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Beasley, J.
Defendant was convicted by a jury of kidnapping, armed robbery and two counts of criminal sexual conduct in the first degree. The convictions stemmed from an incident in which a Windsor woman whose car had become disabled on a Detroit freeway was abducted by a group of men and taken to an apartment where she was held against her will for over 12 hours and was raped repeatedly. A motorist who had been assisting the woman with her car was robbed by the same men and locked in the trunk of his car. Following sentencing to four life terms, defendant appeals as of right.
The first claim of error raised by defendant is that his motion for a mistrial was improperly denied when a juror had to be excused during the trial after becoming emotionally upset by the proceedings. The claim is without merit. Defendant has failed to allege either specific facts or circumstances warranting a holding that the remaining jurors were prejudiced against defendant as a result of the incident. We decline to hold that there was a clear abuse of discretion by the trial court in denying defendant’s motion for a mistrial.
Defendant next contends that exposure of some members of the jury to media coverage of the trial resulted in prejudice to defendant. The record indicates three jurors admitted they had heard radio reports about the trial. Two heard reports regarding the general course of the trial, and the third said he heard a report that four other men involved in the incident had been convicted. None of the three had communicated what they had heard to other jurors, and all three asserted that hearing the reports had not affected their ability to remain impartial. Absent a stronger showing of prejudice, defendant is not entitled to relief. There was no abuse of discretion by the trial court in denying defendant’s motion for a mistrial on this ground.
It is next argued by defendant that the criminal sexual conduct act is unconstitutionally over-broad. Some authorities have expressed the view that a statute may be overbroad if, by its terms, it covers innocent as well as criminal or proscribed conduct. The criminal sexual conduct act suffers no such infirmity. Defendant contends further that the statute must fall because it "allows the prosecution to go to the jury with several charges of Sexual Activity when in fact only one act of intercourse may have occured [sic]”. Neither of the cases cited by defendant support that proposition.
Nor do we find under the facts of the within case that defendant was charged or convicted of several counts of sexual misconduct based on "only one act of intercourse”. Complainant was kidnapped and held captive for. over 12 hours. During that time she was raped numerous times by at least four or five people. Defendant was identified as one of the persons who had raped her and who was present during some of the other incidents of rape during her period of captivity. Defendant was charged with raping complainant with the assistance of aiders and abettors or by force. He was also charged with aiding and abetting one Joseph Evans in engaging in criminal sexual conduct in the first degree, i.e., forced penetration during the perpetration of a felony-kidnapping. Defendant was also convicted on this charge. The acts of Joseph Evans represent a separate criminal transaction from the penetration committed by defendant. We decline to hold that a separate sentence for each conviction under such circumstances would amount to impermissible multiple punishment for a single criminal act.
Defendant’s other claims of error are equally without merit.
Affirmed.
D. E. Holbrook, Jr., J., concurred.
MCL 750.349; MSA 28.581.
MCL 750.529; MSA 28.797.
MCL 750.520b; MSA 28.788(2).
People v Jenkins, 10 Mich App 257; 159 NW2d 225 (1968).
People v Diamond, 231 Mich 484, 487; 204 NW 105 (1925).
People v Parker, 76 Mich App 432; 257 NW2d 109 (1977).
MCL 750.520a et seq; MSA 28.788(1) et seq.
People v Penn, 70 Mich App 638; 247 NW2d 575 (1976).
Defendant cited People v White, 390 Mich 245; 212 NW2d 222 (1973), in which it was held that a defendant may not be charged on two separate occasions and put through separate trials for criminal acts that arise out of one transaction. He also cited People v Willie Johnson, 75 Mich App 221; 255 NW2d 207 (1977), which held contrary to defendant’s position that presentation to the jury of several counts as alternatives under the criminal sexual conduct statute was not improper. Even if we assume the Supreme Court adopts the so-called lenity rule of People v Willie Johnson rather than the exposition of legislative intention articulated in People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), there would not appear to be error here. | [
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Per Curiam.
Plaintiff Susan Orton, as administratrix of her husband’s estate, recovered a judgment for the death of her husband against defendant prime contractor, Markward and Karafilis, Inc., on a construction project. The decedent, an employee of third-party defendant Detroit Elevator Company, fell five stories to his death from a moveable "material hoist” owned by Markward and attached to the structure of the building under construction. Plaintiffs basic theory was that the hoist was negligently maintained in an unsafe condition and that it was not equipped with safety devices required under state law and labor department regulations.
Claiming indemnity or contribution, Markward brought Detroit Elevator in as a third-party defendant. Markward predicated its claim for indemnification or contribution on the .theories that Detroit Elevator was a bailee of the hoist at the time of the fatal accident and that Detroit Elevator was "actively” negligent in failing to properly instruct its employees on safety precautions, whereas Markward argued it was merely "passively” negligent in failing to comply with "technical” safety regulations. Although the trial judge denied Detroit Elevator’s initial motion for summary judgment, the judge granted its motion for a directed verdict on the grounds that if Markward was found liable to plaintiff it would be because of Markward’s active fault, thus depriving Markward of a right of indemnification as a matter of law. After the entry of the judgments, Markward moved for a new trial against Detroit Elevator and the trial judge denied the motion on the grounds that Markward’s active negligence precluded its action for indemnification. This appeal followed.
We affirm the trial court. Defendant Markward is not entitled to indemnification under either of its proposed theories—bailment or passive negligence_
First, Markward argues that the use of the hoist, to load and unload materials, by employees of Detroit Elevator constituted a bailment. Consequently, Markward argues, it is entitled to indemnification. In Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972), the Michigan Supreme Court noted that indemnification rests on the equitable principle of a right to restitution. In listing several types of legal relationships which may give rise to indemnification, the Court noted that the right to indemnification has been given in some bailment situations. Dale, supra, at 705. The Court did not say the existence of a bailment relationship always entitles a bailor to indemnification from the bailee, but only that such a relationship has been the basis for indemnification in some cases.
No bailment existed in this case. A bailment requires the delivery of personal property in trust. In re George L Nadell & Co, Inc, 294 Mich 150, 154; 292 NW 684 (1940). In order to constitute a sufficient delivery of the subject of the bailment, there must be a full transfer to the bailee so as to exclude the possession of the owner and all other persons and to give to the bailee the sole custody and control thereof. 8 Am Jur 2d, Bailments, § 56, p 961. As a general rule, the creation of a bailment requires the possession and control over the subject matter pass from the bailor to the bailee. 8 Am Jur 2d, Bailments, § 54, p 960.
In this case it is clear that Markward’s employee, one Cecil Hawkins, had exclusive control over the raising and lowering of the hoist. At the time of the fatal accident, Mr. Hawkins had locked the hoist into place and was inside the building structure.
Under the above-cited criteria for the creation of a bailment relationship, a bailment did not exist here. The mere use of the hoist, attached to the building structure and controlled by Markward’s employee, is not sufficient to create a bailment.
Secondly, Markward argues its negligence was "passive” in nature whereas Detroit Elevator’s failure to properly instruct employees on safety precautions was "active” negligence. In Dale the Court recognized that indemnification might be proper where one of two parties is guilty of only "passive” negligence while the second party is guilty of "active” negligence. Dale at 705. The concepts of active and passive fault were recently discussed in Provencal v Parker, 66 Mich App 431; 239 NW2d 623 (1976). Under the principles enunciated in Provencal, Markward is not entitled to indemnification since Markward was guilty of active negligence.
As noted by the trial judge in his written opinion denying a new trial, the allegations in plaintiff’s complaint sounded in active negligence. Further, the instructions framed the liability issue in terms of active negligence concepts. While Mark-ward claims its mere technical violations of the statute could only be passive negligence, this contention ignores the fact that the instructions clearly indicated that these statutory violations were to be considered evidence of negligence. The out of state cases cited by Markward are not on point since they deal with statutory causes of action, whereas the instant case deals with a negligence fault standard. We uphold the trial judge’s ruling that Markward was guilty of active negligence and therefore precluded as a matter of law from compelling indemnification from Detroit Elevator.
Affirmed.
We note that defendant Markward and Karafilis, Inc., sought, and was denied, contribution from the corporation which had contracted with Markward to construct the hospital. Markward and Karafilis, Inc v Detroit Osteopathic Hospital Corp, 77 Mich App 728; 258 NW2d 161 (1977). | [
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V. J. Brennan, P. J.
Both plaintiff and defendant Roger T. Wilcox appeal the reversal by Ingham County Circuit Judge Thomas L. Brown of defendant’s 54-A District Court conviction for failure as a second-hand merchandise dealer to record the purchase of a tape deck in a ledger book open to inspection, contrary to MCL 445.404; MSA 19.714, and for failure to take and forward the seller’s thumb print with a statement of the na ture of the property received to the city and state police, contrary to MCL 445.472; MSA 19.740(2). Plaintiff challenges the finding below by Judge Brown that the penalty provision of MCL 445.408; MSA 19.718 is constitutionally unsound cruel and unusual punishment. Defendant raises several statutory allegations of error. However, discussion of defendant’s principal claim of error will make unnecessary consideration of the parties’ remaining claims.
The facts of this case are simply stated. Defendant and his brother Dale H. Wilcox are partners in Wilcox Second Hand Store in Lansing, Michigan. On January 22, 1975, Curtis Cousineau went to defendant’s store to purchase an automobile tape deck to replace one stolen from his car earlier that day. On a counter in the store, Cousineau saw the tape deck which had been stolen from his car. He then reported the theft and his observations at defendant’s store to the Michigan State University Police Department.
Later that same day, Detective Sergeant Dunlap of the Michigan State University Police Department and Detective Behrmann of the Lansing Police Department arrived at defendant’s store and located the tape deck. The detectives asked two of defendant’s employees to show them the pawn ticket and ledger entry on the item, but the employees were unable to do so. Detective Dunlap confiscated the tape deck.
Subsequently, defendant and his brother were each charged in a two-count complaint for violating provisions of MCL 445.404; MSA 19.714 and . MCL 445.472; MSA 19.740(2). On October 14, 1975, defendants were tried by jury in 54-A District Court, Ingham County, Michigan. Defendant’s brother was acquitted; defendant was found guilty on both counts.
Although sentence was deferred, MCL 445.408; MSA 19.718 mandates a one-year suspension of defendant’s license to operate a second-hand store for failure to record the purchase of the tape deck in a ledger and permits a fine of from $10 to $100 and/or six months imprisonment. For failure to take and forward the seller’s thumbprint, MCL 445.475; MSA 19.740(5), and MCL 750.504; MSA 28.772, provide for a fine of up to $100 and imprisonment for up to 90 days.
Defendant appealed to Ingham County Circuit Court on October 28, 1975. Judge Brown concluded that defendant could be held criminally liable for the acts of his employees. However, he ruled that the one-year suspension of defendant’s license constituted cruel and unusual punishment, and so ordered the reversal of defendant’s conviction.
Defendant’s principal claim is that the second hand and junk dealers act, specifically MCL 445.401 et seq.; MSA 19.711 et seq., will not support finding defendant copartner in a second-hand store criminally responsible for the acts or omissions of an employee which occurred without his knowledge, consent or direction.
In answer to defendant, plaintiff advances a number of theories justifying defendant’s vicarious liability. To begin, plaintiff maintains that the statute does not require scienter or intent, but rather imposes strict liability for violations. With this proposition we agree. Plaintiff also argues that a partner is responsible for violations by a copartner. Again we agree. However, we cannot accept plaintiff’s interpretation that this case represents an exception to the usual rule which prevents one person from being held criminally liable for the acts of another. Plaintiff argues that because defendant and his partner can be held re sponsible under the statute for violations of a copartner, then he should also be held for violations of an employee. Again we take exception. Finally, plaintiff contends that defendant should be liable because he was in the best position to prevent the statutory violations and that, unless defendant is held liable, second-hand dealers will be able to escape liability by simply pleading ignorance of their employees’ default. We do not find this claim credible.
However, looking more deeply into this problem, we find that three related pieces of legislation are involved. 1917 PA 273 regulates pawnbrokers, namely, persons who purchase articles from the public with an understanding that the article may be repurchased by the seller at an agreed price. MCL 446.201 et seq.; MSA 19.581 et seq. The second act involved in the case is 1917 PA 350 which regulates second-hand and junk dealers. MCL 445.401 et seq.; MSA 19.711 et seq. The third act, 1945 PA 231, provides additional regulations for pawnbrokers, second-hand dealers and junk dealers. MCL 445.471 et seq.; MSA 19.740(1) et seq.
Section 19 of the pawnbrokers act specifically provides that a pawnbroker is liable for the statutory defaults of his employees. Liability includes mandatory loss of license for one year. This section provides:
"Upon any such conviction of any person doing business as a pawnbroker under the provisions of this act, or on conviction of any clerk, agent, servant or employe of any such person, the license of such person shall forthwith be revoked by the mayor of the city or president of the village, and no part of the license fee of such party shall be returned to him, and no further license as a pawnbroker shall be granted to such person for the period of 1 year from the date of such revocation.” MCL 446.219; MSA 19.599. (Emphasis added.)
By contrast, § 8 of the second hand and junk dealers act under which defendant was convicted has no such comparable provision making a second-hand dealer liable for his employees’ defaults. Section 8 provides:
"Every person violating any of the provisions of this act shall be punished by a fine not exceeding 100 dollars, nor less than 10 dollars, or by imprisonment in the county jail not exceeding 6 months, or by both such imprisonment and fine. In case any person, corporation, copartnership or firm shall be found guilty of violating any of the provisions of this act, the license issued to such person, corporation, copartnership or firm shall be deemed to have been revoked ipso facto, and such person, corporation, copartnership or firm shall not be permitted to carry on such business within this state for a period of 1 year after such conviction.” MCL 445.408; MSA 19.718.
The significance of the difference in the two statutes is that in the case of pawnbrokers the Legislature declared that they would be liable for their employees’ wrongful acts, but did not so provide in the case of second-hand dealers. This distinction in treatment is strong evidence that the Legislature did not intend second-hand dealers to be responsible for their employees’ failure to follow the statutory requirements. Criminal liability does not arise vicariously unless the Legislature so provides:
"Unless he is [sic] in some way participates in, counsels, or approves of what the servant does, or, as it is sometimes put, unless he counsels, commands, aids, or abets, or procures the commission of, an act, an employer or principal is not, in the absence of a statute, criminally liable for the acts of his employee or agent.
”A statute may in certain instances fix criminal responsibility on an employer or principal for an act committed by his employee or agent.” 21 Am Jur 2d, Criminal Law, § 133, pp 203, 204. (Emphasis added.)
We also find significant the fact that the two acts regulating pawnbrokers and second-hand dealers weré enacted at the same session of the Legislature. Consequently, the doctrine of in pari materia is applicable. The two acts must be construed together to arrive at a definition of the legislative intent. See 21 MLP, Statutes, § 99. Under that doctrine, we find that in 1917 the Legislature was aware of the technique of making an employer liable for the defaults of his employees and agents. They purposely made pawnbrokers vicariously liable, but did not do so in the case of second-hand and junk dealers. Accordingly, defendant was correct in his assertion that he cannot be criminally liable for the default of his employee.
Though the statute intends to impose strict liability, the statute will not permit imposing criminal liability upon a defendant vicariously for the acts or omissions of his employees or agents. See People v DeClerk, 400 Mich 10, 20, fn 4; 252 NW2d 782 (1977). Consequently, we affirm the reversal of defendant’s convictions under both MCL 445.404; MSA 19.714 and MCL 445.472; MSA 19.740(2). However, we reverse on the basis specified in this opinion, which conflicts with the finding of Judge Brown that defendant could be held criminally liable for the acts of his employees. Because we so hold, we need make no representation at this time as to the constitutionality of the sentencing provision requiring suspension of defendant’s license. MCL 445.408; MSA 19.718.
Defendant’s conviction in district court is reversed. | [
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Bashara, J.
The majority adopts the statement of facts of the dissent. I hold for reversal in the full knowledge that Judge Beasley’s dissent is entirely logical and eminently sound.
However, unlike the dissent, we cannot differentiate the facts of the instant case from People v McGinnis, 402 Mich 343; 262 NW2d 669 (1978). Frankly, I respectfully question the rationale of McGinnis. Nonetheless, I feel bound to observe the command of our state’s highest court.
Reversed and remanded for a new trial.
D. C. Riley, J., concurs in the result reached by Judge Bashara. | [
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T. M. Burns, P. J.
Defendant was convicted of six counts of armed robbery, MCL 750.529; MSA 28.797, by a Wayne County jury in August of 1976. He was subsequently sentenced to 43 years, 4 months to 65 years on each count. All the charges arose out of a holdup at Kindred’s Bar in the city of Dearborn.
All six people who were victims in the Kindred’s Bar robbery testified at trial. Some of these witnesses identified defendant as a participant in the robbery, others did not. In addition, the people called five witnesses under the similar acts statute, MCL 768.27; MSA 28.1050, who had been victims of a robbery at Lem’s Lounge, also a Dearborn bar. Again, some of the victims of the Lem’s Lounge robbery identified defendant as a participant in that offense and some did not.
Defendant moved before trial to suppress reference to his prior criminal record, consisting of two convictions for armed robbery. The trial court refused to restrict the prosecutor’s cross-examination if defendant chose to take the stand. This presents the factual framework for the main allegations of error in this appeal.
I
We turn first to the trial court’s refusal to suppress reference to defendant’s prior convictions. The decision to allow impeachment by prior convictions is within the discretion of the circuit court. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). This rule envisions a true exercise of discretion by balancing the competing factors involved, however. See, People v Farrar, 36 Mich App 294, 301-303; 193 NW2d 363 (1971). The failure to do so in this case requires reversal.
The court below did not. require the people to justify the use of these convictions for impeachment purposes. The defendant does not have the burden of persuading the court that his criminal record should be excluded. The people must justify admission. People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975).
The prosecutor did not participate in the discussion regarding the suppression of defendant’s record. While this alone may not justify reversal, the trial court’s decision evidences an abuse of discretion which does require reversal.
The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man” or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?). See, People v Farrar, supra; People v McCartney, supra.
Had the trial court balanced these factors, we are convinced that he would have suppressed defendant’s prior record. Indicative of this fact is the following discussion:
"Miss Ritter [Defense counsel]: Obviously, he has the right to take the stand.
"The Court: Okay.
"Miss Ritter: I don’t see a jury in the world that could acquit him knowing he has two robbery armed convictions.
"The Court: I agree.”
The court implicitly recognized that defendant could testify and be impeached with two prior armed robbery convictions (raising the dangers noted in factor 2 above) or forego testifying and deprive the jury of his side of the story (factor 3 above). Defendant did not testify or otherwise present a defense. To fail to suppress defendant’s prior armed robbery convictions was an abuse of discretion requiring reversal in this case.
II
A similar problem, balancing the probative value against the prejudicial effect, is involved in the admission of the testimony of the victims of the Lem’s Lounge robbery under the similar acts statute in this prosecution.
Judge Walsh has recently undertaken an extensive analysis of similar acts problems in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). Application of the principles set out in that opinion would require that the evidence in this case be excluded.
There is a need to mention only one of the factors which should have gone into the trial court’s analysis; the potential for confusing the issues in the case. People v Wilkens, at 260. The jury was presented with testimony from two groups of robbery victims. As the prosecutor stated in argument on another point:
"Mr. Lang [Assistant prosecutor]: Your Honor, I would say for the record that all the witnesses that have testified in his case by way of civilians testified in the last case, so, in a sense, this case would be tried for the second time today.”
The potential for jury confusion, even if properly instructed, is obvious. We strongly disapprove of the practice of parading groups of victims from unrelated offenses in front of a jury under the guise of proof of identity, in the absence of a truly unique fact situation. See, People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976). This type of evidence proves identity only in the sense that it shows defendant’s propensity to crime. Such a use is improper.
III
The other issues raised merit little or no discussion.
The record does not support defendant’s claim that the 36-hour delay between his arrest and arraignment was used as a tool to extract a confession. It appears that the interview which resulted in the confession was initiated at defendant’s request. See, People v White, 392 Mich 404; 221 NW2d 357 (1974), cert den, 420 US 912 (1975).
In the retrial, we suggest that the trial court follow CJI 4:1:01 in instructing the jury on its function with regard to defendant’s claimed confession.
For the reasons stated in section I of this opinion, the conviction is reversed and remanded for a new trial.
A similar analysis is appropriate under new MRE 609 and the result in a case such as this would be identical.
These principles are now embodied in MRE 404(b).
In commenting.on the equivalent rule in the Federal system, Judge Weinstein stated:
"The factors in each case are so varied and unique, and the counterthrusting pressures — constitutional and otherwise — so great, that in some instances the courts are thrown back to suggesting that the only requisite is that the decision accord with fundamental notions of fairness. Yet some aid to fairness is afforded by analyzing each proffer of other crime proof to determine what evidential hypotheses the jury is expected to use, and weighing the probative force of the line of proof against the need of the prosecutor and the risks specified in Rule 403. The more reason there is in the decision to admit or exclude, the more apt it is to be fair. Both bench and bar benefit at a trial if critical questions of admissibility are exposed and reasons clearly stated.” 2 Weinstein’s Evidence ¶ 404[08], p 404-441.
We can only echo the proposition that appellate review is aided if the attorneys and court below truly analyze these problems rather than perfunctorily admitting such testimony. | [
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Per Curiam.
Defendant appeals as of right his June 17, 1977, jury conviction for breaking, and entering a building with intent to commit larceny therein. MCL 750.110; MSA 28.305. On appeal he raises the sole issue of whether the trial judge committed reversible error in refusing his request for an instruction on the crime of receiving and concealing stolen property.
At trial several witnesses stated that they , purchased certain items from Tim Jurek at defendant’s home. Further, one witness testified that he had purchased an item directly from defendant. The evidence established that these items had previously been stolen from the home of Steve Suhan. Tim Jurek testified that he and defendant had broken into Suhan’s home with the intent to commit larceny therein and that they did in. fact commit larceny.
At the conclusion of the evidence, counsel for the defense requested an instruction concerning receiving and concealing stolen property in excels of $100. MCL 750.535; MSA 28.803. This request was denied by the trial judge who stated that:
"although the evidence would tend to substantiate that he might also be guilty of receiving and concealing, the elements of that particular crime are not necessarily included in the crime charged, that is, breaking and entering.”
In People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975), the Court stated:
"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.”
See also People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978). Thus, to constitute a lesser included offense the lesser offense and the greater offense must 1) share some common elements and 2) must be of the same class or category.
The offenses under examination here fail on both counts. The crimes contain no common elements whatsoever. As pointed out in People v Matuja, 77 Mich App 291, 295; 258 NW2d 79 (1977):
"The elements of the breaking and entering charge in this case are: (1) breaking and entering, (2) with felonious intent, (3) of an occupied dwelling. People v D'Argis, 44 Mich App 186, 188; 205 NW2d 19 (1972). The elements of receiving and concealing stolen property are: (1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen. People v Martinovich, [18 Mich App 253, 257; 170 NW2d 899 (1969)].”
In addition, the two offenses are not of the "same class or category”. Although somewhat vague, this requirement was construed in Matuja, supra, 295, to require that the offenses share a "common statutory purpose”. In People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), the Court extensively examined the purpose of the receiving and concealing statute and concluded:
"It is directed toward those who assist the thief or others in the disposition or concealment of stolen property. The everyday understanding of the language employed excludes the person who committed the larceny.” Kyllonen, supra, 145.
However, the purpose of the breaking and entering statute is to protect "the right to peaceful habitation”. People v Winhoven, 65 Mich App 522, 526; 237 NW2d 540 (1975). Thus, the statutes have distinct purposes. Since the offenses are not of the "same class or category”, the second part of the Ora Jones test was not met. Thus, the instruction was properly denied.
Defendant argues that Paterno v Lyons, 334 US 314; 68 S Ct 1044; 92 L Ed 2d 1409 (1948), mandates a contrary result. That case holds that a defendant charged with the offense of receiving and concealing stolen property has notice that he may have to defend against a charge of attempted larceny. However, Paterno grants a criminal defendant no right to be charged with a particular offense. Rather, it merely holds that under the circumstances of that case, no due process violation occurred.
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Bronson, P. J.
Defendant was charged in a two-count information. Count I charged defendant with assaulting a police officer, MCL 750.479; MSA 28.747. Count II charged defendant with breaking jail "or attempt to break or escape,” MCL 750.197c; MSA 28.394(3).
These charges arose out of an incident which occurred at Jackson County Jail. Testimony at the preliminary examination indicated that defendant left his cell with a turnkey to make a phone call. On the way back to the cell, the two became involved in a scuffle; defendant hit the officer, grabbed his keys and ran out of the area. Defendant was later spotted by another officer. When defendant turned and ran down a stairway leading to a basement, an area in which he was not authorized to be, the officer shot defendant, wounding and capturing him.
Defendant was bound over on both counts.
Defense counsel filed a motion to quash Count II based on two grounds: (1) Count II charged, in addition to jail break, "attempt to break or escape” which is not within the language of MCL 750.197c; MSA 28.394(3), and (2) there was insufficient evidence presented at the preliminary examination to bind defendant over on Count II of the information.
The trial court quashed Count II after extensive argument by counsel. Its reasons for doing so, however, were not made clear. Apparently, the trial judge did not believe an attempt to break jail or escape would be a violation of MCL 750.197c; MSA 28.394(3). After the prosecutor refused the court’s invitation to amend Count II, it was quashed.
Assuming that Count II was quashed on defendant’s first ground, that an "attempt” was not proscribed by the statute, the trial court erred in quashing it. Attempted jail break through the use of violence is necessarily included within the completed offense. See People v Lovett, 396 Mich 101; 238 NW2d 44 (1976). The attempt language in Count II thus could be viewed as mere surplusage. Even if Count II is viewed as duplicitous, quashing it was error. See MCL 767.75; MSA 28.1015, MCL 767.2; MSA 28.942, providing that an information may not be quashed for duplicity or uncertainty.
Defendant contends that Count II was quashed because there was insufficient evidence to bind defendant over on that charge, arguing that an actual escape from the confines of a jail is a necessary element of the offense of jail break, with violence, MCL 750.197c; MSA 28.394(3).
That statute provided, at the time of the alleged offense:
"Any person lawfully imprisoned in any jail or place of confinement established by law for any term or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from any prison, for any crime or offense, or charged with any crime or offense who, without being discharged from jail or the place of confinement by due process of law, through the use of violence, threats of violence or dangerous weapons, shall break such jail or place of confinement and escape, or break jail, although no escape be actually made, shall be guilty of a felony.”
The plain words of that statute belie defendant’s argument, for the statute proscribes jail breaking through the use of violence "although no escape be actually made”. Thus, jail break and escape are not synonymous, and the evidence in the case at bar was not insufficient because defendant never actually effected an escape.
The Supreme Court’s order in People v Quintero, 399 Mich 888 (1977), vacating the Court of Appeals opinion, does not mandate a different result. That order does not require an escape from the ultimate boundaries of a prison as a prerequisite to prosecution. Rather, the Court appears to have been concerned with two factors not present in the case at bar: whether the area Quintero had entered was in fact an area in which he was not authorized to be and whether he intended to leave a place of confinement and enter an unauthorized area, as part of an escape attempt.
In the case at bar, there was evidence presented at the preliminary examination that defendant, who had left his cell in the custody of a turnkey and was being escorted back to his cell, struck the turnkey, picked up his keys and ran from a place of confinement. He was subdued and captured in a place where he was not authorized to be. We cannot say that the magistrate abused his discre tion in binding defendant over for trial. See, e.g., People v Mosley, 74 Mich App 145; 254 NW2d 33 (1977). Thus, assuming the trial court quashed Count II on the basis of insufficiency of the evidence, it erred.
In sum, the trial court erred in quashing Count II under either ground advanced by defendant.
This raises defendant’s third issue: does the constitutional protection against double jeopardy bar prosecution on Count II as defendant has pleaded guilty to Count I—assaulting a police officer?
A defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other. See People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Alexander, 82 Mich App 621; 267 NW2d 466 (1978).
In the case at bar, defendant was charged with breaking jail through the use of violence, threats of violence or dangerous weapons. Defendant has pleaded guilty to assaulting a police officer. The only evidence in this case of any use of violence was the assault on the police officer. Thus, defendant may not be convicted of both jail break with violence and assaulting a police officer, because, on the facts of this case, the trier of fact must necessarily find him guilty of the assault on a police officer in order to convict him of jail break with violence. Separate convictions are impermissible under Stewart and Martin.
Of course, defendant has not been convicted twice. Double jeopardy does not prevent the prosecutor from charging separate offenses in a single prosecution.
"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.” People v Martin, supra, at 309.
We simply indicate that a conviction for breaking jail through the use of violence in this case after defendant had pleaded guilty to assaulting a police officer would constitute unconstitutional multiple punishment for the same offense.
Reversed and remanded for further proceedings consistent with this opinion.
Defendant pled guilty to Count I after Count II had been quashed. The guilty plea has not been challenged on appeal.
MCL 750.92; MSA 28.287 provides for penalties for attempts to commit crimes for which no specific provision has been made.
The statute has since been amended by 1976 PA 188.
See People v Quintero, 67 Mich App 481; 241 NW2d 251 (1976). The order states:
"[T]he decision of the Court of Appeals is vacated, and this case is remanded to the trial court for specific findings as to:
"(1) the physical limits of the prison;
"(2) whether the prison population generally and the defendant in particular were aware of those limits;
"(3) whether the defendant was in fact outside of the limits;
"(4) whether the defendant was aware that he was outside the limits;
"(5) whether there is any merit to defendant’s contention that the prison authorities tolerated, authorized or permitted him or other prisoners, either in the course of their duties or as a matter of practice to be in this or like areas (Judge Allen’s reference to 'skating’).
"(6) did the defendant make the statement about intending to go to Mexico?
"(7) if so, was he on the hill or off limits as the first step in executing a plan to go to Mexico?
"(8) did the defendant intend to leave the prison boundaries and did he do so with the requisite state of mind?
"The trial court shall then enter an appropriate order affirming appellant’s conviction or granting a new trial. This Court retains no further jurisdiction over the matter.” 399 Mich 888.
The "place of confinement” could be considered to be either the custody of the officer or the cell area from which defendant allegedly ran.
US Const Am V; Const 1963, art 1, § 15.
We are here concerned with the aspect of double jeopardy forbidding multiple punishments for the same offense. See People v Martin, 398 Mich 303; 247 NW2d 303 (1976).
This analysis applies equally to conviction of a greater offense following conviction of a lesser offense. See Brown v Ohio, 432 US 161; 53 L Ed 2d 187; 97 S Ct 2221; (1977). | [
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Per Curiam.
The plaintiff 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 (1976)] 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 appellees. | [
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N. J. Kaufman, P. J.
Defendant husband appeals from a judgment of the trial court denying his motion for reduction or termination of child support payments to plaintiff wife for the support of their daughter. Defendant claimed that the child’s refusal to visit him rendered his visitation rights under the divorce decree useless, relieving him of his support obligation.
The parties were married on August 26 or 27, 1949, in Texas. They have two children: Richard Charles Henshaw, born February 15, 1957, who has attained the age of majority, and Elizabeth Faye Henshaw, born October 28, 1962. The parties were divorced on May 23, 1975, on the basis of an irretrievable breakdown in the marriage relationship. The court awarded custody of Elizabeth to plaintiff wife and ordered defendant husband to pay $60/week child support as well as assuming certain other expenses. Defendant received "reasonable rights of visitation” with the child.
On July 2, 1975, defendant filed a motion for a new trial or alternately to set aside the judgment, alleging that (1) plaintiff was violating an agreement respecting the division of personal property, and (2) that "Defendant has been denied visitation rights by the actions of Plaintiff’. Shortly afterward plaintiff brought an action alleging breach of the support provisions of the divorce decree. At various times since then, both parties have been ordered to appear and show cause why they should not be found in contempt of court, the plaintiff for not allowing visitation of her daughter to defendant and defendant for being in arrears of support payments. On January 15, 1976, the court did amend the visitation provisions of the divorce judgment by specifying particular times for the father’s visitation with the child.
At the May 12, 1976, hearing for cancellation of support payments, both plaintiff and defendant testified. Plaintiff testified she did not interfere with her daughter’s visitation. Defendant stated that he did not get regular visitation and that he had no control over his daughter.
Over plaintiff’s objections, Elizabeth Henshaw— who was then age 13 — took the stand. The judge explained the problem and the reasons for his visitation order. When asked to comment, Elizabeth said:
"Well, I don’t like to be with my dad because ... I mean, we don’t really have any interest in common, and a lot of times he just embarrasses me. And the only reason I ever see him, really, is really just to see Richard, because I don’t really feel like my dad ... I mean we don’t have anything in common and he embarrasses me, and sometimes he criticises me.”
At the conclusion of the hearing on May 12, the judge announced that he could not find Mrs. Henshaw in contempt because there was no testimony that she affirmatively acted to disobey the court’s order. She had not implemented a program to convince the child of the wisdom of visiting her father, but she was under no duty to do so. The judge stated, "I have to accept the testimony of that daughter to the effect that she doesn’t want to visit her father. There’s no testimony that rebuts that.” He said he was "appalled” at his inability to act.
On November 17, 1976, the trial judge filed an order denying the motion to cancel and/or reduce child support. Defendant appeals.
Initially, we must compliment the trial judge for his tolerance and patience. He heard testimony from both sides. He carefully explained to the daughter that she should visit with her father. He set specific dates for visitation and we certainly know what he meant when he stated he was "appalled” by his inability to act. There are very few matters that are more agonizing, frustrating, baffling and troublesome to a trial judge, especially if he does everything he can think of and still does not solve the problem.
However, it is clear to us that it is the defendant-father who must convince his daughter that she should visit him. We cannot prescribe how that should be accomplished because each case of this kind presents a new situation. The child’s likes and dislikes, her activities, her age and friends are all variables which weigh heavily in matters of this type.
In Schilleman v Schilleman, 61 Mich App 446, 449; 232 NW2d 737 (1975), lv den 395 Mich 769 (1975), this Court concluded:
"While this Court hears appeals in divorce cases de novo, we will not revise or modify alimony awards and property settlements in divorce cases unless convinced that we would have reached a different result had we occupied the position of the trial court. Ireland v Ire land, 56 Mich App 594; 224 NW2d 662 (1974), Hostetler v Hostetler, 46 Mich App 724; 208 NW2d 596 (1973).”
We are not convinced we would have reached a different result. The child’s interests must be paramount. As noted in Stevenson v Stevenson, 74 Mich App 656, 658-659; 254 NW2d 337 (1977):
"Since 1971, the Child Custody Act, 1970 PA 91; MCLA 722.21 et seq.; MSA 25.312(1) et seq., has governed disputes over child visitation. While the act focuses on custody disputes, there can be little doubt that the act was intended to control visitation privileges as well. MCLA 722.24, 722.27, 722.27a; MSA 25.312(4), 25.312(7), 25.312(7a). Lorenz v Lorenz, 70 Mich App 356; 247 NW2d 569 (1976).”
We hold that support payments may not be used as a weapon to force a child’s visitation.
While defendant’s disinclination to support a child who feels only a limited measure of affection for him is in a way understandable, his plight is not much different from that of many custodial parents who find themselves estranged from their children, especially as the latter enter adolescence. Estrangement of daughter from father "is, unfortunately, an all too common result of homes destroyed by divorce”. Straver v Straver, 26 NJ Misc 218; 59 A2d 39, 41-42 (1948). There is no constitutional right to be liked or loved. Elizabeth Henshaw—obviously an intelligent and articulate girl —made quite clear that she feels no hostility toward her father and desires his companionship from time to time. But she also made clear that she shares few interests with her father, that she has a life of her own, and that she cannot be coerced into artificial expressions of greater affection than she truly feels—least of all at scheduled times and places decreed by court order. That Elizabeth feels this way is unfortunate, even tragic, but it hardly justifies calling on the retributive power of the state.
Affection is bestowed, not bought. Family relations cannot be regulated by the clock. Obviously, any coerced companionship the defendant might compel by a cutoff of child support would be utterly devoid of the sentiments of filial love and respect whose encouragement furnished the only admissible ground for visitation in the first place.
Affirmed.
This issue was not briefed on appeal and we treat it as abandoned. Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1955). | [
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Per Curiam.
In this case the prosecutor appeals, by leave granted, from a trial court order suppressing tape-recorded evidence of statements made by defendants to an informer, who was equipped with a recording device pursuant to search warrants, as required by People v Beavers, 393 Mich 554; 227 NW2d 511 (1975).
Investigators for the Wayne County Organized Crime Task Force were informed by Norman Giveins and two others that they had in the past committed several burglaries, and had disposed of the stolen goods therefrom by consigning them to defendants for resale. On the basis of this information, the task force obtained two search warrants, one in Wayne County on August 6, 1975, and one in Macomb County on August 19, 1975, authorizing them to place hidden recording devices on Giveins before he met defendants in two named bars, one in Wayne County and one in Macomb. The meetings took place as scheduled, and were recorded. Defendants were subsequently charged on October 28, 1975, in Wayne County with receiving and concealing stolen property.
Defendants moved in Wayne County Circuit Court to suppress the tape-recorded evidence of the conversations between defendants and Giveins (who is now deceased), on grounds that their Fifth Amendment right against compulsory self-incrimination had been violated. The motion was granted and this appeal followed.
Defendants successfully argued below that because the investigation had focused on them, the doctrine of People v Reed, 393 Mich 342; 224 NW2d 867 (1975), required that they be given their Miranda warnings prior to being engaged in conversation by Giveins. We disagree. Although the investigation was undoubtedly aimed at gathering evidence against defendants, there were none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given. Defendants were neither in custody nor in the intimidating atmosphere of a police station. Indeed, they were not even confronted by a police officer. This was not a case where a suspect is being questioned by a figure of authority, as was the case in Reed, supra, and indeed in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964), from which the "focus” test arose.
Here, defendants were in a public place, engaged in voluntary conversation with one whom they thought to be a friend. Any incriminating statements were made freely and voluntarily, not under compulsion. That Giveins was in fact an agent of the police does not change this fact. See Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966), Osborn v United States, 385 US 323; 87 S Ct 429; 17 L Ed 2d 394 (1966). Moreover, the clear implication of Beavers, supra, that electronic monitoring is a valid investigative tool, if a warrant is obtained, would be rendered useless if Miranda warnings had to be given each suspect on whom an investigation had focused.
An analogy may be drawn from the United States Supreme Court holding in Beckwith v United States, 425 US 341; 96 S Ct 1612; 48 L Ed 2d 1 (1976), wherein it was held that Miranda warnings were not required where special agents of the Internal Revenue Service interviewed a taxpayer who was clearly the focus of a criminal income tax investigation. We relied on Beckwith and Oregon v Mathiason, 429 US 492; 97 S Ct 711; 50 L Ed 2d 714 (1977), in a recent decision rejecting the focus only test relied on by defendants in the case at bar. People v Martin, 78 Mich App 518; 260 NW2d 869 (1977).
The ruling of the trial court is reversed; and the case is remanded for further proceedings not inconsistent with this opinion. | [
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Cynar, J.
Plaintiff appeals as a matter of right from a summary judgment granted to defendant. The relevant facts are largely undisputed. Stacy Belcher, plaintiff’s son, died in a single car accident on August 21, 1976. At the time of the accident, decedent was operating a vehicle owned and registered to himself. Subsequently, it was determined that the deceased’s certificate of insurance was a forgery. Plaintiff then filed a claim with the Assigned Claims Facility of the Michigan Secretary of State, pursuant to MCL 500.3172; MSA 24.13172. This claim was assigned to defendant. On March 23, 1977, defendant denied plaintiff’s claim. On April 15, 1977, plaintiff filed a complaint in Wayne County Circuit Court, alleging that she was entitled to survivor’s benefits. On September 23, 1977, defendant’s motion for summary judgment was granted on the ground that the plaintiff’s claim was derived from that of her son and that his claim was barred by MCL 500.3113(b); MSA 24.13113(b).
On appeal it is undisputed that plaintiff’s son, had he survived, would not have been entitled to receive personal protection insurance benefits. MCL 500.3113(b); MSA 24.13113(b). The only issue to be determined in this case is whether a surviving dependant of one barred from receiving such benefits is barred from receiving survivor’s bene fits. This issue has not. previously been addressed by this Court.
The purpose of Michigan’s so-called "No Fault Insurance Act” is to ensure the compensation of persons injured in an automobile accident. Hill v Aetna Life & Casualty Co, 79 Mich App 725, 728; 263 NW2d 27 (1977), Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218, 222; 261 NW2d 554 (1977), O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487, 495; 245 NW2d 801 (1976). Toward this end, the act requires the owner or registrant of a motor vehicle to maintain security, usually in the form of insurance, for payment of benefits of personal protection insurance, MCL 500.3101(1); MSA 24.13101(1). The operation of a vehicle which is not so insured constitutes a misdemeanor as to its owner, punishable by fine and/or imprisonment. MCL 500.3102(2); MSA 24.13102(2).
In addition to the possible criminal charge, the owner of a vehicle which is not insured is not entitled to recover personal protection insurance benefits. MCL 500.3113(b); MSA 24.13113(b). This statute reads in full:
"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
"(a) The person was using a motor vehicle which he had taken unlawfully, unless he reasonably believed that he was entitled to take and use the vehicle.
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsection (3) and (4) of section 3101 was not in effect.
"(c) The person was not a resident of this state, was an occupant of a motor vehicle not registered in this state and was not insured by an insurer which has filed a certification in compliance with section 3163.”
It is this statute which would have prevented plaintiffs son from recovering personal protection insurance benefits, had he survived.
Plaintiff contends, however, that, as a surviving dependant, she is nonetheless entitled to benefits under the no-fault act. She notes that surviving dependants are not excluded from receiving personal protection insurance benefits under MCL 500.3113; MSA 24.13113 and relies upon MCL 500.3108; MSA 24.13108 and MCL 500.3172; MSA 24.13172 in support of her right to recovery. MCL 500.3108; MSA 24.13108 provides for the payment of personal protection insurance benefits for a surviving dependant’s loss in a situation where a person has died. MCL 500.3172; MSA 24.13172 permits one to obtain personal protection insurance benefits through an assigned claims plan, where no personal protection insurance is applicable to the injury.
Although the statutory language is hardly clear, we hold that plaintiff is not entitled to recover personal protection insurance benefits. This is because her right to recover is dependant upon or derivative of her son’s rights to personal protection benefits. Since he could not have recovered such benefits, neither can she.
The language of various sections of the no-fault act is supportive of this conclusion. MCL 500.3112; MSA 24.13112 commences by stating:
"Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependants * * *."
This language indicates that the payment of such benefits to the surviving dependants where the injured person has died is a substitute for the payment of benefits directly to the injured party. Further support for this conclusion can be found by comparing the method of computing survivor’s benefits, MCL 500.3108; MSA 24.13108, with the method for computing the work loss portion of the personal protection benefits available to an injured person, MCL 500.3107; MSA 24.13107. Both are payable for up to three years and are subject to a $1000 maximum for any 30-day period. Both include the cost of expenses, up to $20 per day, incurred in obtaining services which would have been provided by the injured person. Both provide for the support of the injured person’s dependants. Survivor’s benefits do so directly, by paying the dependant survivor that amount which the deceased would have provided for support. In the case of work-loss benefits, the injured party is provided with benefits consisting of lost income and part of that amount is, presumably, used for the support of dependants. In addition, the express language of MCL 500.3107(b); MSA 24.13107(b) excludes from work loss any loss incurred after the date on which the injured person dies. Thus, there can be no simultaneous recovery for survivor’s benefits and work-loss benefits.
Since survivor’s benefits are intended as a substitute for the work-loss portion of personal protection benefits, a dependant survivor’s right to benefits must necessarily depend upon the right of the injured person to receive work-loss benefits had he survived. Here, however, the deceased would have been barred from claiming any personal protection benefits. Thus, his surviving dependant is also barred.
