corpus produces the same results as the "detainers” described in Ford. We are in accord with the words of the Second Circuit in United States v Mauro, supra.
"[T]he Agreement was plainly designed to avoid the shuttling of prisoners back and forth between the penal institutions of the two jurisdictions. The disruptive effect upon the prisoner’s morale is the same irrespective of the caption on the paper which produces him in the jurisdiction seeking him for trial.” 544 F2d at 593.
Whether a prisoner’s transfer is effected by a "detainer” or by a writ of habeas corpus ad prosequendum, the underlying effect, as Mauro asserts, is the same on the prisoner. It is contrary to the sense and spirit of the act and incompatible with the congressional purpose in enacting the statute not to deem the writ a detainer.
We conclude that a detainer was lodged against defendant, both by the letter from the clerk of Recorder’s Court to officials at the Federal prison in Terre Haute and by the writ of habeas corpus ad prosequendum. After the first detainer was lodged a trial reaching a final verdict was not had before defendant was returned to the original place of imprisonment. Accordingly, under Article IV(e) of the act, the information against defendant was not of any further force or effect and should have been dismissed with prejudice. Defendant should not have been returned to Michigan for a fourth retrial on the same information after he was transferred back to Terre Haute. Though for the wrong reason, the trial judge was correct in dismissing the information.
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] |
N. J. Kaufman, P. J.
Pursuant to a local ordinance, plaintiff commenced this action to enjoin defendants from carrying on their sand and gravel business located in plaintiff township. At trial, defendants contended that the ordinance was invalid. The trial court ruled that the ordinance was valid and enjoined defendants from carrying on the business until a permit is obtained. A judgment to this effect was entered April 27, 1977. Motions to stay the order were denied by the trial court and this Court. Defendants appeal as of right.
Defendants have operated their gravel business at the present location for over 14 years. The parcel mined by defendants is in excess of 200 acres. The area is surrounded by an airport and farms. Plaintiff concedes that the zoning law gives defendants a vested right to the nonconforming use of the property as a gravel mining operation even though the present industrial zoning of the property would not permit the processing operations. However, plaintiff argues that the present ordinance is regulatory and not a zoning ordinance. It was admitted at trial that defendants have not complied with the ordinance.
The ordinance in question is entitled:
"An ordinance to regulate the removal of TOPSOIL, SUBSOIL, SAND, GRAVEL AND OTHER MATERIALS AND THE MOVING AND FILLING OF LAND.”
It is divided into 13 detailed sections.
For purposes of this appeal, two major questions regarding the ordinance are presented:
(1) Do the standards that the township zoning board of appeals uses to grant or deny permit authorizations constitute an unlawful delegation of legislative power to an administrative body—particularly where a nonconforming use is involved?
(2) Are the performance standards and other requirements for application information reasonable regulation of a nonconforming use; or are they invalidly confiscatory?
As to the first question, the applicable standards are found in § 2D:
"The Board of Appeals shall authorize the issuance of a permit only if it finds that the granting of said permit will (1) not be injurious to the public health, safety and welfare of the Township and its residents, (2) there has been compliance with all the requirements and standards of this Ordinance, and the other applicable Township ordinances, standards and regulations, (3) the proposed operation will not create an unreasonable hazard, annoyance or inconvenience to the owners or occupants of nearby property, (5) and will not create any significant obstacle to the implementation of the plan for Township development as evidenced by the Zoning Ordinance and the Master Plan of the Township. The Board of Appeals may attach such conditions to the granting of the permit as it finds necessary to insure that the intent and purpose of this Ordinance is fulfilled. Any violation of a condition(s) included in the permit shall be construed as a violation of this Ordinance and shall be grounds for revoking the permit.”
We hold that several of the standards listed are invalid, either because the assailed standard is not sufficiently precise or because the assailed standard is legislative rather than administrative in nature.
Examining § 2D(1) first, we note that it provides that:
"The Board of Appeals shall authorize the issuance of a permit only if it finds that the granting of said permit will (1) not be injurious to the public health, safety and welfare of the Township and its residents * * *
The quoted language violates the Supreme Court’s holding in Osius v City of St Clair Shores, 344 Mich 693, 699-700; 75 NW2d 25 (1956), wherein it concluded that ordinances cannot:
"be saved by * * * broad statements as to the public health, safety, and general welfare, since such statements afford no sufficient guide for the board in the exercise of its discretion.”
Therefore, we find that § 2D(1) is unconstitutional on its face. Accord, Milford v People’s Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968).
An additional problem arises from § 2D(2):
"[T]here has been compliance with all the requirements and standards of this Ordinance, and the other applicable Township ordinances, standards and regulations,”.