Such a conclusion makes good sense as well. There is no logical reason to provide benefits to the surviving dependants of an uninsured deceased when no such benefits are available to the dependants of an uninsured individual who survives. Indeed, due to continuing medical expenses, the dependant in the latter situation may have a greater need for such benefits. This Court will not construe a statutory scheme so as to provide an unreasonable and irrational result. Collins v Secretary of State, 384 Mich 656, 666; 187 NW2d 423 (1971). Thus, this Court is unwilling to interpret the provisions of the no-fault act in such a way as to grant plaintiff a benefit when she would not be entitled to benefits had her son survived.
Since plaintiffs right to survivor’s benefits is dependant upon her son’s rights to benefits had he survived, the language of MCL 500.3113(b); MSA 24.13113(b) that would have barred her son from recovery bars her as well. The doctrine of expressio unius est exclusio alterius, Valenti Homes Inc v City of Sterling Heights, 61 Mich App 537; 233 NW2d 72 (1975), is thus inapplicable, since plaintiffs action is, in effect, barred by the express language of the statute. It would have been repetitious to provide an additional subsection to MCL 500.3113; MSA 24.13113, barring the survivors of an uninsured deceased from recovery, when such persons are necessarily barred by the language of subsection (b).
Nor can plaintiff find support for her position in the language of MCL 500.3172; MSA 24.13172, which provides for claims against the Assigned Claims Facility. That statute is limited to persons "entitled to claim”. As noted above, plaintiff is not so entitled. Therefore, her argument must fail and summary judgment was properly granted in this case.
Affirmed. No costs, a public question being involved.
D. C. Riley, P. J., concurred.
MCL 500.3108; MSA 24.13108 reads:
"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”
MCL 500.3172; MSA 24.13172 reads:
"A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, or the only identifiable personal protection insurance applicable to the in jury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. In such case unpaid benefits due or coming due are subject to being collected under the assigned claims plan, and the insurer to which the claim is assigned, or the assigned claims facility if the claim is assigned to it, is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility.”
Such a conclusion is consistent with the analysis in wrongful death actions, MCL 600.2921; MSA 27A.2921, MCL 600.2922; MSA 27A.2922, where the right of recovery is dependant upon the right of the deceased to bring an action had he survived. Maiuri v Sinacola Construction Co, 382 Mich 391, 395; 170 NW2d 27 (1969), Toth v Goree, 65 Mich App 296, 298; 237 NW2d 297 (1975).
MCL 500.3107; MSA 24.13107 reads in full:
"Personal protection insurance benefits are payable for the following:
"Allowable expenses.] (a) Allowable expenses of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation. Allowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except when the injured person requires special or intensive care, or charges for funeral and burial expenses in excess of $1,000.00.
"Work loss; loss of income.] (b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.”
MCL 500.3108; MSA 24.13108 reads:
"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.” | [
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A. C. Miller, J.
This appeal raises the interesting question: Does an attorney owe a duty to persons other than his client?
Physician Friedman brings this suit against attorneys Dozorc and Golden alleging that they breached a duty owed to him in negligently filing and pursuing a medical malpractice suit against him that resulted in a directed verdict of no cause of action at the close of plaintiffs proofs. Codefendants in the original suit subsequently filed a motion for costs under GCR 111.6 which was denied by Judge Charles Farmer, the trial judge.
In addition to this claim in negligence, more traditional claims in the nature of abuse of process and malicious prosecution are joined. Even here, there is the innovative theory that continuing the proceeding after knowledge of its lack of merit constitutes further malicious prosecution.
Negligence
Plaintiff relies in part upon canon and court rules, the pertinent portions are as follows:
Canon 7 provides, "A Lawyer Should Represent a Client Zealously within the Bounds of the Law”. Disciplinary Rule 7-102(a) provides:
"(A) In his representation of a client, a lawyer shall not:
(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.” (Emphasis added)
Moreover, under GCR 1963, 114.2:
"The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief, there is good ground to support it * * * .”
Plaintiff contends that the Canons, Disciplinary Rules and General Court Rules reiterate not only the basis of the duty to plaintiff, but also particularize the duty. The attorney must exercise reasonable and ordinary care and diligence in carrying out those duties. The plaintiff further contends that those duties are obviously designed to protect the general public from unwarranted or vexatious litigation and that where a duty exists, it is axiomatic that there be a corresponding remedy.
The position of the attorney being that of zealous advocate, the cases of Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), referring to the duty owed by an abstractor to the public, and Ultramares Corp v Touche, 255 NY 170; 174 NE 441 (1931), referring to the similar duty owed by a public accountant, are not analogous. Their duty is to be accurate and it is foreseeable that persons other than their client will be relying upon their work product for accuracy. The duty of the advocate is to be zealous and the public is charged with that knowledge.
State Bar Grievance Administrator v Corace, 390 Mich 419; 213 NW2d 124 (1973), the Supreme Court addressed the parameters of Canon 7 at 434:
"There are a large number of gray areas in the law. When a question is doubtful, the lawyer’s obligation to his client permits him to assert the view of the law most favorable to his client’s position. The in terrorem effect the Grievance Board reads into the Canon would unduly restrict a lawyer in fulfilling his professional responsibility of representing his client 'competently’ (Canon 6) and 'zealously’ (Canon 7).”
In a very similar case, the Louisiana Court found that no duty exists and therefore no cause of action. In Spencer v Burglass, 337 So 2d 596 (La App, 1976), the Court of Appeals of Louisiana was confronted with a situation in which the plaintiff physician sought damages against the defendant attorney. The latter party had commenced an earlier medical malpractice action on behalf of his client against the doctor. In rejecting the doctor’s right to recover for the breach of any duty owed her, the Spencer Court at 600 stated as follows:
"Plaintiff has cited no authority for her proposition that these standards provide her with a cause of action under a general tort or negligence concept. In order to establish liability on that theory plaintiff must allege and prove that defendant’s filing the suit against her was a cause in fact of her alleged damages, that defendant breached a duty which created the very risk which the duty was designed to prevent and that defendant was negligent in filing the suit and/or trying the case against her. * * *
"When plaintiffs petition is evaluated in the light of this principle we must conclude that she fails to state a cause of action.”
Free access is the policy reason for the rule, as stated in Spencer, supra, at 601.
"As a general proposition, therefore, public policy requires that all persons shall fully resort to the courts for redress of wrongs, and the law protects them when they act in good faith and upon reasonable grounds in commencing either a civil or criminal proceeding.”
This principle was recently affirmed in the case of Drago v Buonagurio, 89 Misc 2d 171; 391 NYS2d 61 (1977). In that case the plaintiff-physician sought damages from the defendants, an attorney and his client who had earlier instituted a medical malpractice action against the plaintiff. As the facts developed, it became apparent that the physician had never treated the defendant-client’s decedent prior to his demise.
The plaintiff complained that the attorney had acted negligently in his failure to investigate the facts surrounding the accident, in employing the action against the plaintiff as a discovery device and in conducting the practice of law in an unethical and malicious manner. The Drago Court found that the complaint alleged no facts upon which it could be found that there was any duty owing from the defendant to plaintiff:
"The courts of this state have consistently held that an attorney is not liable to third parties for the negligent performance of his obligations to a client, even where such negligence results in damages to third parties.” 391 NYS2d at 62-63.
The reason given for New York courts so holding was that a decision to act in a contrary manner would operate to discourage resort to the courts for the settlement of controversies and this would be contrary to public policy. A similar result is found in Norton v Hines, 49 Cal App 3d 917; 922-923; 123 Cal Rptr 237, 240-241 (1975), where the court specifically noted that sometimes it is necessary to file the suit before all the facts are known. This case was adopted by another panel of this Court in Gasis v Schwartz, 80 Mich App 600; 264 NW2d 76 (1978), as the basis for its decision to affirm a grant of summary judgment in a physician’s counter suit. Quoting Norton from pages 922-923, the Gasis Court ruled:
" 'The attorney owes a duty to his client to present his case vigorously in a manner as favorable to the client as the rules of law and professional ethics will permit. He is an advocate and an officer of the court. He is cognizant of the public policy that encourages his clients to solve their problems in a court of law. * * * We believe the public policy of favoring free access to our courts is still viable. However, if Norton’s cause of action against attorneys for negligence is permitted, this policy will be subverted.’
"We think the reasoning of the California court is sound and adopt it. Defendant attorneys owed no duty to plaintiffs to refrain from acting on behalf of their clients.” Gasis, supra, at 603.
The foundation case in the area of legal malpractice is the decision of the United States Supreme Court in Savings Bank v Ward, 100 US 195, 198, 200, 202; 25 L Ed 621, 622-624 (1879), which carefully limited the duty:
"Proof of employment and the want of reasonable care and skill are prerequisites to the maintenance of the action * * *
"Beyond all doubt, the general rule is that the obligation of the attorney is to his client and not to a third party, * * *
" * * * it is not everyone who suffers a loss from the negligence of another that can maintain a suit on such grounds. On the contrary, the limit of the doctrine relating to actionable negligence * * * is, that the person occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss.”
Despite the demise of the privity requirement, the existence of a duty is required and this is a question of law normally to be resolved by the judge. Farwell v Keaton, 396 Mich 281, 286; 240 NW2d 217 (1976).
The attorney is not without restraints on his conduct. In addition to the canons enforced by the licensing agencies or integrated bar, the attorney is responsible in damages for fraud, collusion or malicious prosecution. Sefi Fabricators, Inc v Tillim, 79 Misc 2d 213; 360 NYS2d 146 (1973). In Rosenberg v Cyrowski, 227 Mich 508, 513; 198 NW 905 (1924), our Supreme Court cited approvingly the following statement from 1 Thornton on Attorneys at Law, § 295:
"An attorney’s liability does not end with being answerable to his client. He is also liable to third persons who have suffered injury or loss in consequence of fraudulent or tortious conduct on his part.”
This exception to privity is confined to fraud. The Court went on to state at 514:
"Where there is fraud or collusion, the party will be held liable, even though there is no privity of contract.”
Other jurisdictions have uniformly found an absence of duty and no liability in negligence cases. Waugh v Dibbens, 160 P 589 (Okla 1916), Joffe v Rubenstein, 24 App Div 2d 752; 263 NYS2d 867 (1965), Lackey v Vickery, 57 F Supp 791 (WD Mo, 1944), McGlone v Lacey, 288 F Supp 662 (D SD, 1968), Weigel v Hardesty, 549 P2d 1335 (Colo App, 1976), Bryan & Amidei v Law, 435 SW2d 587 (Tex App, 1968); Carroll v Kalar, 112 Ariz 595; 545 P2d 411 (1976), Brian v Christensen, 35 Cal App 3d 377; 110 Cal Rptr 688 (1973), De Luca v Whatley, 42 Cal App 3d 574; 117 Cal Rptr 63 (1974); Birnbaum, Liability of Plaintiff’s Counsel for Filing an Unjustified Professional Liability Suit, 27th Annual Advocacy Institute, ICLE (1976), p 77.
The trial judge properly found that plaintiff failed to state a claim in negligence. GCR 117.2(1).
Abuse of Process
This cause of action was thoroughly discussed in Rowbotham v Detroit Automobile Inter-Insurance Exchange, 69 Mich App 142; 244 NW2d 389 (1976), in an opinion authored by Judge D. C. Riley, a member of this panel.
The tort known as abuse of process envisions extraordinary process, not merely a summons, and its use to accomplish a purpose for which the writ was not designed. No possessory writ, lien or body process was issued in this case. The elements of the cause of action are stated by Judge Riley in the above opinion at 146 as follows:
"The essential elements to an action for abuse of process are the existence of an ulterior purpose and an act in. the use of the process not proper in the regular conduct or prosecution of the proceedings. The action lies for the improper use of the process after it had been issued, not for maliciously causing it to issue. Spear v Pendill, 164 Mich 620; 130 NW 343 (1911). To restate the proposition, the tort concerns the willful use of a valid process to obtain a result the law did not intend. Moore v Michigan National Bank, 368 Mich 71, 74; 117 NW2d 105 (1962).”
The difference between this cause of action and malicious prosecution is explained in Prosser, Torts (1st ed), p 673:
"Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that it was obtained without probable cause or in the course of a proceeding begun without probable cause.”
The trial judge properly found that plaintiff failed to state a claim for abuse of process. GCR 117.2(1).
Malicious Prosecution
This tort arose in the criminal area and has been extended to the civil (Rowbotham, supra, at 147). Plaintiff has alleged a claim that withstands the challenge under GCR 117.2(1) for failure to state a valid claim and a jury issue is presented unless "there is no genuine issue as to any material fact”. GCR 117.2(3). A close perusal of the record makes it clear that plaintiff contests every foundation fact, asserted by defendant to be "undisputed”. The trial judge endeavored to secure an agreed statement of facts or some substitute as a basis for his decision without success. With this state of the record, we arrive at the same point as the Court did in Rowbotham, supra, at 149:
"In the present case, we cannot say that the facts presented below are free from dispute. Without any specific facts, we find it difficult to accept the claim that this defendant had a good faith belief that it could seek suspension of Mr. Rowbotham’s operator’s license. We cannot agree that there was, as a matter of law, probable cause to request the certificate. The question remains one for the jury. See LaLone v Rashid, 34 Mich App 193; 191 NW2d 98 (1971).”
See also Obeginski v James, 4 Mich App 90, 92; 143 NW2d 579 (1966), where Judge, now Chief Justice, Thomas G. Kavanagh, wrote:
"With reference to the first question, it is firmly established that if the facts are not in dispute, the existence or want of probable cause is a matter of law to be determined by the court. Rankin v Crane (1895), 104 Mich 6 [61 NW 1007]; Merriam v Continental Motors Corporation (1954), 339 Mich 546 [64 NW2d 691]; Renda v. International Union, UAW (1962), 366 Mich 58 [114 NW2d 343]; and Drobczyk v Great Lakes Steel Corp. (1962), 367 Mich 318 [116 NW2d 736].
"It is equally well established that if the facts are in dispute, since probable cause is a mixed question of law and fact, it should be left to the determination of the jury under proper instruction. Fine v Navarre (1895), 104 Mich 93 [62 NW 142]; Slater v Walter (1907), 148 Mich 650 [112 NW 682] and Hall v American Investment Co. (1928), 241 Mich 349 [217 NW 18].”
The lower court having been unable to procure any agreed statement of facts and counsel having failed to present affidavits which could conceivably have eliminated fact issues on sufficient basics, the judge turned to Judge Farmer’s decision denying costs under Rule 111.6 for disposition of the motion. This rule provides:
".6 Unwarranted Allegations and Denials. If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.”
Judge Ziem adds successful disposition of this motion to the successful disposition of the initial litigation per se as a condition precedent to a malicious prosecution suit. His opinion, in part, is as follows:
"In applying GCR 111.6 and on motion of Peoples Community Hospital, following the trial, Judge Farmer, the Trial Judge in the Wayne County lawsuit of Serafin v Peoples Community Hospital, Dr. Friedman, et al, refused to find that the claims put forth by the Defendants Dozorc and Golden on behalf of Serafín were unreasonable. At page 6 of the transcript, the record reveals:
’Mr. Andrews (Attorney for Defendant Peoples Community Hospital):
"I believe it was unreasonable under the facts of this case, your Honor.”
’THE COURT (Judge Farmer):
"I don’t believe so.”
'THE COURT (Judge Farmer):
"I think that this is tantamount—your allegations would be tantamount to the claim that the plaintiff would have a spurious claim. I don’t think so. I think that perhaps he, or she, did feel that there was a reason to bring this action. I don’t think that it was unreasonable, from what I remember of the case.” ’
"Judge Farmer having ruled that the Serafín claim against the hospital was not spurious or unreasonable, it is only logical to conclude that the Serafín claim against Dr. Friedman was also not spurious or unreasonable especially in view of the fact that Dr. Friedman, through his attorneys, chose not to present this issue before the Trial Judge, who was completely familiar with the claims of the respective parties to that lawsuit, and would thus be in an ideal position to determine when the claims were unwarranted, unreasonable, spurious, or without probable cause.
"In this Court’s opinion and under the facts and circumstances of this case, the Trial Judge’s rulings apply to all of plaintiff’s claims against both defendants in that lawsuit. The Trial Judge found that plaintiff, Serafín, through his attorneys (the defendants in this lawsuit), had not brought any unreasonable claims. The Trial Court also stated that the claims of Plaintiff Serafín were not spurious.
"Judge Farmer, being the Trial Judge and having heard all the evidence, was in a much better position than this Court to evaluate the merits of all of Serafin’s claims against Dr. Friedman and the Peoples Community Hospital and to determine whether they were reasonable or not. He refused to classify the claims as spurious or unreasonable; and thus they did not fit within the meaning of the term 'unwarranted’ as that word is used in GCR 1963, 111.6.
"In this Court’s opinion, the ruling by Judge Farmer establishes the fact that Serafin’s claims in that lawsuit were not unreasonable or brought without probable cause and thus Serafin’s claims cannot serve as the basis of an action by Dr. Friedman against Serafin’s attorneys for malicious prosecution or abuse of process in this lawsuit.”
As appealing as his logic may be, and with due recognition of the feeling that the original malpractice suit trial judge should have a special insight, nonetheless, we find no supporting authority. Neither does this fit into the traditional res judicata or collateral estoppel principles. Cf. Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). The issues are not the same and the parties are also different. In the GCR 111.6 motion, the issue was whether plaintiff Serafín brought a spurious suit against physician Friedman. In the present litigation, the issue is whether the defendants Dozorc and Golden, attorneys for Serafín, had probable cause to proceed with the suit initially or to continue it thereafter.
We must remand for trial to determine whether defendants had probable cause to file and continue the original malpractice litigation. The definition of probable cause applicable to these proceedings is set forth in Tool Research & Engineering Corp v Henigson, 46 Cal App 3d 675, 683-684; 120 Cal Rptr 291, 297-298 (1975), as follows:
"The attorney is not an insurer to his client’s adversary that his client will win in litigation. Rather he has a duty 'to represent his client zealously * * * [seeking] any lawful objective through legally permissible means * * * [and presenting] for adjudication any lawful claim, issue, or defense.” (A.B.A. Code of Professional Responsibility, EC 7-1; DR 7-101(A)1, discussed in 1 Witkin, Cal. Procedure (2d ed.) Attorneys, § 239.)
It is the attorney’s reasonable belief that the client has a tenable claim and not the attorney’s conviction that the client will prevail which is the measure of probable cause:
"The attorney’s obligation is to represent his client honorably and ethically, and he may, without being guilty of malicious prosecution, vigorously pursue litigation in which he is unsure of whether his client or the client’s adversary is truthful, so long as that issue is genuinely in doubt.”
Reversed and remanded for further proceedings on the malicious prosecution claim in accordance with this opinion.
The will drafting cases are not in point because there the interests of the testator and beneficiaries are mutual and not adverse. Cf. Lucas v Hamm, 56 Cal 2d 583; 15 Cal Rptr 821; 364 P2d 685 (1961), and Parnell v Smart, 66 Cal App 3d 833; 136 Cal Rptr 246 (1977). | [
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Potter, J.
Plaintiffs sold materials to the drain commissioner of Macomb county for the Anderson drain, and received a drain order for $200, payable from the Anderson drain fund, on or after March 15, 1931. April 15, 1931, plaintiffs presented the drain order to the county treasurer of Macomb county. Payment was refused. The order was marked by the drain commissioner “insufficient funds, six per cent, interest added from April 15, 1931, until redeemed.” The order has not been redeemed. April 24, 1933, the books of the county treasurer of Macomb county showed a balance in the Anderson drain fund of $957.88. Plaintiffs’ drain order was again presented to the connty treasurer for payment and payment refused. April 26, T933, petition for mandamus was filed in the circuit court. May 5, 1933, hearing was had and the writ denied. Plaintiffs bring appeal in the nature of certiorari. That the county treasurer’s books showed on the day of demand and on the day of hearing a balance of $957.88 in the Anderson drain fund is admitted. It is conceded the money belonging to the Anderson drain fund was used for other purposes prior to the date of plaintiffs’ demand, and it is claimed such dissipation of the fund by respondent’s predecessor in office constitutes a defense. Plaintiffs’ claim has been audited and allowed; its amount fixed and determined, and an order issued therefor by the drain commissioner on the Anderson drain fund. The regularity of the issuance of the drain order is not questioned. The order was due and payable when presented for payment in April, 1933. Drawing a warrant therefor would have been a mere ministerial duty, incumbent upon defendant and subject to control by mandamus. High, Extraordinary Legal Bemedies (3d Ed.), § 356. The defense is want of funds. Beliance is based upon People, ex rel. Allen, v. Frink, 32 Mich. 96, where the moderator and director of a school district sought mandamus against the assessor to compel payment of an order issued to pay a school teacher. There were, and had been, no funds in the hands of the assessor to pay the same; Murphy, Treasurer of Lake Township, v. Treasurer of Reeder Township, 56 Mich. 505, where mandamus was brought to compel the payment, of an order issued on a division of township funds, incident to a division of Beeder township by setting off Lake township therefrom. The case was heard on petition and answer. Defendant’s return was not questioned. It showed a mistake of $1,400 in the amount of the order; that no funds to pay the order had been raised or had ever been in defendant’s hands; Smith v. Auditor General, 80 Mich. 205, which involved mandamus to compel the payment of a soldier’s bounty, payable out of any money appropriated for that purpose. No money had been appropriated. In these cases mandamus was refused because of want of funds.
“When a demand against a municipal corporation is liquidated and evidenced by a proper warrant upon a proper officer, requiring upon the part of such officer the official action of paying it, such action, there being funds, may be compelled by mandamus.” Ullman v. Sandell, 158 Mich. 496, 501.
The money to pay plaintiffs ’ drain order has been raised. The taxpayers cannot be required to again pay the amount of the fund which it is claimed has been used for other purposes by the board of supervisors. First National Bank of Paw Paw v. Nash, 232 Mich. 380. The statute requires a drain fund to be set up for each particular drain. Orders for the payment of services rendered and work performed are to be drawn by the drain commissioner upon the drain fund of the particular drain to which they relate. The statute directs when such order shall be payable. When presented for payment such orders are to be paid out of the drain fund on which they are drawn, and if that is insufficient the holder thereof has a right to require payment out of any moneys in the general fund of the county treasury available for their payment. 1 Comp. Laws 1929, §4918; Moore v. Harrison, 224 Mich. 512; Nash v. Robinson, 226 Mich. 146; Graves v. Bliss, 235 Mich. 364.
The precise question is whether mandamus will lie to compel the payment of plaintiffs’ drain order by defendant, it appearing the money has been raised and credited to the Anderson drain fund and subsequently used for other purposes; so that it appears there was not sufficient money on hand in the Anderson drain fund when the order was presented for payment to pay the same, there being statutory authority to require payment out of the general fund of the county and there being sufficient money in the general fund of the county to make the payment.
Though want of funds is in general a sufficient excuse for not paying an order, as appears from the cases above discussed, the authorities are in conflict as to whether the unlawful appropriation of available funds, so there are no funds available, is a defense. Official misapplication of funds, the wrongdoing of county officers having control of funds, ought not to constitute a defense. The county cannot defend on the ground it misappropriated the funds in question. Official wrongdoing should not constitute a foundation for the wrongdoer’s rights. People, ex rel. Pennell, v. Treanor, 15 App. Div. 508 (44 N. Y. Supp. 528); Herbon Bank v. Lawrence County, 109 Miss. 397 (69 South. 209); State, ex rel. Hunter, v. Winterrowd, 174 Ind. 592, 599 (91 N. E. 956, 92 N. E. 650, 30 L. R. A. [N. S.] 886); First National Bank of Northampton v. Arthur, 12 Colo. App. 90 (54 Pac. 1107); Hutcheson v. Manson, 131 Ga. 264 (62 S. E. 189); Aaron v. German, 114 Ga. 587 (40 S. E. 713); State, ex rel. Lane, v. Craig, 69 Mo. 565; People, ex rel. Dannat, v. Comptroller of City of New York, 77 N. Y. 45; City of Columbia v. Spigner, 86 S. C. 62 (68 S. E. 134).
When a special fund provided for the payment of orders issued has been exhausted, whether rightfully or wrongfully, and such orders are by statute to be paid out of the general fund, the fact the special fund set apart for payment of such claims has been exhausted will not prevent the issuance of mandamus to compel payment of such claims out of the general fund. Jackson v. Baehr, 138 Cal. 266 (71 Pac. 167) ; 38 C. J. p. 770, § 412.
The writ of mandamus will issue as prayed.
McDonald, C. J., and Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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North, J.
In this suit plaintiff seeks to recover from defendant five months’ rental, amounting to $8,750. The property has a frontage of 50 feet on the west side of Washington boulevard near its intersection with Clifford street in the city of Detroit. Each of the parties moved for summary judgment. Plaintiff’s motion was denied, and defendant’s granted. Plaintiff has appealed.
On May 1, 1924, plaintiff’s predecessor in title gave a 99-year lease of the premises here involved at a monthly rental of $1,750. The lessee’s interest was assigned to the trustees of the estate of Francis Palms, deceased; and these trustees mortgaged this lessee’s interest along with other property under two trust mortgages to the Security Trust Company, each to secure payment of a bond issue of $1,700,000. By consolidation, the defendant, the Detroit Trust Company, has succeeded the Security Trust Company. There was default in payments due under the trust mortgage. Instead of instituting foreclosure proceedings, an agreement was entered into September 25, 1928, whereby the Detroit Trust Company took over all of the interest of the lessees (mortgagors) under the 99-year lease. In that connection, the trust company was given authority to manage, control, lease, and operate the property in the place and stead of the lessees “in all respects and particulars as though the same were held in its own proper corporate ownership.” As a part of this transaction the trustees (lessees and mortgagors) executed and delivered to defendant a warranty deed of the leasehold interest, but the agreement executed between these parties provided that, upon payment of the amounts due under the trust mortgage, together with other items chargeable in connection therewith, all moneys remaining on hand with the defendant should be paid over to the trustees (lessees and mortgagors) and any portion of the premises deeded to the trust company remaining unsold should be reconveyed to the trustees. The purpose of the agreement is thus specifically therein set forth:
“The intent and purpose hereof is to provide a method whereby the bonds outstanding under each of said trust mortgages described in section 2 hereof and the interest coupons accruing thereon can and will be paid without foreclosure or other publicity.”
Under this arrangement the defendant took over the management of the property, collected the rents, deposited them in an account called the Palms Estate Trust Mortgage account, paid rentals under the 99-year lease to the lessor, and made subleases of portions of the premises. In this manner the defendant, trust company, had possession and control of the leasehold property from September, 1930, until approximately April 1, 1932. Plaintiff had no knowledge of and in no way consented to the arrangement whereby defendant assumed possession and control of the property. There was default in payment of the monthly rental instalments due from November, 1931, to March, 1932, inclusive, totaling $8,750. In this suit plaintiff claims that by reason of the transaction above outlined, and the provision of the lease hereinafter quoted, defendant is directly liable to her for the accrued rentals. Defendant denies such liability, insisting that there is no privity of contract between these parties, and that defendant’s use and control of the leasehold property under the circumstances does not give rise to an implied obligation to pay.
The provision of the lease above referred to, in substance is as follows:
“Each and every one of the * * * covenants * * * herein contained, shall * * * be binding upon the * * * assigns of * * * lessee, and the acceptance of any substantial benefit hereunder by any such * * * assign, shall obligate the party receiving such benefit to perform all the * * * covenants * * * herein contained and to be performed by the * * * lessee.”
Plaintiff’s suit for recovery of rentals is brought on the theory that the defendant, by entering into the transaction above outlined, assumed the covenants of the lessee in the 99-year lease to pay the rent therein specified, and also, as noted above, that defendant- is liable to the plaintiff for the rentals because of its use and occupation of the property for the period in question. The rights and liabilities of the respective parties are controlled by the construction which must be placed upon the agreement be tween the trustees of the Palms estate and defendant. If, as appellant insists, the transaction amounted to an assignment of the leasehold interest to defendant, then it is liable under the lease to plaintiff for unpaid rentals. If, on the other hand, in all it did the trust company was merely acting as the agent of the lessees (mortgagors) in an attempt as their agent to operate the property and apply the net proceeds on the bonded indebtedness, without any intent or purpose to take over any actual vested interest in the leasehold, then there was no assignment, but only the relationship of principal and agent. That such was the intent and purposes of all parties to the arrangement, we think quite clearly and conclusively appears from the provision in the agreement whereby the trust company was obligated to account to the Palms trustees for any excess funds in its possession, and to reconvey to them any interest in the real property of which it was still possessed when the plan adopted by the parties was fully executed. Plaintiff was not a party to and in fact had no knowledge of the arrangement entered into between the trustees of the Palms estate and the defendant trust company. She was neither induced to act nor did she refrain from taking any action on account of this transaction inter alios. There is no reason in the instant case for declining to apply the general rule of construction that the meaning and intent of the contracting parties is to be determined in the light of surrounding circumstances and from the whole of the instrument or instruments which they have executed to evidence their respective rights and obligations. Kellogg v. Kellogg Toasted Corn Flake Co., 212 Mich. 95. Application of this rule clearly negatives plaintiff’s claim that defendant became an assignee of the lessees’ interest under the 99-year lease.
In acting in its capacity as an agent in taking possession of, in managing and in collecting the rents of the leasehold property, the defendant herein was doing only what its principal, the trustees of the Palms estate, had a perfect right to do. By so acting in its capacity as an agent, the defendant neither expressly nor impliedly assumed to discharge its principal’s obligation to pay rent to plaintiff. Van Wie v. Fidelity Trust Co., 254 Mich. 108. No privity of contract arose between plaintiff and defendant.* The obligation of the trustees of the Palms estate to pay rent to plaintiff was in no way affected by their arrangement with defendant. It follows that plaintiff’s claim of right to recover judgment against defendant “for these rentals on the common counts because of its use and occupation of the property for the months in question” cannot be sustained.
Judgment entered in the circuit court is affirmed, with costs to appellee.
McDonald, C. J., and Clark, Potter, Sharpe, Wiest, and Butzel, JJ., concurred. Fead* J., did not sit. | [
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] |
McDonald, C. J.
This is a bill to foreclose a mechanic’s lien in the amount of $317 for mason work on a building on land of which Frank C. Everts and Mary M. Everts were owners of the fee and Fred Krueger was the contract purchaser. In a cross-bill, defendant Grustav Schmidt also asked for the foreclosure of his lien of $950 for the installation of the heating and plumbing. Defendant Benjamin H. Jackson was made a party because he had a mortgage on the premises which he had taken in lieu of his mechanic’s lien. The defendant Everts and wife contested the validity of the liens for the reason that no notice of intention to claim a lien was served on them as owners, as required by 3 Comp. Laws 1929, § 13101, that statements of account and lien were not filed within 60 days after the last work was performed, in compliance with 3 Comp. Laws 1929, § 13105, and that service of the statement of account and lien was not served in Macomb county, where the property is located. At the conclusion of the hearing, the trial court held that the plaintiff and cross-plaintiff had valid liens on the building, and decreed their foreclosure. The defendants Frank C. Everts and Mary M. Everts have appealed.
1. It is first claimed that the lien of Albert Mielis is invalid because a notice of intention to claim a lien was not served upon the owners. It was not necessary. The lien claimants were dealing with the part-owner, not with a contractor. 3 Comp. Laws 1929, §13101; Smalley v. Ashland Brown-Stone Co., 114 Mich. 104.
■ 2. It is contended that the statements of account and lien were not filed within 60 days after the performance of the last of the work as required by 3 Comp. Laws 1929, § 13105. This contention involved a question of fact which was determined by the trial court adversely to the defendants’ claim. Our examination of the testimony leads us to the same conclusion. The work was necessary to a completion of the contract and was performed in good faith. The defendants’ contention in respect to this question is without merit.
3. It is claimed' the lien was invalid because service of the statements of account and lien were not made in Macomb county, where the property is located. Mr. and Mrs. Everts, owners of the record title, were residents of Wayne county, where the service was made. The contract of the lien claimants was with the part-owner, Mr. Krueger. Service of the statement of account and lien upon the owner, part-owner, or lessee by parties contracting directly with them is not required by the statute. See 3 Comp. Laws 1929, § 13106. Moreover, the owners visited the premises and.knew that the work was being done by contract with Mr. Krueger.
As there was some question about the part-owners’ title, the court gave the lienors only a lien on the building. The record shows no error.
The decree is affirmed, with costs to the lien claimants.
Clark, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Clark, J.
At the expiration of his term of office, Otto Stoll was succeeded by Harold E. Stoll, as register of deeds of Wayne county. Some of those employed in the office by the former register were not retained by the latter. Some of them were ex-service men who instituted mandamus in the Wayne circuit court to compel the present register of deeds to continue them in the employment and urged right of preference under so-called veterans’ preference act (1 Comp. Laws 1929, § 900 et seq., as amended). Plaintiffs contend they are not appointees or employees of the register of deeds hut of the county itself by its hoard of auditors under 1 Comp. Laws 1929, § 1233, and that their rights to hold their positions did not expire simultaneously with the expiration of the term of office of Otto Stoll, the register of deeds who appointed or employed them.
Defendant contends that, under Act No. 381, Local Acts 1879, the register of deeds, has sole power of appointment of clerks and deputies in his office, and that such power has always been so exercised, which is the fact.
Plaintiffs reply that the local act is unconstitutional, in that it offends section 21, art. 5, State Constitution, which provides in fact: “No law shall embrace more than one object, which shall he expressed in its title.” The trial court so found, and ordered writ to issue. Defendant has appealed. The title of the local act is:
“An act to provide for the compensation and to prescribe the duties of certain officers of the county of Wayne.”
The sections of the act relate to compensation and duties of the officers. Salaries are fixed, collection and accounting of fees directed, and duties respect ing employment of clerks and deputies are imposed, and the register of deeds is directed to appoint his clerks and deputies. These matters are clearly within the title. This question has had much discussion in the hooks and repetition is unnecessary. See People, ex rel. Drake, v. Mahaney, 13 Mich. 481; Wardle v. Townsend, 75 Mich. 385; Housten v. Jewett, 248 Mich. 587; People, ex rel. Sec’y of State, v. State Ins. Co., 19 Mich. 392; People v. Hurlbut, 24 Mich. 44, 56 (9 Am. Rep. 103); People, ex rel. Harrington, v. Wands, 23 Mich. 385; Gratiot County Supervisors v. Munson, 157 Mich. 505.
The appointment or employment of plaintiffs hy Otto Stoll did not extend beyond his term. Their right to their positions expired simultaneously with the expiration of his term. Trainor v. Board of Wayne County Auditors, 89 Mich. 162 (15 L. R. A. 95); In re Tiffany, 179 N. Y. 455 (72 N. E. 512); Banner v. McMurray, 12 N. C. 218; Egan v. City of St. Paul, 57 Minn. 1 (58 N. W. 267).
The veterans ’ preference act is therefore not here applicable.
In this view of the case, the contention of defendant that certain of the positions were abolished calls for no discussion. The case as briefed and submitted presents no other question requiring consideration.
Beversed, and dismissed.
This opinion was written by Justice Clark before his retirement and is now concurred in by the other members of the court. | [
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Potter, J.
Plaintiff filed a bill to have herself declared to be the sole heir at law of Rachel Blair Mitchell, deceased; the sole owner of all her property, real and. personal, subject to her debts and the expenses of administering her estate; reform an adoption agreement by which it was claimed Rachel Blair Mitchell adopted plaintiff, and cut off the rights of those who would otherwise be the heirs of decedent. Prom a decree for defendants, plaintiff appeals.
Plaintiff’s mother, April 7, 1907, entered into a written contract with Rachel Blair Mitchell and her husband, a copy of which appears in the margin.
Plaintiff claims after tlie execution of this contract she continued to live with the Mitchells until her marriage, when she was 19 years of age; at her marriage the Mitchells bought her bridal veil; Racliel Blair Mitchell, who was a physician, helped deliver her first two children and bought various articles for her children; frequently visited her, wrote her letters, gave her the home to live in with out rent, gave her husband money to repair the house, told others she intended to give her property to plaintiff, and did not want her other heirs to receive any of her property.
In Wright v. Wright, 99 Mich. 170 (23 L. R. A. 196), the court had under consideration proceedings to adopt complainant therein, under 2 How. Stat. § 6379 et seg., declared unconstitutional in People v. Congdon, 77 Mich. 351. The prevailing opinion by Justices Long and McGrath is based upon the theory of implied contract to adopt, fully carried out and performed. The concurring opinion of Mr. Justice Grant on the theory equity should declare that to be done which the parties clearly intended to be done. The dissenting opinion of Justices Montgomery and Hooker proceeded on the theory that void judicial proceedings could not thus be made valid.
A similar question was before the court in Albring v. Ward, 137 Mich. 352, where the opinion of the court was prepared by Mr. Justice Grant, who had concurred with Justices Long and McGrath in Wright v. Wright, supra. It is there said:
“Heirship, except that based upon consanguinity, can be created only by a constitutional law by which Gelations of paternity and affiliation are recognized as legally existing between persons not so related by nature.’ Heirship by adoption is unknown to the common law. ”.
The contract involved here was made in Ontario, Canada. It is undisputed that in 1907, when this contract was made, there was no such thing, in the Province of Ontario, as adoption, the Ontario adoption act not having been passed until 1921. At the time the contract was entered into in 1907, adoption could not be had in the Province of Ontario of any child whereby such child, by adoption, would inherit its adopted parents’ property. There was no procedure whereby such an order could be made, and the agreement did not have that force; and, under the Ontario statute of 1921, the agreement here involved would have no effect whatever.
We cannot give to the contract here involved an effect different than it had in the place where it was executed and performed. Such contract here will be given no broader effect than it had in Ontario.
In Albring v. Ward, supra, it is said:
“If Wright v. Wright is construed by the profession to mean that void articles of adoption can afford the basis of a contract for heirship, it should, in my judgment, be overruled.”'
Bowins v. English, 138 Mich. 178, involved specific performance of a contract by which it was claimed a child was adopted as the heir at law of John G. English. It is said:
“We held in Albring v. Ward, 137 Mich. 352, that heirship, except that based upon consanguinity, can be created only by a constitutional law. ’ ’
Neither by the law in Ontario, the sanction of which gave validity to the contract; the law of Michigan where the contract is sought to be modified and enforced as modified, nor by the facts presented, is plaintiff entitled to recover.
Decree of the trial court affirmed, with costs.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.
‘ ‘ This agreement made the 7th day of April in the year of our Lord 1907. Between Florence Elton of the city of Detroit, U. S., in the county of............in the province of............of the first part and Fred H. and Ray Blair Mitchell of the Kilworth Bridge of............in the county of Middlesex and province of Ontario of the second park
"Withesséth, that whereas the said party of the first part, Florence Elton, the parent of a female child named Olive May Elton which-said child is of the age of four years.
"And whereas, it has been agreed by and between the parties hereto that the said part.... of the second part shall take and adopt the said Olive May Elton and care for, govern, educate, and rear her in the same manner as if she was their own child.
‘ ‘ And whereas the said part.... of the first part willing and doth agree that the said child shall be so adopted, and that the said part.... of the second part and those whom they may appoint, shall have the care, government, education, rearing, and control of the said child, and doth agree to give up all rights to the said child, and to the care, government, education, rearing, and control of the said child, and doth agree to bind herself not to interfere with or influence the said child, or seek to recover possession or control of her or to remove her from the custody and control of the said part.... of the second part without their consent first had and received in writing.
“Now, therefore, this agreement witnesseth, that the said party of the first part, of her own free will and desire for the good and advantage of the said child, and being aware that she is not able financially to keep, maintain, rear, and educate tlie said child, and in consideration of the premises and of the covenants and agreements herein contained on the part of the said part.... of the second part, to be observed and performed, doth hereby surrender, and give up said child for adoption to the said part.... of the second part and doth relinquish all her rights and powers, in respect of the care, custody, control, education, maintenance, government, and rearing of the said child, and transfer the same to the said part.... of the second part, and to those whom they may appoint in place and stead with full power and authority to call the said child by whatever name or names they may deem best.
“And doth covenant and agree with the said parties of the second part, and their heirs, executors, administrators, or assigns, and the person or persons by them appointed in their place, and that she will not at any time hereafter revoke or attempt to revoke these presents, and the rights, powers and benefits, herein conferred on the said part.... of the second part, or those who may be entitled to take their place hereunder, and will not regain or attempt to regain the care, control, custody, or government of the said child, or to influence her in her education, conduct, or behavior, or in any other way or manner interfere with the rights herein conferred, or intended so to be, upon the said parties of the second part, and that she will at all times hereafter execute any papers or documents that may be necessary or expedient for the more effectually carrying out the purposes herein set forth, or intended so to be, and for transferring to the said parties the rights herein contained.
“And doth covenant and bind her heirs, executors, administrators, and assigns to abide by, observe, keep, and perform all the conditions, obligations, and agreements herein contained to be by them kept, observed, and performed, and doth also covenant and agree that the said agreements, conditions, and obligations herein contained may be enforced by the said parties of the second part, or their heirs, executors, administrators, or assigns, or the person or persons who may hereunder be appointed to take the place of the said parties of the second part.
"And doth, also covenant and agree that if she or any person or persons claiming through or under her shall commit any breach of any of the provisions and agreements herein contained on her part she will forfeit and pay to the parties of the second part, or the person or persons in their place hereunder, the sum of $1,000, and that any judge of the superior court of Ontario shall have full power and authority to enforce the performance and compel the observance of such conditions and agreements as are herein contained.
"And the'said parties of the second part, in consideration of the premises and of the said child to them do hereby accept and adopt the said child, and do assume the duties of parents towards the said child, and do hereby agree to perform the duties of parents according to the station in life of the parties of the second part toward the said child in like manner as if she were their own child, and will protect, maintain and educate her providing for her a home and suitable food and clothing, and in case of sickness, medical attendance, medicines, and all other necessaries, in the same manner as if she were their own child, and will pay due attention to her moral and spiritual welfare and culture, and afford her an opportunity of becoming instructed in the teachings and doctrines of Christianity during the period of the guardianship as aforesaid. In witness whereof the parties hereto have hereunto set their hands and seals.
"Witness to the signature of:
"Rat Blair Mitchell, "Fred H. Mitchell,
‘ ‘ Florence Elton.
"Province of Ontario, to-wit — ss:
"I, James Percy Moore, a notary publie for the Province of Ontario by royal authority only appointed, residing at the city of London in the said Province, do certify that the within paper writing is a true eo.py of the original agreement for adoption now on deposit in the safety box of Rachel Blair Mitchell, deceased, in the vault of the Canada Trust Company at London, Ontario, the said copy having been compared by me with the said original document, an act whereof being requested I have granted under the notarial form and seal of office to serve and avail as occasion shall or may require.
"London, Ontario, December, 13, 1928.
"J. P. Moore,
"A Notary Public for the Province of Ontario,
‘ ‘ My commission is for life. ’ ’
(Notarial seal) | [
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Sharpe, J.
On March 26, 1931, the prosecuting attorney of the county of Macomb filed a petition in the circuit court, verified by him, praying for an investigation whether or not an offense not cognizable by a justice of the peace had been committed. The investigation was conducted by Judge Dehnke of the 23d circuit, sitting as a one-man grand jury, pursuant to the provisions of 3 Comp. Laws 1929, § 17217 et seq. In the course of- the proceeding, the defendant, Wolfson, who had given testimony as a witness, was adjudged to be guilty of perjury. Prom the order so entered and the sentence imposed he has taken this appeal.
The questions involved are stated by his counsel as follows:
“1. Has a circuit judge sitting as a one-man grand jury power to punish a witness for contempt on the ground that he has given false, evasive, or untrue answers 1
“2. Were the proceedings for the calling of said one-man grand jury sufficient to give the circuit judge jurisdiction?
“3. Were the answers of the witness to the various questions false, evasive, or untrue, and did they constitute contempt?
“4. Was certain proof offered by defendant in the contempt proceedings material?”
1. This question has quite recently been decided by this court adversely to the claim of the defendant. In Mundy v. McDonald, 216 Mich. 444, the defendant, a circuit judge, had conducted a one-man grand jury investigation in the county of Bay. At the conclusion thereof, he filed a report, in which the plaintiff, at that time mayor of the city of Bay City, was charged with wilful neglect of duty. An action of libel based thereon was brought against him. It was dismissed on motion in the circuit court and an appeal taken to this court, where it was held that the defendant was acting as a judge of a court of record and was exempted from civil liability by reason thereof.
The authorities are there reviewed at length. Attention was called to the holding in Johnson v. Morton, 94 Mich. 1, wherein it was urged that a circuit judge at chambers is not invested with the powers of the circuit court, and the court said (page 6):
“When an application is made to a judge to hold to bail, it is his duty to hear and investigate; and if the affidavit sets up facts and circumstances tending to show, fraud or breach of trust, thus bringing the case within the exceptions of the Constitution, authority to act depends upon the facts, and the determination of the judge must be held to have all the qualities of a judicial decision, and as such protects the judge, the officer, and the party.”
Ward v. Cozzens, 3 Mich. 252, and Thomas v. Rosecrantz, 193 Mich. 357, were also referred to at some length. The conclusion reached was thus stated by Mr. Justice Stone (pp. 458, 459):
“Under the foregoing authorities it must be held that the composing of, and filing in the clerk’s office of, the findings complained of as libelous, were judicial acts requiring a decision on the part of the judge as to the proper course to be pursued. To hold that the acts were in excess of jurisdiction, and, therefore, for that reason subject the judge to private liability, is to say that courts and judges must decide questions of jurisdiction at their peril. Such a doctrine would, in a large measure, destroy the independence of the judiciary, and take away the immunity and privilege considered so essential and necessary to the proper and just administration of law.”
In the later case of People v. Doe, 226 Mich. 5, a witness in a one-man grand jury proceeding, conducted by a circuit judge, was held to be properly convicted by him of perjury. While there was dissent on the part of four of the justices, it was based upon the finding by them that the inquiries directed to the defendant, and on which the conviction was based, “were privileged because they came to him professionally from his client or clients.”
While the question here involved was • not presented or considered in that case, it was doubtless assumed that it was settled by the decision in the Mundy Case. In our opinion this question was properly answered in the affirmative.
2. In the petition by the prosecuting attorney above referred to, he stated that the finance committee of the board of supervisors had conducted an informal investigation into the affairs of the county drain commissioner and had submitted the result thereof to him with a recommendation that a formal investigation be had in the circuit court; that the findings of the committee indicated that certain money had been paid out by the commissioner—
“under circumstances which furnish a reasonable ground to believe may amount to such a misappropriation of the county’s funds as to constitute a violation of the statute not cognizable by a justice of the peace”—
and that certain individuals in the employ of the drain commissioner have knowledge of facts which, if true, would furnish the basis for a complaint for such offense.
3 Comp. Laws 1929, §§17217 to 17220 inclusive, while now a part of the code of criminal procedure (Act No. 175, Pub. Acts 1927), were enacted in 1917, Act No. 196, Pub. Acts 1917. The title reads as follows:
“An act to authorize proceedings for the discovery of crime, and to provide penalties for a violation of such procedure.”
The purpose is thus fully disclosed. It being remedial in its nature, it should receive a liberal construction. Under the petition filed, there was a statement of facts which might well have caused the judge to suspect that a crime had been committed within his jurisdiction and that certain persons might be able to give material evidence respecting such offense, and, if so, he was justified in conducting the investigation had. The fact that the defendant’s name was not mentioned in the petition in no way affected the right of the judge to call upon him to testify if it appeared that his evidence was material to any matter under investigation. In People v. Phelps, 261 Mich. 45, it was held that the investigation might be conducted by the judge of another circuit if directed to do so by the presiding circuit judge. That judge Delinke was so directed is not questioned.
3 and 4. It will serve no useful purpose to review the testimony on which the defendant was adjudged to be guilty. Judge Dehnke saw him on the witness stand and heard him testify. His finding of guilt is supported by competent evidence.- We find no error in rejecting the proof sought to be introduced by the defendant as it in no way affected the guilt or innocence of the defendant.
The order and sentence appealed from are affirmed.
McDonald, C. J., and Potter, North, Fead, Wiest, and Btjtzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Sharpe, J.
On April 1, 1930, the plaintiff and defendant were husband and wife. They had been separated for some time, and on that day they met, each being represented by an attorney, and executed a property settlement. Among the considerations which then passed to the plaintiff was a promissory note for $5,000, payable in two years, with interest at 6 per cent., payable semi-annually. This action is brought to recover thereon.
The defense thereto is based upon a claimed agreement on the part of the plaintiff that in consideration thereof she would procure a. divorce from the defendant and that such agreement was illegal- and formed no consideration for the giving of said note.
The trial court submitted this question to the jury in instructions of which no complaint is made, and they found for the plaintiff. The defendant has appealed from the judgment entered thereon.
Error is assigned upon the overruling of defendant’s motion for a directed verdict and the denial of bis motion for a new trial, based upon the claim that the verdict was against the great weight of the evidence.
In December, 1930, the .defendant filed a bill for divorce on the ground of extreme cruelty. In it he set forth the settlement agreement above referred to, and stated that he “has carried out the terms of said settlement, in all respects.” The defendant therein filed an answer thereto and a cross-bill, in which she alleged extreme cruelty on the part of the plaintiff. After a hearing thereon, the trial court, on March 18, 1931, granted a decree to the defendant. In it he ordered the plaintiff therein to pay to the defendant therein “the sum of $5,000, mentioned in said property settlement, in lieu of all dower interests which said Mary Lester may have in the property of said Cleveland Lester as provided in property settlement mentioned in the plaintiff’s bill of complaint.”
The defendant as a witness admitted that he had paid to plaintiff the sum of $3,000, also provided for in the settlement agreement, and.the interest on the note sued upon up to and including that due on October 1, 1931. He testified that at the time the settlement agreement was executed the plaintiff agreed to secure a divorce from him. This she denied. The claim of defendant’s counsel that such an agreement on her part is established is based on testimony given by her at a time when a petition for modification of the divorce decree was being heard. There was explanation by her. This but affected her credibility.
Without passing upon the claim of plaintiff’s counsel that defendant, by setting up the agreement in his bill of complaint in the divorce proceeding, is estopped from now insisting that it was founded upon an illegal consideration, the court and jury had a right to consider his acts in that respect in determining whether the illegal contract was in fact made.
In our opinion the motion for a directed verdict and also that for a new trial were properly denied.
The judgment is affirmed.
McDonald, C. J., and Clark, Potter, North, Pead, Wiest, and Btttzel, JJ., concurred. | [
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Fead, J.
The action is for injuries sustained in a collision between a truck owned by defendant Johnson, driven by Gerald Mullen, and an automobile- owned and driven by defendant Bice. The trial proceeded against both defendants but before a jury as to J ohnson and before the court as to Bice. The court acquitted Bice and the jury convicted Johnson. The question is whether Johnson was entitled to a directed verdict at the conclusion of plaintiff’s proofs.
The collision occurred at night in Indiana, where the negligence of a driver is not imputable to his guest. Plaintiff was riding in Rice’s car. The pavement was covered with ice. Each vehicle was running at a speed of about 30 miles per hour. The right wheels of the Rice car ran off the pavement. Rice turned back upon the pavement, his car skidded, was struck by the truck and plaintiff injured.
Plaintiff’s evidence of the cause of the collision consisted of the testimony of herself and Mullen, whom she called as an adverse witness. His testimony was binding upon her except as it was disputed. Swank v. Croff, 245 Mich. 657. According to the testimony, Mullen saw the Rice car approaching on its own right side of the highway, he did not know it was not'under control until it was about 10 feet from him, it skidded in front of his truck and he applied his brakes but was unable to stop. When plaintiff rested her case there had been no showing of negligence on the part of defendant Johnson.
At that time Johnson moved for direction of verdict. The court reserved the motion, to hear all the testimony. The failure of the court to grant the motion was a denial of it. Johnson is entitled to review of the motion and its denial as of the time it was made. 3 Comp. Laws 1929, §§ 14307, 14308. Snavely v. Di Julio, 222 Mich. 146; Wasyluk v. Lubienski, 244 Mich. 695.
Thereafter Rice and a passenger in his car testified in his behalf. No proofs were introduced in behalf of Johnson, although counsel for Johnson briefly cross-examined Rice. At the conclusion of the proofs Johnson’s motion for direction was renewed and denied, and later his motion non obstante was denied.
Assuming that the Rice testimony raised a jury question of Johnson’s negligence, nevertheless, as no such question appeared at the conclusion of plaintiff’s case, and Johnson then was entitled to a directed verdict, the case must be reviewed without reference to the Rice testimony, under the cited statutes.
Judgment against Johnson reversed, with costs, and without new trial.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ;, concurred. | [
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] |
Potter, J.
Plaintiff seeks mandamus to compel defendants to spread upon the taxable property in the county of Oakland a tax sufficient to pay it the sum of $200,000 which it claims to be due from the county. It is the owner of $500,000 in par amount of refunding bonds of the county of Oakland dated December 1, 1931. It applied to defendants to spread a tax sufficient to pay the amount due it, $200,000, and defendants refused to spread the tax. Defendants admit they have refused to include in the 1934 budget in the debt service of the county an item of $200,000 to cover the debt set up in plaintiff’s petition, and that such action was taken October 13, 1933, at a regular meeting of the board of supervisors of the county. Defendants deny it is the legal duty of the board of supervisors to include such item- in the taxes to be levied. They claim they have no right or power under the laws of Michigan to include the item in the budget or cause it to be spread on the tax roll. They claim that under date of February 2, 1931, the county of Oakland issued $1,000,000 in tax anticipation notes; that such notes were issued entirely without authority of law; that the bonds issued, part of which are involved in this proceeding, were issued without authority of law; that the county of Oakland had no right to refund the million dollars of tax anticipation notes which it had issued; that the issuing of the $1,000,000 in par amount of refunding bonds by the county of Oakland was the creation of a new obligation of the county and wholly without authority. They assert that the loan board provided to be created by Act No. 26, Pub. Acts 1931, § 2a, and the exercise by it of its prescribed powers and duties is unconstitutional because the statute provides for the delegation of legislative power to the loan board in viola-' tion of the Constitution; and the action taken by the loan board in approving the issuance of the bonds involved herein is void because the deputy attorney general, instead of the attorney general, acted thereon without authority. They further claim the indebtedness contracted was in violation of the constitutional limitation on the bonded indebtedness of the county provided by the Constitution, art. 10, § 21, effective December 8, 1932. Other questions are raised and will be considered:
(1) Defendants claim plaintiff has no right to bring an original action of mandamus in this court against defendants. Section 4 of article 7 of the Constitution provides:
“The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”
Section 13535, 3 Comp. Laws 1929, provides:
“The Supreme Court * * * shall have power to issue writs of error, certiorari, habeas corpus, mandamus, quo warranto, procedendo, prohibition, supersedeas, and all other original and remedial writs which may be necessary for the due execution of the law and the administration of justice, and the full and perfect exercise of its jurisdiction, and to hear and determine the same.”
“The jurisdiction of this court in mandamus cases is not statutory, but plenary, and supervision is given over all inferior tribunals by the Constitution, art. 6, § 3 (1850).” Tawas & B. C. R. Co. v. Iosco Circuit Judge, 44 Mich. 479, 483.
“In cases where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mansfield, of enforcing specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.” People, ex rel. Township of La Grange, v. State Treasurer, 24 Mich. 468, 477,
The jurisdiction of this court has been repeatedly exercised in similar cases. People, ex rel. Kuhn, v. Board of Auditors of Wayne County, 10 Mich. 307; People, ex rel. Butler, v. Board of Supervisors of Saginaw County, 26 Mich. 22; People, ex rel. Mixer, v. Board of Supervisors of Manistee County, 26 Mich. 422; People, ex rel. Attorney General, v. Supervisors of St. Clair County, 30 Mich. 387; People, ex rel. Pack, v. Supervisors of Presque Isle County, 36 Mich. 377; People, ex rel. Abels, v. Board of Supervisors of Ingham County, 42 Mich. 526; Peck v. Board of Supervisors of Kent County, 47 Mich. 477; Brownell v. Board of Supervisors of Gratiot County, 49 Mich. 414; Davis v. Board of Supervisors of Ontonagon County, 64 Mich. 404; Zink v. Board of Supervisors of Monroe County, 68 Mich. 283; Haines v. Board of Supervisors of Saginaw County, 87 Mich. 237; Tinsman v. Board of Supervisors of Monroe County, 90 Mich. 382; Haines v. Board of Supervisors of Saginaw County, 99 Mich. 32; Attorney General, ex rel. Barnes, v. Board of Supervisors of Midland County, 178 Mich. 513.
“Jurisdiction is given-by the Constitution to this court to issue the writ of mandamus, and it is within the province of courts to restrain public bodies and officers of the municipal divisions of the State from exceeding their jurisdiction, and to require them to perform such specific duties as the law imposes upon them. Attorney General v. Board of County Can vassers of Iron County, 64 Mich. 607; Coll v. City Board of Canvassers, 83 Mich. 367. And the writ has often been exercised to compel snch bodies or officers to reverse their decisions. People, ex rel. Bristow, v. Supervisors of Macomb County, 3 Mich. 475; People, ex rel. Schmittdiel, v. Board of Auditors of Wayne County, 13 Mich. 233.” Tennant v. Crocker, 85 Mich. 328, 339.
(2) There was no impropriety in plaintiff instituting mandamus proceedings in this court.
(3) It is claimed the board of supervisors of Oakland County did not have power and authority to borrow the $1,000,000 upon the issuance of its tax anticipation notes on February 2, 1931. We need not discuss this contention, for the reason that Act No. 26, Pub. Acts 1931, § 3, provides:
“Notes heretofore issued in anticipation of the collection of delinquent taxes or special assessments are hereby declared to be legal and valid obligations of the county, township, city, village, or school district issuing the same as if issued or sold hereunder. ’ ’
The legislature may, by subsequent act, validate and confirm previous acts of a municipal corporation otherwise invalid. If the act could have been lawfully performed or done under precedent legislative authority, the legislature may subsequently ratify it and give it effect. 1 Dillon, Municipal Corporations (5th Ed.), § 129.
“In the absence of special constitutional restrictions, the competency of the legislature to enact retrospective statutes to validate an irregular or defective execution of a power by a municipal or public corporation, is undoubted. * * * Subsequent legislative sanction within constitutional limits is equivalent to original authority.” 2 Dillon, Municipal Corporations (5th Ed.), § 948.
“The whole may be summed up in a single sentence: that the legislature cannot make valid, retrospectively, what they could not originally have authorized.” People, ex rel. Butler, v. Board of Supervisors of Saginaw County, supra.
“If they could have authorized this in advance, they can equally ratify and legalize the act when done, and that without any reference to the question, whether the board had jurisdiction at the time of doing the act.” People, ex rel. Bristol, v. Board of Supervisors of Ingham County, 20 Mich. 95, 103.
(4) The tax anticipation notes of February 2, 1931, recited:
“This note is one of a series of 35 notes of like date, tenor, and effect, differing only in note numbers and amounts aggregating $1,000,000, and is issued in anticipation of the collection of taxes levied in the year 1930 for the general fund of the county and anticipated to be collected in the year 1931, and for the payment of this note and interest the full faith and credit of the county of Oakland, State of Michigan, is hereby irrevocably pledged.
“It is hereby recited and certified that all acts, conditions, and things required to be done precedent to and in the issuing of this note have been done in regular and due form as required by law, and that the indebtedness herein incurred does not exceed the statutory or constitutional limitations.”
The refunding bonds recited:
“This bond is one of an issue of bonds of like tenor, except as to number and maturity, aggregating the sum of $1,000,000, and is issued for the purpose of refunding $1,000,000 worth of tax anticipation notes heretofore issued on February 2, 1931, and due and payable November 2, 1931, and this bond is issued pursuant to and in strict compliance with the Constitution and statutes of the State of Michigan, particularly Act No. 273, Pub. Acts 1925, and amendments thereof.
“It is hereby certified, recited, and declared that all acts, conditions, and things required to exist, to happen, and to be performed, precedent to and in the issuance of this bond, exist, have happened, and have been performed in due time, form, and manner as required by law; and that the indebtedness herein incurred by said refunding bond issue does not exceed the statutory or constitutional limit.
“The full faith and credit of the county of Oakland, State of Michigan, are hereby irrevocably pledged to the prompt payment of principal and interest of this bond according to its terms, and due provision has been made for the raising annually by tax on all of the taxable property in said county a sum sufficient to pay the principal and interest of this bond as the same respectively become due and payable. ’ ’
“Where there is a total want of pow;er, under the law, in the officers or board who issue the bonds, then the bonds will be void in the hands of innocent holders, the distinction being between questions of fact and questions of law. If it is a question of fact, and the board or officers are authorized by law to determine the fact, then their determination is final and conclusive. And although it may be contrary to the fact, yet, if recited in the bond that the necessary and proper steps required by law to be taken had been taken, then the municipality is estopped from denying that they were taken.” Spitzer v. Village of Blanchard, 82 Mich. 234.
“Purchasers of municipal bonds are bound to know the extent and limitations upon the authority of the corporation to issue the bonds. They are bound, in other words, to know the law under which the authority is exercised. Purchasers of such securities have a right to rely upon all facts asserted or appearing upon the face of the bonds made by any person or body authorized by law to pass upon and determine tlie facts.” Gibbs v. School District, 88 Mich. 334 (26 Am. St. Rep. 295).
In Chaffee County v. Potter, 142 U. S. 355 (12 Sup. Ct. 216), the rule is thus stated:
“The test is — What does each individual bond •disclose? If the face of one of the bonds had disclosed that, as a matter of fact, the recital in it, with respect to the constitutional limitation, was false, of course the county would not be bound by that recital, and would not be estopped from pleading the invalidity of the bonds in this particular. Such was the case in Lake County v. Graham [130 U. S. 674 (9 Sup. Ct. 654)] and County of Dixon v. Field [111 U. S. 83 (4 Sup. Ct. 315)]. But that is not this case. Here, by virtue of the statute under which the bonds were issued, the county commissioners were to determine the amount to be issued, which was not to exceed the total amount of the indebtedness at the date of the first publication of the notice requesting the holders of county warrants to exchange their warrants for bonds, at par.- The statute, in terms, gave to the commissioners the determination of a fact, that is, whether the issue of bonds was in accordance with the Constitution of the State and the statute under which they were issued, and required them to spread a certificate of that determination upon the records of the county. The recital in the bond to the effect that such determination has been made, and that the constitutional limitation had not been exceeded in the issue of the bonds, taken in connection with the fact that the bonds themselves did not show such recital to be untrue, under the law, estops the county from saying that it is untrue. Town of Coloma v. Eaves, 92 U. S. 484; Town of Venice v. Murdock, 92 U. S. 494; Marcy v. Township of Oswego, 92 U. S. 637; Wilson v. Salamanca, 99 U. S. 499; Buchanan v. Litchfield, 102 U. S. 278; Northern Bank of Toledo v. Porter Township Trustees, 110 U. S. 608 (4 Sup. Ct. 254).”
In Gunnison County Commissioners v. Rollins, 173 U. S. 255 (19 Snp. Ct. 390), the court declined to overrule Chaffee County v. Potter, supra, and reaffirmed and redeclared the rule stated therein.
The statutes prescribe how the facts constituting a prerequisite to the issue of these bonds shall be determined. It provides the State treasurer shall' issue a certificate to that effect, and the finding or decision of the loan board shall be final. . Act No. 26, Pub. Acts 1931, §§ 2, 2a.
The statutes authorize the issuance of the bonds when the facts or existing state of things warrant. In accordance with the principles established by the decisions above quoted, such finding of facts, — such decision of the loan board, — on the facts, cannot here be inquired into. The county is estopped from so doing by the recitals on the face of the bonds, above quoted.
(5) Legislative power may not be delegated. 1 Cooley, Constitutional Limitations (6th Ed.), p. 137; King v. Concordia Fire-Insurance Co., 140 Mich. 258 (6 Ann. Cas. 87).
The statutes underlying the issuance of these refunding bonds require the officer having charge of the financial records of the county desiring to issue the same, to make a sworn statement to the State treasurer containing the information required to be given by section 8, Act No. 273, Pub. Acts 1925, as amended (1 Comp. Laws 1929, § 2697, as amended by Act No. 142, Pub. Acts 1931), Act No. 26, Pub. Acts 1931, § 2.
Section 2697, 1 Comp. Laws 1929, prescribes in detail the statement of facts which the officer having charge of the financial records of every municipality shall make to the State treasurer. Section 2698, 1 Comp. Laws 1929, prescribes that no bonds may be issued without the certificate of the State treasurer. Act No. 26, Pub. Acts 1931, § 2a, transfers this duty from the State treasurer to the loan board. These provisions of the statute do not vest in the State treasurer or in the loan board the power and authority to issue bonds. They place the burden upon the municipality to report its financial condition and the amount, date, and character of its indebtedness to the State treasurer. The statutes authorize the issuance of securities and place limitations upon the amount of bonded indebtedness that may be contracted. The duty of the loan board is to see that the amount of indebtedness authorized does not exceed the limitations upon indebtedness. These statutes do not attempt to delegate power to make law. The statutes declare the law and delegate the power to the loan board to determine the facts or state of things upon which the law makes its own action depend. Such statutes are not unconstitutional. Locke’s Appeal, 72 Pa. 491, 498 (13 Am. Rep. 716) ; Feek v. Township Board of Bloomingdale, 82 Mich. 393 (10 L. R. A. 69); Field v. Clark, 143 U. S. 649 (12 Sup. Ct. 495); King v. Concordia Fire-Insurance Co., supra. There is by the statutes here involved, no unconstitutional delegation of legislative power.
(6) It is claimed the action of the loan board was invalid because the attorney general did not act in person thereon. The approval of the issuance of the bonds in question was made by the loan board, the State treasurer and the auditor general being present, and the attorney general being represented by the deputy attorney general. It is claimed the deputy attorney general had no power to act. Act No. 153, Pub. Acts 1917 (1 Comp. Laws 1929, § 184), provides that the attorney general may appoint a deputy attorney general. “He (deputy) may also serve in place of the attorney general as a member of the Michigan securities commission created by Act No. 46, Pub. Acts 1915, and other boards and commissions of which the attorney general now is or may hereafter be an ex officio member.” What are ex officio services? They are services imposed by law upon a public officer by virtue of his office. “They are services which relate to the public interests, or business of the county or State, as contradistinguished from those relating to the private interests of individuals.” Gilbert v. Justices of Marshall County, 18 B. Mon. (57 Ky.) 427. “When the State requires services to be performed by its officers, for which no remuneration is allowed, they must be regarded as ex officio services, for which no charge can be made.” Allin v. Mercer County, 174 Ky. 566 (192 S. W. 638). See, also, Wortham v. Grayson County Court, 13 Bush. (76 Ky.) 53. The attorney general is ex officio a member of the loan board and the deputy attorney general had a right to act thereon.
Section 21 of article 10 of the Constitution, effective December 8, 1932, if the bonds are valid obligations of the county of Oakland, as we hold, does not bar the spreading of the tax proposed for the reason it excepts, “taxes levied for the payment of interest and principal on obligations heretofore incurred, which sums shall be separately assessed in all cases.”
We find no tiling in subdivision “e” of section 6 of Act No. 142, Pub. Acts 1931 (amending 1 Comp. Laws 1929, §2695), which violates either section 1 of article 5 of the Constitution, or section 6 of article 10 thereof.
It is claimed the questions here involved cannot be litigated in this case. There is no question raised but what the county of Oakland received and expended plaintiff’s money; it issued its tax anticipation notes therefor; it has had the use and benefit of the money; such money remains unpaid. It now says it should not repay it because it violated the law in receiving it. There is no dispute about the amount, the manner in which it was borrowed, the corporate records underlying the loan, the amount is liquidated and due and the tax should be spread to pay it. The writ will issue, with costs.
McDonald, C. J., and Weadock, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff is the trustee under a bond mortgage in the amount of $80,000 given by defendants in 1914 covering property owned by them in the city of Grand Rapids. Default occurred in payment of interest due March 1, 1932, of taxes for the years 1930 and 1931, .and also of a special assessment against the property for 1931. Plaintiff instituted foreclosure ■ proceedings and took decree for $93,471.50 due under the mortgage. The usual provisions for sale by commissioner and for deficiency were embodied in the decree. The sale was regularly held, and plaintiff, the only bidder at the sale, bought the property for $50,000, thus leaving a deficiency of upwards of $40,000. At the time of the mortgage sale the property was subject to liens for unpaid taxes and assessments amounting to upwards of $36,000. This resulted in the purchaser at the mortgage sale undertaking to pay substantially $86,000 for the property. Subsequent to the mortgage sale plaintiff filed the usual order of confirmation to which the mortgagors urged exceptions. Upon hearing, the circuit judge refused confirmation and ordered resale by the commissioner. From the order of the circuit judge denying confirmation and directing resale, under the condition and limitation hereinafter noted, plaintiff has appealed. The question first presented is whether the trial court was in error in refusing to confirm the sale.
Confirmation of mortgage sales incident to foreclosures in equity is largely within the discretion of the trial court.
“The question in this case is whether the master’s sale shall stand. It may be stated generally that there'is a measure of discretion in a court of equity, both as to the manner and conditions of such a sale, as well as to ordering or refusing a resale.” Pewabic Mining Co. v. Mason, 145 U. S. 349, 356 (12 Sup. Ct. 887).
Confirmation is not a matter of absolute right vested in the party prosecuting foreclosure proceedings or in the highest bidder at the sale.
“Until confirmed by the court the sale is incomplete. Confirmation is not a mere formality, but is a judicial act although it is uncontested. The acceptance of the bid confers no title upon the purchaser, and not even any absolute right to have the purchase completed. He is nothing more than a preferred bidder, or proposer for the purchase, subject to the sanction of the court afterward. ” 3 J ones on Mortgages (8th Ed.), § 2103.
'“The foreclosure of a mortgage is equitable in its nature though based on legal rights, and it is the province of the court of equity to see to it that a party invoking its aid shall have dealt fairly before relief is given. A court of equity has the right to so control the proceedings as to produce a just result and to protect the rights of all parties.” 1 Wiltsie on Mortgage Foreclosure (4th Ed.), § 38.
In granting or refusing confirmation, the equity court should give consideration to all facts and circumstances pertinent to the individual case and be governed accordingly.
“And each case must stand upon its own peculiar facts.” Ballentyne v. Smith, 205 U. S. 285 (27 Sup. Ct. 527).
A great variety of circumstances might exist, any one of which would equitably justify, if not compel, the court to refuse confirmation but instead order a resale. If in the exercise of its discretion the equity court deems it advisable to order a resale, its order to that effect should not be disturbed by the appellate court in the absence of a clear showing of abuse of the vested discretionary power. Ballentyne v. Smith, supra.
“It rests wholly in the discretion of the court whether the sale shall be confirmed or set aside, and this power will be exercised prudently and fairly in the interest of all concerned, according to the circumstances of each particular case. * * * If the sale has been regular in all respects, and there are no extrinsic circumstances or equities requiring the interference of the court, the motion to confirm should be allowed. The court, however, is not confined to the consideration of purely legal matters respecting the regularity of the sale, hut may consider equitable matters as well.” 3 Jones on Mortgages (8th Ed.), § 2105.
Appellant asserts that “inadequacy of the price bid upon foreclosure sale, unaccompanied by fraud, mistake, or irregularity, is insufficient to invalidate the sale or to justify refusal of confirmation.” To this effect several cases are cited, including Cameron v. Adams, 31 Mich. 426. This latter case involved a foreclosure by advertisement; and it may be noted that in cases of such foreclosures, which involve the exercise of statutory rights, courts of equity are less disposed to intervene. See Wood v. Button, 205 Mich. 692; Moss v. Keary, 231 Mich. 295. In the instant foreclosure, appellant invoked the aid of the court in equity, and in so doing submitted itself to the exercise of the equitable powers inherent in such courts. None of the parties involved may justly complain of an effort on the part of the trial court to ultimately accomplish what it deems equitable as between all parties litigant. In an effort to reach such a result the equity court in the exercise of a fair discretion upon proper showing being made may decline confirmation of a mortgage sale in an equitable foreclosure proceeding if the amount bid is inadequate to the extent that it shocks the conscience of the court. An order of the equity court made in the exercise of its discretionary powers is not in violation of the contract rights of either mortgagors or mortgagees.
We forego detailing testimony in the record tending to support the circuit judge’s finding that the fair value of the mortgaged property is largely in excess of the amount bid at the foreclosure sale; and advert only to the fact that, at the time of foreclosure, its assessed valuation was $185,000. We are unable to say from this record that the trial judge did not have before him upon the confirmation hearing a showing which justified the following finding made by him:
“The court finds as a matter of fact that the mortgaged property at the time of the sale in question was fairly worth a sum largely in excess of the amount bid for the same by the plaintiff, which was the only bid made at the sale in question; but that the absence of other bids was not due to the lack of value of the property but in part to the fact that owing to conditions resulting from the present .acute depression, competitive bids at public sales, particularly on properties of this character and value, had practically ceased to exist; and that under these and the other conditions under which the sale was held, to allow the plaintiff to acquire the property on a bid far below the real value of the same, and which would result in a very large deficiency against the mortgagors, produces a result which shocks the conscience of the court and brings the case within the rule in equity requiring that the sale be not confirmed.”
It may be noted that inadequacy of price is not the only matter here involved and not the only ground upon which the court based denial of confirmation. There is the further possibility and probability that upon a subsequent sale a more favorable bid may be received or that the loan may then be refinanced due to a change in general economic conditions; and further, in addition to the inadequacy of price received for their property the mortgagors will be subjected to a deficiency decree which is a matter under the circumstances of this case that may well concern the court in equity. In the instant case the order denying confirmation did not constitute an abuse of discretion, and is affirmed. The question above considered is exhaustively covered in a recent and well-reasoned opinion of the New Jersey court reported in Federal Title & Mortgage Guaranty Co. v. Lowenstein, 113 N. J. Eq. 200 (166 Atl. 538).
In the order for resale the circuit judge included the following:
“Provided, however, that on such resale, the said commissioner is hereby directed not to accept any bid less than the amount then due the plaintiff under the said decree, such bid to be made subject to taxes and assessments which may then be a lien on the said premises.”
This provision in the order was improvidently made. It places too severe a limitation upon the subsequent resale. The fact that there has been a great depreciation in the value of the mortgaged property is no more a reason for penalizing the mortgagees than the mortgagors. Especially in the instant case where a purchaser at the mortgage sale is not only in effect repaying the loan with accrued interest but is also assuming the obligation of paying thousands of dollars for taxes and assessments which presumably under the terms of the mortgage the mortgagors agreed to pay. While courts of equity may well be solicitous of the rights and interests of mortgagors, administration of the law. by such courts should not be in total disregard of the rights of mortgagees. To hold otherwise would bring about a condition under which real estate loans could not be made with any degree of safety or security ; and ultimately the result, because of inability to secure real estate loans, would be as harmful to those seeking such loans as to prospective mortgagees. Further, the quoted provision of the resale order contravenes the statute (3 Comp. Laws 1929, • § 14366), which gives plaintiff a right to a decree for deficiency; and in effect it undertakes to modify without application therefor the decree previously entered in the case. A decree cannot be modified inci dent to an application for confirmation. Farmers’ Bank of Grass Lake v. Quick, 71 Mich. 534 (15 Am. St. Rep. 280).
We need not here pass upon the right or power of an equity court in a foreclosure proceeding to fix a ■minimum or upset price for which the property can be sold. We only hold that the provision made in the order for resale was improper under the facts here involved. After resale the matter of confirmation can be passed upon in the light of the facts and circumstances then before the court.
The order for resale will be modified in accordance herewith, and the cause remanded to the circuit court for further proceedings therein. Costs to appellants.
McDonald, C. J., and Clark, Potter, Sharpe, Fead, Wiest, and Btttzel, JJ., concurred. | [
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Sharpe, J.
On April 1,1930, the defendant Robert Sehomberger and Annie, his wife, executed a mortgage on certain real estate in the city of Detroit to Union Guardian Trust Company, as trustee, in the sum of $10,000, to secure the payment of 23 promissory notes of $400 each, payable monthly thereafter, and one for $800, payable April 1, 1932. This mort gage contained an assignment of the rents, income, and profits of said property, pursuant to the provisions of Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499). It was made subject to a mortgage thereon to the Mutual Benefit Life Insurance Company, dated September 12,1928, in the sum of $60,000.
On October 27, 1932, the bill of complaint herein was filed. In it the plaintiff alleged that on January 28, 1931, the Union Guardian Trust Company resigned as such trustee and Kora D. Diehl was appointed to act in,its stead, and that said Kora D. Diehl afterwards resigned and plaintiff was appointed his successor by the majority of the note-holders ; that there is default in the payment of the last 12 of said notes, amounting to $5,200, and interest thereon from April 1, 1930; that, in accordance with the provisions in said mortgage, he entered upon the premises and served the tenants and occupants with notice of default and his intention to collect the rents therefor, and filed notice thereof in the office of the register of deeds; that the.defendant David C. Lee has interfered therein and refused to permit him to make such collections, and that by reason of the provisions in said mortgage he is entitled to have a receiver appointed to collect such rents, profits, and income. In his prayer for relief he asks for specific performance of this provision in the mortgage and for the appointment of a receiver—
“to take possession and charge of the said premises and every part thereof, to operate and manage the same, to collect and receive all rents and income therefrom, and to apply the net profits thereof in accordance with the terms and provisions of said trust mortgage and the order of this court.”
On the day the bill was filed, the trial court made an order for the defendants to show cause on October 31, 1931, “why a receiver should not be appointed in accordance with the prayer in said bill of complaint.” The practice thus indulged in is difficult to understand. The appointment of a temporary receiver was not prayed for in the bill, and no petition therefor was filed in the court. The issue as to whether a permanent receiver should be appointed could not be determined until the answer was filed and proofs submitted if it contained denials of the material allegations in the.bill. The answer was filed on November 5th. In it the defendant (Lee) alleged under oath:
“That the original insertion of the name of the Union Guardian Trust Company as alleged trustee was a mere scheme and device born in the fertile brain of Kora D. Diehl, the general manager of the Madison Investment Company, for the purpose of evading the ejectment statute of the State of Michigan. ’ ’
On November 7th the court made the order here appealed from denying “plaintiff’s motion for a receiver. ’ ’
Pursuant to Court Rule No. 69 (1931), appellant states the question involved as follows:
“Does Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499), apply to a trust mortgage when all the outstanding mortgage bonds are held by one corporation, and when the individual acting as successor-trustee under the mortgage, is in a sense, an agent of the corporation owning the bonds'?”
In referring to this statute, it was said in Security Trust Co. v. Sloman, 252 Mich. 266, 273:
“It was designed for the benefit of holders of obligations under trust mortgages, usually the general public who rely on others for financial guidance, and is to be given effect to that end.”
On its face this instrument contains all of the elements of a trust mortgage.
“No particular form of words, however, is required to create a trust, and whether one exists is to be ascertained from the intention of the parties as manifested by the words used and the circumstances of the particular case.” 26 R. C. L. p. 1180.
If the loan in this case was made by the Madison Investment Company to the mortgagors and the name of the trust company as trustee was inserted in the mortgage for the sole purpose of securing to the investment company the rights of a trustee under Act No. 228, then it was not a trust mortgage in fact and might not have been enforced by it as such.
The record contains a reply to defendant’s answer, filed after the order was made, denying many of the allegations therein and particularly that charging that the insertion of the name of the trustee was a “mere scheme and device” for the purpose of evading the ejectment statute. An order of the court permitting it to be filed was made.
"Whether the present plaintiff is entitled to the rents and profits and the appointment of a receiver to collect and disburse the same is dependent upon the proofs to be submitted on the hearing. It could not be determined upon the allegations in the bill and denial thereof in the answer. Kowalski v. Guaranty Trust Co., 224 Mich. 118.
The order of the trial court denying plaintiff’s right to a receiver is' set aside, without costs, and the cause remanded for a trial upon the merits of the issues presented by the pleadings.
Clark, North, and Wiest, JJ., concurred with Sharpe, J, | [
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] |
McDonald, J.
The defendants have appealed from a circuit court judgment in an action for dámages arising out of an assault and battery.
The plaintiff and the defendants were friendly acquaintances residing in the city of Jackson, Michi gan. They were all young men in their late teens. On the evening of April 11, 1921, the plaintiff was visiting a young lady friend at her home. This was known to the defendants. Acting in concert according to a prearranged plan, they went to the house and called for him. When he came to the door they began an assault upon him. The extent of the assault is in dispute. The plaintiff says they threw a sweater over his head, dragged him from the porch on to the sidewalk and into a vacant lot, where they threw him violently to the ground, beat him, and threatened to castrate him with a knife which one of the defendants carried in his hand; that they cut his belt and trousers in several places and did not desist until some one attracted by his cries approached, when they ran away leaving him in a dazed and fainting condition; that he was carried into the home of a neighbor, where he was revived and afterwards taken to his home. The family physician was called, who says that he found him lying on the floor crying, twitching, and jerking in a highly nervous and hysterical condition.
It is the plaintiff’s contention that, as a result of the assault made upon him by the defendants, he subsequently became afflicted with a disease known to the medical profession as residual encephalitis, for which science has been unable to find a cure.
The defendants admit that, with a common purpose, they went to the home where the plaintiff was calling, intending to take him away with them; that their only purpose was to have some fun with him; that they seized him when he appeared in the door, carried him to a vacant lot adjoining the house, and laid him down on the grass; that they made no threats to do him harm; that they did not beat him or cut his clothes, and that they ran away as soon as he called for help. They say they were friendly with, bim before and after the incident, and that he made no claim that he had been injured. It is their contention that his present condition was caused by an infectious throat disease, and that they were in no way to blame for it.
The issue was tried by the court with the aid of a. jury, and the plaintiff had verdict and judgment for $11,500.
The decisive question presented by the assignments of error relates to the charge of the court in regard to the consideration which the jury should give to the hypothetical questions submitted to medical experts.
The defendants offered the following request, which was refused:
“You are instructed that in this case if you find from the evidence that the facts stated in the hypothetical question are not true, then you are to disregard the entire answer to said question.”
In the charge as given the court said:
“I instruct you that with regard to this hypothetical question, members of the jury, you should consider whether or not the facts as stated in the hypothetical question were true or not, whether or not the answer based thereon by the doctors was a logical deduction from those facts, and whether or not the facts as stated in the hypothetical question were true or not, and give to that testimony such weight and credence as you think it is entitled to,” etc.
"We do not think this instruction sufficiently covered the question. It did not inform the jury that they must wholly disregard the answer if the facts or any one of the facts assumed in the hypothetical question were not established by the evidence. The answer of the expert assumes the facts asserted in the question to be true, and if they or any one of tbem are not true the answer is worthless as evidence. Ballance v. Dunnington, 241 Mich. 383.
Tbe request offered by tbe defendants correctly stated tbe law, and should have been given. It was reversible error to refuse it.
We have considered all of tbe other assignments presented by tbe record and argued in tbe briefs, but find none of sufficient merit to require discussion.
Tbe judgment is reversed, and a new trial granted, with costs to tbe defendants.
Clark, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff brought suit in assumpsit upon a promissory note as follows:
“Detroit, Mich., Apr. 22, 1929
“$1500
“Three (3) months after date I promise to pay to the order of U. 8. RADIATOR CO.
“Fifteen Hundred 00/100.................Dollars
Payable at Peoples "Wayne County Bank “Value received with 6 per cent, interest per annum
“No.......Due 7/22 Ed. I. Canvasser
“3288 Fullerton.”
The following indorsement appears on the reverse side of said note :
“MORRIS CANVASSER
“Pay FIRST NATIONAL BANK IN DETROIT
“613 Detroit, Mich. 613
“(All prior indorsements guaranteed)
“United States Radiator Corporation
“W. E. Mosher, Treasurer”
The following notation appears on the face of said note:
“Protested for Non-Payment
“Detroit, Mich.
“July 22, 1929
“Jack Mulvene
“Notary Public, Wayne Co.”
Defendant pleaded the general issue. There was judgment for plaintiff in the sum of $1,734.04 and costs. Defendant appeals.
This note was presented for payment at the Peoples Wayne Connty Bank, the designated place of payment, July 22, 1929, the due date of the instrument, and protested for nonpayment on that day, and a copy of the certificate of protest mailed to defendant Edward I. Canvasser at his postoffice address, but no notice of dishonor was given to the indorser as required by 2 Comp. Laws 1929, § 9338, and defendant and appellant Morris Canvasser was discharged from liability thereon unless he waived the same.
“Notice of dishonor may be waived, either before the time of giving notice had arrived, or after the omission to give due notice, and the waiver may be express or implied.” 2 Comp. Laws 1929, § 9358.
August 5, 1929, defendant and appellant wrote plaintiff:
“We have the promise of Ed. I. Canvasser to the effect that he will be able to make a small payment on this past-due note sometime during the present month. However, if he does not make some arrangement to care for same we will have to take steps to meet the obligation as best we can.”
August 15, 1929, defendant and appellant wrote to plaintiff:
“As stated in previous letters we will treat this note as best we can and take care of it, but not in the manner that you indicate.”
In addition to this correspondence Mr. Charles L. Morton testified he called Morris Canvasser, the defendant and appellant, by telephone, recognized his voice, called his attention to the note, “He finally said he would pay us $100 a month if we would accept that.”
“Q. Did you talk with him later?
“A. Yes, I talked with him around the first or second of September again and he reiterated the same thing.
“Q. That he would pay $100 a month on your note?
“A. Yes, sir.”
Mr. Homer L. Smith on cross-examination testified:
“He said he had no money*now and couldn’t pay it but would pay it when he had means to.”
The correspondence of defendant and appellant, accompanied by this parol evidence was sufficient to sustain the finding of waiver of presentment and notice of dishonor.
Judgment is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiffs purchased a confectionery business, including fixtures and store in the city of Detroit, paying therefor $1,000 in cash and giving their notes secured by a mortgage back on the property for $1,800. After the purchase plaintiffs discovered they had been defrauded. They tendered back, to the vendors the purchased property and the latter accepted the tender. Plaintiffs then brought suit against the two vendors and against four other persons who acted as agents in consummating the sale to plaintiffs. This was a tort action based upon the fraud 'perpetrated, and plaintiffs- had judgment against all of the defendants; but upon motion for judgment notwithstanding verdict, the circuit judge before whom the case was tried granted the motion as to the four defendants who had acted as agents in consummating the sale. At that time plaintiffs were allowed to amend their declaration, and on the theory of rescission took judgment in assumpsit against the two vendors. No part of this judgment has been satisfied.
Later plaintiffs instituted the suit at bar against the four parties who acted as agents. Service was obtained upon only three of them. In this suit plaintiffs claim damages for the fraud of the agents which induced plaintiffs to purchase the store and Confectionery business. While the record before us on this appeal is' by no means clear or satisfactory, it seems that the three defendants by special notice under their plea raise the question of former adjudication, and also urge that since plaintiffs waived the tort committed by the vendors in this sale and took judgment in assumpsit they (plaintiffs) cannot now take an inconsistent position and recover in the instant case against these defendants on the ground of the same fraud that was waived in the former suit. The trial judge sustained defendants’ contention and dismissed plaintiffs’ suit. Plaintiffs have appealed.