Applied literally, this standard would effectively circumvent defendants’ vested right to the continuation of their mining and gravel business as a nonconforming use. However, it is not necessary to hold this subsection unconstitutional on its face. As noted by the Supreme Court in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976):
"if possible the statute must be construed in such a way as to 'render it valid, not invalid', as conferring 'administrative, not legislative' power and as vesting 'discretionary, not arbitrary, authority'." (Citation omitted.)
We therefore construe the term "applicable" in § 2D(2) to exclude any ordinance, standard, or regulation which would operate to defeat defendants’ vested right of continuation.
Constitutional questions are also created by § 2D(5):
"[A]nd will not create any significant obstacle to the implementation of the plan for Township development as evidenced by the Zoning Ordinance and the Master Plan of the Township."
We hold § 2D(5) to be an invalid attempt to zone property according to a master plan. On its face, this standard purports to incorporate zoning law into it, and, thus, creates the possibility of ad hoc interim zoning, which is only permissible—where a township has a validly enacted zoning act—if full-scale rezoning is contemplated. Lake Twp v Sytsma, 21 Mich App 210, 214; 175 NW2d 337 (1970). Nothing in the record indicates such an intent. We note, in any event, that any rezoning would not affect defendants’ nonconforming use.
Furthermore, to the extent that plaintiff, through this standard, seeks to require compliance with existing zoning despite the existence of a valid nonconforming use, the standard directly conflicts with MCL 125.286; MSA 5.2963(16).
We also note that to the extent that plaintiff seeks to restrict the use of land in conformity with its master plan, the restriction is invalid. See 2 Rathkopf, The Law of Zoning and Planning (4th ed), § 30.02, p 30-4.
Recalling our citation to DNR v Seaman, supra, we find that this standard cannot be construed for validity. If it is read to incorporate the restrictions on the exercise of power that must be applied to master plans and nonconforming uses, which would eliminate the standard’s invalid aspects, it becomes a meaningless standard.
The most troublesome portion of § 2D, however, is not an enumerated standard but the following language:
"The Board of Appeals may attach such conditions to the granting of the permit as it finds necessary to insure that the intent and purpose of this Ordinance is fulfilled. Any violation of a condition(s) included in the permit shall be construed as a violation of this Ordinance and shall be grounds for revoking the permit.”
It is redundant to read that language as permitting the board to impose conditions found elsewhere in the ordinance. Thus, the language must be read to permit the board to impose additional conditions not found in the ordinance; and, since the only guideline for imposition is "necessity”, the language is inescapably legislative and not administrative in nature. The language is therefore invalid under Osius v City of St Clair Shores, supra.
Where a court strikes down parts of an ordinance, it must declare the entire ordinance to be of no effect unless the invalid sections can be severed from the rest of the ordinance. In this case, § 12 of the ordinance provides:
"This Ordinance and the various parts, sections and clauses thereof are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid, it is hereby provided the remainder of the Ordinance shall not be affected thereby.”
Thus, outright reversal is not mandated, and we pass to the second question presented.
The question of regulation of a nonconforming use is not an easy one to resolve because of the competing interests involved. On the one hand, the general health, safety, and welfare of the general populace would seem to demand that a nonconforming use be made to keep pace with existing technology, despite the fact that changes of that sort might result in financial outlay which might have the effect of diminishing the value of the use to some degree. On the other hand, because a nonconforming use represents a statutorily vested right, MCL 125.286; MSA 5.2963(16), regulation cannot be so onerous as to be confiscatory in nature.
Michigan courts have recognized this tension. In Adams v Kalamazoo Ice & Fuel Co, 245 Mich 261; 222 NW 86 (1928), plaintiffs brought suit against defendant company to enjoin the operation of the business in a residential district. The ice station building was built prior to the enactment of the zoning ordinance; thus, it was a nonconforming use.
Plaintiffs argued that the nonconforming use was, in fact, a nuisance per accidens. The Supreme Court noted:
"If the ice station is a nuisance by reason of method of its operation, then regulation, if adequate, and not abatement, is the remedy.” 245 Mich at 264.
The Supreme Court explained:
"While the court of equity has power to abate nuisances in protection of property rights, and to conserve the enjoyment, health, comfort, and welfare of individuals, it moves with caution, deciding each case upon its particular facts, and accords protection against injury only in cases where an action at law would afford no adequate redress.” 245 Mich at 265.
Almost a decade later, the Supreme Court extended its rationale to a zoning case not involving a nuisance. In Wolverine Sign Works v City of Bloomfield Hills, 279 Mich 205; 271 NW 823 (1937), plaintiff asked for a declaratory judgment that a zoning ordinance relating to the maintenance of existing billboards be declared unconstitutional. The Supreme Court noted:
"We do not need to set forth the several ordinances. It is sufficient to say that in effect they prohibited maintenance of the billboards without a permit and, as demonstrated by the city officials, no permit will be granted and, therefore, their continuance subjects the owner thereof to the penal provisions for violation, destroys the lease use, a property right, and incidentally takes from the owner of the land the right of such rental.” 279 Mich at 207.