The ruling of the trial judge was correct on the ground of res judicata. In the former tort action involving the same issue between these same parties plaintiffs had verdict. When, in that former suit, the circuit judge ordered judgment non obstante, there was final adjudication adverse to plaintiffs. They did not appeal, and so are bound thereby. Our judgment is for affirmance; but since appellees have taken no part in this appeal, no costs will be awarded in this court.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Potter, J.
Plaintiff was employed by Richmond Hills Development Corporation as an office boy to address circulars and other mail, see they were deposited in the postoffice, help around the office, sort the mail, take dictation, answer the telephone, run errands, and, on some occasions, buy office supplies. In addition, he did some bookkeeping. He sued the Richmond Hills Development Corporation to recover for services performed, and recovered a judgment of $216.30 and costs. Richmond Hills Development Corporation was adjudged a bankrupt October 6, 1931, by the United States district court for the eastern district of Michigan, southern division. Defendants were stockholders during the time plaintiff worked for the Richmond Hills Development Corporation in said corporation, and plaintiff brings suit, based upon their stockholders’ statutory liability. Prom a judgment for plaintiff, defendants appeal.
Plaintiff’s proceedings were brought under 2 Comp. Laws 1929, § 10026. Defendants contend under the provisions of that section it is necessary the employee make some effort to collect from the corporation, beyond recovering a judgment against it, before suing the stockholders to enforce a statutory liability.
This court has said it was the object and purpose of the statute that the corporation should be primarily liable for labor debts, that the statutory liability of the stockholders for labor debts is secondary and not primary, that they stand in the position of sureties toward the corporation, and their stockholders’ liability may be enforced only when the right to recover against the corporation has been exhausted. Since that time the statute has been amended. We think it is unnecessary to pass upon this question, for the reason that we are satisfied the services performed by the plaintiff do not fall within the definition of labor as construed by this court. Brockway v. Innes, 39 Mich. 47 (33 Am. Rep. 348); In re Black’s Appeal, 83 Mich. 513; In re Clark, 92 Mich. 351; In re Sayles, 92 Mich. 354; Michigan Trust Co. v. Grand Rapids Democrat, 113 Mich. 615 (67 Am. St. Rep. 486); Lawton v. Richardson, 118 Mich. 669.
Judgment is reversed, with costs, and remanded for judgment for defendants.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
Plaintiff owned two lots on Woodward avenue, near the Eight Mile road. The lots, together with half of an 18-foot alley at the rear,' were required by tbe State highway department for the widening of the avenue, and, on July 30, 1924, it was agreed by the parties to this suit that the State highway commissioner should cause the alley to be vacated and the subdivision, so far as needed, to be replatted and two lots therein, occupying the same relative position on the widened avenue and free from restrictions, should be conveyed to plaintiff within six months in exchange for his two lots. The lots intended to be so conveyed were restricted in use to residence purposes, and the removal of the restriction and the replatting was of moment to other lot owners in the subdivision. Defendants delayed talcing action to remove the restriction but did file a replat. Plaintiff endeavored to get effective action by defendants, but nothing was accomplished, and, on December 2, 1926, he filed the bill herein to obtain specific performance of the contract and damages occasioned by defendants’ delay. Upon filing the bill a temporary injunction issued restraining defendants from disposing of any lots appearing on the replat. May 18, 1928, a contempt proceeding for an alleged violation of the injunction was instituted by plaintiff and composed by an agreement that the attorneys for plaintiff should file a bill in the Oakland circuit at the expense of defendants “for the purpose of procuring an adjudication that the title of the lots they (defendants) have obligated themselves to convey by warranty deed to said Sloman, are free from residential restrictions and conform in every respect to their obligations in the contract, * * * and that the title of other persons to whom said Sloman or they have conveyed lots in the Sloman subdivision described in the bill of complaint, are likewise free from residential restrictions.”
Such, a bill was filed by the attorneys for plaintiff, and, on November 4, 1929, a decree was obtained removing the restrictions from the lots agreed to be conveyed to plaintiff and validating the replat and vacation of the mentioned alley.
At the conclusion of the proofs in the case at bar, a decree was entered requiring defendants to execute and deliver to plaintiff, within 20 days, a warranty deed to the two lots in accord with the agreement, and attach to the deed a certified copy of a resolution adopted by the State administrative board, pursuant to authority given that board by Act No. 282, Pub. Acts 1929 (1 Comp. Laws 1929, §§ 4464, 4465), approving the conveyance, and pay to plaintiff, or to the clerk of the court for plaintiff, all sums paid by plaintiff after July 30, 1924, and to the date of delivery of the deed, for taxes and assessments on the lots, together with interest at five per cent, per annum, and found the amount so paid, and required plaintiff to convey by warranty deed the lots taken for widening of the avenue, adjudged that defendants pay the fees and charges of plaintiff’s attorneys in the proceedings had in the Oakland circuit and stated that “the amount of which fees and charges has been or is to be agreed upon between counsel,” and further adjudged that:
“In view of contempt proceedings having been had in this cause at the petition of plaintiff on which said order of June 19, 1928, was entered plaintiff shall recover from defendants an attorney fee of $100 which shall be in lieu of the usual taxable attorney fee in a chancery suit and shall also recover all proper taxable costs other than the usual attorney’s fee.”:
The decree also adjudged that:
“The claim of plaintiff for damages by reason of said contract of July 30, 1924, not having been fully performed by defendants within the six months therein provided and remaining unperformed up to the time of the hearing of thi§ suit and the claim of plaintiff to recover all reasonable fees and charges of his attorneys and other expenses to which he has been put in and about obtaining and enforcing performance of said contract each is denied for the reasons stated in said opinion filed herein as aforesaid.”
In an opinion the circuit judge stated:
“As to damages for failure to give possession, I am unable to find that the delay was unreasonable under all the circumstances, or that defendants were more to blame therefor than the plaintiff. The lots are vacant and would have provided no income. * * *
“As to attorney fees in this suit, I have grave doubts as to the power of the court to grant more than taxable costs; but,.in view of the fact that contempt proceedings were instituted and when settled by the consent order made by Judge Arthur Webster on June 19, 1928, no provision for attorney fees or expenses in that branch of this case was made, the decree herein may provide for an attorney fee in favor of the plaintiff and against the defendants of $100 in lieu of the taxable attorney fee.”
Plaintiff has appealed and asks to be awarded:
“1. * * * Such additional sum as counsel for the respective parties to this suit shall determine will fully compensate said appellant for the entire expenditure incurred for attorney fees in prosecuting this litigation in the trial court and in the Supreme Court.
“2. As damages for their delay in performing their contractual duties and in conveying lots numbered 465 and 466, appellees shall pay appellant an amount equivalent to interest fro'm January 30, 1925, the date upon which it was agreed that said conveyance should be made, computed at the rate of five per centum per annum, on the value of said lots as of January 30, 1925, which value the court hereby fixes at $13,200, and which damages the court hereby computes to be and fixes at $4,290.”
The contempt proceeding having resulted in a composition, we think the award of attorney fees made by the trial judge should be affirmed.
No special damage, occasioned plaintiff by the delay, was established and we are not content to adopt the rule of measurement urged by attorneys for plaintiff. The lots were unimproved, and, therefore, unproductive of revenue.
We think the decree in the circuit, under the circumstances, awarded plaintiff all he whs entitled to have.
The decree is affirmed, with costs to defendants.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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Sharpe, J.
A judgment in favor of the plaintiff for damages sustained in an automobile accident against the defendant trust company, administrator of the estate of Charles E. Byder, was affirmed by this court. 257 Mich. 188'. After recovery of the judgment in the circuit court, a writ of garnishment was issued and served upon the defendant insurance company, which had issued a policy protecting Byder, “his heirs or executors,” against loss or expense arising out of his ownership or use of his automobile in a sum not exceeding $5,000.
After the remittitur from this court affirming the judgment had been filed in the circuit court, the garnishee suit was brought on for hearing. It appears from the statement of facts that the garnishee then admitted its liability under its policy, but questioned the right of the court to enter a judgment in favor of the plaintiff. From a judgment so entered the insurance company has taken this appeal.
Section 15689, 3 Comp. Laws 1929, reads as follows :
“All actions and suits which may be pending against a deceased person at the time of his death, may, if the cause of action survives, be prosecuted to final judgment, and the executor or administrator may be admitted to defend the same, and if judgment shall be rendered against the executor or administrator, the court rendering it shall certify the same to the probate court, and the amount thereof shall be paid in the same manner as other claims duly allowed against the estate.”
Under this statute, it was the duty of the circuit court, after affirmance of the judgment by this court and remittitur filed in that court, to certify the same to the probate court. It does not appear that the decision of this court in Foreman Brothers Banking Co. v. Handy, 229 Mich. 635, was called to the attention of the trial court. In that case the writ of summons was issued during the lifetime of the defendant Handy, but served upon his administrator after his death. After due consideration and a review of the authorities, this court held “that such garnishment proceedings do not survive the death of the principal defendant occurring before judgment.”
The statute provides the manner in which claims against an estate may be presented, allowed, and paid. When the judgment rendered was affirmed by this court, the trial court should have certified it to the probate court, and it then would have been allowed as a claim against the estate. On the attention of the administrator having been called to the liability of the insurance company under its policy, it would have been its duty to make claim therefor, and the amount due thereunder would doubtless have been paid to it, or, if not, payment thereof duly enforced. The proceedings which may be taken in such a case were considered in Exo v. Detroit Automobile Inter-Insurance Exchange, ante, 578.
Counsel for the plaintiff, however, insist that the judgment here appealed from was entered by consent, and for that reason should be affirmed. This claim is based upon a statement made by counsel for the garnishee defendant in a brief filed in the trial court, in which it was said:
“I have no objection to such a judgment being entered but will ask that a judgment of no cause for action be entered on the statutory issue in the case of Edward Hoban v. Charles Ryder and in the case of Bertha Solomon v. Charles Ryder.”
This brief was filed on April 9, 1932, and judgment then entered for the plaintiff. A motion to set the same aside was thereafter filed. On the hearing thereof attention was again called to the judgments in favor of Edward Hoban and Bertha Solomon, arising out of the same accident, and which had been affirmed by this court (257 Mich. 188; 257 Mich. 193), and to the fact that a similar action, brought by Anna Sullivan, was then pending. The right of these parties to participate in the moneys due from the insurance company was discussed. After the argument was concluded, the court .took the matter under advisement, and, apparently without filing any opinion, denied the motion to vacate the judgment which had been theretofore entered.
As the court was without jurisdiction to enter this judgment, we are of the opinion that the appellant is not, under the circumstances, precluded from attacking its validity.
The judgment entered is reversed and set aside, with co.sts to appellant, and the cause remanded, with direction to the trial court to enter a judgment in favor of the garnishee defendant.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Fbad, J.
Plaintiff had judgment, on trial before the court, for the price of an accounting machine purchased by defendant for computing costs, after plaintiff’s agent had investigated defendant’s needs and had made a written proposal regarding the advantages of the machine. The original contract to purchase permitted the defendant to return the machine within three months after delivery “if it fails to do the work to our satisfaction as outlined in your proposal.” About three months after delivery, defendant offered return, expressing dissatisfaction but not stating in what respect. There is dispute as to the effect of a subsequent contract, replacing the original order and executed upon a slight change being made in the machine, and as to the timeliness of rejection, but it will be assumed that defendant’s contentions in these respects are well founded.
Defendant’s principal claim is that it was orally represented that the machine would compute costs more speedily than the existing system, and failure to do so was the cause of the dissatisfaction. It is conceded that, to reject the machine, defendant must have acted in good faith and been honestly dissatisfied. Morehead Manfg. Co. v. Alaska Refrigerator Co., 203 Mich. 543.
Under defendant’s former system, costs were computed by an office man, from reports received from field men. Tbe same system followed introduction of the machine. The office man made his computations of the costs and they were copied on the machine. It is inconceivable that plaintiff represented that the machine would copy reports and produce results before the computations were made which had to be made before the machine could begin to work, or that defendant honestly and in good faith rejected the machine because it did not do what, in the nature of things, is impossible under defendant’s method of use.
The circuit judge said:
, “ There are other reasons which I might mention, but I will not do so, which lead.me to the conclusion that there was some other reason rather than the inefficiency of the machine, which leads the defendant to avoid payment therefor.”
Among the reasons for attempted return of the machine were the facts that defendant was abandoning its Grand Rapids office and found it was not practical to move the machine from job to job and did not want to keep and pay for it.
The testimony supports the finding of the court, and judgment is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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Potter, J.
Plaintiff bought of defendants for $62,500—
“the following goods and chattels, to-wit, 15 motor busses, identified as numbers 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, 19 and the Acme bus and the A. C. P. chassis, together with the titles thereto and insurance policies thereon, which motor busses have been used by said party of the first part in operating their motor bus line in the city of Bay City, together with such lines, licenses and permits, and also all parts, accessories, tires, batteries and all other pieces of material belonging to said parties of the first part and used by them in the repairing and operation of said busses.”
The bill óf sale by which the property was transferred from defendants to plaintiff provided:
“Said parties of the first part do further covenant and agree to and with said party of the second part, its successors or assigns that said busses are in the same condition that they were on the 15th day of April, 1930, and are in fair running condition. * * * to and with said party of the second part, its successors or assigns, that said parties of the first part will not, for a period of 10 years from the date hereof, directly or indirectly compete in the city of Bay City with the business sold hereunder, or in any relation or capacity whatsoever become engaged in any business which now does or may hereafter compete in the city of Bay City with the business sold hereunder.”
Plaintiff sued defendants, filing a declaration in which it claimed damages for the failure to deliver certain tires and tubes of the value, of $390.60, and breach of warranty of the motor busses sold by defendants to plaintiff, because they were not in the same condition as on April 15, 1930, and were not delivered in fair running condition. Plaintiff claimed to be entitled to recover tbe difference between the value which the busses would have had in the condition warranted and their value as delivered.
Defendants filed a plea of the general issue. There was judgment for plaintiff. Defendants appeal, claiming the questions that should have been tried were first, was there a breach of warranty? And second, there- being such breach, what was the damage to the plaintiff?
There are many assignments of error. There was testimony tending to show the steering wheel was loose on one of the busses at the time of- its delivery ; a short time after the busses were delivered by defendants to plaintiff, the wheel came off from another; the wheels of another bus shimmied; the brakes of another bus were in a bad condition; the springs of others were broken, and another hacl the windows broken. The busses, as soon as transferred by defendants to plaintiff, were run in, inspected, the defects checked and marked down. There was testimony indicating these defects were called to the attention of one of the defendants and he said he was going to make good eveiything that was not right. We think there was sufficient testimony of the breach of warranty to carry the question to the jury, and it was properly submitted.
The measure of damages alleged in the declaration was a proper one — the difference in value between what plaintiff got and what defendants contracted to deliver to it. Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102 (98 Atl. 361); White Auto Co. v. Dorsey, 119 Md. 251, 258 (86 Atl. 617); Stanley v. Weber Implement & Vehicle Co. (Mo. App.), 190 S. W. 372; Mobile Auto Co. v. Sturges & Co., 107 Miss. 848 (66 South. 205); Miller v. Zander, 85 Misc. Rep. 499 (147 N. Y. Supp. 479), affirmed 166 App. Div. 969 (151 N. Y. Supp. 1130); W. D. Sessum Motor Co. v. White (Tex. Civ. App.), 261 S. W. 405; Stringfellow v. Botterill Auto Co., 63 Utah, 56 (221 Pac. 861, 34 A. L. R. 533).
Subdivisions (6) and (7) of 2 Comp. Laws 1929, § 9508, provide:
‘ ‘ The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
“In the case of breach of warranty of quality, such loss, in absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. ’ ’
It is not the measure of damages which the defendants object to so much as the manner in which plaintiff sought to prove such damages. In Leder v. National Union Fire Ins. Co., 175 Mich. 470, suit was brought upon a policy of insurance issued on a gasoline launch and boathouse. The value of the boat was in question. It is said:
“It does not appear that second-hand boats of the size, style, and equipment of the particular boat had a market value in the community, and does appear that second-hand gasoline boats were sold, perhaps frequently, there. In such cases the value of particular personal property at the particular time being in dispute, and being a fact to be found by the jury, such pertinent facts as are usually inquired about and taken into consideration by the ordinary buyer and seller of similar property may be shown. They are not conclusive, but are intended to aid the jury. The original cost, if purchased in good faith, the present cost of duplication, the age and the use to which it has been put, the condition of the property at the time at which the value is to be fixed, may be inquired about.”
Objection was made to the testimony of the cost of making repairs upon the busses to put them in the condition warranted. To ascertain the difference in value between the busses as contracted for and. the busses as delivered, it was necessary to ascertain their condition and value at each time. Value is a matter of opinion, of sound judgment and discretion, based upon all the elements of value. These busses were second-hand busses. There was no readily ascertainable market value for them. Under such circumstances it has been held the cost of making repairs may be considered as bearing upon the cost of restoring the busses to the condition they were contracted to be in, and as bearing upon the measure of damages. McGowan v. American Pressed Tan Bark Co., 121 U. S. 575 (7 Sup. Ct. 1315); Dwyer v. Redmond, 100 Conn. 393 (124 Atl. 7); Stanley v. Weber Implement & Vehicle Co., supra.
In the latter case it is said:
“If the car was not in first-class shape for such a car, the cost of making such repairs as were necessary to put it in such shape would be material in determining the difference in value of the car as it was and what it would have been had it been in first-class shape.”
There was no error in receiving this testimony.
Defendants contend the plaintiff accepted the property sold by defendants when delivered and thereby waived any right of action for breach of warranty. The question of acceptance is, we as sume, governed by the uniform sales act which provides :
* ‘ The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after a lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.” 2 Comp. Laws 1929, § 9487.
“In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But if after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.” 2 Comp. Laws 1929, § 9488.
It is claimed by defendants that after the delivery of the property to the plaintiff, plaintiff accepted, used, and operated it without giving the proper notice to defendants, and defendants further contend there was no evidence of breach of warranty.
There was testimony the busses did not, when delivered, comply with the warranty, and that plaintiff gave notice to defendants of the breach. We think there was sufficient testimony, under the rule of Mutual Electric & Machine Co. v. Turner Engineering Co., 230 Mich. 63, to carry this question to the jury, and that it was properly submitted. The other assignments of error are without merit.
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
A township road, known as the Old Plank road, existed for many years in Berlin township, Monroe county. Later it became a county road and was called the Telegraph road, and still later was taken over by the State highway department. While under county jurisdiction the part of the road between the lands of plaintiffs Hoffman and defendants Diekman was relocated, and, by condemnation of land for. such purpose, made to curve from its old line through the property of defendants, leaving a small triangle of defendants ’ land between the curve line and the line of the old road. The change of location was in 1922, and since that time all travel has followed the new road, and no attention has been given the old road by the public authorities. In 1924 defendants asserted title, freed from easement, to the center of the old road, abutting their property, under claim of abandonment of the easement for highway purposes and consequent reversion, and constructed a gasoline filling station with accessories thereon fronting the new road. Plaintiffs Hoffman filed the bill herein, asserting that the gasoline station, together with its accessories, was an encroachment on the old highway and a nuisance, and asked for abatement thereof. The State highway commissioner was permitted to intervene and set up the claim .that the old road had not been abandoned, and also asked for removal of the encroachment thereon.
In the circuit court abandonment of the old road was adjudged, and reversion of title to the center thereof declared to be in defendants. Gasoline pumps, however, found to be within the new right of way, were ordered removed, and the gasoline station declared not to be a nuisance.
In 1922 the road commissioners for Monroe county, in a petition to the circuit court, stated “that they desire to change the location of the Old Plank road * * * that they have declared such change in the location of the Old Plank road to be necessary for the welfare and convenience of the public,” and asked for the appointment of commissioners “to determine the public necessity of such proposed change of location of the Old Plank road,” and for taking land of defendants Diekman for such purpose. Commissioners were appointed and determined “that the change in the location of the said Old Plank road to the location above described is necessary and conducive to the public welfare and convenience.” This was confirmed by the court, and the location of the road changed by opening the new way, paving thereof, and abandonment in fact of the old way. Necessity of the change in location was determined, right to the new way was legally acquired, the new way was intended to, and has, in fact, supersede^ use of the old way, all necessity of the old way ceased, and there was abandonment thereof in fact and law.
Change of location having been consummated, and all travel diverted, the substitution of the new way for the old way operated as an abandonment of the old way.
It is true that mere nonuser does not necessarily operate as an abandonment. When it appears, however, as here, that public necessity demanded the change in location, and such change was made by public authority, and use of the old way discontinued in fact, and the new way utilized by the public to the exclusion of the old way, abandonment is established.
“The public may lose its right to a highway either by its being vacated as provided by statute, or by abandonment.” Brockhausen v. Bochland, 137 Ill. 547 (27 N. E. 458).
The question here presented was well considered in Lanesville Highway Com’rs v. Kinahan, 240 Ill. 593, 601 (88 N. E. 1044):
“The ground in dispute was originally a public highway and it continued to be such, and the public right was not lost unless it was abandoned. The burden was upon the defendants to prove an abandonment by clear and satisfactory evidence, and to do that it was necessary to prove an actual nonuser under circumstances clearly indicating an intention to surrender and abandon the public right. (Cox v. Commissioners of Highways, 194 Ill. 355 [62 N. E. 791].) The defendants asserted that a new highway had been lawfully acquired answering the same purposes as the original one, and that the public and the public officials had accepted the new road and completely abandoned the old one. If the public has ceased to travel a road and acquired another which accommodates the public travel, an abandonment of the first road may fairly be presumed. The public authorities having charge of the highways are invested with the right to decide between the relative advantages of the two roads, and if they believe the one substituted for the other is preferable and adopt and improve the substituted road as the public highway, their decision is sufficient. (Grube v. Nichols, 36 Ill. 92.) Where a highway has ceased to be used and another is acquired in its place with the consent and approval of the public authorities, and the use of the original highway has ceased for a sufficient length of time to clearly indicate an acceptance by the public of the new highway, the old one will be regarded as abandoned. (Galbraith v. Littiech, 73 Ill. 209; Champlain v. Morgan, 20 Ill. 181; Town of Lewiston v. Proctor, 27 Ill. 414; City of Peoria v. Johnston, 56 Ill. 45; Elliott on Roads and Streets [2d Ed.], § 873.)”
Upon this subject authority might be multiplied. The record clearly discloses an intention on the part of the highway authorities in establishing the new way to abandon the old one.
We hold that the change of location of the road, having been consummated, operated as a substitution of the new for the old way and an abandonment of the old way, and the land in the old way, to the center thereof, reverted to defendants freed from all easement for highway purposes.
The decree in the circuit is affirmed, with costs to defendants.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Fead, J.
July 1, 1930, plaintiff was appointed to the position of supervisor of purchases of the department of street railways of the city of Detroit, a position created for him. October 1st the position was abolished, plaintiff and other employees were discharged, and the work distributed among those remaining' in the division. The action was in the interest of economy, and resulted in a saving to the city. The record shows no bad faith or subterfuge in abolishing the position.
Plaintiff made no demand for reinstatement or hearing before the mayor, but brought mandamus to compel his reinstatement in service on the ground that, as he is an honorably discharged veteran of the World War, he could not be removed without a hearing before the mayor and upon written order of the mayor, under 1 Comp. Laws 1929, § 901. The court granted the writ.
The case may be disposed of upon the ground that the discretionary writ of mandamus will not issue to compel action by public officers without prior demand for such action. Butler v. Saginaw Supervisors, 26 Mich. 22; Hitchcock v. Wayne Circuit Judge, 97 Mich. 614; 38 C. J. p. 714. However, decision need not rest on that ground alone.
The statute does not circumscribe the right of proper municipal officers to abolish positions or employments and thereby remove veterans “in the absence of bad faith or subterfuge intended to defeat the statutory preference.” Swantush v. City of Detroit, 257 Mich. 389; Smith v. City Commission, 258 Mich. 698.
It is contended, however, that determination of the question of good faith in abolishing the position was exclusively for the mayor. It may be conceded that, in passing upon whether a removal is for cause, the mayor may inquire into the good faith of the discharge. But if the position is legally abolished, the statute does not apply, and the employee has no right to a hearing, nor the mayor power to grant one. Whether the statute applies to a situation necessarily must be a judicial question.
In submitting his case to the court, plaintiff assumed the burden of showing a clear legal right to reinstatement. It was incumbent on him to show that his removal was illegal because the abolition of his position was a colorable subterfuge for his discharge and was not done in good faith.
The writ will be set aside, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, J.
The plaintiff, Barzillai A. Scott, began separate suits for an accounting against the Union Guardian Trust Company and the Security Trust Company of Detroit. The causes were consolidated in the circuit court and are here heard together on appeal. They will be disposed of in one opinion.
Barzillai A. Scott and Benjamin Braver owned vacant property in the city of Detroit on which they desired to erect the Strathmore apartments. To obtain money for that purpose they executed a trust mortgage to the Union Guardian Trust Company, as trustee, to secure a bond issue of $475,000. At the same time they entered into an agreement with the trustee and Brasie, Hull & Company, bankers, for the sale of the bonds and the retention by the trustee in escrow of the proceeds to insure the payment of work and materials in the construction of the building. It was provided in this agreement that the proceeds should be paid to the mortgagors during the progress of construction only on the receipt of the architect’s certificate showing the amount due contractors for labor and materials, and that the balance on hand was sufficient to complete the building; also sworn statements by the contractors in compliance with the lien law and an agreement by them to release liens upon the payment of the balance on their contracts. It was also provided that if the proceeds from the sale of bonds should become insufficient to complete the building, the mortgagors should furnish other funds for that purpose; and that any unused balance should be paid to them.
While this work was in progress, Scott and Braver decided to erect a similar building on an adjoining lot to be known as the Monmoor Hotel. For that purpose they executed a trust mortgage to the Security Trust Company of Detroit to secure a bond issue of $289,000. An agreement substantially like that made in the preceding transaction with the Union Guardian Trust Company for the sale of the bonds and the application of the proceeds was made with the Security Trust Company and Brasie, Hull & Company.
It is the claim of Mr. Scott in both cases that the trust companies, disregarding the condition of the agreement relative to the payment of the proceeds from the sale of the bonds, wrongfully paid to Braver many thousands of dollars which he did not apply in payment of the costs of construction but which he appropriated to his own use; that as a re- suit liens totaling $263,359.86 were filed against the property, and there was not sufficient money remaining in the hands of the trustees to complete the buildings. Faced with these conditions, the mortgagors were compelled to refinance their building operations. This was done by forming a new corporation known as the Strathmore Hotel Company and issuing subordinate bonds to the contractors and other creditors. To this corporation they conveyed the fee title to the property and assigned to it balances on hand in the two trust companies totaling $132,000. The corporation completed the buildings.
Mr. Scott was the principal stockholder in the Scott Tie Company. He borrowed heavily from the company, and, subsequently, to secure this indebtedness, assigned and transferred to it all of his assets, including his claims in these suits against the defendants. The transfer was made after the commencement of the suits, and on application the court permitted the Scott Tie Company to be substituted as the party plaintiff.
The issue in the cases under consideration involves the claim asserted by Mr. Scott that he is entitled to an accounting by the defendant trust companies for the money wrongfully paid by them to Braver which did not go into the construction cost of the buildings. The trial court held that individually Mr. Scott had no interest in that money, and accordingly entered a decree dismissing his bill. The plaintiff has appealed.
The plaintiff makes no claim to the balance of the trust receipts in the hands of the trustees at the time Scott and Braver deeded the property to the Strathmore Hotel Company. The sole claim as stated in its brief is:
“That the companies were guilty of a breach of trust, rendering them liable to Scott to the extent that the funds paid to Braver were appropriated by him and did not go into the building.”
The difficulty confronting Mr. Scott in seeking to establish his right to the money paid to Braver is the conveyance of all of his interest in the property to the Strathmore Hotel Company before the buildings were completed. The money never belonged to Scott and Braver, but they were under obligation to construct the buildings and had the right to use it for that purpose. This right passed with the conveyance and the assumption by the Strathmore Hotel Company of the obligation to complete the buildings. The money was furnished by the bondholders and it belonged to them until it went into the construction. The bonds were sold under an agreement that the proceeds were to be held by the trustees and paid out as the work progressed. "When the Strathmore Hotel Company took over the incompleted building operations-, it became entitled to all of the unexpended proceeds from the sale of the bonds to be paid out according to the agreement which Scott and Braver had with the trustees. Scott and Braver had nothing more to do with the project. If the defendant trustees wrongfully paid Braver thousands of dollars which did not go into the construction and Scott had put in money to make good the deficit, a different situation would be presented. But he did not do that. Instead, he disconnected himself with the enterprise by conveying all of his interest to the Strathmore Hotel Company. If any one is entitled to an accounting it is that' company.
The trial court correctly decided that as Scott had no interest he could not maintain the action.
The decree in both cases is affirmed, with costs.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
This is an appeal from an order of the circuit judge dismissing plaintiff’s petition that defendant be punished for contempt. Plaintiff and defendant owned farms separated by a north and south highway; defendant’s land being the easterly parcel. The original decree restrained each of -the parties from obstructing or altering the natural flow of surface water. At intervals there was an accumulation of water on the easterly portion of defendant’s land. The primary outlet for this water was in a northerly direction; but defendant claims in times of high water it also drained in a westerly direction onto plaintiff’s land. Without defendant’s knowledge, plaintiff, trespassing upon defendant’s land, altered the surface condition so as to interfere with the flow of water to the west and diverting it to the north, where it went upon other lands of defendant. In apparent retaliation defendant reversed the physical conditions by filling up the ditch to the north and preventing the flow in that direction and opening a ditch to the west so that the water would flow in a westerly direction and upon plaintiff’s land. The suit for injunction followed. At the hearing no proofs were taken, but the parties and their respective attorneys came to an agreement in consequence of which the circuit judge entered the decree above mentioned. In addition to the provisions noted the decree also provided:
“That the said defendant, Harold Rice, be and he is hereby enjoined that he shall at once remove the said embankment or ditch to the north of said depression or marsh which was obstructed by him as aforesaid and reopen said watercourse so as to permit the free flowing of water from said marsh or depression toward the north, and that he shall fill up said ditch dug by him to the west end toward the land of said plaintiff so that it shall conform to the level of the land immediately adjacent to it. ’ ’
In the contempt hearing defendant admitted on cross-examination that he had not performed any of the acts commanded by the above-quoted portion of the decree; but in explanation of this there was testimony tending to show that prior to the date of the decree the natural flowage conditions had been restored.. After taking the testimony of the respective parties somewhat at length the circuit judge made the following finding:
“The testimony shows the defendant has done nothing to increase the flow of the water to the west and onto plaintiff’s land, and that at no time has there been any greater quantity of water flowing to the west and onto plaintiff’s land than that going in its natural drainage course and the way it has been going for at least 15 years.
‘ ‘ The evidence shows that the course of the water has not been increased either in the northerly direction or the westerly direction over its natural course for many years.
“The claim of the plaintiff that defendant violated the terms of said decree has not been sustained, as there is no evidence of any violation of said decree by defendant, and the prayer of plaintiff’s petition is denied, with costs to defendant, and a motion fee of $10.”
In 6 R. C. L. p. 490, it is said:
“Civil and Criminal Contempts Distinguished.— Proceedings for contempts are of two classes — those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made for enforcing the rights and administering the remedies to which the court has found them to be entitled.” Citing numerous cases.
Without passing upon the question as to whether the denial of the relief sought by a petitioner in a contempt proceeding is reviewable (see People, ex rel. Dean, v. Railroad Co., 137 Mich. 673), the instant case may be disposed of on the ground that a careful consideration of the contents of the record discloses no reason for disturbing the finding of the trial judge. The only fair and reasonable construction to be placed upon the original decree is that it was adjxxdicated that neither party should disturb the natural flow of the water. We are not prepared to say that in this contempt proceeding the judge’s finding that there had been no violation of the decree in this regard is not sustained by the proof.
The order denying the petition for contempt is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Hood, P.J.
Defendants appeal by leave granted in these consolidated no-fault insurance cases. Defendants F. J. Boutell Driveaway Co. and Old Republic Insurance Company appeal from a May 31, 1983, order denying their motion for summary judgment. ANR Freight Systems and Associated Truck Lines (ATL) appeal from a June 1, 1983, order granting plaintiff Carl Jones’ motion for reconsideration.
The question presented in these cases is the interpretation of an amendment to the parked vehicle provision in the no-fault act, MCL 500.3106; MSA 24.13106. The amended provision states (the pertinent amendatory language is emphasized):
"(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) Except as provided in subsection (2), the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being. lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) Except as provided in subsection (2) for an injury sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle, the injury was sustained by a person while occupying, entering into, or alighting from the vehicle._
"(2) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if beneñts under the worker's disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Complied Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. ”
Defendants argue that the terms loading and unloading in subsection (2) should be interpreted broadly to include activity that is preparatory to the actual lifting or lowering of goods. Plaintiffs argue that the terms loading and unloading in subsection (2) should be interpreted narrowly to exclude activity preparatory to the actual lifting or lowering of goods.
We conclude that the terms loading and unloading in subsection (2) should be interpreted to encompass the activities at issue in these cases: activity that was preparatory to the actual lifting or lowering of goods.
I
Plaintiff Bell hauled and delivered new cars as a truckdriver-employee of F. J. Boutell. Old Republic insured Boutell for Michigan no-fault benefits.
On June 23, 1982, Bell drove a load of cars to a car dealership. He began to lower a portion of his tractor-trailer in preparation for unloading the cars he was delivering. Bell removed chains securing a car to the trailer and was walking on the trailer to another location to remove the chains on the other axle of the car when he slipped and fell on hydraulic fluid leaking from the trailer.
Bell was injured from his fall and received workers’ compensation benefits for the period of time he was disabled from the injury. On October 6, 1982, Bell requested no-fault benefits. Old Republic denied him those benefits, stating that subsection 3106(2) precluded them. Old Republic asserted that Bell was injured while performing activities for which he received Michigan workers’ compensation benefits within the meaning of that section.
Bell filed his action for no-fault benefits on March 16, 1983. Defendants moved for summary judgment, again relying on subsection 3106(2). The trial court denied the motion because it found that a material question of fact remained regarding whether Bell was unloading within the meaning of subsection (2) when he suffered his injury.
Plaintiff Jones worked as a truckdriver for ANR Freight and ATL. On March 2, 1982, he drove a truck to a location in Ohio to make a delivery. Jones injured himself when he pushed or pulled some freight from the middle of the tractor-trailer to the rear in order to position it for a dockworker to lower the freight with a fork-lift. Jones, a resident of Ohio, received Ohio workers’ compensation benefits while he was disabled from the injury. ATL, the owner of the tractor-trailer, was a self-insurer providing Michign no-fault coverage.
After ATL’s no-fault insurer denied benefits to Jones, he filed this action for Michigan no-fault benefits. ATL answered that Jones was not entitled to those benefits because subsection 3106(2) prohibited them. On December 14, 1982, ATL moved for an order to compel Jones to file a claim for Michigan workers’ compensation benefits so that the Michigan Workers’ Compensation Bureau could determine whether Jones’ claim was compensable in Michigan. The trial court granted the motion and entered an order on April 4, 1983, requiring Jones to file a Michigan workers’ compensation claim. On April 28, 1983, Jones moved for reconsideration, arguing that, whether or not he could receive Michigan workers’ compensation benefits, he was entitled to no-fault benefits because he was not "unloading” within the meaning of subsection 3106(2) when he was injured. The trial court agreed.
II
Prior to January 1, 1982, § 3106 stated, in pertinent part:
"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(b) The injury was a direct result of physical contact with * * * property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.”
Had the above statute been in effect at the time of plaintiffs’ injuries they would have been entitled to no-fault benefits pursuant to subsection (c). Plaintiffs attempted to avoid what appears to be the consequences of the new subsection (2), see Bauman v Auto-Owners Ins Co, 133 Mich App 101, 103, fn 1; 348 NW2d 49 (1984), by asking this Court to interpret "loading” or "unloading” in that subsection to mean that part of the unloading process during which claimants are in physical contact with property being lifted onto or lowered from the insured vehicle. We decline to so limit the terms "loading” and "unloading” in subsection 3106(2).
In Dembinski v Aetna Casualty & Surety Co, 76 Mich App 181; 256 NW2d 69 (1977), this Court recognized that the terms "loading” and "unloading” in motor vehicle insurance contracts have been broadly construed to encompass the period during which an object was removed from its place of rest and was carried to and placed in a vehicle. Id., p 183, citing Allstate Ins Co v Valdez, 190 F Supp 893 (ED Mich, 1961). However, the contract language at issue in Dembinski was similar to that found in subsection 3106(l)(b) of the no-fault act. Dembinski found that language to limit loading and unloading to actual physical contact with property. In cases interpreting former subsection 3106(l)(b), panels of this Court have relied upon Dembinski for interpretation of that statutory proviso. See Block v Citizens Ins Co of America, 111 Mich App 106, 109; 314 NW2d 536 (1981), and Royston v State Farm Mutual Automobile Ins Co, 130 Mich App 602; 344 NW2d 14 (1983), lv den 419 Mich 867 (1984). Because Dembinski, Block, and Royston address language that is found in subsection 3106(l)(b), "property being lifted onto or lowered in the loading or unloading process”, those cases do not address interpretation of the general terms "loading” and "unloading” unembellished by the limiting language found in subsection (l)(b). Therefore, despite plaintiffs argument contrariwise, those cases are not dispositive.
Nevertheless, as the Court in Dembinski recognized, the general terms "loading” and "unloading” as they appear in insurance contracts have been interpreted by federal courts as meaning the complete operation of loading or unloading, or the entire process of loading and unloading. This broad interpretation encompasses activities pre paratory to the actual loading or unloading or delivery. See Valdez, supra; Selective Ins Co v Hartford Accident & Indemnity Co, 213 F Supp 3 (ED Mich, 1963); St Paul Mercury Ins Co v Huitt, 215 F Supp 709 (WD Mich, 1963), aff'd 336 F2d 37 (CA 6, 1964), and Ford Motor Co v Ins Co of North America, 494 F Supp 846 (ED Mich, 1980). Although the reasoning for interpreting the terms "loading” or "unloading” in an insurance contract does not apply to the interpretation of those terms in subsection 3106(c), we nonetheless adopt the same broad meaning of the terms "loading” and "unloading” in subsection 3106(2). Those terms encompass activities preparatory to the actual lifting onto or lowering of property. The terms include the complete operation of loading and unloading.
We decide to interpret the terms "loading” and "unloading” in subsection 3106(2) broadly because we find that the Legislature intended that interpretation. The fundamental goal of interpreting statutory language is to identify and give effect to legislative intent. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977). The first step in ascertaining that intent is to review the language in the statute itself. Spears v City of Hazel Park, 131 Mich App 457, 461; 346 NW2d 340 (1984).
Section 3106, in subsection (l)(b), limits in express terms the meaning of "loading” and "unloading”. Subsection (2) does not have such limiting language. Obviously, the Legislature did not intend the terms "loading” and "unloading” in subsection (2) to have the same meaning. Had it so intended, the Legislature could have written subsection (2) with similar limiting language.
We are futher convinced that a broad interpretation of "loading” and "unloading” is appropriate after a review of the legislative purpose and history of the amendment adding subsection (2), 1981 PA 209. See People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974); Kizer v Livingston County Bd of Comm’rs, 38 Mich App 239, 247; 195 NW2d 884 (1972). ■ The House Legislative Analysis Section’s report on the proposed amendment states that the trucking industry lobbied for this amendment because it claimed its insurance rates were climbing due to the commonplace incidents of disabling injuries occurring during the loading, unloading, and • mechanical servicing of its vehicles. Under former § 3106, its injured employees collected both workers’ compensation and no-fault benefits. In support of the amendment, the Legislative Analysis Section asserted that injured truck-line industry workers who happened to be loading or unloading freight away from a vehicle could only collect workers’ compensation, while similar employees suffering the same type of disabling injury while actually loading or unloading a vehicle could get double recovery. Thus, the former § 3106 unfairly provided an extra source of recovery for a work-related injury to a select few truck-industry workers. Moreover, "workers’ compensation insurance was intended as the sole and exclusive remedy for employees hurt on the job, and that when those benfits are available no-fault insurance coverage ought not to apply”. Analysis of House Bill 4524 (February 5, 1982).
We conclude that the Legislature intended to eliminate duplication of benefits for work-related injuries except where the actual driving or operation of a motor vehicle is involved. Therefore, we find it appropriate to broadly interpret the terms "loading” and "unloading” in subsection (2) because by doing so the statute further eliminates duplication of benefits for work-related injuries that do not relate to the actual driving or operation of a motor vehicle.
In these cases, the parties do not disagree on the facts. They only disagree as to whether plaintiffs’ activities constituted "unloading” within the meaning of subsection 3106(2). There is no dispute that plaintiffs’ activities were preparatory to the actual unloading or delivery of property. Therefore, we find that there is no material question of fact that such activity was "unloading” within the meaning of subsection 3106(2). Thus, the trial court erred by denying defendants’ motions for summary judgment on these grounds.
III
Both plaintiffs raise constitutional arguments against subsection 3106(2) for the first time on appeal. We decline to address these questions because the plaintiffs failed to seek lower court review of them, May v Leneair, 99 Mich App 209, 216; 297 NW2d 882 (1980), and failed to file cross-appeals. GCR 1963, 807.1. We note that this Court recently rejected similar arguments in Babbit v Employers Ins of Wausau, 136 Mich App 198; 355 NW2d 635 (1984).
IV
Plaintiff Jones argues in his brief on appeal that, should this Court decide he was unloading within the meaning of subsection 3106(2) or reverse the trial court’s grant of reconsideration, this Court should decide that the circuit court on remand has the jurisdiction to determine whether he was eligible for compensation benefits. This issue is not properly before us on cross-appeal, even though the trail court arguably certified the question. GCR 1963, 807.1. However, we address the issue in the interest of judicial economy.
MCL 418.841; MSA 17.237(841) provides in part:
"Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau.”
In Herman v Theis, 10 Mich App 684, 690; 160 NW2d 365 (1968), lv den 381 Mich 772 (1968), this Court stated:
"Jurisdiction for the determination of those issues concerning exclusiveness and conditions of liability initially must lie with the compensation department.”
Pursuant to the above provisions, it appears defendant ATL correctly argued below that plaintiff must be compelled to file with Michigan’s Bureau of Workers’ Compensation. However, we disagree that the circuit court did not have jurisdiction to decide whether Jones was eligible for no-fault benefits pursuant to subsection 3106(2) without first filing a claim with the Workers’ Disability Compensation Bureau. In Wolf v Ethyl Corp, 124 Mich App 368, 369-370; 335 NW2d 42 (1983), this Court said:
"MCL 418.845; MSA 17.237(845), provides:
" 'The bureau shall have jurisdiction over all controversies arising out of injuries suffered outside this state where the injured employee is a resident of this state at the time of injury and the contract of hire was made in this state. Such employee or his dependents shall be entitled to the compensation and other benefits provided by this act.’
"This section plainly says that in order for the Bureau of Workers’ Disability Compensation to acquire jurisdiction over an out-of-state injury, the injured employee must both be a resident of Michigan at the time of the injury and have concluded a contract for hire in Michigan.
"The statute is clear and unambiguous.” (Emphasis in original.)
ATL does not dispute that Jones’ accident occurred in Ohio or that Jones was, in fact, a resident of Ohio at the time of the accident. Therefore, from the clear and unambiguous language of § 845 of the Worker’s Disability Compensation Act, the bureau does not have jurisdiction over this out-of-state work-related injury. Therefore, the trial court erred by previously granting ATL’s motion for an order compelling Jones to file a petition for Michigan workers’ compensation benefits. The trial court has jurisdiction to decide whether Jones is entitled to no-fault benefits pursuant to § 3106.
Conclusion
The terms "loading” and "unloading” found in subsection 3106(2) of the no-fault act, MCL 500.3106(2); MSA 24.13106(2), encompass acts greater than the actual lifting onto or lowering of property. Those terms also encompass activities that are preparatory to the actual lifting onto or lowering of property. Because there is no factual dispute that the plaintiffs’ activities at issue in these cases was preparatory to the lowering of property, they were "unloading” within the meaning of subsection 3106(2). Therefore, the trial court in Bell erred by failing to grant defendant Boutell’s motion for summary judgment and the trial court in Jones erred by granting plaintiffs motion for reconsideration.
We decline to address plaintiffs’ constitutional issue because it was not preserved for appeal in either case.
The Workers’ Disability Compensation Bureau does not have jurisdiction over Jones’ work-related disablement claim because it is undisputed that Jones’ accident occurred in Ohio and that he was not a resident of Michigan at the time of his accident. Therefore, the trial court in Jones has the jurisdiction to decide whether Jones is eligible for no-fault benefits pursuant to § 3106 of the no-fault act.
Reversed and remanded. | [
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Per Curiam.
Petitioner, Master Craft Engineering, Inc., appeals as of right from the final order of the Michigan Tax Tribunal, dated December 15, 1983, which affirmed the Department of Treasury’s use tax assessment for the period from January 1, 1975, to September 30, 1977, in the total amount of $35,325.20 on two airplanes owned by Master Craft. We affirm.
Master Craft is incorporated in Michigan with its corporate headquarters located in Belleville, Michigan. Master Craft primarily manufactures automobile stampings. Master Craft Industrial (apparently a subsidiary) is incorporated in Delaware, has its main plant in Tifton, Georgia, and manufactures lift trucks. In 1975, Master Craft purchased a Mitsubishi "MU-2” airplane in New Jersey and hangared it at Willow Run Airport in Ypsilanti. In April, 1977, the MU-2 crashed. The radios and other instruments were salvaged. Thereafter, Master Craft purchased a Cessna 412C. This plane was bought in Illinois, registered in Alabama, and, immediately after its purchase, flown to Michigan where petitioner took delivery of it. The plane contained little instrumentation. It was first flown to Detroit, and later to Tri-City Airport in Freeland, Michigan. The plane was taken to Freeland in order to have an experienced mechanic install the salvaged MU-2 equipment in the Cessna. From June 30, 1977, to December, 1977, repairs were made at Tri-City Airport, Wil low Run Airport, and the Cessna dealership located in Illinois. After the repairs were completed —and it is unclear whether the last repairs were made in Illinois — the plane was hangared in Georgia. Master Craft paid no out-of-state sales or use taxes on either of these planes prior to the Michigan assessment.
In 1977, the Department of Treasury’s Revenue Division conducted an audit to determine Master Craft’s potential tax liability. Although unclear, it appears that this audit included a use tax analysis for the two planes, under MCL 205.91 et seq.; MSA 7.555(1) et seq. The audit resulted in an order of determination of assessment dated July 26, 1979, in the amount of $28,706.16 plus interest of $6,619.04 for a total of $35,325.20. Master Craft argues that the department conducted an impermissible second audit, while the department counters that the audit was of a continuing nature.
In response to the assessment, Master Craft filed a petition for redetermination on August 24, 1979, with the State Board of Tax Appeals. Master Craft also filed a "protective appeal” with the tribunal, since the board’s continuing authority to decide these cases was questionable in light of the creation of the tribunal and the transfers of jurisdiction wrought thereby. See Queen Airmotive, Inc v Dep’t of Treasury, 105 Mich App 231; 306 NW2d 461 (1981). A hearing was held before the board on July 17, 1980. Master Craft’s president, John W. Haswell, testified regarding the company’s use of both planes during the tax period.
On February 11, 1981, the tribunal informed Master Craft’s counsel that it was dismissing the protective appeal because the parties had submitted the matter to the board. Pursuant to the tribunal’s interpretation of 1980 PA 162, the letter also noted that the matter would be transferred to the tribunal if the board did not reach a decision by December 31, 1981. The board failed to reach a decision by that date, and on November 17, 1982, when a decision was still not forthcoming, the tribunal informed Master Craft that the matter had been transferred to the tribunal. On July 28, 1983, a 14-page proposed judgment affirming the assessment was issued. On August 30, 1983, the tribunal adopted and incorporated by reference the findings of fact and conclusions of law contained in the proposed judgment. After granting Master Craft’s motion for rehearing, the tribunal issued a final order dated December 15, 1983, which affirmed the assessment. This appeal ensued.
Master Craft first argues that the tribunal’s initial dismissal of the protective appeal was conclusive. It reasons that only the board was empowered to decide the petition for redetermination and that, since the transfer contradicts 1980 PA 162 and 1981 PA 138, the tribunal’s decision is void. Master Craft maintains that the transfer was void because the Legislature intended to transfer only those cases to the tribunal which had not been heard, there being no provision for transferring those cases which had been heard but not yet decided. Petitioner also concludes that it was denied an original and independent hearing because the tribunal decided the case based on the transcript from the board hearing and that, since the board failed to make a decision within a. reasonable period under MCL 24.285; MSA 3.560(185), it violated its statutory duty to proceed in a timely manner.
1981 PA 138, § 4, provides as follows:
"(1) This amendatory act shall take effect September 16, 1980. All new appeals from an assessment, decision or order of the department shall be made to the tax tribunal effective September 16, 1980. An appeal to the state board of tax appeals filed prior to September 16, 1980 shall proceed as follows:
"(a) A matter which has not been heard, and submitted to the board for decision, on or before January 1, 1982 shall be transferred to the tax tribunal as of January 1, 1982.
"(b) A matter which has been heard, and submitted to the board for decision, on or before January 1, 1982 shall be completed and a decision issued before September 30, 1982.
"(2) An appeal having been filed in any court of record in this state prior to January 1, 1981 shall proceed in those courts until a decision is rendered. Appeals filed after January 1, 1981 shall be in accordance with this amendatory act.” (Emphasis added.)
The board "heard” the matter on July 17, 1980, but failed to reach any decision by the date it ceased to exist. Master Craft argues that the tribunal lacked the power to decide this case.
As is obvious from 1981 PA 138, the Legislature did not provide for what should happen in the event that the board had "heard” a case but failed to render a decision by September 30, 1982. This Court is therefore faced with a question of legisla tive intent. The tribunal’s final order concluded as follows:
"We find that the only reasonable construction, considering the provisions of the Tax Tribunal Act, 1980 PA 162, and 1981 PA 138 together, is that it was intended by the Legislature that all tax appeals as to taxes enumerated in TTA § 79 would come under the jurisdiction of the Michigan Tax Tribunal upon extinction of the State Board of Tax Appeals. Interestingly, petitioner herein has not argued that this cause belongs within the jurisdiction of another existing court or quasi-judicial body, just that it does not belong before the tribunal.
"We conclude that the tribunal does possess jurisdiction over this appeal.” (Emphasis in original.)
We agree.
Helpful to our analysis in this case is an analysis of HB 4238 (subsequently enacted into 1981 PA 138) prepared by the House Legislative Analysis Section for the Taxation Committee, containing material complete as of June 15, 1981, which states in part:
"The enacting section of the law (Public Act 162 of 1980) also declared that all appeals of actions by the treasury department would have to be made to the tax tribunal with the effective date of the act (September 16, 1980). The act also repealed those sections of the law creating the tax appeals board as of December 31, 1981. Matters not heard before January 1, 1981, were to be transferred to the tribunal on that date. Matters heard before January 1, 1981 were to be 'completed’ and decisions issued before December 31, 1981. Since the passage of the act in 1980, the appeals board has decided 162 cases, and is completing 42 others. However, it will still have around 200 cases pending (after receiving briefs, hearing witnesses, etc.) at the end of 1981, and would therefore not have legal existence to decide [emphasis in original] those cases, which would have to be heard again before the tax tribunal. (Emphasis added.)
This analysis evinces a clear intent by the Legislature to have appeals which had not been decided, but which had been "heard”, come within the jurisdiction of the Tax Tribunal.
Master Craft additionally argues that the tribunal’s initial dismissal of this action was a conclusive determination regarding its lack of jurisdiction. However, the tribunal’s initial dismissal was correct, because the board retained jurisdiction of the case at that time, i.e., until December 31, 1981, pursuant to 1980 PA 162. The board’s inability to clear its docket by the statutorily-mandated deadline will not be allowed to prohibit ultimate disposition of a pending case. The Legislature could not have intended that Master Craft’s case simply disappear. Indeed, the above-noted legislative analysis belies this contention. Moreover, the Legislature provided that all new cases be submitted to the tribunal. The fact that the board failed to render a decision does not change the intended result, nor does it make the tribunal’s earlier declination of jurisdiction conclusive. A contrary conclusion would deny the right of all parties to have a decision rendered on the merits. Accordingly, we hold that the tribunal properly exercised jurisdiction in this case.
Petitioner next argues that it was prejudiced because of the delay in reaching a decision and that it was entitled to a de novo proceeding before the tribunal. Petitioner concludes that the doctrine of laches should be applied to preclude respondent from pursuing this action. We disagree.
An order of assessment and determination was issued on July 26, 1979. Master Craft filed a petition with the board on August 24, 1979. An answer was filed on September 14, 1979, and a hearing was set for March 13, 1980. Thereafter, by agreement of the parties, the hearing was adjourned for the reason that a settlement appeared imminent. A hearing date was set for May 15, 1980. Subsequently, petitioner moved for adjournment because its president was unable to attend the hearing on the above date. The hearing was then noticed and held on July 17, 1980. Previously, on August 27, 1979, Master Craft had filed its "protective appeal” with the tribunal, with such being dismissed on February 19, 1981. Ultimately, an opinion and judgment were entered on August 30, 1983. After a motion for reconsideration was filed, a final order was entered on December 15, 1983.
Although MCL 205.7; MSA 7.657(7) required both that a hearing be held within 60 days of the filing of an answer and that the board render a decision within 20 days of the hearing, we find no reversible error. First, the delay in setting the hearing was attributable to two adjournments, one upon stipulation of the parties and the other upon request of petitioner. Petitioner may not object to the July 17, 1980, date of hearing. Furthermore, while we do not countenance the delay of approximately three years in rendering a decision (from 20 days after the date of hearing until August 30, 1983), petitioner is required to present a showing of prejudice in order to invoke the doctrine of laches. Dep’t of Treasury v Campbell, 107 Mich App 561, 570; 309 NW2d 668 (1981), lv den 413 Mich 935 (1982).
In this connection, petitioner argues it was prejudiced because "decisions are to be rendered by the officer hearing the case * * * so that he may weigh the presentation of evidence and the demeanor of witnesses against the facts presented”. This is insufficient, especially where, as here, there was only one witness presented at the hearing and the facts were not genuinely in dispute. The issues involved herein were legal, not factual. Accordingly, petitioner has not supported its claim of prejudice.
As a corollary, relying on the same assertion of prejudice, Master Craft argues that it was entitled to a de novo proceeding before the tribunal. Again, as noted above, petitioner’s assertion of prejudice is unpersuasive. It did not claim that it wished to present new and additional evidence. The parties also entered into a stipulation of facts before the board. We will not reverse the tribunal’s decision on this ground.
We next turn to petitioner’s substantive argument that, since the Michigan use tax does not apply to instrumentalities of interstate commerce and the Cessna neither came to rest within Michigan nor reached the end of its interstate journey in this state, the state is precluded from imposing a use tax. According to petitioner, that journey was temporarily interrupted so that essential re pairs could be made by the only man capable of making them. Further, petitioner argues that the Cessna was neither used nor stored while at Willow Run Airport, so that no taxable moment occurred within Michigan. Finally, petitioner points to the fact that the Cessna was based in Georgia, with no intrastate flights occurring while it was in Michigan, and the fact that the plane was only brought into this state for purposes of repair.
Master Craft admits that the MU-2 was subject to the use tax if jurisdiction was proper. Having decided that the tribunal properly assumed jurisdiction, we turn to the substantive issue concerning the Cessna.
MCL 205.93; MSA 7.555(3) provides as follows:
"There is levied upon and there shall be collected from every person in this state a specific tax for the privilege of using, storing, or consuming tangible personal property in this state, which tax shall be equal to 4% of the price of the property, or services specified in section 3a, and to the tax there shall be added penalties and interest where applicable as provided in this act. For the purpose of the proper administration of this act and to prevent the evasion of the tax, it shall be presumed that tangible personal property purchased shall be subject to the tax if brought into the state within 90 days of the purchase date and shall be considered as acquired for storage, use, or other consumption in this state.” (Emphasis supplied.)
MCL 205.92; MSA 7.555(2) provides the following definitions:
"(b) 'Use’ means the exercise of any right or power over tangible personal property incident to the ownership of that property including transfer thereof in any transaction where possession is given.
"(c) 'Storage’ means any keeping or retention in this state for any purpose after losing its interstate character.”
The use tax is a complement to the sales tax and is designed to cover those transactions not covered by the sales tax act. Kal-Aero, Inc v Dep’t of Treasury, 123 Mich App 46, 53; 333 NW2d 171 (1983). In reviewing a decision of the Tax Tribunal, this Court’s review is limited to whether the decision was authorized by law and whether there was material, competent, and substantial evidence on the whole record. Const 1963, art 6, § 28. See MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28; 355 NW2d 627 (1984).
Here, petitioner attacks imposition of the use tax on the basis of Article 1, § 8, clause 3 of the United States Constitution, which forbids the burdening by taxation of interstate commerce or its instrumentalities. See Helson v Kentucky, 279 US 245; 49 S Ct 279; 73 L Ed 683 (1929), Michigan Wisconsin Pipe Line Co v Michigan, 58 Mich App 318, 321; 227 NW2d 334 (1975), lv den 394 Mich 822 (1975). Thus, Article 1, § 8(3) serves as our point of departure. In recognition of this prohibition concerning interstate commerce, Michigan provides an exemption from the use tax for property which would otherwise be prohibited from taxation under the United States or Michign Constitutions. MCL 205.94(b); MSA 7.555(4)(b). Accordingly, we must ascertain whether there was an “intrastate, taxable event” in Michigan. See Cover- dale v Arkansas-Louisiana Pipe Line Co, 303 US 604, 612; 58 S Ct 736; 82 L Ed 1043 (1938).
Here, the determination of whether there was such an intrastate, taxable event depends upon whether the Cessna had "come to rest” in this state prior to becoming an instrumentality of interstate commerce. If so, a "taxable moment” occurred and the state’s imposition of the use tax was justified. See generally, Henneford v Silas Mason Co, Inc, 300 US 577; 57 S Ct 524; 81 L Ed 814 (1937); Southern Pacific Co v Gallagher, 306 US 167; 59 S Ct 389; 83 L Ed 586 (1939).
In Coverdale v Arkansas-Louisiana Pipe Line, supra, the United States Supreme Court distinguished the often fine line between interstate commerce and its instrumentalities and operations distinct from such commerce:
"We think [Helson v Kentucky, supra, and other cases] belong to the category of cases which construe the state tax acts involved as taxes on interstate commerce and its instrumentalities rather than on operations closely connected with but distinct from that commerce. In the Interstate case [State Tax Commission v Interstate Natural Gas Co, 284 US 41; 52 S Ct 62; 76 L Ed 156 (1931)], and the Cooney case [Cooney v Mountain States Telephone & Telegraph Co, 294 US 384; 55 S Ct 477; 79 L Ed 934 (1935)], taxes levied on the business of engaging in interstate commerce were held invalid. Likewise, in the Helson case, this Court concluded that the tax on gasoline brought into the state and used on an interstate ferry was analogous to a tax on the use of the ferry itself in transit and therefore within the rule prohibiting state taxes on commerce. A narrow distinction in feet exists between the tax held invalid in the Helson case and the valid tax considered in Nashville, C & St L R Co v Wallace, 288 US 249; 53 S Ct 345; 77 L Ed 730; 87 ALR 1191 (1933), where a tax on gasoline brought into the state, stored and then used to drive engines in interstate transportation, was held valid. The storage and withdrawal was an intrastate, taxable event. ” (Emphasis added.) 303 US 611-612; 58 S Ct 740; 82 L Ed 1049-1050.
The above language instructs that taxation may be valid where the taxable item is "brought into the state, stored, and then used * * * in interstate transportation”. This is an activity "closely connected with but distinct from that commerce”. Under such circumstances, a "taxable moment” occurs for state tax purposes because the item has "come to rest” in this state. We find such to be the case with respect to the Cessna.
The record presents competent, material and substantial evidence warranting affirmance of the department’s final order of assessment. The Cessna was purchased in Illinois on June 30, 1977. Immediately after purchase, the plane was flown to Detroit. Indeed, there was testimony that delivery of the purchase was taken in Detroit. "A day or two later”, the plane was flown to Freeland, Michigan, in order to install the equipment salvaged from the MU-2. While in this state, Master Craft clearly exercised its powers of ownership over the plane since it directed and alone determined that the plane should be repaired in Freeland and later kept at Willow Run. The plane clearly came to rest within this state prior to being thrust into the interstate stream of commerce.
In Beatrice Foods Co, Inc v Lindley, 70 Ohio St 2d 29; 434 NE2d 727 (1982), the Ohio Supreme Court held that the storage of the units in Ohio as well as the servicing of the units in Ohio at the taxpayers direction, with the units thereafter being placed in interstate commerce, constituted a taxable moment for purposes of imposing the use tax assessment. We agree.
Furthermore, Master Craft never paid any use tax or sales tax to other states, so that its addi tional claim that it is being doubly taxed is not supported. In any event, the Michigan use tax provides a credit for use or sales taxes paid in other states. MCL 205.94(e); MSA 7.555(4)(e). Master Craft has "merely alleged” this risk of double taxation on appeal and has failed to show how the use tax burdens interstate commerce. See Michigan Fruit Canners, Inc v Dep’t of Treasury, 53 Mich App 1, 7; 218 NW2d 385 (1974). We find no error below.
We further note that the cases relied upon by Master Craft are inapplicable. In Union Pacific R Co v Utah State Tax Comm, 110 Utah 78; 169 P2d 804 (1946), the court rejected an argument that the inspection and overhauling of diesel train engines evidenced a period of rest constituting a taxable moment. There, the engines continued to move in interstate commerce both before and after maintenance. Here, the Cessna came to rest in Michigan immediately after purchase and before its interstate journey began. This action created a presumption under the use tax which Master Craft failed to rebut.
In W R Grace & Co v Comptroller, 255 Md 550; 258 A2d 740 (1969), the installation work was not performed in the state which sought to impose the use tax. Again, the Cessna remained in Michigan for several months prior to its interstate use. Interestingly, WR Grace intimated that "storage” connotes the removal of an object from service. Since the Cessna was clearly removed from service during the time of repairs, the definition of "storage” found in MCL 205.92(c); MSA 7.555(2)(c) would also support imposition of a use tax here under the reasoning of that case. We find of greater significance, however, the fact that Master Craft exercised ownership rights over the Cessna while in this state, in conjunction with the fact that the Cessna came to rest in Michigan before becoming an instrumentality of interstate commerce.
Petitioner also claims that the department conducted an audit in December of 1977, with Master Craft paying the use tax imposed pursuant to that audit. The department allegedly told Master Craft that the sum represented the entire tax liability for the tax period. Petitioner maintains that the department thereafter conducted an impermissible second audit, citing various board decisions to the effect that only one audit is permissible once a taxpayer has paid the determined liability.
The parties stipulated as follows regarding the "second audit”:
"The appellant, Mastercraft Engineering, Inc., is a Michigan corporation with plants in Michigan and in Georgia. The corporation was audited by the Department of Treasury for the period January 1, 1974 through September 30, 1977. As a result of this audit, various deficiencies in use tax were imposed, which amount was paid by the taxpayer on December 19, 1977. The only amounts in controversy at this time result from use tax on two airplanes purchased by the appellant. The remaining amounts due the state were assessed on July 26, 1979, after an informal hearing in the amount of $28,706.16 tax plus accrued interest of $6,619.04, being Assessment #B302033.”
At the hearing, Master Craft presented only the testimony of John Haswell, its president. Haswell indicated that he was asked "for a given amount of money” (between $8,000 and $10,000) which was then paid, and that he "thought that was the end of it at that time”. However, Haswell did not specifically state that the auditor represented that Master Craft’s total tax liability would be satisfied once the initial payment was accepted. The record indicates that the audit covered a wide range of subjects which are not relevant to the instant appeal. We find that Master Craft has failed to present sufficient evidence to support its contention that two separate audits actually occurred. Given the fact that the stipulation recites that the "only amounts in controversy” relate to the airplanes involved herein, we find credence in respondent’s assertion (and the tribunal’s holding) that there was but one audit, with petitioner paying initially only the uncontested amounts.
Master Craft argues next that it was deprived of its due process right to present a full and complete defense because the board refused to allow it to present evidence regarding the "second auidt”. Master Craft supports this argument with an apparent stipulation to the effect that the auditor planned to testify. Board Chairman Donaldson indicated that the auditor’s testimony was immaterial to the substantive issues and would not be entertained. Since Master Craft cites no authority for its contentions other than a bland accusation of denial of due process, its arguments lack merit. See Delta Twp v Eyde, 40 Mich App 485, 490; 198 NW2d 918 (1972), affirmed in part 389 Mich 549; 208 NW2d 168 (1973). Master Craft had every opportunity to present a complete defense. Its president testified regarding the "second audit” but this testimony falls far short of satisfying petitioner’s burden of proof. If the auditor had testified, it is safe to assume the testimony would have favored the department. Furthermore, Master Craft failed to object to this ruling at the hearing. This claim does not present grounds for reversal.
Master Craft’s argument that it was denied appropriate appellate review under MCL 205.751; MSA 7.650(51) is also lacking in merit. That provi sion requires that a decision of the tribunal be in writing "or stated in the record” and include a factual statement and conclusions of law. Although the actual opinion, standing alone, would have been insufficient, the proposed judgment was of a rather comprehensive nature and was incorporated into the tribunal’s final order. The only issue not covered in the proposed judgment, petitioner’s jurisdictional argument, was separately addressed. The standards of MCL 205.751; MSA 7.650(51) were met.
Finally, Master Craft argues that it demonstrated a reasonable basis for limiting the accrual of interest. The tribunal refused this request because Master Craft failed to provide the tribunal with a copy of the recommendation of the hearing officer and because petitioner failed to provide "any reason in support of an abatement of interest”. On appeal, petitioner asserts that abatement is in order since the delay was not due to its actions and the board failed to render a timely decision.
Petitioner has attached to its appellate brief the hearing officer’s recommendation, which clearly states that the intent to assess "be finalized as issued without further accrual of interest”. We agree with petitioner that this was a matter readily confirmable by the tribunal. Therefore, we reject the tribunal’s statement on this matter that it could not exercise its discretion without a copy of the recommendation. Furthermore, because the delay in reaching a decision was not attributable to actions on the part of petitioner, we do not find it equitable for petitioner to be assessed interest over this long period of time. Accordingly, interest should not have accrued between the date when the decision should have been reached, that is, August 6, 1980, through the date when such was actually rendered, that being August 30, 1983.
Affirmed in part and reversed in part. No costs, a question of public importance being involved.
1981 PA 138 amended 1980 PA 162, which provided in pertinent part:
"Section 4. This amendatory act shall take effect 90 days after signature by the governor. All new appeals from an assessment, decision or order of the department shall be made to the tax tribunal effective with the effective date of this act. An appeal to the state board of tax appeals filed prior to the effective date of this act shall proceed as follows:
"(a) A matter which has not been heard on or before January 1, 1981, shall be transferred to the tax tribunal as of January 1, 1981.
"(b) A matter which has been heard on or before January 1, 1981 shall be completed by the board and a decision issued before December 31, 1981.
"(c) An appeal having been filed in any court of record in this state prior to January 1, 1981 shall proceed in those courts until a decision is rendered. Appeals filed after January 1, 1981 shall be in accordance with this amendatory act.”
While the above-quoted portion of the House analysis of 1981 PA 138 intimates that the tribunal would then be required to start the case anew, no clear intention can be drawn from the House analysis. The analysis continues, stating:
"For:
"People with cases already heard but not decided by the tax appeals board have expended considerable time and money on their appeals. They would have to start all over again before the tax tribunal if the tax appeals board is not allowed to exist until it finishes those cases.
"Against:
"There is no reason to suppose that the tax tribunal’s decisions would be any different than those of the tax appeal board. Thus, prolonging the life of the board would probably not make any appreciable difference in the amount of revenue the state would ultimately realize. Moreover, it is hardly likely that the tax tribunal would force people to begin their appeals hearing all over again; the tribunal is perfectly capable of deciding how to properly consider testimony taken by the appeal board.” (Emphasis added.)
Thus, we do not find guidance on the basis of legislative intent.
We note that in order for a tax to be constitutional, the activity must have a substantial nexus to the taxing state, it must be fairly apportioned, it may not discriminate against interstate commerce, and it must be fairly related to services provided by the state. See Bob-Lo Co v Dep’t of Treasury, 112 Mich App 231, 240; 315 NW2d 902 (1982), quoting Complete Auto Transit, Inc v Brady, 430 US 274; 97 S Ct 1076; 51 L Ed 2d 326 (1977). Here, petitioner does not contend that the tax is not fairly apportioned, that there is insufficient nexus to this state, or that it is not related to services provided by this state. Rather, petitioner asserts that there was no "taxable moment”, i.e., that the Cessna never "came to rest” within Michigan so that it never lost its identity as an instrumentality of interstate commerce. | [
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Per Curiam.
Defendant was convicted after a bench trial of first-degree criminal sexual conduct, MCL 750.520b(l)(e); MSA 28.788(2)(l)(e). He was subsequently sentenced to a term of from 5 to 15 years and appeals as of right.
Defendant first argues on appeal that, after being read his Miranda rights, he responded to an arresting officer’s question with a statement later introduced into evidence against him; that the officers failed to take notes or otherwise record the statement; that the officers’ accounts at trial therefore necessarily consisted of no more than paraphrased and editorialized accounts; and that, as these accounts were necessarily different from defendant’s exact statement, under People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), his confession must be held inadmissible.
In essence, defendant proposes a new rule of law —that confessions should be held inadmissible if they are not substantiated by a contemporaneous record. Defendant would require the assumption that a witness is incapable of accurately testifying as to even the simplest statement or response by a defendant and further overlooks the safeguards already present in our justice system to filter out inaccurate or exaggerated testimony such as cross-examination and impeachment.
People v McGillen #1, supra, lends little support to defendant’s position. The defendant’s statements in that case were ruled inadmissible because the prosecution failed to establish that the defendant had knowingly and intelligently waived his Miranda rights, see Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), not because the arresting officer had given an editorialized version of them. That the officer deliberately testified to an edited version of defendant’s statements went only to the question of the officer’s credibility. The other cases cited by defendant in his brief are equally unsupportive.
We note finally that even if such a rule were to be accepted here, which it is not, there is no support in the record for defendant’s assertion that the police officer’s testimony regarding the defendant’s statement was paraphrased and editorialized. We find defendant’s argument without foundation in either law or fact.
Defendant next contends that the evidence presented at trial was insufficient to support a conviction of first-degree criminal sexual conduct. Much of defendant’s argument is addressed to a conviction under MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) —first-degree criminal sexual conduct which causes personal injury to the victim. As defendant was convicted of first-degree criminal sexual conduct while armed with a weapon, MCL 750.520b(l)(e); MSA 28.788(2)(l)(e), such argument is irrelevant. As to the remainder of defendant’s argument, the direct testimony by the complainant concerning the existence of a knife and clothes hanger was sufficient to lead a rational trier of fact to conclude that the essential elements of the crime were proven beyond a reasonable doubt. People v Flinnon, 78 Mich App 380, 384; 260 NW2d 106 (1977); People v Delongchamps, 103 Mich App 151, 159; 302 NW2d 626 (1981), lv den 412 Mich 857 (1981).
Defendant’s third and final argument challenges the constitutionality of MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) for reasons of vagueness. As noted above, however, defendant was convicted under subsection (l)(e) of the criminal sexual conduct statute, not (l)(f). Defendant therefore lacks standing to raise this issue.
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Per Curiam:.
Defendant appeals as of right from a conviction for resisting and obstructing an officer in the discharge of his duties, MCL 750.479; MSA 28.747, following a jury trial. Defendant was sentenced to two years probation and six months in the county jail, to be suspended if probation terms were met. Defendant was also fined $360.
Defendant was charged with resisting arrest because he fought with two police officers who sought to arrest him for the misdemeanor of fleeing and eluding arrest. Defendant admitted that he had resisted the arrest but argued that he was entitled to do so because the arrest had been unlawful. He premised this argument on his testi mony and that of other witnesses that the police officers had arrested him for the misdemeanor inside his home without an arrest warrant and without "knocking and announcing” their presence and purpose before entering the house without permission. The prosecution countered by presenting the officers’ testimony that defendant was arrested at the front door, rather than inside it. The prosecution also argued that the officers had "substantially complied” with the requirement that they "knock and announce” before entering the house without permission so that, even if the arrest had been made inside defendant’s home, it was nevertheless lawful.
The jury was instructed that, to find defendant guilty of resisting and obstructing a police officer, it would have to find that defendant had knowingly and wilfully obstructed or resisted a duly authorized officer who was lawfully making an arrest. CJI 13:1:02; People v Gleisner, 115 Mich App 196; 320 NW2d 340 (1982), lv den 417 Mich 1095 (1983). The instruction also informed the jury that, where the arrest is for a misdemeanor, "[t]he law only allows an officer to arrest for this crime if it is committed in his presence and if the arrest is made as soon as reasonably possible after he observes such crime * *
After approximately four hours of deliberation, the jury sent a note to the court asking, "How can an officer make a legal arrest inside a private home without an arrest warrant?” Over different objections from the prosecutor and defense counsel, the trial court instructed the jury as follows:
"To make a warrantless arrest if the offense is a misdemeanor committed in the officer’s presence the officer may break open an inner or outer door of any building in which the person to be arrested is located after the officer has announced his purpose and has been refused admittance. Where such declaration of purpose would be futile or an unnecessary formality substantial compliance with this principle is sufficient.”
The jury asked that this instruction be repeated and subsequently asked that the term "substantial compliance” be defined. The court repeated the instruction but declined to define "substantial compliance”. After approximately two more hours of deliberation, the jury returned a guilty verdict against defendant.
On appeal, defendant argues that the trial court erred by failing to adequately instruct the jury on the definition of "lawful arrest” and "substantial compliance”. He also argues that, as a matter of law, the police could not make an entry without a warrant into defendant’s home without prior notice and consent in the absence of exigent circumstances. The prosecution counters by arguing that the jury was repeatedly instructed on resistance to an arrest, the use of reasonable force by a defendant against excessive force by a police officer, and the right of a police officer to make a misdemeanor arrest without a warrant in a private home as long as entry is preceded by substantial compliance with the statutory "knock and announce” requirement. In addition, the prosecution argues that there was strong evidence that defendant was arrested at the door of his house rather than inside his house and that, therefore, whether or not an in-home arrest without a warrant would have been lawful is irrelevant. After examining these conflicting arguments, we conclude that it was possible for the jury to have determined that defendant was arrested inside his home and that we must, therefore, determine whether the jury was accurately instructed on the right of a police officer to make an in-home misdemeanor arrest without a warrant.
The jury instruction given in response to the jury’s question was taken from a combination of MCL 764.21; MSA 28.880 and this Court’s opinion in People v Strelow, 96 Mich App 182; 292 NW2d 517 (1980). MCL 764.21; MSA 28.880 states:
"To make an arrest, a private person, if the offense be a felony committed in his presence, or a peace officer with a warrant or in cases of felony when authorized without a warrant, may break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance.”
On its face, this statute makes no provision for a police officer to break open the inner or outer door of any building if he is refused entry where he is attempting to make a warrantless misdemeanor arrest. Instead, the statute specifically refers only to "a peace officer with a warrant or in cases of felony when authorized without a warrant”. (Emphasis added.) Thus, the statute alone does not support the court’s instruction to the jury that the officer "may break open an inner or outer door of any building in which the person to be arrested is located after the officer has announced his purpose and has been refused admittance”.
As stated earlier, however, the trial court also relied upon this Court’s opinion in People v Strelow, supra. In Strelow, this Court was presented with a situation in which a police officer followed the defendant into the defendant’s home without announcing his purpose or requesting admission to the premises in order to arrest the defendant for the misdemeanor of driving in excess of the posted speed limit. The defendant resisted the arrest and, at his trial for resisting and obstructing an officer in the discharge of his duties, argued that he had been entitled to resist because the arrest was unlawful. This Court agreed that the arrest had been unlawful, premising this conclusion on its finding that the evidence failed to establish that the officer had "substantially complied” with the "knock and announce” requirement of MCL 764.21; MSA 28.880. This reasoning thus implicitly (and, to some extent, explicitly) assumed that the police officer was authorized by law to enter the defendant’s home to make the warrantless misdemeanor arrest of the defendant provided he at least "substantially” met the "knock and announce” requirement of the statute. The Strelow Court supported this assumption by reasoning that MCL 764.15; MSA 28.874 permits a police officer to make a warrantless arrest when a misdemeanor is committed in his presence, and, therefore, that this authority could be extended to permit the officer to enter a private residence or enclosure in order to make an arrest for the misdemeanor, even though he has no warrant.
After carefully examining the statutory provisions pertaining to arrests in Michigan, we conclude that the Legislature did not authorize police officers to enter private homes without permission to effect warrantless misdemeanor arrests. The Code of Criminal Procedure, MCL 761.1 et seq.; MSA 28.843 et seq., contains numerous, and very specific, provisions dealing with various aspects of arrests. It contains comprehensive provisions for the issuance and contents of warrants, MCL 764.1 and 764.1a; MSA 28.860, 28.860(1); the contents of complaints, MCL 764.1d and 764.1e; MSA 28.860(4) and 28.860(5); the authority of arresting officers within and outside of their own counties, MCL 764.2 and 764.2a; MSA 28.861 and 28.861(1); and the role of magistrates in the procedure, MCL 764.5-764.9; MSA 28.864-28.868. The code separately addresses the procedure to be used when "minor offenses” are involved, MCL 764.9a-764.9g; MSA 28.868(l)-28.868(7), and specifies procedures to be used when a person is arrested without a warrant, MCL 764.13; MSA 28.871(1). In MCL 764.15; MSA 28.874, MCL 764.15a; MSA 28.874(1), and MCL 764.15b; MSA 28.874(2), the code provides for warrantless arrests when a felony, misdemeanor, or ordinance violation is committed in the presence of a peace officer and then enumerates twelve specific other instances when a warrantless arrest is permissible. MCL 764.16; MSA 28.875 in turn authorizes arrests by private persons in three factual situations. The code then specifies the procedure to be followed when such warrantless or citizen arrests have been made, MCL 764.19; MSA 28.878 and MCL 764.20; MSA 28.879.
It is in this context that MCL 764.21; MSA 28.880 authorizes a private person or peace officer to "break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be * * *”. Again, as in other sections of the code, this statute specifies when and by whom such an entry may be made. As stated in Strelow, the statute does not mention misdemeanor warrantless arrests. Instead, the statute authorizes entry by a private person without consent only when a felony is committed in the person’s presence and by a peace officer only when he or she possesses a warrant "or in cases of felony when authorized without a warrant”. (Emphasis added.) Since misdemeanors are not mentioned, we can only conclude, in light of the specific and comprehensive nature of the code, that the Legislature chose not to authorize nonconsensual entry into a person’s home or other building for the purpose of making a warrantless misdemeanor arrest. This conclusion is supported by the Legislature’s deliberate provision for different procedures when "minor offenses” or "warrantless arrests” are involved. In light of this conclusion, we hold that the trial court’s instruction to the jury incorrectly informed the jury that, even if defendant was arrested inside his home, the arrest might nevertheless have been lawful. We, therefore, reverse defendant’s conviction for resisting and obstructing an officer in the discharge of his duties.
As is clear from the above analysis, we have reached our conclusion that a police officer is not authorized to enter a private home without consent to make a warrantless misdemeanor arrest solely as a matter of statutory construction. In so doing, we have refrained from addressing the constitutional arguments raised by defendant. We note, however, that the Legislature is free to authorize in-home warrantless misdemeanor arrests within the limitations imposed by the United States Supreme Court in Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980), and Welsh v Wisconsin, — US —; 104 S Ct 2091; 80 L Ed 2d 732 (1984), and by our Supreme Court in People v Oliver, 417 Mich 366; 338 NW2d 167 (1983), if the Legislature so chooses.
Defendant also argues that the prosecutor improperly injected irrelevant or prejudicial matters into the trial. We agree with defendant and the trial court that the prosecution’s questioning of the res gestae witnesses, references to defendant’s employment status and to a white Corvette, the prosecutor’s statement that "it is our position we don’t like to charge people with offenses unless we have to”, and his comment on the mental problems of defendant’s family, were improper. The prosecution is instructed to refrain from this conduct should this case be retried. Should the issue of codefendant Anthony Reinhardt’s back problem again arise, defendant may challenge its relevancy at that time.
Reversed.
Michigan law provides that a person has the right to reasonably resist an unlawful arrest. See People v Krum, 374 Mich 356; 132 NW2d 69 (1965), cert den 381 US 935; 85 S Ct 1765; 14 L Ed 2d 699 (1965); People v Stark, 120 Mich App 350; 327 NW2d 474 (1982); People v Eisenberg, 72 Mich App 106; 249 NW2d 313 (1976), lv den 401 Mich 803 (1977); People v Gray, 23 Mich App 139; 178 NW2d 172 (1970).
The prosecutor objected to this instruction because he felt that it was factually inapposite. Defense counsel objected because he felt that there was no "substantial compliance” exception to the requirement that a police officer "knock and announce” his purpose before breaking open a door to a building.
There was strongly conflicting testimony on this crucial point.
The Strelow Court relied on 76 ALR2d, § 2[b], p 1441, for this second step in its analysis. | [
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Per Curiam.
Defendant appeals by leave granted from the circuit court’s opinion and order reversing a district court order granting defendant summary judgment pursuant to DCR 117.2(1).
Plaintiff filed a complaint alleging that on October 18, 1979, she brought her automobile to defendant’s place of business for mechanical repairs. At that time, defendant and his employee undertook repairs to the cooling system of the car. Plaintiff alleged that, during the course of repairs, as a result of negligence on the part of defendant and his employee, a radiator hose clamp was released and she was sprayed with radiator fluid. Plaintiff further alleged that she suffered personal injuries as a result of this incident.
Defendant moved for summary judgment, arguing that this suit was a suit for damages for personal injuries which arose from the ownership, maintenance, or use within this state of a motor vehicle and that, therefore, an allegation of mere negligence or of mere personal injury was insufficient to avoid the abolition of tort liability provided by the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq.; MCL 500.3135; MSA 24.13135. The district court agreed and granted summary judgment. Plaintiff appealed to the circuit court.
The circuit court found that, although the issue was close, plaintiffs suit for damages for personal injury based on the mechanics’ negligence was not barred by the no-fault insurance act. The circuit court relied on the language and reasoning of the Supreme Court in Citizens Ins Co of America v Tuttle, 411 Mich 536; 309 NW2d 174 (1981).
After reviewing the applicable statutory and case law, we believe that the circuit court properly decided the issue. In Tuttle, supra, the plaintiffs insured, while driving in a truck, collided with the defendant’s cow. Citizens paid its insured for the cost of repairing the truck and became subrogated to its claims against the defendant, Tuttle. Citizens then sued Tuttle to recover the amounts paid, arguing that Tuttle had been at fault by failing to keep the cow properly fenced in. The trial court granted summary judgment to Tuttle, finding that any tort liability arising out of the accident had been abolished by the no-fault motor vehicle liability act. This Court affirmed, concluding that "aside from the enumerated exceptions [found in MCL 500.3135(1) and (2); MSA 24.13135(1) and (2)], tort liability is to be precluded whenever an automobile is involved in any way”. 96 Mich App 763, 766; 294 NW2d 224 (1980).
The Supreme Court reversed. It found, generally, that "the no-fault act was not intended to work a comprehensive abolition of all tort liability incident to a motor vehicle accident”, 411 Mich 544, and then proceeded to clarify this general statement. The Court noted that Tuttle’s alleged tort liability arose only from his alleged wrongful keeping of the cow, not from the ownership, maintenance or use of a motor vehicle and that this liability would have arisen "whether [the cow] collided with a motor vehicle, trampled a rose garden, or walked through a plate glass window”. 411 Mich 545. The Court determined that the action did not fit within the no-fault scheme of "compensating injuries and damages incurred in accidents caused by motor vehicles”. (Emphasis in original.) 411 Mich 545. The Court then stated, "Only persons who own, maintain or use motor vehicles can be subject to tort liability for injuries or damage caused by the ownership, maintenance or use of a motor vehicle. The non-motorist tortfeasor cannot be subject to tort liability for injuries or damage caused by the ownership, maintenance or use of a motor vehicle. The abolition of tort liability for injuries or damage caused by (arising from) the ownership, maintenance or use of a motor vehicle, therefore, does not abolish the tort liability of the non-motorist tortfeasor”. 411 Mich 545-546.
Finally, the Supreme Court found that abolition of tort liability for a non-motorist tortfeasor would unfairly shift the financial consequences of the tortfeasor’s act from the tortfeasor to participants in the no-fault insurance system:
"Moreover, subsection (2) abolishes tort liability arising from the ownership, maintenance or use only of vehicles for which the required no-fault insurance or other security has been obtained. The policy apparently expressed in so conditioning the abolition of tort liability upon the obtaining of no-fault coverage is that a person is to be relieved of tort liability only upon participating, through the payment of premiums, in a system for spreading the costs of compensating vehicular injuries without regard to fault. To extend the abolition of tort liability to non-motorist tortfeasors would be to incorporate into the no-fault system the costs of providing personal protection insurance benefits to motorists, passengers and pedestrians injured by non-motorist tortfeasors without incorporating offsetting premiums from non-motorist tortfeasors, since non-motorist tortfeasors are not required to purchase no-fault insurance with respect to their conduct as non-motorists.” (Footnote omitted.) 411 Mich 546-547.
We find that this language and the policies it expresses apply to the factual situation involved in this case. Although this case is admittedly closer than the scenario presented in Tuttle, because the defendant was actually working on an automobile at the time of the alleged negligence, the defendant was, in fact, a non-motorist tortfeasor. Neither the defendant garage owner nor his employee was required to purchase no-fault insurance to cover their conduct as garage owner and mechanic. Thus, permitting the defendant to avoid tort liability for actions for which he has not contributed premium payments will, in effect, cause motorist tortfeasors to pay for his asserted negligence. We do not believe that the no-fault insurance act was intended to bring about this result.
Affirmed.
We specifically distinguish this Court’s opinion in Buckeye Union Ins Co v Johnson, 108 Mich App 46; 310 NW2d 268 (1981), lv den 414 Mich 873 (1982). That case involved interpretation of MCL 500.3121(1); MSA 24.13121(1), rather than of MCL 500.3135; MSA 24.13135. | [
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Per Curiam.
Defendant was jury convicted of armed robbery, MCL 750.529; MSA 28.797. Following a guilty plea as a third-time felony offender, MCL 769.11; MSA 28.1083, defendant was sentenced to a term of from 8-1/2 to 20 years imprisonment. Defendant appeals from his convictions as a matter of right.
Defendant filed a claim of appeal with this Court on February 4, 1980 (Docket No. 49967). On December 20, 1980, defendant filed a late motion in this Court to remand for the purpose of having the trial court hold a Robinson hearing. The motion was denied by this Court in an order issued February 24, 1981, because the motion lacked merit on the grounds presented and was not timely filed pursuant to GCR 1963, 817.6. Defendant sought leave to appeal that decision to the Supreme Court, which denied leave to appeal. See 411 Mich 1060 (1981).