Significantly to this case, the Supreme Court then held:
"The city may establish zones and prohibit the erection of billboards therein and may, to promote public health, safety and general welfare, within reasonable considerations, regulate the maintenance of billboards but may not arbitrarily strike down the maintenance of erected billboards or vest such power of arbitrary action in municipal officers.” 279 Mich at 208.
Declining to limit Wolverine Sign Works to its facts, the Supreme Court extended its holding to trailer parks in Richards v City of Pontiac, 305 Mich 666; 9 NW2d 885 (1943).
The Supreme Court has also recognized the need to distinguish between prior nonconforming uses and other uses in determining the validity of regulating provisions contained in a zoning ordinance. In Detroit Edison Co v City of Wixom, 382 Mich 673, 690; 172 NW2d 382 (1969), the assailed ordinance was held invalid as applied to plaintiff because the "ordinance operates retroactively upon plaintiffs vested property rights and not in futuro as required by our previous decisions”.
It is with that legal background that we turn to the ordinance in question in this case. An examination of the required application information and performance standards discloses only one instance where regulation would be so unreasonable as to be confiscatory in nature.
According to § 3D, an applicant must submit an application including the following information:
"An estimate by a civil engineer registered as a professional engineer in the State of Michigan or land surveyor registered as a professional surveyor in the State of Michigan as to the cubic yards of material to be removed and/or placed, and a detailed statement as to how the filling and/or removal is to be accomplished.”
Testifying for defendants at trial, Mr. Thomas Handyside, a consulting civil engineer, testified:
"[I]n order to make a professional judgment of it, it would have to have quite a bit of data relative to the soil types and it would involve a significant amount of soil borings.”
Questioned by the trial court as to total cost, Mr. Handyside replied:
"I would say it’s going to be in excess of $100,000. Probably approaching $150,000 or $200,000 to do the detailed work that would be necessary for all those borings.”
Plaintiff did not rebut Mr. Handyside’s testimony. Nonetheless, the trial court ruled:
"Defendants have maintained that the ordinance is unconstitutional, that it is unreasonable, and capricious, particularly in regard to Sections 3D and E which they maintain requires that an estimate by a civil engineer be made which would entail a large boring operation, a so-called grid pattern, as testified to by Defendants’ witness Mr. Handyside, a civil engineer, which would cost at least a hundred thousand dollars.
"Well, the Court doesn’t read Section D of Section 3 to require such an expensive estimate being made on a yearly basis. We are, after all, talking about an annual permit, the requirements for an annual permit.”
We would not dispute the trial court’s finding if there was testimony that a civil engineer could make the required estimate without costly borings or other prohibitively expensive means. However, since Mr. Handyside’s testimony of how a professional civil engineer would fulfill the requirements of § 3D was uncontroverted, we conclude that the trial court’s finding that borings are not necessary is "clearly erroneous” under GCR 1963, 517.1. We agree with the trial court’s feeling that it would be unreasonable to require expensive soil borings on an annual basis. We note that as to a nonconforming use even one set of borings would be unreasonable. But if prospective applicants cannot find a civil engineer who will make the estimate without borings, the trial court’s refusal to invalidate § 3D, in effect, prevents any applicant from getting a permit unless they get what the trial court stated that they did not need.
Therefore, we hold that, as to defendants, § 3D is confiscatory regarding a prior nonconforming use, and accordingly invalid.
Having so decided, we remand this case to the trial court with instructions that defendants be allowed to apply for a permit. The board of appeals shall apply all valid (as to defendants) standards contained in § 2D. Except for § 3D, defendants must file all required application information. The injunction will be dissolved upon a showing that defendants have complied with the conditions precedent to the issuance of a permit.
Because of the disposition of this case, defendants’ remaining issue on appeal need not be addressed.
Remanded with instructions. We do not retain jurisdiction. | [
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Per Curiam.
Defendant, charged with armed robbery (MCL 750.529; MSA 28.797), was tried and found guilty by a jury. Following sentence, defendant appeals on grounds that the trial court erred in allowing use of prior convictions for impeachment purposes, claiming that one of the prior convictions was for a misdemeanor. Defendant also appeals on the ground that the verdict of the jury was against the great weight of the evidence.
The specific prior conviction in question was that of attempting to use a stolen credit card, punishable by a prison term of not more than 2 years under MCL 750.92; MSA 28.287, as a circuit court, or "high” misdemeanor.
In People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court, in reviewing the question of impeachment by prior convictions, said:
"The original legislative purpose behind these statutes is obvious. They were passed to allow persons, historically disqualified at common law from testifying in a case, to testify. A compromise, however, was worked out whereby these disqualified persons could still have their credibility attacked by those prior convictions which formerly had disqualified them from testifying.