Thereafter, following the filing of appellate briefs by both the prosecution and defendant, the prosecution filed a motion to affirm in this Court on May 6, 1981. The issues raised by defendant were whether defendant was entitled to a remand for a Robinson hearing and whether a prior conviction for negligent homicide was a proper basis for supplementing defendant’s sentence under the habitual offender statute. The motion to affirm was granted on September 25, 1981.
Defendant again sought leave to appeal to the Michigan Supreme Court. In an order entered June 18, 1982, in lieu of granting leave to appeal, the Supreme Court determined that, since defen dant’s motion to remand identified an issue sought to be reviewed on appeal which should initially be decided by the trial judge (the Court making no reference to the motion’s lack of timeliness), this Court should have granted defendant’s motion to remand to the trial court. As a result, the Supreme Court vacated the orders of this Court denying defendant’s motion to remand and granting the prosecution’s motion to affirm. The case was remanded to this Court with instructions to remand to the circuit court, while retaining jurisdiction, for a hearing on defendant’s allegation that the prosecution failed to endorse and produce res gestae witnesses. The Supreme Court retained no jurisdiction.
In an order entered July 14, 1982, this Court remanded the case to the Jackson County Circuit Court for a hearing on defendant’s "allegations that plaintiff failed to endorse and produce res gestae witnesses”. This Court retained jurisdiction. Following a hearing on the remand, the trial court found that the three persons who were not endorsed on the information (two people from the Cabaret Bar and the person at the 7-11) were not res gestae witnesses.
On remand, defendant’s counsel received copies of police reports in response to his motion for discovery after his earlier informal requests had been denied. The police reports contained facts not revealed to the jury concerning the reliability of the identification of defendant as the robber. The facts were: (1) Donald West, the cab driver, admitted in his initial statement that he and the robber had been driving back streets smoking marijuana prior to the robbery; (2) the cab driver could not pick defendant out of a photographic line-up on the night of the offense and convinced the detective in charge of the investigation that he would not be able to make an identification; and (3) that one of the two persons in the bar, who positively identified defendant at trial, was unable to pick defendant’s photograph from the same photographic array the day after the offense. Defendant’s counsel sought permission to raise the additional issue of newly discovered evidence in the remand hearing. Permission was denied since the trial court believed the issue was outside the scope of the remand order. The trial court decided not to hear the newly revealed evidence issue unless this Court directed it to do so in a further order of remand.
On March 23, 1983, defendant filed a motion for peremptory reversal in this Court. Defendant requested that this Court grant: (1) a peremptory reversal based on what was characterized as the clearly erroneous decision of the trial court in refusing to recognize the store clerk as a res gestae witness; or (2) a further remand for a hearing on "the newly revealed issues of newly discovered evidence and/or ineffective assistance of counsel” in order that all issues which would eventually be litigated would be consolidated in a single appeal; or (3) that the case be placed on this Court’s case call so that defendant would have the benefit of oral argument and formal submission which were denied him on his appeal as of right.
Defendant’s motion for peremptory reversal was denied by an order of this Court dated November 23, 1983. However, the case was again remanded to the circuit court for a hearing on defendant’s issue of "newly discovered evidence and/or ineffective assistance of counsel”. This Court retained jurisdiction.
An evidentiary hearing was held on December 15, 1983. Defendant withdrew his claim of newly discovered evidence and at the hearing relied on his claim of ineffective assistance of counsel. The entire matter is now before this Court on the merits.
Defendant entered the Cabaret Bar in Jackson at approximately 1:30 a.m. on April 12, 1979. The owner of the bar, Ray Eicher, testified that defendant asked him to call for a cab. Eicher called the Trolz Cab Company. At 1:37 a.m., a cab, driven by Donald West, was dispatched to the bar. Defendant left the bar and entered the cab.
The complainant, Donald West, testified that he was driving a cab in the early morning hours of April 12, 1979, and that he picked up defendant at the Cabaret Bar. Defendant asked to be driven to 1021 First Street in Jackson, Michigan, but on the way defendant changed his mind, stated he wanted to go to WC’s, but finally asked to be driven to a 7-11 store. West drove to a 7-11 store and defendant went in and then came out of the store. After the cab left the store and was moving, defendant held a knife to West’s neck. Defendant threatened West and forced him to hand over $50 in cash, along with a Timex watch. Defendant made West drive around for a short period of time and then ordered the cab to stop. Defendant took the cab keys and threw them out of the cab. Defendant then ran away.
West reported the robbery and police officer Duane Vinton responded to the call. The officer testified that, when he arrived at the scene, West had a slight laceration on his neck, approximately 3-1/2 inches long. In the back seat of the cab the officer found a brown paper bag containing a can of pop. West told the officer that the bag was not in the cab prior to the time he picked up his last fare at the Cabaret Bar. The can of pop was checked for fingerprints, however the prints on the can were not those of defendant.
Defendant lived at 1021 First Street in Jackson, the address to which the assailant had initially requested to be driven. Apparently, this address was well known to the local police because defendant was an informant for the police.
After defendant was arrested and given his Miranda warnings, he stated that he had spent the early evening of April 11, 1979, working with officers of the Metro Squad and that they had dropped him off at the Town Bar. Defendant said that he had a few drinks at the Town Bar, went to the Cabaret Bar for a drink, and then walked home. Defendant’s statement was corroborated in part by the testimony of a detective who indicated that he had continued surveillance of defendant until approximately 8:30 that evening, at which time he saw an undercover officer take defendant to the area of the Town Bar and drop him off. At the trial, defendant was identified by Ray Eicher, the owner of the Cabaret Bar, and by Mrs. Eicher, who worked at the bar. Both were present when defendant left the bar. After instruction the jury returned a guilty verdict.
Two claims of error remain which must now be addressed. First, defendant contends that he is entitled to a new trial because the trial court erred in ruling that the missing clerk was not a res gestae witness. We disagree.
A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense. People v LeFlore, 122 Mich App 314; 333 NW2d 47 (1983). The prosecutor is under a duty to endorse and produce all res gestae witnesses. MCL 767.40; MSA 28.980; People v Norwood, 123 Mich App 287; 333 NW2d 255 (1983), lv den 417 Mich 1006 (1983).
In reviewing a decision of the trial court as to the status of a witness, this Court will reverse only if the decision was clearly erroneous. People v Abrego, 72 Mich App 176; 249 NW2d 345 (1976). Although the trail court did not use the "continuum of the criminal transaction” language, we believe the court ruled correctly.
There is a rebuttable presumption that persons present at the time and place of the commission of a crime are res gestae witnesses and the burden is on the prosecutor to prove otherwise. People v Samuels, 62 Mich App 214; 233 NW2d 520 (1975). There is no indication that the 7-11 clerk was near to, or present at, the time and place of the crime. The robbery of the cab driver started when defendant pulled a knife on the driver and continued until defendant fled from the vehicle. When defendant left the 7-11 store, the criminal transaction had not yet begun. Consequently, there is no presumption that the 7-11 clerk was a res gestae witness. The 7-11 clerk was not a witness to an event in the continuum of a criminal transaction and thus was not a res gestae witness. Therefore, the trial court’s ruling on the issue was not clearly erroneous.
The other issue submitted for our consideration is whether defendant was denied effective assistance of counsel. The standard by which the assistance given by counsel is judged is found in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977).
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s inter ests, undeflected by conflicting considerations.” See also, Beasley v United States, 491 F2d 687, 696 (CA 6, 1974).
In addition, this Court will also examine particular mistakes of counsel, which is the other branch of the inquiry. Defendant is denied effective assistance of counsel if, but for counsel’s serious mistake, defendant would have had a reasonably likely chance of acquittal. People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).
At a Ginther hearing, as was held in the trial court, the burden is on the defendant to establish his claim of ineffective assistance of counsel. People v Harlan, 129 Mich App 769; 344 NW2d 300 (1983). A defendant’s trial counsel is presumed to have provided effective assistance to the defendant. To overcome this presumption, the defendant must show that there was a failure to perform an essential duty owed by counsel to the defendant and that this failure was prejudicial to the defense. People v Tranchida, 131 Mich App 446; 346 NW2d 338 (1984).
The Ginther hearing took place some four years following trial. Defendant’s trial counsel testified that at the time of trial he had been practicing law for five years and had handled approximately 800 felony cases. He had also been a detective on the Youngstown Police Department for twelve years prior to becoming an attorney. While he did not specifically recall the strategy he used at defendant’s trial, he did remember that the witnesses at the preliminary examination gave very positive identifications of defendant. He admitted that he never saw any of the police reports.
Even though defense counsel failed to obtain the police reports through discovery, failed to move to suppress the identifications of defendant, and did not ask for a Wade hearing, defense counsel did investigate on his own. Defendant has failed to show how he was prejudiced by this trial counsel’s omissions.
Defendant’s trial counsel learned that all three identifying witnesses would state that defendant had been wearing tan pants and a blue jacket. Defendant told his trial counsel that earlier in the evening he had been working with Tom Corwin of the sheriff’s department. When questioned as to how defendant was dressed, Mr. Corwin also stated that defendant had been wearing tan pants. Although defendant represented to his trial counsel that he had been wearing blue jeans, everyone who had come into contact with defendant that night disputed his account of what he had been wearing. Also, defendant did not inform his attorney that he had been smoking marijuana with the cab driver. Williams, defendant’s trial counsel, stated that as a matter of trial strategy he probably would not have impeached West with that fact at trial even if he had know about it. This Court will not substitute its judgment for that of defense counsel in matters of trial strategy. People v Whalen, 129 Mich App 732; 342 NW2d 917 (1983). The decision to. move for suppression of the identifications and/or a Wade hearing was a matter of strategy which we will not disturb. In addition, there was other strong evidence against defendant. He gave the cab driver his home address when he first entered the cab.
In our opinion, defense trial counsel performed as well as an attorney of ordinary training and skill in criminal law. Additionally, given the nature of the evidence against defendant, it cannot be said that defendant’s trial counsel made a mistake so serious that but for that mistake defendant would have had a reasonably likely chance of acquittal.
Affirmed.
People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). | [
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Per Curiam.
The City of Detroit Police Department appeals by leave granted. Following termination of the separate criminal proceedings against them, defendant Frank M. Benson and defendants Costa and Thompson brought motions for return of property seized and held by the police. Frank M. Benson was arrested along with Troby D. Benson on charges of violating the controlled substances act. Apparently contraband was seized together with other items of personal property. Following a preliminary examination at which the charge against Frank Benson was dismissed, Frank Benson requested the return of his property. The court ordered that the non-contraband items be returned to Frank Benson even though his request had been opposed by the department. Costa and Thompson pled guilty to attempted larceny in a building. They had entered a home and taken items, predominantly money. The defendants then made a motion to have their money returned. A hearing was held to determine what portion of the money belonged to defendants and what portion belonged to the victim. The trial judge then ordered defendants’ portion returned to them, to which the department objects. The two cases have been consolidated.
On appeal the department contends that the criminal court does not have jurisdiction to hear post-judgment motions for return of property, that it, as the custodian of the property, has standing to contest this order, and that the defendants have the burden of proving lawful entitlement to the property seized.
The department argues that a post-judgment order by the court hearing the criminal case is an improper means of determining the question of return of seized property and that the proper vehicle would be the commencement by the claimant of a separate civil action. The arguments that the department advances have been thoroughly dealt with in People v Washington, 134 Mich App 504, 509; 351 NW2d 577 (1984):
"The original and exclusive jurisdiction of the Recorder’s Court over felonies committed in Detroit includes the ancillary power to return property to those from whom it has been seized for use as possible evidence. The so-called reorganization of Recorder’s Court does not deprive it of general jurisdiction over felonies, including the ancillary power here exercised.
"In so holding, we do not mean that Recorder’s Court has jurisdiction to hear claim and delivery (formerly replevin) cases. Neither do we mean that Recorder’s Court has jurisdiction to adjudicate title to personal property among competing claimants. We do mean that in the framework of a criminal case, the Recorder’s Court has jurisdiction to order the return of property seized by the police department to the person from whom it was seized.” (Footnotes omitted.)
Accordingly, this disposes of the Benson case where there were no competing third parties, and the lower court decision is affirmed. However, Washington, supra, did not address the circumstances where, as here, funds of the defendants (Costa and Thompson) have become commingled with that of the victims. We are now required to determine if such a circumstance is directly related to the criminal proceedings or if it is a civil question requiring a new proceeding. Turning to United States v Wilson, 176 US App DC 321, 324; 540 F2d 1100 (1976), we find guidelines to determine if the jurisdiction is ancillary:
" '[Ajncillary jurisdiction should attach where (1) the ancillary matter arises from the same transaction which was the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter; (2) the ancillary matter can be determined without a substantial new fact-finding proceeding; (3) determination of the ancillary matter through an ancillary order would not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter must be settled to protect the integrity of the main proceeding or to insure that the disposition in the main proceeding will not be frustrated.’ ”
Utilizing these guidelines we believe that the lower court did have jurisdiction. The theft of the money was an integral part of the criminal proceeding; a short evidentiary hearing was sufficient to determine the facts; all parties with any claim were present; and it is fundamental to the integrity of the criminal justice process that any property involved in the proceeding which is not subject to a government claim be returned to its rightful owner. In the instant case only the victim and the defendants have any claim to the money. We do not find that this is a general jurisdiction problem of determining title. When only the victim and the defendants are involved, we believe it is proper and efficient for the court to tie up the loose ends by returning the property.
The department’s allegation that defendants had the burden of proof to show that they were entitled to return of the property is without merit.
"The burden of proof to establish a lawful reason to deny the return of the property to the person from whom it was seized was on the police.” Washington, supra, p 511.
The department contends that it has standing, as custodian of the seized property, to contest an order disposing of the property. This issue relates only to the Benson case where the judge stated that he would not consider the department’s brief. Our review of the record reveals that the department was representing its. own interests because of its belief that it was a constructive bailee and could be liable for misdelivery. Therefore, it was error for the Recorder’s Court judge to refuse to hear the department’s arguments. However, in this instance the error was harmless. GCR 1963, 529.1. The department’s potential liability is irrele vant where it cannot show that there are any conflicting claimants.
Accordingly, the orders of the Recorder’s Court are affirmed.
Affirmed. | [
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On Remand
Before: Danhof, C.J., and Bronson and R. B. Burns, JJ.
Per Curiam.
The facts of the instant case are set forth in People v McCartney, 132 Mich App 547; 348 NW2d 692 (1984), and are not restated here. In that case, upon defendant’s interlocutory appeal from the trial court’s denial of her motion to dismiss, we held that defendant could not be tried for embezzlement by a trustee of a sum in excess of $100, MCL 750.174; MSA 28.371, without violating double jeopardy because defendant had previously had a contempt adjudication entered against her. We stated that the contempt proceedings were criminal in nature and, as such, double jeopardy protections applied. 132 Mich App 555-557. Upon delayed application for leave to appeal to the Supreme Court and in lieu of granting such, the Supreme Court vacated this Court’s judgment and remanded "for reconsideration in the light of People v Robideau, 419 Mich 458 [355 NW2d 592] (1984)”. 419 Mich 941 (1984).
The focus of our prior opinion was on determining whether the contempt adjudication was criminal in nature. We held that it was and presently adhere to that determination. See Fittante v Schultz, 20 Mich App 259; 174 NW2d 29 (1969). However, we noted that "[t]he double jeopardy bar against dual prosecution for the same act is thus applicable under the test of Blockburger v United States, 284 US 299, 304; 52 S Ct 180, 182; 76 L Ed 306, 309 (1932), and Michigan’s 'same transaction’ test, People v White, 390 Mich 245, 258; 212 NW2d 222 (1973); Crampton v 54-A Dist Judge, 397 Mich 489, 499; 245 NW2d 28 (1976)”. 132 Mich App 557, fn 11. In light of the Supreme Court’s subsequent disavowal of the Blockburger test in Robideau, supra, p 486, we must reconsider whether defendant’s double jeopardy protections were violated in the instant case.
The import of Robideau, supra, in conjunction with the Supreme Court’s decision in People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), is clear: Legislative intent is the crucial aspect of double jeopardy analysis. Although, as noted in Robideau, supra, p 472, much confusion over double jeopardy has resulted from failure to identify the nature of the protection involved, each protection seeks to divine legislative intent. Compare Robideau, supra (single prosecution, two statutes); Wakeford, supra (single prosecution and one statute, but multiple victims); and People v White, supra (successive prosecutions under separate statutes). The instant case involves multiple prosecutions under separate statutes. Accordingly, White, supra, and the "same transaction” test provide the starting point of our analysis.
Since White, supra, p 259, the same transaction test for multiple-prosecution cases has been stated in terms of whether the crimes "were committed in a continuous time sequence, and display a single intent and goal”. This test, however, was further refined in Crampton v 54-A Dist Judge, supra, p 502, in which the Supreme Court held that where, as here, one or more of the statutory offenses is not a criminal intent crime, the inquiry is whether the offenses were part of the same criminal episode and whether they involve "laws intended to prevent the same or similar harm or evil * * *”. In other words, we must ascertain the intent of the Legislature in enacting MCL 600.1701; MSA 27A.1701 as well as in enacting MCL 750.174; MSA 28.371 (embezzlement by a trustee of a sum in excess of $100), and determine whether the Legislature intended that multiple punishments be imposed for such embezzlement when it occurs in a manner which also subjects the defendant to criminal contempt proceedings.
In Robideáu, supra, pp 487-488, the Supreme Court noted several general, but nonexhaustive, principles on determining legislative intent. In the present case, however, the Legislature has provided specific guidance on the matter. MCL 600.1745; MSA 27A.1745 states:
"Sec. 1745. Persons proceeded against according to the provisions of this chapter, shall also be liable to indictment for the same misconduct, if it be an indictable offense; but the court before which a conviction shall be had on such indictment shall take into consideration the punishment before inflicted, in imposing sentence.”
This provision evinces a clear legislative intent to impose separate punishment on a person who has been adjudged in contempt of court if those actions which constituted contempt are also violative of some criminal provision. As the Supreme Court noted in a case where the crime of perjury was the subject of contempt proceedings, "the one act constitutes] two offenses, one against the State and the other against the court”. In re Murchison, 340 Mich 151, 155-156; 65 NW2d 301 (1954), rev’d on other grounds 349 US 133; 75 S Ct 623; 99 L Ed 942 (1955). Indeed, that contempt and embezzlement do not involve "laws intended to prevent the same or similar harm or evil” is further supported by the Supreme Court’s decision in the companion case of In re White, 340 Mich 140; 65 NW2d 296 (1954), in which it was noted that, because the power of contempt speaks to the inherent powers of the court, legislative curtailment of such authority was unconstitutional. Thus, contempt is designed to punish offenses against the court and, as such, represents a separate and distinct offense from the criminal act which provides the basis for the contempt adjudication.
We hasten to add, however, that MCL 600.1745; MSA 27A.1745, while indicating that contempt is a separate offense, instructs that a prior contempt adjudication is to be taken into account in imposing sentence on the underlying offense. And we also note that on the facts before us as recited in our previous decision, it should be remembered, as Judge Allen stated in People v Monday, 70 Mich App 518, 523; 245 NW2d 811 (1976), that "[compassion is still an element of the law. The quality of mercy should not be strained on the facts before us”.
Affirmed.
We note that the contempt statute under which defendant was presumably convicted, MCL 600.1701; MSA 27A.1701, does not require criminal intent. | [
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Per Curiam.
Plaintiffs filed an amended complaint naming Oakland Hills Country Club as a defendant in a dramshop action. Defendant Oakland Hills moved for accelerated judgment based on the limitation period stated in the dramshop statute. Accelerated judgment was granted to Oakland Hills. Plaintiffs appeal to this Court as of right. We reverse.
Plaintiff Gaylord "Mark” Shepard was injured in an automobile accident with defendant Michael Kayler on July 13, 1981. On April 14, 1983, a complaint and interrogatories were filed in Wayne County Circuit Court. Venue was changed to Oakland County Circuit Court. An order compelling answers to the interrogatories was entered June 28, 1983. Plaintiffs received answers to the interrogatories on July 8, 1983. The answers revealed Oakland Hills’ potential dramshop liability. Plaintiffs filed an amended complaint naming Oakland Hills as a defendant on July 11, 1983; this was two days before the limitation period expired. The same day a summons was issued and the complaint and summons were turned over to an independent process server with explicit instructions to immediately serve process on Oakland Hills. Service was made on Oakland Hills on July 15, 1983. Accelerated judgment was granted to Oakland Hills on June 18, 1984, because service was not effected before the expiration of the two-year limitation period in the statute.
The issue is whether this suit was commenced within the two-year limitation period stated in MCL 436.22; MSA 18.993, which provides in pertinent part:
"An action shall be instituted within 2 years after the injury or death and all factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety.”
In Davis v Beres, 384 Mich 650; 186 NW2d 567 (1971) the Court stated that the terms "commence” and "institute” are synonymous for purposes of the dramshop act. The Court stated that, when a statute is construed, legislative intent must be considered. Language in the statute must be construed in light of its legal meaning at the time the statute was enacted. Davis, supra, pp 652-653. The Court stated:
"When the amendment of 1958 was conceived and considered, a law action was commonly spoken of and regarded as having been instituted in bar of limitation where, within the statutorily allowed period, the plaintiffs praecipe for summons was filed, the summons was issued, and that summons was placed in the hands of an authorized person with the bona fide intention of having it served.” Davis, supra, pp 653-654.
The term "institute” was carried forward by the Legislature when the statute was reenacted by 1980 PA 351, § 1. This indicates that the Michigan Supreme Court’s construction of the term "institute” was approved of by the Legislature, otherwise a different term would have been substituted in 1980 PA 351._
Using the Supreme Court’s test to determine if this action is instituted under Davis the record clearly shows that before the limitation period had expired every element of the test had been met with the possible exception of placing the complaint and summons in the hands of "an authorized person”. The question becomes: who is an "authorized person”? Defendant suggests that an action can only be commenced or instituted under Davis if the process is placed in the hands of a sheriff or other court officer. In Davis the Court noted that an action is commenced when legal process is placed in the hands of a person authorized to make service. The Court then cited a number of cases supporting this proposition. The older cases cited required that service, in order to be effective, must be made by an "officer”, i.e., sheriff. Later cases are not so specific in their requirements. In 1958, when the statute was enacted, a person authorized to serve process was the same as a person authorized under current practice. In Taylor v Mathews, 224 Mich 133, 135-136; 194 NW 533 (1923), it was stated:
"Prior to the passage of the judicature act no one but an officer could make a valid service of a summons, and the court held that when it was placed in his hands for service with a bona ñde intention to have it served the suit was commenced. Howell v Shepard, 48 Mich 472 [12 NW 661 (1882)]; Peck v [The German Fire] Insurance Co, 102 Mich 52 [60 NW 453 (1894)]; Dedenbach v City of Detroit, 146 Mich 710 [110 NW 60 (1906)]; People, ex rel McCallum v Gebhardt, 154 Mich 504 [118 NW 17 (1908)]. The legislature then broadened the statute and provided that any person of suitable age and discretion might serve it. If the prior holdings were correct, that suit was commenced when the summons was placed in the hands of an officer qualified to serve it, why does it not follow that suit is commenced when the summons is placed in the hands of a layman of suitable age and discretion? If this be not true, would we not be obliged to hold that where a layman served the summons the suit would not be commenced until service was actually made? There would appear to be no good reason for saying that suit was commenced when the summons was placed in the hands of an officer qualified to serve it, and that it was not commenced when the summons was placed in the hands of a layman, who was qualified under the statute to make the service.”
Our conclusion is that for purposes of MCL 436.22; MSA 18.993 an action is instituted when the complaint is filed, the summons is issued and process is placed in the hands of a person authorized to serve process with the bona fide intent of having it served. That was the means by which a suit was instituted when the statute was enacted; it must be the means by which a suit is commenced today.
Defendant suggests that this conclusion is at odds with MCL 438.22c; MSA 18.993(3), which provides for service where service has not been otherwise effected. That statute provides substitute service where it is shown service could not be effectuated for thirty days. It requires that a return must be made from a sheriff or constable stating that service could not be made. That statute has no application here. Our holding does not create an inconsistency. In order to avail himself of the service provisions of § 22c, the plaintiff must still have a return from a sheriff before the commission may be served in a defendant’s stead. Our holding is thus in harmony with § 22c.
The trial court is reversed.
The Court implicitly rejected the analysis offered by the Court of Appeals in the case. Davis v Beres, 24 Mich App 130; 180 NW2d 111 (1970). The Michigan Supreme Court stated it was improper to infer legislative intent from subsequent enactments such as the General Court Rules of 1963 and the Revised Judicature Act MCL 600.5836; MSA 27A.5856.
We reject this argument. If a dramshop action can only be commenced by placing process in the hands of a sheriff, innumerable dramshop actions have been improperly commenced. We do not believe that the Legislature intended that a dramshop action can only be commenced when process is served by a sheriff. See, Taylor v Mathews, 224 Mich 133, 135-136; 194 NW 533 (1923), infra.
Howell v Shepard, 48 Mich 472; 12 NW 661 (1882); Peck v The German Fire Ins Co, 102 Mich 52; 60 NW 453 (1894); Harvey v Detroit Fire & Marine Ins Co, 120 Mich 601; 79 NW 898 (1899); Dedenbach v Detroit, 146 Mich 710; 110 NW 60 (1906). | [
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Per Curiam.
Smith was a tenured teacher. In 1969, pursuant to the master contract between defendant and the Highland Park Federation of Teachers, she applied for and was granted a personal leave of absence without pay for the 1969-1970 school year. On February 14, 1970, Smith filed a timely request for reinstatement for the fall of 1970. After the board failed to offer a position in reinstatement, the plaintiff requested an extension on her leave. Defendant denied the request and informed Smith that she would be considered for employment if a vacancy occurred.
On February 1, 1971, plaintiff filed a grievance pursuant to the master contract. In March, 1971, Smith was offered a midyear teaching vacancy at the Barber School, which she declined, partially because of her commitment to her then existing employment and partially because of the possible effect on the pending grievance.
Smith’s grievance was ultimately denied on April 27, 1971, by the Board of Education. Plaintiff then appealed to advisory arbitration by counsel of her union. In a December 29, 1971 award, the arbitrator gave plaintiff reinstatement but determined no salary credit was appropriate for the 1969-1970 or 1970-1971 school years. He stated no further relief (other than reinstatement) was warranted.
On January 17, 1972, plaintiff accepted a position team-teaching at the Barber Middle School. She began working on January 31, 1972.
In April, 1973, plaintiff filed suit in Wayne County Circuit Court seeking back pay for the 1970-1971 school year and for the first half of the 1971-1972 school year. The cause was removed to the Court of Common Pleas where plaintiff presented her case and defendant filed a motion for summary judgment.
On February 20, 1976, the court found that plaintiff was estopped from going forward with legal action by her acceptance of a job with the board, pursuant to the arbitrator’s award. Judge Hobson held that the arbitrator in denying back pay did not exceed the scope of his authority. Smith was required either to accept the arbitration award in its entirety or reject the award in its entirety, but she. could not accept it in part and reject it in part. Plaintiff, the court decided, had no cause of action against defendant.
Plaintiff appealed this decision to the Wayne County Circuit Court which affirmed the. Court of Common Pleas in a decision adopting the opinion below.
We deal first with the issue of estoppel: did plaintiffs acceptance of defendant’s offer of reinstatement constitute an acceptance of an advisory arbitral award which plaintiff was then estopped from disavowing?
The grievance procedure of the Master Contract in Part VII, § 7.2, step 5 provides with respect to arbitration:
"The arbitrator’s decision shall be advisory only and shall not be binding upon any party. The arbitrator shall confine his opinion to the sole question of whether or not there has been a violation of this Agreement or whether any disciplinary action was unjust or improper. He shall give no opinion with respect to any matter left by this Agreement or by law to the discretion of the Board or administration.” (Emphasis supplied.)
Were we to find the arbitration pursued through this step of the grievance procedure binding ab initio, we would divest the very language of the agreement of any meaning or significance. We cannot say that the parties entered into a binding arbitration without contradicting the terms of the master contract.
But the circumstances in this case comprehend more than the undertaking of the arbitration process. Plaintiff Smith accepted the arbitrator’s award by accepting the defendant’s offer of reinstatement and returning to work.
"The law does not permit one party to an [arbitration] award to profit by its execution by the other party, and then repudiate it.” Taylor v Smith, 93 Mich 160, 163-164; 52 NW 1118 (1892).
While Taylor v Smith, supra, is factually distinguishable from the present case, the theory of estoppel it espouses is applicable here. No one should be allowed to accept the fruits of an arbitrator’s award and then dispute its validity. Newman v Avco Corporation-Aerospace Structures Division, 451 F2d 743 (CA 6, 1971). Even if the original status of the arbitration is simply advisory, once the award is accepted, it must be accepted as a whole: that part which is unfavorable cannot be disclaimed.
"[A] party who accepts payment in satisfaction of a voidable award, or of anything done by the opposite party in part performance of such award, or receives fruits thereof, will be held to have ratified the same and to be estopped from thereafter questioning its validity or refusing to perform its terms.” Ames Canning Co v Dexter Seed Co, 195 Iowa 1285, 1292; 190 NW 167 (1922); Taylor v Smith, supra. 5 Am Jur 2d, Arbitration and Award, § 183, p 653.
The underlying rationale of arbitration, i.e., the final resolution and settlement of disputes between parties to a contract or transaction, supports the concept that, though advisory in its inception, once accepted the award of a nonbinding arbitration becomes binding in toto and a matter settled. The award derives its legal conclusiveness not from the terms of a contract whereby the parties agree to submit the dispute to advisory arbitration, but from the fact of its acceptance by the parties.
"Equitable considerations under the doctrine of estoppel argue strongly against allowing a litigant to make full use of arbitration up to the point of acceptance of the award (reinstatement to his job) and then permitting him to sue in another forum for the backpay which the arbitrator denied.” Newman v Avco Corporation-Aerospace Structures Division, supra, at 749.
Such would be the result in the present case but for one factor. The arbitrator derives his or her power solely from the agreement between the parties and the agreement is the law of the case. Acme Cut Stone Co v New Center Development Corp, 281 Mich 32; 274 NW 700 (1937), Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975). An arbitrary award outside of the scope of the agreement of arbitration is not binding on anyone, because it has no legal sanction. Stowe v Mutual Homebuilders Corp, 252 Mich 492; 233 NW 391 (1930).
The arbitration agreement, Part VII, § 7.2, step 5, states:
"The arbitrator shall confine his opinion to the sole question of whether or not there has been a violation of this Agreement or whether any disciplinary action was unjust or improper. He shall give no opinion with respect to any matter left by this Agreement or by law to the discretion of the Board or administration.”
In denying plaintiff all relief other than reinstatement, the arbitrator exceeded the scope of his authority. Whether or not plaintiff was entitled to back pay for defendant’s failure to reinstate her upon request after her leave of absence without pay is not an issue over which the arbitrator had power to exercise authority. That issue is not, through any expansion of the contract language, a question of whether or not the board violated the agreement or took unjust or improper disciplinary action against Smith. The arbitration agreement does not authorize the arbitrator to determine what relief is appropriate upon a finding that the agreement has been violated or that certain disciplinary action was unjust or improper.
In cases in which an arbitrator has exceeded his or her authority, in which, thereby, a part of the award becomes a nullity, the award is not totally invalid. It is proper to sever that portion which is a nullity from the remainder of the award. Carr v Kalamazoo Vegetable Parchment Co, 354 Mich 327; 92 NW2d 295 (1958), E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221; 230 NW2d 556 (1975).
Plaintiff, in accepting the arbitrator’s award, and thus binding herself as to its entirety, could not bind herself to that part which was invalid by reason of the fact that it exceeded the scope of the arbitrator’s authority. Therefore, while plaintiffs acceptance of the award gave it legal conclusiveness, as with all arbitration awards, it was legally conclusive only insofar as it was valid. Since it was not valid (and thus not conclusive) as to the denial of back pay, plaintiff has a cause of action for back pay in the courts. The motion for summary judgment should not have been granted.
Remanded for proceedings consistent with this opinion. On remand, we suggest that the trial court examine closely the issue, if any, of plaintiffs mitigation of damages through her interim employment and the possibility that any award rendered reflect such mitigation. We retain no further jurisdiction. | [
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Per Curiam.
This case involves a claim for injuries resulting from an automobile accident which occurred on March 3, 1973. On December 22, 1975, plaintiff filed her complaint and on January 15, 1976, she made a motion for substitute service under GCR 1963, 105.8, stating that she was unable to locate and serve defendant personally despite good faith efforts. On February 24, 1976, the court entered an order permitting substitute service by (1) mailing a copy of the summons and complaint by certified mail to the Secretary of State, (2) mailing the same to defendant’s address in Southfield, Michigan, (3) publishing a notice for four days in the Detroit Free Press, and (4) mailing copies of the summons and complaint to the Michigan agent for service of process of Aetna Life & Casualty Company, the insurer of defendant on the date the accident took place. On March 22, 1976, defendant appeared specially seeking to quash the service of process and a dismissal of the action. On January 20, 1977, dismissal was ordered on the ground that defendant was not prop erly served. In his opinion, the trial judge stated that he found that the circumstances present in this case did not meet the threshold requirements for the use of GCR 1963, 105.8 and that the method of service ordered was not reasonably calculated to give defendant actual notice. Plaintiff appeals claiming that the service of process was valid under GCR 1963, 105.8.
The purpose behind GCR 1963, 105.8 is to allow the judge, in the exercise of his discretion, to order service by substitute means if those means are reasonably calculated to provide actual notice to the defendant. The text of the rule establishes as a threshold requirement that service cannot be reasonably made in a manner provided for under the other rules. In State Board of Education v von Zellen, 1 Mich App 147, 157; 134 NW2d 828 (1965), the Court stated that, "It appears from the language of the court rule that the discretion of the court is activated by a 'showing to the court that service of process cannot reasonably be made in the manner provided for under other rules’ ”. In the case at bar, the record shows that personal service was attempted under GCR 1963, 105.1 but was unsuccessful despite diligent efforts. Thus, the threshold requirement was satisfied. The trial judge, in his opinion, found that service under GCR 1963, 105.8 was not authorized since there was no showing that defendant was attempting to evade service or had taken action which prevented personal service. The holding in Felix v Felix, 47 Mich App 744; 209 NW2d 871 (1973), dees not require such a finding before the judge is permitted to exercise his discretion under GCR 1963, 105.8. In Felix, supra, plaintiff had not attempted to serve defendant under the provisions of other applicable rules. Therefore, plaintiff had not shown that service could not reasonably be made in a manner provided for under the other applicable rules as required by GCR 1963, 105.8. In the instant case, plaintiff has attempted service under the only other applicable rule, GCR 1963, 105.1, and she was unable to serve defendant as provided for by that rule.
While consideration of the fact that defendant is avoiding service is proper when the judge is exercising his discretion in deciding whether to permit substitute service, this factor is only indirectly relevant to the resolution of the threshold issue of whether service can reasonably be made in a manner provided for under the other rules. It is not a separate, distinct requirement. In promulgating GCR 1963, 105.8, the Supreme Court was not only concerned with making substitute service available in the proper situation but also with limiting its availability to the proper situation. As a matter of public policy, the courts want to avoid the overuse of substitute service and the default judgment it can cause. Certain requirements were inserted into the rule to fulfill this goal. One such requirement is that service cannot be reasonably made under the other rules. Another is that the judge, in the exercise of his discretion, finds that substitute service is warranted and that the proposed method of service is reasonably calculated to give actual notice. Abuses of the use of this rule are to be prevented primarily by entrusting this matter to the trial court’s discretion. The threshold requirement was not intended to eliminate all these problems. Rather, a two-step protective process was created with the primary reliance being placed on the last step: the judge’s exercise of his discretion. Consequently, there is no justification for limiting the availability of GCR 1963, 105.8, by requiring as a threshold requirement that defendant was avoiding service. It is sufficient if service could not reasonably be made under the other applicable rules.
Since the facts in this case meet the threshold requirements for the use of GCR 1963, 105.8, and plaintiffs attempts to serve defendant complied with the order of substitute service, the only remaining issue is whether the method of service ordered was "reasonably calculated to give [defendant] actual notice of the proceedings”. This requirement was inserted into the rule to preserve it from due process challenges, see 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 113. The validity of the service depends on whether it satisfies this due process requirement.
Initially, we note that plaintiff in her brief on appeal alleges that defendant received actual notice of the suit via certified mail on March 4, 1976. In support of this allegation, plaintiff offers to produce a certified mail receipt signed by defendant on March 4, 1976, showing that defendant received a copy of the summons and complaint. This evidence was not presented to the trial judge and was not considered by him. Plaintiff explains her failure to produce this receipt on the grounds that it was inadvertently misfiled. Due to the importance of whether plaintiff, in fact, received this notice to the resolution of this issue, we are remanding this case to the trial court so that the trial judge can receive evidence and make the necessary findings concerning this fact.
If defendant did receive actual notice, then the service in this case is unquestionably valid under the due process standard, Hess v Pawloski, 274 US 352; 47 S Ct 632; 71 L Ed 1091 (1927), Lawn v Franklin, 328 F Supp 791 (SD NY, 1971), and the rule. It was a sufficient basis for personal jurisdiction over the defendant in this matter. Service of process took place within the 180-day time limit as required by GCR 1963, 102.4 and therefore, the suit should not have been dismissed, see Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). If the trial court finds that defendant did not receive actual notice, as alleged, then the order of dismissal is affirmed since the trial court did not err reversibly in ruling that, on the facts of this case, the method of service used was not reasonably calculated to give defendant actual notice of the proceedings.
Remanded for further proceedings consistent with this opinion.
Analytically, the issue of whether the mode of service is reasonably calculated to give defendant actual notice can be determined from the facts presented to the trial court when it enters an order providing for substitute service. The "reasonableness” of the attempt can be determined independently of whether defendant actually received notice. However, when the courts are in a position to know that defendant did, in fact, receive notice, they normally do not ignore this fact but, rather, it is a factor taken into account in determining whether service was proper. | [
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J. H. Gillis, J.
Defendants appeal as of right from judgments entered in Allegan County Circuit Court finding defendant, Arthur Vos, a constructive trustee of certain properties previously owned by plaintiff. The trial court ordered defendants to reconvey part of said properties to plaintiff along with $11,437 in damages.
The trial court also denied defendants’ claims for taxes paid and improvements made on the property in question.
A review of the record reveals the following facts:
Plaintiff and his wife owned several parcels of land in Saugatuck Township, the title to said properties being the subject matter of the case at bar.
During the years 1964, 1965 and 1966, plaintiff became financially distressed due, in part, to his illness, his wife’s illness and subsequent death, business reversals and the depletion of gravel in his gravel pit. As a result of this situation, plaintiff became delinquent in making payments on his debts, mortgages and taxes.
Late in 1965, the bank foreclosed a chattel and real estate mortgage given by plaintiff and obtained a circuit court commissioner’s deed on part of plaintiff’s property. Plaintiff, in an effort to save his property, entered into an agreement whereby plaintiff would allow the redemption period on the property to expire and then the bank would convey the property to defendant for the balance due on plaintiff’s mortgage. Defendant would then, in consideration of the low price he paid to the bank for the property, reconvey part of the property back to plaintiff.
The transaction went as planned except defendant failed to reconvey part of the property back to plaintiff. Hence, plaintiff commenced this action seeking the imposition of a constructive trust on defendant for part of the property at issue.
Defendants first contend that the trial court erred in finding defendant, Arthur Vos, a construe tive trustee of part of the properties for the benefit of plaintiff.
Constructive trusts are creatures of equity and their imposition makes the holder of the legal title the trustee for the benefit of another who in good conscience is entitled to the beneficial interest. They are distinguished from express and resulting trusts in that they do not arise by virtue of agreement or intention, but by operation of law. Kren v Rubin, 338 Mich 288; 61 NW2d 9 (1953), Digby v Thorson, 319 Mich 524; 30 NW2d 266 (1948), Stephenson v Golden, 279 Mich 710; 276 NW 849 (1937), Hewelt v Hewelt, 245 Mich 108; 222 NW 119 (1928), Weir v Union Trust Co, 188 Mich 452; 154 NW 357 (1915). Constructive trusts, while infinite in their variety, are imposed only where it would be inequitable to do otherwise. Union Guardian Trust Co v Emery, 292 Mich 394; 290 NW 841 (1940), Chapman v Chapman, 31 Mich App 576; 188 NW2d 21 (1971).
In the instant case, it is not disputed that the parties did in fact enter into an oral agreement whereby defendant was to reconvey part of the real estate he purchased from the bank back to plaintiff. It is also readily apparent that plaintiff allowed the redemption period to expire on his property relying upon defendant’s promise to re-convey part of the property back to him.
Hence, defendant obtained title to part of the properties in question via misrepresentation and fraud. Under such circumstances it would be unconscionable to allow defendant to retain title to said properties. See Nichols v Martin, 277 Mich 305; 269 NW 183 (1936), Weir v Union Trust Co, supra. See Markoff v Tournier, 229 Mich 571; 201 NW 888 (1925).
We also note that while the agreement in the instant case is not in writing, parol evidence is admissible to establish its existence since the statute of frauds is- not a bar to plaintiffs action for the imposition of a constructive trust and for specific performance of the oral agreement. Kren v Rubin, supra, Digby v Thorson, supra, Evanoff v Hall, 310 Mich 487; 17 NW2d 724 (1945), Zaborski v Kutyla, 29 Mich App 604; 185 NW2d 586 (1971).
Accordingly, we find that the trial court properly imposed a constructive trust on the property at issue in favor of plaintiff.
Defendants next contend that the trial court erred in failing to give defendant credit for taxes paid and improvements made on the property at issue.
In respect to the alleged improvements made by defendants on the property, the trial court found that the sewage system installed on the property was a detriment rather than an improvement and accordingly reduced the value of the land. Our de novo review of the record supports the trial court’s findings. Hence, defendants are not entitled to reimbursement for the alleged "improvements” they made on the property.
The question of whether or not defendants are entitled to reimbursement for the taxes they have paid presents a more difficult issue.
The instant proceedings are equitable in nature and require this Court as well as the trial court to balance the equities between the parties and grant relief accordingly. additional or incidental relief as is necessary to adequately sort out the equities of the parties. Van Camp v Van Camp, 291 Mich 688; 289 NW 297 (1939), Klais v Danowski, 373 Mich 281; 129 NW2d 423 (1964).” Brotman v Roelofs, 70 Mich App 719, 732; 246 NW2d 368 (1976).
"A court of equity in granting specific performance may grant in its decree for specific performance such
The record reveals that defendant did in fact pay taxes on a portion of the properties from 1963 to 1974. Under the circumstances of this case, we believe that in order to do equity to all those involved, defendants should be reimbursed for these payments.
As noted by the trial court, apportionment of the taxes among the properties will be a most difficult task. However, this reason alone should not cause the trial court to overlook the amounts defendants have paid in taxes on the property.
Accordingly, this case must be remanded to the trial court for an evidentiary hearing to determine how much defendants have paid in taxes on the property at issue. Defendants shall be entitled to a set-off against the damages they were ordered to pay to plaintiff for this amount. The remainder of the trial court’s opinion is affirmed.
Remanded. No costs, neither party having prevailed in full.
We retain no further jurisdiction.
In their brief on appeal defendants also claim that there was a condition precedent to reconveying the property back to plaintiff, which was never met. Our review of the record supports the trial court’s finding that no such condition existed.
No interest shall be awarded on this amount in that defendants have wrongfully held possession of the property at issue for an extended period of time. | [
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Per Curiam.
Plaintiff brought this breach of contract action on March 8, 1973, based on defendant Smith’s refusal to perform under a contract awarded to him by plaintiff. Damages sought were $550,796.83, the difference between Smith’s low bid and the next lowest bid. Accompanying the original bid was a performance bond issued by defendant American Casualty Company of Reading, Pennsylvania in the amount of $91,277.77 (5% of the Smith bid). On January 25, 1977, after a non-jury trial, judgment was entered in plaintiff’s favor for $91,277.77. Defendants appeal.
In 1972, plaintiff was bidding the DeWitt Township Sanitary Sewer Project, Phases I and II. Plaintiff advertised for bids for the construction of this sewer system pursuant to certain specifications drawn by plaintiff’s engineering consultant firm, Mick and Rowland of Angola, Indiana. De fendant Smith responded. Notice to bidders was published that bids would be opened on March 20, 1972.
Bids were in fact opened on March 30, 1972, and read by representatives of Mick and Rowland. Present at the bid opening were various members of the Board of Clinton County Department of Public Works, employees of the board, and on behalf of defendant, Smith Engineers & Contractors, the General Superintendent, Horace Jasman, and the Office Manager-Secretary, Shirley Wesley.
The bids that were opened appeared as follows:
1. Forsberg, Inc. $3,561,707.05
2. Barnhart Construction Co. 3,044,375.10
3. John Lango 3.110.000. 00
4. Parsons 2,994,226.80
5. Fraser 2.997.903.00
6. Bay Construction Company 2.875.100.00
7. Delta Construction Company 2.788.000. 00
8. Nelson 2.702.712.00
9. Fisher 2.582.707.00
10. Dunnigan 2.567.481.00
11. Ackron 2.380.647.00
12. DeWitt 2,376,352.33
13. Smith 1,825,555.50
The bid openings reflected that defendant Smith’s bid was the lowest bid opened and was $550,796.83 lower than the next lowest bid. It should be noted that the third lowest bid of Ackron was only $4,294.67 higher than DeWitt’s. There were no disputed facts regarding the bid opening, the bids as submitted, nor that the bid of defendant Smith was the lowest bid presented. Further, it is not disputed that defendant Smith was unaware of any error in his bid prior to the opening.
However, defendant-appellant surety contends on appeal, as below, that Mr. Smith properly notified plaintiff of an error in the bid, prior to the award of the bid on April 6, 1972. It is admitted that there was no written notification but defendant-appellant surety claims that Mr. Smith attempted to inform plaintiff of his error by a telephone conversation to Mr. Dale Chapman, Chairman of the Board, as soon as he discovered the error. Mr. Jasman claims he overheard the conversation. Mr. Chapman does not recall any such conversation.
Defendant-appellant surety further claims that Mr. Smith made a subsequent call on April 2, 1972, to Mr. Mick at his home in Indiana. In his deposition, Mr. Mick remembered receiving a telephone call. However he claims that Mr. Smith did not indicate any error in his calculations and made no indication of his desire to rescind the bid.
There is no dispute that an informal meeting was held on April 3, 1972, in Dale Chapman’s office; in attendance were Richard Mick, Lowell Smith, Dale Chapman, Paul Nobis and Bob Eldridge. Of those in attendance, testimony was taken and placed on the record of all but Lowell C. Smith, now deceased.
There is no question that Mr. Smith appeared at the gathering and did make mention of a possible mistake in his bid. What mention was made by Mr. Smith, and in what manner it was mentioned, is factually disputed. Messrs. Chapman, Nobis and Eldridge all testified that Mr. Smith exhibited a single adding machine tape, apparently to support an alleged error in his bid. All of the parties indicated that they did not personally view the tape. All parties further indicated the tape was not explained, nor expanded upon in any fashion by Mr. Smith, and that Mr. Smith made no mention at that time that the alleged error was due to his leaving out the restoration process, in its entirety, from his calculations. All par ties agreed that at this informal meeting no attempt was made by Mr. Smith to rescind his bid. No minutes were taken of the informal meeting.
The bid was formally awarded at the board meeting of April 6, 1972. None of plaintiffs witnesses have any independent recollection of what transpired at that meeting. The minutes themselves do not purport to be a verbatim transcript but rather are a summary of notes made by the secretary to the board.
The April 6 minutes, Exhibit 1 at trial, indicate the following, in part:
"Mr. Chapman then presented a number of objections to accepting the low bid of Smith Engineering Co. on Phase II and asked for consideration of the matter of acceptance or rejection of the bid. Mr. Mick interjected the thought that Mr. Smith might very well accept the contract at his low bid citing the fact that the overall average per foot price as bid is $17.16 which, in his opinion, is a legitimate price. The question of the legitimacy of the bid bond was then raised and it was the expressed opinion of both attorneys present that the bond, as offered, could be enforced. After some further discussion on the matter, the following motion was offered by Member Nobis, supported by Member Chamberlain:
" 'Resolved That:
1. The contract for construction of Phase II, Clinton County Sanitary Sewage Disposal System No. 1, Township of DeWitt, be awarded to Smith Engineering and Contractors in accordance with the bid received from said contractor on 30 March 1972.
2. The contract shall not become effective until the proceeds from the sale of the bonds for this project have been received by the Department of Public Works and until it shall have given the contractor notice to proceed with performance of the contract.
3. The contract shall be submitted to the contractor for signature immediately.
A roll call vote gave the following results:
3 members voted 'aye’
1 member was absent
0 members voted 'nay’
The motion was declared to be carried by the Chairman.”
A number of other matters were disposed of. Then, the minutes relate:
"Upon return to the meeting, Mr. Smith entered the room and Mr. Green at once informed him that the Board had awarded him the contract at his bid price presented at the letting held on 30 March 1972. Mr. Smith countered by asking Mr. Green if the Board or he had been informed of any variances in the bids and was told that no significant differences had been noted other than might occur in any letting of bids. The Chair then asked Mr. Smith if he had any questions about the contract offered. Mr. Smith replied he thought he had raised a legitimate question concerning his bid at an informal meeting held in Mr. Chapman’s office on the afternoon of Monday, 3 April 1972 which meeting was attended by Mr. Chapman, Mr. Nobis, Mr. Mick and Mr. Eldridge. He further stated he had made an error in his bid and had so informed those in attendance at that meeting. Mr. Smith then cited what he believed to be legal reasons as to why he should be relieved of his obligation of his bid. Mr. Green said those reasons were legal points only and were subject to interpretation. Mr. Green further stated we were not here to argue points of law but to award a contract. Mr. Smith intimated that he might carry the case to the courts but would rather not. After some further discussion, Mr. Smith asked if their [sic] were any further questions to be asked of him before he left the meeting. Mr. Green asked if Mr. Smith cared to indicate at this time whether or not he intended to sign the contract or did he desire more time to consider. Mr. Smith countered by stating he desired to go on record as having informed the consulting engineer on Sunday night, 2 April 1972, of a mistake he, Mr. Smith, had made in addition in submitting his bid and that again on Monday, 3 April 1972 at 4:30 P.M. he had informed Mr. Nobis, Mr. Chapman—Board Members; Mr. Mick—Consulting engineer and Mr. Eldridge, Deputy Secretary of this same error in his own calculations. Mr. Green again asked if Mr. Smith intended to sign the contract and again Mr. Smith did not respond directly. After some further comments, Mr. Smith stated that the Board would hear from him within ten days and, after a few more comments, he left the meeting.”
The trial court in a well written opinion stated it chose to believe appellee’s witness and not appellants’ witnesses. However, the meeting was still in progress at the time Mr. Smith entered and the board could have and should have reconsidered its acceptance. It seems to us that the calling of the informal meeting of April 3 after the phone call to Mr. Mick on April 2 must have given the parties at the April 3 meeting notice of defendant Smith’s intention to rescind. Further, the minutes of the April 6 meeting clearly show that the board itself had some doubts of defendant Smith’s intention to accept the award, since the board’s attorneys requested that the board ask Mr. Smith if he would sign the contract. This question was asked of Mr. Smith as soon as he entered the meeting.
We note that the board could have accepted defendant Smith’s bid with the error corrected (which would still be less than the second lowest bid) or it could have asked Mr. Smith if he would compromise the mistake or it could have rejected the bid. Instead, the board chose to try to take advantage of the mistake. We cannot tolerate the injustice which was perpetrated on defendant Smith.
As stated in Fraser Public Schools Dist v Kolon, 35 Mich App 441, 443; 193 NW2d 64 (1971), lv den, 386 Mich 768 (1971):
"We do no violence to the settled principle that the findings of fact of a trial judge, sitting as trier of the facts, will not be set aside unless clearly erroneous, because we reverse for an error of law. We believe the learned trial judge misapplied the applicable law to his found facts.”
Kutsche v Ford, 222 Mich 442, 449; 192 NW 714 (1923), succinctly explains the applicable legal principles:
" ' "We think that the facts herein bring the case within this principle governing a unilateral mistake stated in 1 Story, Equity Jurisprudence (12th Ed.), § 138:
" ' " 'But where the mistake is of so fundamental a character that the minds of the parties have never, in fact, met, or where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in statu quo; equity will interfere, in its discretion, to prevent intolerable injustice.’ * * * In Hearn v. Insurance Co., 20 Wall. ([87] U.S.) 488 [22 L Ed 395 (1874)], it is said:
" ' " 'A mistake on one side may be ground for rescinding, but not for reforming, a contract.’ ” ’ ”
We therefore hold that the trial court should have allowed defendant Smith to withdraw the contract, which would relieve the surety of its liability under the contract. Accordingly, we reverse the judgment against defendant-appellant surety as a matter of law.
It should be noted in passing that this case is substantially similar to Puget Sound Painters Inc v State of Washington, 45 Wash 2d 819, 823; 278 P2d 302, 304 (1954), wherein it was held:
"that equity will relieve against forfeiture of a bid bond (a) if the bidder acted in good faith, and (b) without gross negligence, (c) if he was reasonably prompt in giving notice of the error in the bid to the other party, (d) if the bidder will suffer substantial detriment by forfeiture, and (e) if the other party’s status has not greatly changed, and relief from forfeiture will work no substantial hardship on him.”
Accord: Utah v Union Construction Co, 9 Utah 2d 107; 339 P2d 421 (1959).
Reversed. Costs to appellants.
The Smith bid was prepared by Lowell C. Smith, now deceased. | [
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] |
Bashara, J.
Plaintiffs appeal from a trial court order granting defendants’-appellees’ motion for an accelerated judgment. That motion was based upon the alleged failure of plaintiffs to commence their dramshop action against these defendants within the two-year statute of limitations.
Injury was sustained by plaintiffs from a collision with an automobile driven by defendant Young, occurring on August 2, 1974. During a July 2, 1975, pretrial deposition, plaintiffs learned that Young had been drinking at the establishments of the defendants involved in this appeal.
On March 10, 1976, plaintiffs filed a motion to amend their complaint to add those defendants under the dramshop act. After several adjournments, the motion was heard without opposition and granted on March 31, 1976. Attached to the motion was a copy of the proposed amended complaint, but, according to the record, it was not filed with the court for service until August 6, 1976. Apparently, the intervening time period was consumed by plaintiffs’ motion for entry of an order allowing the complaint to be amended and several adjournments of the hearing on that motion. This latter motion was granted on July 7, 1976, and a nunc pro tunc order was filed on August 24, 1976.
Plaintiffs contend that the filing of the motion to amend, together with a copy of the proposed amended complaint, constituted a commencement of the action against the added defendants within the meaning of GCR 1963, 101. Consequently, plaintiffs maintain that the action was commenced on March 10, 1976, well within the limitations period, which ended on August 2, 1976.
In the alternative, plaintiffs argue that the statute of limitations was tolled during the interim between the filing and granting of the motion to amend. Adding this 21-day period to the time limitation on dramshop actions, plaintiffs maintain that the amended complaint was filed within the statute of limitations, which did not bar commencement of proceedings until August 23, 1976.
Appellees contend that rule 101 be strictly construed. Accordingly, they argue that only when the amended complaint is actually filed should the action be deemed to have commenced against the added defendants.
The opposing sides of this controversy bring into juxtaposition the purposes and policy underlying our court rules permitting pretrial amendment of pleadings and those upon which are founded statutes limiting the time in which a cause of action may be prosecuted. As applicable to the instant case, the former permit a diligent plaintiff to seek recovery from those whose potential liability and existence are not discovered until after the initiation of a cause of action against another involved in the same transaction or occurrence. The latter promote security from litigation arising out of transactions or occurrences remote in time.
Noting that GCR 1963, 101 is derived from FR Civ P 3, plaintiffs cite a number of Federal court decisions holding that the filing of a motion to amend to add parties is commencement of the action against those parties. To support their tolling theory, plaintiffs cite the decision of this Court in Forest v Parmalee (On Rehearing), 60 Mich App 401; 231 NW2d 378 (1975).
While the Federal decisions are enlightening, we decline to formulate any inflexible rule based upon their suggested interpretation of the Federal counterpart to GCR 1963, 101. Similarly, a more appealing fixed rule of procedure is not yielded from our review of Parmalee. Our conclusion is that any rule made to apply without regard to the peculiar circumstances of each case would undermine the purposes of both our court rules and the statutes of limitation and invite a risk of injustice of an unacceptably high degree.
We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court’s review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case.
In every case cited by the plaintiffs under FR Civ P 3, the particular circumstances were of dominant influence on the court. Their common factual characteristics included the filing of a motion to amend at or near the end of the limitations period, a ruling on the motion near or after the expiration of that period, and a contemporaneous filing and service of the amended complaint.
In the case under review, the plaintiffs obtained knowledge of the added defendants’ potential liability more than a year before expiration of the statute of limitations. Their motion to amend was filed eight months later and granted more than four months prior to the end of the limitations period. Nevertheless, the plaintiffs permitted the remaining four months to lapse before filing the amended complaint with the court for service upon the added defendants.
As stated by Justice Swayne of the United States Supreme Court:
"Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.”
Wood v Carpenter, 101 US 135, 139; 25 L Ed 807, 808 (1879), quoted in Ramsey v Child, Hulswit & Co, 198 Mich 658, 671; 165 NW 936 (1917). Our rule 101 is in harmony with these considerations by providing a simple and expeditious means of ascertaining when a civil action has been commenced. Buscaino v Rhodes, 385 Mich 474, 484; 189 NW2d 202 (1971). Only where a plaintiff demonstrates diligence in discovery and compliance with procedural rules should a deviation from the foregoing principles be permitted to avoid a defense based on the statute of limitations.
Under the circumstances of this case, we find that the trial court properly granted the added defendants’ motion for accelerated judgment. That judgment strikes a fair balance between the objectives of our court rules and the valuable purposes served by the statute of limitations. Plaintiffs cannot now complain of a situation created by their own lack of diligence.
Affirmed. Costs to defendants.
Beasley, P. J., concurred.
MCL 436.22; MSA 18.993.
In pertinent part the dramshop act provides, "Any action shall be instituted within 2 years after the happening of the event and * * * .’’Id.
Rule 101 provides simply that "A civil action is commenced by filing a complaint with the court”.
See GCR 1963, 118 and 207 for the rules facilitating an amendment to add parties. Their respective Federal rule derivatives, rules 15(a) and 21, have been construed to entail the same basic standards in governing a motion to add parties whether the motion is made pursuant to Federal rule 15(a) or 21. See FR Civ P 15(a) and 21, Gibbs v Titelman, 369 F Supp 38, 53 (ED Pa, 1973).
See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 33.
Rademaker v E D Flynn Export Co, Inc, 17 F2d 15 (CA 5, 1927), Derdiarian v Futterman Corp, 36 FRD 192 (SD NY, 1964), Gloster v Pennsylvania R Co, 214 F Supp 207 (WD Pa, 1963), Robinson v Waterman SS Co, 7 FRD 51 (DNJ, 1947).
In Rademaker, the motion was filed, heard, and granted with process issuing and being served upon the added defendant within the limitations period. The motion in Derdiarian was filed 23 days before the statute of limitations expired and was heard and granted four days before with an order signed seven days after expiration. In Gloster, the motion was filed on the last day of the limitations period and through the fault of the court only, was heard 36 days later. The motion in Robinson was filed 12 days before the end of the limitations period and was heard and granted six days thereafter with an order and amended complaint filed simultaneously with the court pursuant to FR Civ P 5(e). | [
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M. J. Kelly, J.
On March 15, 1976, defendant pled nolo contendere to four counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of armed robbery, MCL 750.529; MSA 28.797, in Recorder’s Court for the City of Detroit. The trial court relied on the preliminary examination (December 15, 1975) transcript and repeat of testimony by the victim at the plea proceedings to establish a factual basis for the instant crimes.
On March 19, 1976, the court sentenced defendant to concurrent sentences of 10 to 15 years on each of four counts of criminal sexual conduct and one count of armed robbery.
The trial judge denied defendant’s motion to vacate sentence, motion for evidentiary hearing, and motion to withdraw his plea on June 29, 1976. Defendant appeals as of right.
There were two distinct sexual acts, each charged in connection with the commission of another felony, and then each charged as being perpetrated or accomplished while armed with a weapon. We hold that two of the convictions must be set aside and the charges dismissed.
At the sentencing proceedings on March 19, 1976, the following colloquy took place between defense counsel and the court:
"Mr. Arduin: Pardon me, your Honor, I don’t mean to interrupt but I would also like to clarify to the Court that there was [sic] only two acts of penetration, fellatio and intercourse, although they were perpetrated by different means under the subsections of the statute. So while there is [sic] four particular counts of criminal sexual conduct, there was [sic] only two active acts of sexual—
’’The Court: Yes, I understand that but he pled guilty to all five counts in the Information and there were two where a weapon was used and that’s why there were separate counts. So they more or less mell with one another but the point is that I have to sentence him on each count. They all carry the same maximum penalty.
"Of course, any sentence that I impose will run concurrent with the others; do you [sic] understand that, don’t you?”
This Court has recently held in People v Willie Johnson, 75 Mich App 221, 224; 255 NW2d 207 (1977):
"We are convinced that the Legislature intended that but one conviction under the criminal sexual conduct act could result from a single act of intercourse.”
The Johnson Court held that where there was only one sexual penetration of one victim only one conviction could stand. The jury had found Johnson guilty on two counts, and this Court vacated the conviction on one of the counts.
In a more recent case, People v Nelson, 79 Mich App 303, 305; 261 NW2d 299 (1977), another panel of this Court refused to follow Johnson. In Nelson, the defendant was convicted on four counts of criminal sexual conduct. The trial court explained the following charges in Nelson:
"So count one alleges intercourse with a person under the age of thirteen. Count two alleges intercourse while the defendant was allegedly armed with a weapon. Count three alleges fellatio with a person under the age of thirteen; and count four alleges fellatio with defendant allegedly then and there armed with a weapon or an article used or fashioned in the manner to lead a person to reasonably believe it to be a weapon.”
The Nelson panel of this Court affirmed defendant’s conviction on all four counts. It mentioned the Willie Johnson case in a footnote, Nelson, supra at 319, n 35, and an attempt was made to distinguish Nelson from the standpoint that the victim was a child. We think such a distinction not appropos. The Johnson Court and the Nelson Court are in diametric opposition on this issue. We follow the Johnson decision and resolve the issue by vacating Harper’s conviction on two counts and we set aside the sentence on each of those two counts and dismiss with prejudice. Because each of the counts are drawn from one statutory section and each conviction resulted in the same sentence we find it unnecessary to remand. See also People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).
The next issue is whether the trial court properly advised the defendant of the possible maximum or minimum sentences in substantial compliance with GCR 1963, 785.7(1)(b).
In addressing this issue both parties refer to a section of the court rule that had been superseded at the time of these proceedings below. The court rule referred to by the parties was amended by the Supreme Court in Guilty Plea Cases, 395 Mich 96, 138-139; 235 NW2d 132 (1975). The effective date of the amendment was December 7, 1975. The nolo contendere proceeding below took place on March 15, 1976.
The applicable court rule is found in GCR 1963, 785.7(1)(b), referring to a maximum possible prison sentence, and GCR 1963, 785.7(1)(d), referring to mandatory minimum prison sentence, if any.
On page 3 of the plea transcript the court advised the defendant that he could receive a sentence of up to life imprisonment or any number of years in the discretion of the court. In so stating the trial court sufficiently complied with GCR 1963, 785.7(1)(b), having advised the defendant of the maximum possible prison sentence of life imprisonment. See Guilty Plea Cases, 395 Mich at 117-118.
The oft-recurring question is whether or not the phrase contained in the armed robbery statute and the first-degree criminal sexual conduct statute of "imprisonment in the state prison for life or for any term of years” is subject to being construed as providing a mandatory minimum sentence requiring advice to be given by the trial judge under GCR 1963, 785.7(1)(d), MCL 750.529; MSA 28.797, MCL 750.520b(2); MSA 28.788(2)(2).
As to minimum sentence the trial court in the instant case advised the defendant:
"The Court: * * * you could receive any number of years up to life imprisonment to this offense. You’re aware of that; are your [sic] not?
"Mr. Harper: Yes, sir.
'The Court: A person convicted or [sic] armed robbery and criminal sexual conduct of the first degree can receive as high as life imprisonment or any number of years in the discretion of the court. However, it’s mandatory upon the court as far as armed robbert [sic] is concerned that the court sentence you to some term of years; do you understand that?
"Mr. Harper: Yes, sir.”
In People v Burridge, 99 Mich 343; 58 NW 319 (1894), the Court held that where a statute provides imprisonment for life or any term of years, a minimum sentence imposed shall be not less than two years.
The Burridge case has recently been discredited by this Court based upon Guilty Plea Cases, supra, and in People v McKnight, 72 Mich App 282, 284; 249 NW2d 392 (1976), lv den, 399 Mich 848 (1977). The McKnight Court stated that "there is no necessity to advise the defendant of any minimum sentence before accepting a plea of guilty to an offense punishable by imprisonment for life or 'any term of years’ McKnight had entered a plea of guilty to a charge of armed robbery.
In a later case, a panel of this Court has stated that "there is no mandatory minimum sentence for armed robbery”. People v Freeman, 73 Mich App 568, 570; 252 NW2d 518 (1977). But there is. It is "any number of years”. If that phrase does not mean, under Burridge, two years, (see fn 1, supra) then what does it mean?
The general rules of construction in MCL 8.3; MSA 2.212 are mandatory in construing the statutes of this state unless such construction would be "inconsistent with the manifest intent of the legislature”. The fact that under the instant statutes the Legislature has used such a flexible phrase as "any term of years” suggests no manifest intent contra to use of the statutory rules of construction.
"Any term of years” means no less than one calendar year. This finding is based upon MCL 8.3b; MSA 2.212(2), which provides "years” may be construed as "year”, and under MCL 8.3j; MSA 2.212(10), "the word 'year’ ” equals "a calendar year”.
GCR 1963, 785.7(1)(d) applies to "prison” sentences (i.e., "the mandatory minimum prison sentence”), and under Michigan law there can be no prison term for a defendant serving one year or less. MCL 769.28; MSA 28.1097(1). See People v Lyles, 76 Mich App 688; 257 NW2d 220 (1977). Furthermore, under MCL 761.1(g); MSA 28.843(g), " 'felony’ means an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than one year or an of fense expressly designated by law to be a felony”. (Emphasis added.) See People v Strickland, 79 Mich App 454; 263 NW2d 11 (1977).
Black’s Law Dictionary defines "prison” as synonomous with penitentiary "to designate institutions for the imprisonment of persons convicted of the more serious crimes, as distinguished from reformatories and county or city jails”. Black’s Law Dictionary (4th ed), 1358 (1951).
"We are guided by two canons of statutory construction: First, that statutes in pari materia must be construed together and, second, if language is plain and unambiguous it must be given effect.” People ex rel Oakland Prosecuting Attorney v Bureau of Pardons & Paroles, 78 Mich App 111, 119; 259 NW2d 385 (1977). Construing the statutes and case authorities together mandates a term of more than one year and thus provides the "mandatory minimum” sentence for which a "prison” term, required under GCR 1963, 785.7(1)(d), will be necessary. Anything less than or equal to one calendar year would not satisfy the requirement of a "prison” term under the statute. MCL 769.28; MSA 28.1097(1).
The conclusion that more than one calendar year is mandated as a minimum sentence, necessarily implies that more than 18 months is required for a (minimum) maximum sentence to satisfy the indeterminate sentence act. See People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
Our analysis does not require reversal here. First of all defense counsel had no objection and was satisfied with the court’s compliance with GCR 1963, 785.7 in this regard. Secondly, under prior case law advice to the defendant that he was required to be imprisoned for a minimum of a term of years was sufficient. Neither do we say that in the future since "any term of years” mandates a minimum sentence of a year and a day that fact must be communicated to the defendant in those words under pain of reversal. We suggest only that a more exact way of stating the rule appears to be: A defendant who must be sentenced to "any term of years” may not be sentenced to less than a minimum of a year and a day (366 days) to a (minimum) maximum of 18 months and 1-1/2 days (549 days).
The next issue is whether the trial judge properly complied with GCR 1963, 785.7(2) in placing the complete plea agreement and sentence bargain on the record and having defendant and his counsel affirmatively acknowledge same.
After the usual preliminaries the court inquired of the defendant if he understood the sentence bargain. The defendant answered "yes”. The court observed:
"The Court: It’s written right here on the nolo contendere plea form. It indicates right there what sentence would be imposed or agreed upon. You’re aware of that; are you not?
"Mr. Harper: Yes, sir.
'The Court: All right. Ten to fifteen years. I don’t usually put it on the record because it’s on here.
"Mr. Arduin (defense counsel): Your Honor, it’s my understanding that everything has to be on the record.
"The Court: All right. The bargaining that was entered into between the court and the defense attorney was that the maximum sentence would be fifteen years and the top minimum sentence would be ten years. That was the plea bargaining entered into on this case. Is that correct Mr. Arduin?
"Mr. Arduin: That’s correct, your Honor.
"The Court: Do you understand this, Mr. Harper?
"Mr. Harper: Yes.”
We find compliance with the court rule.
The next issue is did the trial court sufficiently articulate the reasons why a plea of nolo contendere was appropriate under GCR 1963, 785.7(3).
Both parties brief this issue as though the applicable rule were GCR 1963, 785.7(3)(d). That rule was replaced effective December 7, 1975, Guilty Plea Cases, 395 Mich at 138-141. The rule presently in effect is GCR 1963, 785.7(3)(b) which mandates that the court "state why a plea of nolo contendere is appropriate”. Under the old rule the court was required to state its "reasons for believing that the interests of the defendant in the proper administration of justice did not require interrogation of the defendant regarding his participation in the crime”.
The Supreme Court has interpreted the new rule substantially the same as the old rule. In People v Eugene P Jones, 399 Mich 873, 874 (1977), the Supreme Court remanded the case "for supplementation of the record regarding the acceptance of the nolo contendere plea. GCR 1963, 785.7(3)(b)”. The Court in a memorandum opinion stated "the trial court’s stated reasons for accept ing the plea of nolo contendere are not reasons within the meaning of GCR 1963, 785.7(3)(b) which would justify departure from the direct questioning of the defendant and acceptance of a plea of nolo contendere”. See also Guilty Plea Cases, 395 Mich at 132-135.
Similarly, in People v Holcomb, 400 Mich 840-841 (1977), the Court remanded the case for supplementation of the record when the trial court had not stated reasons for accepting the plea of nolo contendere. Guilty Plea Cases, 395 Mich at 132-135.
The instant record indicates that the trial court did not state any reasons on the record for accepting the nolo contendere plea which would justify a departure from the direct questioning of the defendant. The trial court did rely on the preliminary examination transcript to provide a factual basis for defendant’s nolo plea. This is proper. People v Belanger, 73 Mich App 438, 455; 252 NW2d 472 (1977), and cases cited therein. Even under the new rule the case must be remanded to the trial court for supplementation of the record to indicate reasons for accepting the plea of nolo contendere. If the trial court is unable to state a valid reason for not personally interrogating the defendant, then the plea must be vacated and the case set for trial. See People v Holcomb, supra, People v Eugene P Jones, supra, and People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977), interpreting the new court rule GCR 1963, 785.7(3)(b).
Remanded for proceedings consistent with this opinion.
We follow the lead of the Supreme Court and do not retain jurisdiction in accordance with People v Holcomb and People v Eugene P Jones, supra.
The Burridge two-year minimum required for "any term of years” is less convincing under the instant armed robbery statute, MCL 750.529; MSA 28.797. The statute provides a specific minimum sentence of two years for armed robbery if an aggravated assault or serious injury is also inflicted, whereas for an armed robbery without the aggravated assault or serious injury the defendant may be punishable for "any term of years” as a minimum. Logically, "any term of years” necessarily must be flexible enough to include a minimum less than the two-year minimum required under the statute for an act with the added dimension.
Furthermore, if the Legislature intended "any term of years” to mean two years as a minimum, as the Burridge Court holds, the two-year minimum for the added aggravated assault or serious injury is redundant.
We offer with some trepidation the following mathematical equation:
A year and a day = 366
366 = 1
x 1.5
x = 549
We prescind from discussing leap year observing that we are dealing in a definition, not any given segment of the Gregorian calendar.
Under either applicable rule the criticism of People v Gonzales, 70 Mich App 319; 245 NW2d 734 (1976), appears to be apropos. | [
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Bronson, J.
Defendant appeals an adverse judgment in a paternity action. The sole issue on appeal concerns the degree of proof necessary to prevail in such an action. The trial court held that proof by a preponderance of the evidence was the proper standard and that plaintiff had met that standard. Defendant appeals of right, contending that the correct standard of proof in a paternity action is proof beyond a reasonable doubt.
An early Supreme Court case, Semon v People, 42 Mich 141; 3 NW 304 (1879), squarely held that the degree of proof necessary to prevail in a paternity action is proof by a preponderance of the evidence. The Court reasoned that paternity actions were not criminal in nature, but were "special” actions entailing only civil consequences.
This result has been followed in later cases, although it has never been specifically addressed. In Harley v Ionia Circuit Judge, 140 Mich 642; 104 NW 21 (1905), Semon was approvingly cited for the proposition that bastardy proceedings are quasi-criminal. In People v Finks, 343 Mich 304, 309; 72 NW2d 250 (1955), the Court approved a jury instruction which stated that the standard was a preponderance of the evidence, although that aspect of the instruction was not in issue. The Court of Appeals has affirmed verdicts for plaintiffs in paternity actions where there was conflicting evidence of paternity. See Champlin v Manke, 33 Mich App 318; 189 NW2d 839 (1971), Houfek v Shafer, 7 Mich App 161; 151 NW2d 385 (1967). Justice Coleman’s dissent in Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), also stated that the standard of proof was a preponderance of the evidence.
Defendant argues that the Semon line of authority has been implicitly overruled by recent cases holding that some criminal procedural protections apply to paternity áctions. In particular, defendant relies on Artibee v Cheboygan Circuit Judge, supra, which held that due process requires that a defendant in a paternity proceeding be afforded a right to counsel.
Little is gained in analyzing paternity procedures by labeling those proceedings as "civil” or "criminal” and reaching a certain result based on which label is applied. A long line of cases has recognized that paternity actions are neither purely civil nor purely criminal, but sui generis. See Semon v People, supra.
In Artibee, the Court held that paternity proceedings were sufficiently complex and of sufficient consequence to a defendant to require that a defendant be afforded counsel in the interest of fundamental fairness. Although Artibee may be a harbinger of future Supreme Court decisions, it did not extend the full panoply of criminal procedural protections to paternity defendants but was limited solely to the right to counsel. We hold that Semon v People, supra, was not overruled by Artibee.
Changing the burden of proof in a paternity action also entails different considerations from extending a right to counsel to paternity defendants. Because of the nature of the paternity action, the evidence is generally conflicting; most actions become credibility contests. As the trial judge in the case at bar noted, few plaintiffs could prevail if they were required to prove paternity beyond a reasonable doubt. This would undermine the basic purpose of the paternity act: to provide support for children born out of wedlock.
We find valid the Supreme Court precedent holding that the standard of proof in a paternity action is proof by a preponderance of the evidence. As we are not convinced that the Supreme Court would overrule Semon v People, supra, if it were to decide that issue today, we are bound to follow it. Cf. Burton Drywall, Inc v Kaufman, 69 Mich App 85; 244 NW2d 367 (1976). We hold that the trial court applied the correct standard of proof.
Affirmed. Costs to appellee.
MCL 722.711 et seq.; MSA 25.491 et seq.
The trial court also held that plaintiff had not met the beyond a reasonable doubt standard.
The issue in Finks was the propriety of a jury instruction referring to the state’s interest in the case on behalf of an illegitimate child "likely to become a public charge”. The Court stated:
"In the present case we adopt the statement of the Oklahoma supreme court—we cannot believe that the jury found against an innocent man to save the taxpayers from supporting the child, because when we read the entire instruction to the jury we come to but 1 conclusion, namely: That the trial court emphatically instructed the jury that they must not find the defendant to be the father of the child unless they were satisfied by a preponderance of the evidence that he was the father.” People v Finks, supra, at 312.
See, e.g., People v McFadden, 347 Mich 357; 79 NW2d 869 (1956) (notice of alibi required), People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956) (comment on defendant’s failure to testify held reversible error), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977) (double jeopardy may apply to paternity action). But see Romain v Peters, 9 Mich App 60; 155 NW2d 700 (1967) (unanimous jury verdict not required in paternity action).
Const 1963, art 1, § 17.
Reversed on other grounds, 402 Mich 366; 263 NW2d 249 (1978). | [
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Per Curiam:.
On July 2, 1981, Malik Matthews, age 6, drowned in the water surrounding the Scott Fountain on the island of Belle Isle. His estate sued the City of Detroit for his wrongful death, alleging negligence, intentional nuisance, gross negligence, wilful and wanton misconduct, and attractive nuisance.
This appeal brings into question the propriety of the trial court’s entry, pursuant to GCR 117.2(1), of a summary judgment as to all counts.
The negligence count was attacked by defendant under the recreational use act:_
"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.” MCL 300.201; MSA 13.1485.
Plaintiff first seeks to avoid the restrictions of the statute by portraying decedent as an invitee, as contrasted to a licensee or trespasser.
So far as we can determine, none of the Michigan appellate cases decided under the recreational use act have been confronted with this approach, nor have any of them, in specific terms, found an invitee among the plaintiffs therein. This is not to say, however, that these decisions have ignored the possible status of a plaintiff as an invitee.
The Restatement of The Law defines a licensee as follows:
"§ 330. Licensee Defined
"A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” 2 Restatement Torts, 2d, § 330, p 172.
It also defines an invitee as follows:
"§ 332. Invitee Defined
"(1) An invitee is either a public invitee or a business visitor.
"(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” 2 Restatement Torts, 2d, § 332, p 176.
The Comments to § 332 further clarify the difference between the two classes:
"Comment:
"a. Invitee. 'Invitee’ is a word of art, with a special meaning in the law. This meaning is more limited than that of 'invitation’ in the popular sense, and not all of those who are invited to enter upon land are invitees. A social guest may be cordially invited, and strongly urged to come, but he is not an invitee. * * * Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception. Such persons fall generally into two classes: (1) those who enter as members of the public for a purpose for which the land is held open to the public; and (2) those who enter for a purpose connected with the business of the possessor. The second class are sometimes called business visitors; and a business visitor is merely one kind of invitee. There are many visitors, such as customers in shops, who may be placed in either class.
”b. Invitation and permission. Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.” Restatement, supra.
Our research has failed to disclose a Michigan case adopting the notion of a public invitee.
The recreational use act has been held to be applicable to publicly owned lands. Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982); Graham v Gratiot County, 126 Mich App 385; 337 NW2d 73 (1983); Lucchesi v Kent County Road Comm, 109 Mich App 254; 312 NW2d 86 (1981); Syrowik v Detroit, 119 Mich App 343; 326 NW2d 507 (1982); McNeal v DNR, 140 Mich App 625; 364 NW2d 768 (1985).
Our Courts have held that the recreational use act barred claims based on negligence in the following cases which involved either trespassers or licensees: Heider v Michigan Sugar Co, 375 Mich 490; 134 NW2d 637 (1965); Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972); Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975); affirmed on negligence count 394 Mich 459; 231 NW2d 653 (1975); Anderson v Brown Bros, Inc, 65 Mich App 409; 237 NW2d 528 (1975); Thone v Nicholson, 84 Mich App 538; 269 NW2d 665 (1978); Randall v Harrold, 121 Mich App 212; 328 NW2d 622 (1982); Burnett v City of Adrian, unpublished per curiam opinion, docket no. 78-1692, affirmed on negligence count in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982). In some of the cases, the courts have not defined the status of the user of the lands, and in others, where the courts have found the user to be a licensee, there has been general agreement that the act merely codifies the common law as to licensees.
However, a more common thread running throughout the decisions is the gratuitous nature of the use, the courts constantly reiterating, often without regard to the status of the user, that where there is no valuable consideration for the use there is no liability. This view is affirmed in the statute itself which makes no attempt to distinguish between licensees and invitees as such.
This Court, in Danaher v Partridge Creek Country Club, 116 Mich App 305; 323 NW2d 376 (1982), found the act not applicable to recreational land where the public was invited for a fee to use the premises. Again the Court emphasized the valuable consideration aspect of the act.
In like vein, this Court held in Syrowik v Detroit, supra, that the act applied to the plaintiff therein, who would fit the Restatement Torts, 2d, § 322(2), supra, definition of a public invitee. The Court, without attempting to define the status of the user, based its decision on the gratuitous nature of the use.
There is thus an indication that our courts have been willing to go beyond their implied thought that the act applies to licensees. That they are correct in doing so is affirmed by the late Justice Moody writing in Burnett v City of Adrian, supra, p 481:
"The specific and unmistakable statutory language overrides the courts’ broad statements regarding the effect of the act upon the common law. Further, when the Legislature states '[n]o cause of action * * * unless’, a court cannot engraft onto the proviso a cause of action not specified therein.”
We hold that the recreational use act applies to a public invitee who uses a public recreation area without paying a valuable consideration for such use.
Turning to the other issues raised by plaintiff on appeal, by its express language, the recreational use statute does not protect landowners from liability for gross negligence, or for wilful and wanton misconduct. Plaintiff pled both. The trial court properly dismissed the claim alleging gross negligence, and plaintiff is not appealing from that decision.
The trial court also dismissed the claim of wilful and wanton misconduct, finding that plaintiff’s complaint failed to allege facts sufficient to meet the test set forth in Gibbard v Cursan, 225 Mich 311, 322; 196 NW 398 (1923):
"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordi nary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”
While the Supreme Court in Burnett v City of Adrian, supra, showed some dissatisfaction with this definition, it chose not to overrule it, but clarified the test, explaining that wilful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or such indifference to whether harm will result as to be the equivalent of a willingness that it does. Burnett, supra, p 456; McNeal v DNR, supra.
Plaintiff alleged that the city knew or had reason to know of the potential harm created by the lagoon, especially to children, knew that persons had slipped or fallen into the lagoon prior to July 2, 1981, and knew that it was likely that others would slip or fall into the lagoon in the future; that the city knew or had reason to know that children played on or near the fountain and lagoon, and that, because of the construction, design, and location of the fountain and lagoon, children playing there were likely to fall into the lagoon and drown; and that the city failed or refused to avert the danger by fencing or otherwise placing barriers around the lagoon or fountain, draining the lagoon, posting warnings, or taking other appropriate precautions.
We find nothing in those allegations suggesting an intent to harm, and plaintiff has not alleged facts suggesting that injury is so probable, expected or likely that the indifference to harm is tantamount to a willingness that it occur, so as to meet the Burnett test of wilful and wanton misconduct.
The Burnett Court found allegations barely sufficient to comprise wilful and wanton misconduct where the plaintiff alleged that the defendant knew that the submerged structure in the lake was creating an unnatural undertow dangerous to swimmers but did nothing to remove it. A structure creating an undertow, like exposed guy wires (Thomas v Consumers Power Co, 394 Mich 459; 231 NW2d 653 [1975]) or a precipitous escarpment created by defendant (Lucchesi v Kent County Road Comm, supra), is inherently dangerous to anyone coming in contact with it, making the defendant’s refusal to correct the situation akin to an intent to harm. In contrast, a slippery fountain pool, like sand dunes used for ORV vehicles (McNeal v DNR, supra) presents no threat to most people who come into contact with it, so that even if the defendant knows accidents have occurred in the past, the defendant’s failure to correct the situation does not amount to wilful and wanton misconduct without more facts. As noted by the late Justice Moody, wilful and wanton misconduct is qualitatively different from and more blameworthy than ordinary, or even gross, negligence. Burnett, supra, p 462.
The trial court also properly dismissed plaintiff’s intentional nuisance claim. An intentional nuisance is one created by conduct intended to bring about conditions which in fact constitute a nuisance. Gerzeski v Dep’t of State Highways, 403 Mich 149, 161; 268 NW2d 525 (1978). To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have know that harm to the plaintiff was substantially certain to follow as a result of the defendant’s actions. Martin v Michigan, 129 Mich App 100, 109; 341 NW2d 239 (1983); Jenkins v Detroit, 138 Mich App 800; 360 NW2d 304 (1984). Nothing in plaintiffs pleadings suggests that harm was probable, let alone substantially certain, as a result of the condition of the fountain and lagoon.
We do not address the question of governmental immunity because it is not before us on appeal.
Affirmed. No costs, a public question being involved. | [
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Per Curiam:.
This appeal arises from a lower court interpretation of the firemen and policemen pensions act, MCL 38.551 et seq.; MSA 5.3375(1) et seq. By stipulation of the parties, this matter was submitted to the lower court on briefs and depositions without oral argument. The case was, however, orally argued on appeal at which time the plaintiff-appellant vigorously disputed the lower court’s resolution of the two issues presented.
The trial court made the following findings of fact:
’’Robert Engel, plaintiff, retired from the Township of Ypsilanti Fire Department on March 10, 1980. His employment as a full-time regular fireman with the department began in February of 1955 and continued until his retirement.
"Before he was hired as a full-time employee, Engel served as a volunteer firefighter. Engel indicates in his deposition testimony that his volunteer service began some time in 1952. Engel received no pay for any of the duties and activities he undertook while he served as a volunteer.
"When the plaintiff retired in 1980, he had been back on the job for about four months, on a limited duty assignment, following an injury sustained in March of 1978 while fighting a fire. He had also been injured on the job in 1976.
"Plaintiff is at present receiving workers’ compensation benefits because of the above-mentioned injuries. He was receiving workers’ compensation benefits at the time he retired. The amount of plaintiff’s workers’ compensation, about $153.00 per week, is being deducted from his pension retirement benefits.
"The defendant township administers its firefighters’ pension benefits under the provisions of the Fire and/or Police Department Pension and Retirement Act. Pursuant to Section 11 of the act, the township’s voters adopted the act by referendum in April of 1963. The act applies to the retirement benefits of members of the retirement system who began work before the date of its adoption by the township.
"A resolution passed at a regular meeting of the Ypsilanti Township Retirement Board in July, 1980, adopts a policy of awarding volunteer service credits toward retirement, in addition to the statutory pension benefits.
"In a letter dated September 8, 1980, the treasurer of the township apprised Robert Engel of this policy, and set forth the basis for computing credit for volunteer service. Volunteer service credit is awarded for service on actual fire runs, according to a formula using the number of fires the department handled in a particular year, and the number of regular shifts on duty served that year by the pensioner. The township applied the formula to plaintiff’s case, and this resulted in an allowance for 2.25 months to be added to Robert Engel’s service credit.
"Engel did not accept the defendant’s offer of credit for 2.25 months. He disputes the township’s ability to disallow credit for three full years; and he disputes the number of fire runs used in the calculation. Because Engel did not accept the 2.25 months’ extra credit, his pension benefits are calculated under the statutorily mandated formula set forth in section 6 of the statute.”