"Not all crimes at common law disqualified a witness. Only infamous crimes disqualified a witness, and our statutes were originally intended only to allow impeachment by use of that type of criminal conviction.
"Our Legislature saw fit to pass these statutes and to confer upon the accused a right he previously did not have at common law, that of testifying on his own behalf. The Legislature also saw fit to limit this right, permitting the defendant’s credibility to be attacked in the discretion of the trial court by these prior disqualifying convictions. These statutes were passed to give rights to an accused defendant, not to take rights away from him. Allowing the use of municipal ordinance convictions for impeachment purposes does just that—it takes away rights the accused formerly had at common law.
"We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution solely for impeachment purposes.” 392 Mich 53, 55.
A careful reading of Renno, supra, reveals that the word "felony” is not used or defined in the opinion and that the only time the word "misdemeanor” is used in the entire opinion is in the above quotation. We have no hesitancy in assuming that as used in Renno, supra, "misdemeanor” is meant to be a synonym for violations of municipal ordinances and nothing more.
We find this interpretation to be further buttressed by this language in People v McMillan, 68 Mich App 113, 123; 242 NW2d 518 (1976).
"We do not think that, in Michigan, the term 'infamous crime’ can necessarily be equated with the term 'felony’. In Attorney General v Montgomery, 275 Mich 504, 513; 267 NW 550 (1936), our Supreme Court defined an infamous crime as follows:
" 'Whether a crime is infamous or not is not determined by the nature of the offense (2 Bouvier’s Law Dictionary [Rawle’s 3d Rev] p 1553, 1554), but by the consequences to the individuals by the punishment prescribed for such offense. Butler v Wentworth, 84 Me 25 (24 ATL 456, 17 L.R.A. 764). Crimes subject to infamous punishments are infamous crimes, and the term "infamous crime” means any crime punishable by imprisonment in the state prison.’ (Citations omitted, emphasis supplied.)
"It would then appear that under Montgomery, supra, impeachment should be permissible by use of prior convictions based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed 'felony’ or 'misdemeanor’.”
And further at 124-125:
"The Legislature has broken misdemeanors into two categories, some punishable by imprisonment in the state prison (see e.g. MCLA 750.414; MSA 28.646) and some punishable by a maximum of 90 days in the county jail, MCLA 750.504; MSA 28.772. We think that it would both be more logical and more in spirit with the holding of Montgomery supra, if the rule of Renno was limited to those crimes carrying a maximum of 90 days in the county jail.” (Emphasis in original.)
Had the Supreme Court intended to include high misdemeanors or crimes with sentences greater than one year, it certainly could have, but declined to do so, for leave to appeal McMillan was denied. 399 Mich 825 (1977).
The decision by the trial court in the instant case, to permit impeachment by means of the conviction of attempting to use a stolen credit card, was not error. People v Renno, 392 Mich 45; 219 NW2d 422 (1974), People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), lv den, 399 Mich 825 (1977).
Defendant’s claim that the verdict was against the great weight of the evidence is not properly before this Court as defendant has not moved for a new trial as is required to preserve the issue for review. People v Mattison, 26 Mich App 453, 459; 182 NW2d 604 (1970), People v Towns, 69 Mich App 475, 476; 245 NW2d 97 (1976).
Affirmed.
Supporting the above interpretation of Renno, MRE 609 continues the avoidance of the felony-misdemeanor morass. See Robinson, James K., and John W. Reed, A Review of the Proposed Michigan Rules of Evidence, 56 Michigan State Bar Journal 21, 30 (January, 1977). | [
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-10,
26,
-12,
55,
5,
-15,
8,
20,
0,
15,
19,
24,
-10,
-10,
33,
15,
-25,
11,
97,
28,
35,
-24,
-73,
37,
-29,
-49,
-17,
-51,
17,
-4,
-11,
-3,
0,
-8,
-40,
56,
-2,
-64,
-42,
-32,
44,
-75,
20,
-44,
2,
-5,
-11,
-14,
-36,
-14,
21,
12,
25,
-20,
21,
-2,
16,
-13,
61,
-2,
-3,
4,
5,
-29,
-65,
-12,
59,
13,
-19,
-27,
-29,
-29,
-16,
-10,
-30,
-67,
11,
-36,
2,
4,
7,
0,
-37,
-5,
58,
-18,
-30,
57,
20,
51,
12,
-4,
14,
-25,
-2,
-28,
-3,
29,
24,
2,
-20,
4,
20,
-1,
6,
-17,
-9,
3,
-71,
17,
6,
-24,
-16,
18,
-2,
-24,
-17,
-26,
64,
-26,
23
] |
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