On appeal, plaintiff raises the same two issues that were presented to the trial court. Plaintiff first argues that he is entitled to an additional credit of three years for volunteer part-time employment during the years 1952 through 1955. Plaintiff contends that, as a volunteer, he performed a range of firefighting duties for which he received compensation. Defendant responds that plaintiff was not paid for more than 2.5 months of volunteer work. Second, plaintiff argues that the defendant may not deduct workers’ compensation payments from his pension because plaintiff does not receive a duty disability pension but rather a regular retirement pension. Defendant responds that the statutory provision authorizing the workers’ compensation setoff applies to any pension benefits received and not just to a duty disability pension. The trial court rejected plaintiff’s arguments and ruled in favor of the defendant on both issues. We affirm.
I
In Local 1557, Sterling Heights Firefighters Ass’n, AFL-CIO v Sterling Heights Policeman & Fireman Pension Board, 70 Mich App 599; 246 NW2d 151 (1976), this Court interpreted MCL 38.554; MSA 5.3375(4), which provides:
"All service performed by members prior to the en actment of this act by any city, village or township, including service performed for predecessor townships, shall be computed to the credit of each member so affected.”
We held that this provision was intended "to include service performed by paid part-time volunteer fire fighters”. 70 Mich App 600. The dispute in this case is whether, and if so to what extent, plaintiffs part-time volunteer services were compensated by the township.
We have reviewed the briefs, depositions, and exhibits submitted by the plaintiff purporting to establish that he was paid for his volunteer service during 1952 through 1954 and we find there is a factual conflict on this issue. Plaintiffs own deposition testimony is internally inconsistent about payment and conflicts with the testimony and exhibits of some of the other witnesses. Plaintiffs attempt to equate his position with that of one Carl Plumley, who was hired prior to 1955 as a full-time janitor and paid for his service, is unconvincing. Based on the conflicting evidence, the trial court expressly found that "Engel received no pay for any of the duties and activities he undertook while he served as a volunteer”. We cannot say that this finding is unsupported by the record, GCR 1963, 517.1, nor can we say that we are left with a firm and definite conviction that a mistake has been committed. Precopio v Detroit, 415 Mich 457, 462; 330 NW2d 802 (1982). Because the trial court found that defendant was not paid for his volunteer service, the court did not err in finding that plaintiff failed to qualify for three years of additional credit under the rule of Sterling Heights Fireñghters, supra.
II
The second issue raised by plaintiff presents a question of first impression and requires the interpretation of a section of the firemen and policemen pensions act entitling the pension board to reduce retirement benefits by the amount of workers’ compensation benefits payable to the retired member. MCL 38.556(2)(f); MSA 5.3375(6)(2)(f) provides in part:
"Amounts paid under the workmen’s compensation act of this state to a retired member shall be offset against and payable in place of benefits provided under this act. If the benefits under the compensation act are less than the benefits payable under this act, then the amount to be paid out of the funds of the retirement system shall be the difference between the benefits provided under the compensation act and the benefits provided in this act. Upon the termination of benefits under the compensation act, then and thereafter benefits shall be paid in accordance with this act.”
On its face, the terms of this statute are clear and unambiguous. Any retirement benefit payable under the policemen and firemen pensions act may be reduced by the amounts paid in workers’ compensation. Plaintiff argues, however, that the placement of this setoff provision under that section of the act entitled "Disability and Service-Connected Death Benefits” evidences an intent on the part of the Legislature to limit setoff to disability pensions only. There is no dispute that, in this case, plaintiff’s pension was a regular retirement pension.
An argument similar to plaintiff’s contention has merited serious consideration before. Recently, in Bannan v Saginaw, 420 Mich 376; 362 NW2d 668 (1984), the Michigan Supreme Court interpreted Saginaw’s pension ordinance as allowing for setoff of workers’ compensation benefits against only those retirement benefits qualifying as dis ability pensions. Once the retiree receiving the disability pension reached age 55 years and began receiving a regular retirement pension, the ordinance precluded any workers’ compensation setoff. Thus, the concept of limiting workers’ compensation setoff to disability pensions is not wholly without precedent. In Bannan, however, the employer’s setoff rights were governed by city ordinance. In this case, defendant’s setoff rights are afforded by statute and our decision is governed by the clear language of that statute. Admittedly, the insertion of the workers’ compensation setoff provision under the section governing disability pensions is misleading. We nevertheless interpret the setoff provision pursuant to the clear and ordinary meaning of its terms, as did the trial court:
"It is clear that this is yet another aid to calculation of the amount of a retired member’s benefits. The terms are plain, not open to varied interpretation. The first sentence quoted above refers, not to workers’ compensation payments made to a retiree whose benefits are calculated under the formula set out in subsection (2), but, unambiguously, to 'a retired member’. At issue are 'benefits provided under this act,’ not only benefits provided under subsection (6)(2). Defendant is correct when it asserts that plaintiff’s reading of the sentence would give an interpretation contrary to the way the act is written, in that throughout the act subsections discuss contingencies that are to be understood in terms of the act as a whole, and not merely in the narrow context of the particular subsection.
"Further, plaintiff has not offered any logical reason to support his argument. Indeed, it would be illogical to assume that the Legislature intended the setoff provision to apply only to disabled retirees who elect the disability provision for calculation of their benefits. The statute says, there is to be a setoff where a retired member is being paid amounts under the workers’ compensation act. This retiree is being paid $153.00 per week under the workers’ compensation act. That is the proper amount which the township is required by the Legislature to deduct from the plaintiffs retirement benefits. No logic could support the opposite conclusion. How could the Legislature have intended double compensation for a disabled retired member who somehow managed to qualify for a normal retirement, but only a single composite compensation for a disabled retiree whose retirement was necessitated by his disability, with no chance to choose a normal retirement?
"Plaintiff has not offered a single argument that could convince this court to reach that conclusion. He only refers to the location of the setoff provision. But where in the statute should the Legislature have placed this provision instead? Most cases involving workers’ compensation payments will also involve a disability retirement that could not have been avoided by the retired member. The section is not well organized. The placement of the provision is not an implied limitation of the cases to which the provision might apply. No limitation is expressed or implied in the language of the provision for the setoff. The setoff is therefore proper.”
We further observe that had the Legislature intended to limit the setoff provision in the manner suggested by plaintiff, it could simply have inserted the term "disability” immediately preceding the term "benefits provided under this act”, as was done throughout most of § 6(2). We surmise that the Legislature’s omission of the qualifier "disability” was intentional and we thus hold that the pension board may deduct workers’ compensation benefits from any retirement pension payable under the policemen and firemen pensions act.
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Per Curiam.
Plaintiffs appeal as of right from a June 14, 1983, judgment that orders that plaintiffs take nothing in this medical malpractice case because a jury found no cause of action against the defendants and that plaintiffs pay defendants their costs and charges. The trial court denied plaintiffs’ motion for new trial on June 14, 1983. We affirm.
Plaintiffs raise two issues on appeal, both properly preserved and addressed in their motion for new trial.
First, plaintiffs argue that the trial court erred by granting defendants’ motion in limine. Defendants moved to limit the scope of plaintiffs’ cross-examination of their only expert witness, Dr. Scratch, by excluding questions regarding Dr. Scratch’s involvement with the Physicians’ Crisis Committee and with the Physicians’ Insurance Company of Michigan, the malpractice insurer of both Dr. Scratch and defendant Henkin. At the hearing on the motion in limine, Dr. Scratch said that the purpose of the Physicians’ Crisis Committee was "to try to make some sort of sense out of the legal harassment of the medical professional as regards care of patients”. Dr. Scratch said he donated money to that committee, attended "a meeting or two”, and reviewed a few cases on its behalf. Dr. Scratch also said that he attended a meeting sponsored by PICOM regarding the possibility of insured doctors volunteering to review medical malpractice cases. Otherwise, Dr. Scratch’s only involvement with PICOM was regular payment of his malpractice insurance premiums.
The trial court granted the motion, finding the above potential testimony for purposes of cross-examination for impeachment of credibility more prejudicial than probative, MRE 403, and that any reference to insurance was prohibited.
The scope and duration of cross-examination of witnesses rests in the trial court’s sound discretion and exercise of that discretion will not be reversed by this Court absent a clear showing of abuse. Wilson v Stilwell, 411 Mich 587, 599; 309 NW2d 898 (1981); MRE 611(b). However, it is generally permissible to cross-examine an adverse witness to elicit from him or her any fact or circumstance that tends to show that witness’s relationship with, feelings toward, bias, prejudice, or interest for or against either party. Hayes v Coleman, 338 Mich 371, 381; 61 NW2d 634 (1954); Wilson v Stilwell, supra, p 599.
In this case, we find that the trial court did improperly limit the plaintiffs’ cross-examination of Dr. Scratch in regard to the Physicians’ Crisis Committee. That testimony would have been probative of Dr. Scratch’s interest and bias against medical malpractice actions in general. We do not agree that it would have been more prejudicial than probative. MRE 403. We do agree that the trial court properly excluded cross-examination of Dr. Scratch regarding PICOM. In an action such as this, a party is prohibited by statute from referring to the insurer. MCL 500.3030; MSA 24.13030. See, also, MRE 411. Although technically plaintiffs were not referring to PICOM as defendant Henkin’s insurer, reference to that medical malpractice insurer would have been prejudicial to defendants, and such prejudice would not be outweighed by the limited probativeness of the relationship between Dr. Scratch and PICOM.
Although we find that the trial court erred in part by granting defendants’ motion in limine, we do not find that the error mandates reversal. We recognize that each party presented only one expert witness and, therefore, this case presented a battle of the experts’ credibility. Wilson v Stilwell, supra, p 599. Nevertheless, the trial court otherwise gave plaintiffs the opportunity to freely impeach Dr. Scratch’s credibility, an opportunity plaintiffs did take.
Plaintiffs next argue that the trial court erred by instructing the jury that no physician is required to guarantee results. The trial court read SJI2d 30:01 to the jury regarding professional negligence or malpractice. In addition, the trial court also instructed as follows pursuant to defendants’ request:
"The difficulties and uncertainties in the practice of medicine are such that no one can be required to guarantee results and all the law demands is that the individuals involved bring and apply to the case at hand that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances.
"The mere fact that an adverse result may occur following medical treatment is not, in itself, any evidence of negligence.”
Plaintiffs correctly argue that they neither pleaded a contract or guaranty theory nor argued such a theory at trial. Plaintiffs further argue that by giving such an instruction the jury was misled to plaintiffs’ prejudice. Plaintiffs also assert that by implication GCR 1963, 516.6(4) mandates that if a standard jury instruction adequately covers the law in the case the trial court shall not give additional instructions. We first recognize that there is now a conflict in this Court regarding this issue. In Warfield v Wyandotte, 117 Mich App 83, 93-94; 323 NW2d 603 (1982), lv den 417 Mich 919 (1983), a panel of this Court found the guarantor instruction a correct statement of the law and not improper if not standing alone. See Cleveland v Rizzo, 99 Mich App 682; 298 NW2d 617 (1980). In Jones v Porretta, 138 Mich App 241; 360 NW2d 181 (1984), another panel of this Court decided that Warfield was wrongly decided. In Jones, as in this case, the trial court gave the correct standard jury instruction but added the guarantor language. Jones relied on Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702-703; 227 NW2d 543 (1975), in which the Supreme Court held that where a trial court deviates from an accurate standard jury instruction, and that deviation is properly brought to the trial court’s attention prior to deliberation, prejudicial error will be presumed.
We believe that the Jones panel misapplied Javis. This is not a case in which the trial court deviated from the standard and proper jury instruction. Rather, the trial judge gave the correct SJI but also added an instruction that is an accurate statement of Michigan common law. Roberts v Young, 369 Mich 133; 119 NW2d 627 (1963), cited in the note and comment to SJI2d 30:01. We do not find this situation similar to the one the Javis Court intended to cover with the automatic presumption of prejudice rule.
We also disagree with plaintiffs’ argument that GCR 1963, 516.6(2) compels a trial court to give only an applicable standard jury instruction to a jury. That rule states:
"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.”
More pertinent is GCR 1963, 516.6(4) which states:
"This subrule does not limit the power of the court to give additional instructions on applicable law not covered by SJI. Additional instructions when given shall be modeled as nearly as practicable after the style of SJI, making them concise, understandable, conversational, unslanted and non-argumentative.”
We hesitate, without an explicit rule, to limit a trial court’s discretion regarding the reading of additional instructions to only those situations where there is a standard jury instruction which does not apply. Nevertheless, we do believe that it would be the better practice for trial courts to limit their instructions on the law of the case to only the applicable standard jury instructions. Superfluous instruction too often lends itself to error.
While we do not find instructional error in this case, we do note that we agree with plaintiffs’ argument that the guarantor or warrantor instruction tends to be confusing because it injects a contract issue into a negligence action. For that reason, we also urge trial courts to refrain from adding that instruction to SJI2d 30:01. We find the SJI sufficient to instruct the jury on the applicable law.
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S. C. Gardner, J.
Plaintiff filed a negligence action alleging that defendant’s failure to maintain her driveway in a reasonably safe condition free from snow and ice caused plaintiff to fall and injure her left arm and wrist. In response defendant filed a motion for summary judgment under GCR 117.2(3) claiming there were no genuine issues of material fact and that she was therefore entitled to judgment as a matter of law. The trial court granted defendant’s motion and plaintiff moved for reconsideration, which was denied. Plaintiff appeals the denial of reconsideration as of right and defendant has filed a motion to affirm.
The parties do not dispute the following facts. On March 13, 1980, plaintiff, a 70-year-old woman, worked for defendant as a housekeeper and babysitter. A snowstorm had begun the previous night, and as a result snow and ice had accumulated on defendant’s driveway. Snow was still falling when plaintiff arrived for work at approximately 12 noon. Defendant’s driveway had not been shoveled or salted and was completely covered by snow. Plaintiff parked her car in the driveway, stepped out of the car, slipped and fell.
The trial court, after examining Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), held that Michigan law did not require that a business invitor remove snow as it is falling in order to avoid liability to business invitees. The trial court interpreted the Quinlivan holding that a business invitor is to take "reasonable measures * * * within a reasonable time after an accumulation of ice and snow” to mean that a legal duty to plaintiff did not arise until after all of the snow had fallen. This view is not compatible with existing Michigan law.
The trial court decides questions of duty, general standard of care and proximate cause. Questions of cause in fact and specific standard of care are reserved for the jury, Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977).
In the instant case, plaintiff is a business invitee on defendant’s property. 2 Restatement Torts, 2d, § 332, comment j, pp 180-181. The duty owed to a business invitee is as follows:
"A possessor of land is subject to liability to physical harm caused to his invitees by a condition on the land if, but only if, he:
"a) knows or by the exercise of reasonable care would discover the condition, and should realize that it in volves an unreasonable risk of harm to such invitees, and
"b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
"c) fails to exercise reasonable care to protect them against the danger.” 2 Restatement Torts, 2d, § 343, pp 215-216.
See, also, Torma v Montgomery Ward & Co, 336 Mich 468; 58 NW2d 149 (1953).
Recognizing the principles set forth in the Restatement, the Court in Quinlivan, supra, overruled the natural accumulation rule that had allowed an invitor to be free from responsibility for any hazards due to a natural accumulation of ice and snow. Instead, the Quinlivan Court held that a business invitor was required to take reasonable measures within a reasonable time after the accumulation of ice and snow to diminish the hazard of injury to an invitee. The Quinlivan holding clearly follows the common law set forth in the Restatement and describes both the duty owed and the general standard of care involved. In the instant case, defendant would owe plaintiff a duty because she should know that snow was falling on her property and that it would create a dangerous condition for the elderly plaintiff. The general standard of care would require defendant to shovel, salt, sand or otherwise remove the snow from the driveway.
The applicability of these questions of duty and general standard of care are properly decided by the court. Moning, supra. The specific standard of care in the instant case would be the reasonableness of defendant’s actions regarding the snow. Whether it was reasonable to wait for the snow to stop falling before she shoveled or whether salt or sand should have been spread in the interim is a question for the jury. Beals v Walker, 416 Mich 469; 331 NW2d 700 (1982). In Beals, plaintiff was an elevator repairman who had to climb the roof of a building to reach the ladder leading to the top of the grain elevator. He slipped and fell on the icy roof. The Supreme Court overruled the Court of Appeals decision that there was no duty to warn because the condition was obvious and, instead, held that the reasonableness of the defendant’s conduct was a question for the jury. The reasonableness of the defendant’s actions in the instant situation is clearly also a matter to he decided by the jury.
Reversed. | [
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Shepherd, P.J.
Defendants appeal as of right from a circuit court order setting terms by which they could purge themselves of contempt (case No. 72282) and an order awarding plaintiff attorney fees (case No. 74246). We affirm the former order, but reverse the award of attorney fees in part and remand for further proceedings.
Defendants together acted as a subcontractor in two construction projects. In February, 1983, defendants agreed to employ three of plaintiffs’ mem bers in the projects. This agreement was incorporated in a consent order entered by the circuit court on March 8, 1983. On April 6, 1983, the court found defendants in contempt for violating the consent order by using a non-union employee to perform certain work within the terms of the order. The court ordered defendants to purge themselves of contempt by submitting "a plan” to "[insure] that there will be no further violations of the settlement agreement and order”. Thereafter, the parties executed a modified settlement agreement. Work continued on the two construction projects.
On June 3, 1983, the circuit court again found defendants in contempt and ordered a halt to defendants’ participation in the construction projects. In a June 10, 1983, order, the court stated that defendants could resume work on the projects only if they submitted to certain modifications of the settlement agreement and consent order. Defendants filed their claim of appeal on June 29, 1983. The construction projects apparently were completed during the pendency of this appeal.
On September 20, 1983, the circuit court awarded plaintiff attorney fees of $13,047.49, the amount which, according to the court, plaintiff expended "to seek and obtain a finding of contempt”. However, plaintiff’s bill of costs shows that plaintiff included fees incurred in separate unfair labor practice proceedings before the National Labor Relations Board (NLRB). The bill of costs does not state how much of the amount awarded by the circuit court was incurred in the NLRB proceedings. Defendants filed a separate claim of appeal from the order awarding plaintiff attorney fees.
In case No. 72282, defendants raise two issues: (1) whether the circuit court exceeded its authority to deal with civil contempts by ordering them to submit to modification of the settlement agreement and (2) whether they had adequate notice of the nature of the contempt proceedings (i.e., criminal or civil). We conclude that the completion of the two construction projects has rendered these issues moot. We decline to address them. "An aspect of mootness includes the question of the court’s ability to fashion appropriate and effective relief to resolve the alleged controversy.” East Grand Rapids School Dist v Kent County Tax Allocation Board, 415 Mich 381, 391; 330 NW2d 7 (1982). An issue is moot when an event occurs which renders it impossible for the reviewing court to grant any relief. Shumacher v Tidswell, 138 Mich App 708, 717; 360 NW2d 915 (1984); Swinehart v Secretary of State, 27 Mich App 318, 320-321; 183 NW2d 397 (1970), lv den 384 Mich 801 (1971). In this case, the circuit court imposed no fine or term of imprisonment. Defendants have complied with the order complained of and completed work on the two projects.
In case No. 74246, defendants assert that there is no authority for an award of attorney fees to plaintiff. We disagree. Regardless of the propriety of the circuit court orders, defendants were obliged to obey them until they were dissolved. Rose v Aaron, 345 Mich 613; 76 NW2d 829 (1956); Schumacher, supra, p 722. MCL 600.1721; MSA 27A.1721 authorizes the court to order payment of a sum sufficient to indemnify an injured party for "an actual loss” sustained as a result of the defendant’s contempt. Such a loss may include attorney fees incurred as a result of the contemptuous conduct. White v Wadhams, 211 Mich 658, 666-667; 179 NW 245 (1920); see also Local 214, State, County & Municipal Workers v Genesee County Bd of Comm’rs, 401 Mich 408, 410-411; 258 NW2d 55 (1977).
Defendants also claim that the attorney fee award is partly invalid because it includes expenses incurred in NLRB proceedings. This claim has merit. We cannot agree with plaintiffs argument that fees incurred in separate proceedings are allowable herein because the other proceedings were "ancillary” to the contempt proceedings in circuit court. Rather, we believe that the circuit court had authority to award fees incurred only in proceedings held before it. Such fees are the only ones which resulted directly from the contempt. MCL 600.1721. Moreover, the "American Rule”, which forbids attorney fee awards in the absence of statute or court rule, also "precludes courts from awarding attorney’s fees incurred during prior proceedings in the same case”. Summit Valley Industries, Inc v Local 112, United Brotherhood of Carpenters & Joiners of America, 456 US 717, 726; 102 S Ct 2112; 72 L Ed 2d 511 (1982).
Accordingly, the matter is remanded for a hearing to determine what portion of the attorney fee award relates to fees incurred in the NLRB proceedings and an appropriate reduction of the award.
Affirmed in case No. 72282. Reversed in part and remanded for further proceedings in case No. 74246. No costs, neither party having prevailed in full. | [
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Per Curiam.
Defendant, Vicky Bednarski, appeals as of right from an order of the circuit court awarding sole physical and legal custody of her children to their paternal grandparents.
Plaintiff, John Bednarski, and defendant, Vicky Bednarski, were married in 1973 and separated in December, 1982. They have two children, Timothy, born June 15, 1975, and Rebecca, born September 21, 1979. John and Vicky are deaf and unable to speak. Their children, as well as John Bednarski’s parents, have normal hearing ability. The temporary order of the court, entered January 10, 1983, awarded joint custody of the minor children to both parents and further awarded physical custody of Timothy to plaintiff while physical custody of Becky was awarded to defendant. Following trial, held on July 28, 1983, the minor children were awarded to their 63- and 68-year-old paternal grandparents.
I
This appeal raises serious questions concerning the right of deaf persons to meaningful participation in judicial proceedings. Defendant was unquestionably entitled to meaningful participation in a proceeding which resulted in the loss of custody of her children. That her deafness seriously impairs meaningful participation is ironically reflected in the term used to describe such a proceeding — a "hearing”. To deal with the unique problems encountered by the involvement of deaf persons with the judicial process, the Legislature has enacted the Deaf Persons’ Interpreters Act, MCL 393.501 et seq.; MSA 17.55(101) et seq.
The Deaf Persons’ Interpreters Act, which became effective July 1, 1982, provides for the mandatory appointment of an interpreter in any action before a court or a grand jury where a deaf person is a participant in the action, either as a plaintiff, defendant, or witness, to perform three specific functions: (1) to interpret the proceedings to the deaf person; (2) to interpret the deaf person’s testimony or statements; and (3) to assist in preparation of the action with the deaf person. MCL 393.503(1); MSA 17.55(103)(1). Any waiver of the right to an interpreter must be in writing by the deaf person. MCL 393.503(3); MSA 17.55(103)(3). Furthermore, an appointing authority — in this case, the circuit court — who knows a deaf person will be coming before it is obliged to inform the deaf person of the right to an interpreter. MCL 393.504(2); MSA 17.55(104)(2).
In addition to plaintiff and defendant, four other deaf persons testified at trial. One interpreter was sworn to interpret. The record indicates that the interpreter’s function was to communicate questions and answers of each of the six deaf witnesses as they testified. She translated spoken questions into sign language for a deaf witness on the stand and then translated the sign language of the deaf witness into spoken words for the court.
Although the procedure followed at trial was designed to satisfy one of the functions prescribed by the Deaf Persons’ Interpreters Act, that of interpreting the deaf person’s testimony or statements, the record fails to indicate compliance with the two other mandated functions. Since the sole interpreter was occupied with interpreting testimony of the various witnesses, defendant, when not on the stand herself, was unable to ask questions or otherwise communicate with others, including her counsel, during the course of trial. Moreover, the record is completely devoid of any evidence that an interpreter was involved with defendant and her counsel in the preparation of the action.
Defendant is entitled to a trial which complies with the Deaf Persons’ Interpreters Act. Therefore, we vacate the custody order and remand this case for a new trial. Under the circumstances of this case, where both parties and several additional witnesses are deaf, we think that the provisions of the act require the appointment of an interpreter for each plaintiff and defendant, and a third interpreter for the court, if necessary. Either party may waive the right to an interpreter, so long as the waiver conforms with MCL 393.503(3); MSA 17.55(103X3). The interpreters should be appointed well in advance of trial so as to enable their full assistance in preparation of the action.
Defendant raises additional requirements of the act with which the court failed to comply. The act provides:_ _
"(4) A certified interpreter or qualified interpreter[ ] shall not be appointed unless the appointing authority and the deaf person make a preliminary determination that that certified interpreter or qualified interpreter is able to readily communicate with the deaf person and to interpret the proceedings in which the deaf person is involved.” MCL 393.503(4); MSA 17.55(103)(4).
On retrial, the record should affirmatively disclose that the required preliminary determination was made.
Prior to trial, counsel stipulated that the interpreter would "paraphrase” the answers of the witnesses to "expedite” the proceeding. Such a stipulation may have violated the provision of the act which requires an interpreter to make an oath or affirmation that the interpreter "will make a true interpretation in an understandable manner to the deaf person for whom the [interpreter] is appointed” and that the interpreter "will interpret the statements of the deaf person in the English language to the best of the interpreter’s skill”. MCL 393.506(1); MSA 17.55(106X1). Due to the conceptual nature of sign language, a verbatim translation of oral testimony (or vice versa) may not be possible. However, the very fact of the unavoidable translation difficulty renders the need for accurate and skillful interpretation even more critical.
In summary, on remand, the court, as well as counsel, should ensure that the proceedings are conducted in full accordance with the Deaf Persons’ Interpreters Act._
II
In addition to the issues concerning the propriety of the trial proceedings, defendant assigns numerous errors in connection with the trial court’s awarding of custody to the paternal grandparents. Because we find many of defendant’s contentions meritorious and to ensure a fair custody determination on remand, we will address defendant’s remaining arguments. We bear in mind that the standard of review of child custody cases is de novo. Deel v Deel, 113 Mich App 556; 317 NW2d 685 (1982). This Court will not disturb a custody order unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or made a clear legal error on a major issue. MCL 722.28; MSA 25.312(8).
(1)
When deciding a custody matter, the trial court must evaluate each of the factors contained in the Child Custody Act of 1970, MCL 722.23; MSA 25.312(3), and state a conclusion on each, thereby determining the best interests of the child. Currey v Currey, 109 Mich App 111, 117; 310 NW2d 913 (1981). In making the requisite findings, the trial court weighed the factor of moral fitness of the competing parties in favor of the paternal grandparents.
Questions as to defendant’s moral fitness were raised repeatedly throughout trial. Plaintiffs counsel continually insinuated, through the interrogation of witnesses, that defendant was adulterous and generally immoral. This Court has previously held that. a mother’s unfaithfulness would not necessarily preclude her from having custody of her children. Williamson v Williamson, 122 Mich App 667, 673-674; 333 NW2d 6 (1982). Moreover, in spite of a multitude of incriminating questions, there was little evidence of defendant’s immorality and certainly not enough to justify weighing the morality factor in favor of the grandparents.
(2)
This custody dispute was between the minor children’s mother and their grandparents. In such a situation, there is a statutory presumption that the best interests of the child are served by awarding custody to the parent, unless there is clear and convincing evidence to the contrary. MCL 722.25; MSA 25.312(5). "[TJhis remains a presumption of the strongest order and it must be seriously considered and heavily weighed in favor of the parent.” Bahr v Bahr, 60 Mich App 354, 359; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975).
In Williamson, supra, pp 672-673, this Court found reversible error in the trial court’s failure to consider the statutory presumption in a custody dispute between a mother and the paternal grandparents. Likewise in the instant case, the court’s failure to consider, either expressly or implicitly, the statutory presumption was reversible error.
(3)
In its findings, the trial court considered factor (d) of MCL 722.23; MSA 25.312(3), the length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. The court rated this factor equal for the competing parties since neither child had lived over seven months in the current environment, i.e., Timothy with his grandparents and Rebecca with her mother. As to Rebecca, this finding was against the great weight of the evidence. Moreover, the finding failed to take into account MCL 722.27(c); MSA 25.312(7)(c), which states in part:
"The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
Under this section, once a custodial environment has been established, a court must find clear and convincing evidence that a change of custody is in the child’s best interest before such a change may be ordered. Lyons v Lyons, 125 Mich App 626, 632; 336 NW2d 844 (1983).
Rebecca had never lived with her grandparents and had lived all her life with her mother. The evidence introduced indicated that three-year-old Rebecca looked to her mother for guidance, discipline, the necessities of life, and parental comfort. The trial court erred in failing to find an established custodial environment and in not applying a clear and convincing evidentiary standard to determine whether a change of custody was in Rebecca’s best interest.
(4)
The trial court’s findings reveal that defendant’s deafness was a highly important factor in the court’s resolution of the custody dispute.
It was undisputed that the minor children had developed nonverbal communicative skills. Joanne Gates, a phychologist who had experience working with the hearing impaired, testified that she had interviewed plaintiff, defendant, and the paternal grandparents. In her opinion, defendant was an adequate caretaker for her children, provided the children receive daily intensified verbal language stimulation. Another psychologist, Stephanie Hawka, interviewed the minor children. She testified that Timothy had no communicative deficits and that although she had seen some three-yearolds with better language skills than Rebecca, Rebecca’s skills were not necessarily below normal. Both psychologists opined that Rebecca’s verbal skills could develop normally if proper arrangements were made for her to attend counseling, head start, or other kind of special education program.
On this issue, the court found:
"The last fact is, anything else considered by the court to be relevant to a particular child custody dispute.
"This is exactly the kind of case where this factor is important. This is a very unusual case. We have two normal children, born to hearing impaired parents. Two normal children in the sense that they are possessed of the ability to speak and hear as most of us are able, and they must compete, as has been described by one of the psychologists today, in a world of persons who do speak and hear and rely heavily on linguistic skills, and I refer particularly to Miss — Mrs. Joanne Gates.
"And, the court having interviewed, or discussed for some time with Rebecca, or attempted to — anything frankly — was of the impression that the situation is, that she is developed mentally slow, or perhaps retarded without insulting her, in verbal skills, and that is is appropriate and necessary, if proper development is to take place, that she be placed in some of [sic] intensified language stimulation program. An environment that will enable her to develop her oral language skills, so that as an adult, she is able to function at the highest possible level.
"Timothy is verbal, and I don’t expect the problem to be nearly as severe with him. He has other special problems, which I’ll comment on in a moment, but Rebecca is at a critical age in the court’s opinion, and an extremely important factor that weighs in favor of the grandparents, in this court’s opinion, is the need to be exposed to other persons who use their oral language skills to develop her ability to communicate on a regular basis, as well as providing the special training.”
While we share the trial court’s concern that the children develop adequate verbal and oral communicative skills, we think the court inappropriately weighed this factor against defendant. The testimony uniformly established that alternative means were available and that proper development of communication skills did not require removing the children from their mother’s custody.
What consitutes proper consideration of a parent’s physical disability or handicap as a factor in a custody award was the subject of In re Marriage of Carney, 24 Cal 3d 725; 157 Cal Rptr 383; 598 P2d 36 (1979). Taking note of the strong state and federal policies of pursuing the total intergration of handicapped persons into the mainstream of society, the court stated:
"No less important to this policy is the intergration of the handicapped into the responsibilities and satisfactions of family life, cornerstone of our social system. Yet as more and more physically disabled persons marry and bear or adopt children * * * custody disputes similar to that now before us may well recur. In discharging their admittedly difficult duty in such proceedings, the trial courts must avoid impairing or defeating the foregoing public policy.” In re Marriage of Carney, supra, 24 Cal 3d 741.
This statement applies with equal force in our own state, particularly in view of the Legislature’s enactment of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq.
Ill
In conclusion, the existing record does not contain clear and convincing evidence that it was in Rebecca’s best interest to remove her from the custody of defendant. The evidence concerning Timothy’s severe eye problem and his need for medical care, in conjunction with the parties’ and Timothy’s expressed preferences, convince us that it was not necessarily an abuse of discretion to award custody of Timothy to his grandparents. However, because of the unfairness of the trial, for reasons stated and unstated in this opinion, and because more than a year has elapsed since the trial, we think it best that a new trial be held to determine custody of both children. The trial should be held before a different trial judge and additional evidence concerning the past year may be introduced. We retain jurisdiction.
Reversed and remanded.
The record strongly suggests that neither the court nor counsel were aware of the Deaf Persons’ Interpreters Act, although the court, as appointing authority, was on notice that the plaintiff and defendant were deaf from the initial filing of plaintiff’s complaint for divorce.
In a report on a workshop on interpreting for deaf people, Joseph P. Youngs discusses the participation of deaf persons in judicial proceedings. Youngs advises: "In a case involving the interests of two deaf persons, one against the other, it is recommended that each have his own interpreter. For one interpreter to serve both principals in a court case is to place him in an unfair, awkward, and complicated situation.” Interpreting for Deaf People, Stephen P. Quiqley, Editor, U. S. Department of Health, Education and Welfare Social and Rehabilitation Service, Rehabilitation Service Administration, Washington, D. C. (1965), p 46.
The act allows the appointment of either a certified interpreter or qualified interpreter. The definitions of each are set forth in MCL 393.502; MSA 17.55(102).
"Above all, the interpreter’s foremost desire should be to give a verbatim translation of the terminology used in legal proceedings. It is in his Code of Ethics. He is sworn to it by oath. The deaf have a right to it.” Interpreting for Deaf People, supra, p 56.
Aside from the violations of the Deaf Persons’ Interpreters Act, much of the conduct of plaintiffs counsel was improper and violated evidentiary rules, although defendant’s attorney raised few objections. Furthermore, both sides failed to establish pertinent facts. As a consequence, the trial court at one point requested plaintiffs counsel to ask certain questions of defendant on cross-examination. Although the court’s attempt to remedy the inadequate record is laudable, the method chosen provided plaintiffs counsel with yet another opportunity to transgress evidentiary rules. | [
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Per Curiam.
Defendant was charged with two counts of first-degree murder, MCL 750.316; MSA 28.548, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). On March 24, 1982, following a four-day jury trial, defendant was convicted on all three charges. On April 5, 1982, defendant was sentenced to serve life in prison for each murder conviction and to the mandatory two-year term for the felony-firearm conviction.
Defendant appealed as of right to this Court and filed a motion to remand to the trial court so that he could pursue his ineffective assistance of counsel claim and file a motion for new trial. On February 24, 1983, this Court denied defendant’s motion. On March 28, 1983, defendant filed a delayed application for leave to appeal with the Supreme Court. On June 8, 1983; this Court dismissed defendant’s appeal for lack of progress. On March 29, 1984, the Supreme Court remanded the case to this Court for reinstatement of defendant’s appeal as of right. 419 Mich 860; 345 NW2d 201 (1984).
Defendant was charged with the murders of Adel Berry and Mohammed Hazime which occurred on May 24, 1981, at approximately 3 a.m. in the parking lot of the Pompei Lounge in the City of Dearborn. Louisa Mendoza testified that she accompanied her roommate Katrina Perez and defendant, Katrina’s boyfriend, to the Pompei Lounge on May 23, 1981, shortly before midnight. As the evening progressed, the three did some drinking and dancing after which Mendoza went to the restroom. Upon her return, Mendoza was told by Perez and defendant that they had gotten into an argument with "30 Arabs” who "jumped” defendant and tried to take his seat. Shortly thereafter, the three decided to leave and were escorted to their car by the bar’s bouncer. While they drove to the women’s home, defendant said "he was going to get them”. When they arrived, defendant left both women in the car while he went into their house. After a few minutes, he exited from the house and went two houses down where he spoke briefly to two friends, Clifton Toland and Santos Burger.
Mendoza further testified that the three men joined the two women in the car and they drove back to the Pompei Lounge. Defendant pulled the car into the bar parking lot, blocking a car occupied by two men who defendant said were the ones that jumped him in the bar. Defendant, Toland and Burger got out of the car. Mendoza testified that defendant went to the driver’s side of the car and asked "are you the one that hit me?”. One of the men in the car replied "yes, sorry”, to which defendant replied "I’m sorry too” and then immediately fired his gun. Defendant, Toland and Burger ran back to the car. Mendoza testified that the man who was sitting in the driver’s seat (Hazime) got out and ran towards the front door of the lounge. In a prior statement to police, Men doza stated that: 1) defendant said he shot a man (Berry), and 2) Toland said he stabbed one of the men (Hazime).
Defendant took the stand and testified that on the morning of the 24th, he and Mendoza were dancing when Mendoza noticed that two men were hassling Katrina Perez at the table. While Mendoza went to the restroom, defendant went to the table and asked the two men to leave. Defendant said that "two Arabs” called him a "Spic” and slapped him twice. The bouncer walked over to the table and cooled things down, but five to eight men returned to the table and "jumped him”, giving defendant blows to the back and head. As the bouncer escorted them out of the bar, defendant offered to fight them "one-on-one” in the parking lot.
Defendant further testified that he returned home to get his friends Toland and Burger. Defendant brought along a gun in case his attackers had a weapon. He testified that as he pulled into the bar parking lot he saw two of the men who had hit him. Defendant claimed that he got out of the car and approached the passenger side of the car. Defendant retreated when he saw one of the men (Berry) bend down as if reaching for a weapon under the seat. As Berry started to sit back up, defendant panicked and fired the gun, because he thought his life was in danger. Defendant claimed that he did not bring the gun with the intent to kill, and only fired the gun with the intent to wound.
Ronald Donnelly, bouncer at the Pompei Lounge, corroborated defendant’s claim that the men hassled defendant and hit him in the bar. He admitted that defendant vowed to return and "get the Arabs”. Later Donnelly found Hazime’s body near the front door of the lounge, and found Berry’s body in a car in the parking lot. He testified that while both men had been inside the bar, neither was involved in the earlier altercation with the defendant.
Both men were pronounced dead upon arrival at Oakwood Hospital. Medical Examiner Werner Spitz, M.D., conducted the autopsies on the two men. Adel Berry received a gunshot wound to the left arm and chest. The path of the bullet discredited defendant’s testimony that he approached the passenger side of the car. Mohammed Hazime suffered a single stab wound to the left chest which penetrated the heart. Based upon the nature of the wound, Dr. Spitz opined that it was a sudden, spontaneous and surprise stabbing. He found no trace of alcohol or drugs on either victim. This confirmed the testimony of the family members of the victims that neither Berry nor Hazime drank alcohol because it was against their religion. The testimony of the investigative officers and hospital personnel revealed that no weapons were found in the victims’ car or on their bodies.
Neither Toland nor Burger testified at the trial. They were also separately charged in the murders of Berry and Hazime. During one of those trials, Katrina Perez was determined to be an accomplice, thus she did not testify.
Defendant’s first claim is that the trial court erred by failing to instruct the jury that there is an “imperfect” defense to first-degree murder.
In the instant case, defendant neither requested an instruction on the qualified right to self-defense nor did he object to the instructions as given. A failure to object to a jury instruction will not preclude appellate review if a manifest injustice will result. People v Murphy, 126 Mich App 379, 381; 337 NW2d 70 (1983). As explained in People v Delaughter, 124 Mich App 356, 359-360; 335 NW2d 37 (1983):
"Pursuant to court rule, no party may assign as error the failure to give an instruction unless he specifically objects at trial thereto. GCR 1963, 516.2. The failure of a court to instruct on any point of law in a criminal trial is not a ground for setting aside a guilty verdict unless the instruction was requested by defendant or his counsel. MCL 768.29; MSA 28.1052. Nevertheless, to assure that an accused will not be erroneously convicted of crimes, this Court has developed the policy of reviewing jury instructions in their entirety to prevent any manifest injustice.” (Citations omitted.)
Our review of the jury instructions reveals that the court properly instructed the jury on self-defense. We have considered the evidence presented at trial in light of defendant’s claim and, in our opinion, defendant would not have been entitled to an instruction on the qualified right to self-defense. It was defendant’s position at trial that the men in the automobile were the initial aggressors and defendant fired in self-defense while retreating from the car because he thought one of the victims had a weapon and, thus, defendant’s life was in danger. The qualified right to self-defense focuses upon whether the defendant would have had a right to self-defense but for his actions as the initial aggressor. See People v Springer, 100 Mich App 418; 298 NW2d 750 (1980), remanded on other grounds 411 Mich 867; 306 NW2d 100 (1981), rev’d on other grounds 417 Mich 1060; 335 NW2d 906 (1983).
Defendant’s next claim is that the trial court erred in failing to instruct the jury that manslaughter is an intentional killing.
The trial court instructed the jury on the elements of first and second-degree murder and vol untary manslaughter. The jury was also instructed that specific intent was required to commit first-degree murder, but was not necessary for second-degree murder or voluntary manslaughter. The court did not, however, instruct the jury that "general intent” is required for second-degree murder and manslaughter.
No objection was raised to the trial court’s instructions. Nevertheless, we will review the instructions to determine if there was error requiring reversal because an erroneous "intent” instruction may result in a miscarriage of justice. People v Doss; 122 Mich App 571; 332 NW2d 541 (1983), lv den 417 Mich 1100.16 (1983); People v Townes, 391 Mich 578; 218 NW2d 136 (1974).
An essential element of voluntary manslaughter is that the defendant must have had the intent to either kill or commit serious bodily harm. Delaughter, supra; Townes, supra. In the instant case, the jury was instructed on first and second-degree murder, pursuant tó CJI 16:2:01 and 16:3:01. The instructions on voluntary manslaughter were given as a lesser-included offense, pursuant to CJI 16:4:02. The Delaughter Court held:
"When CJI 16:4:02 is given immediately after the giving of CJI 16:3:01, there is little danger that the jury would be led astray by the failure to include the intent element within CJI 16:4:02. * * * The giving of CJI 16:4:02 informed the jury that voluntary manslaughter occurs when a killing which would otherwise be murder takes place when the defendant is under the influence of passion. The combination of giving CJI 16:4:02 after CJI 16:3:01 is sufficient to apprise the jury that a conviction of voluntary manslaughter requires that the defendant had the intent either to kill or do serious bodily harm.” Delaughter, p 360.
Although, in the instant case, instructions on aiding and abetting were given between CJI 16:3:01 and 16:4:02, we believe that the jury would not have been confused or misled in finding the necessary intent for manslaughter and no manifest injustice occurred.
Defendant also claims that there was insufficient evidence to support a conviction for the murder of Hazime based on the prosecution’s theory of aiding and abetting in the commission of the offense.
The standard of review for a sufficiency of the evidence claim is whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885 (1980); People v Robbins, 131 Mich App 429; 346 NW2d 333 (1984).
One who procures, counsels, aids or abets in the commission of an offense may be tried and convicted as if he directly committed the offense. MCL 767.39; MSA 28.979. The phrase "aiding and abetting” describes all forms of assistance rendered to the perpetrator of the crime and comprehends all words or deeds which may support, encourage or incite the commission of a crime. People v Palmer, 392 Mich 370; 220 NW2d 393 (1974); People v Cortez, 131 Mich App 316; 346 NW2d 540 (1984); People v Turner, 125 Mich App 8; 336 NW2d 217 (1983). Mere presence, even with knowledge that an offense is about to be committed, is not enough to make one an aider or abettor. People v Burrel, 253 Mich 321; 235 NW 170 (1931); Turner, supra. To be convicted, the defendant must either himself possess the required intent or participate while knowing that the principal possessed the required intent. Turner, supra; People v Karst, 118 Mich App 34; 324 NW2d 526 (1982); People v Triplett, 105 Mich App 182; 306 NW2d 442 (1981), remanded on other grounds 414 Mich 898; 323 NW2d 7 (1982). First-degree murder is a specific intent crime. Thus, in order to convict the defendant, the prosecutor had to establish that defendant possessed the specific intent to murder Hazime or that defendant knew that Clifton Toland possessed the specific intent. Defendant’s specific intent or his knowledge that Toland had the specific intent could be inferred from circumstantial evidence. Karst, supra; People v Kramer, 108 Mich App 240; 310 NW2d 347 (1981).
In the instant case, the evidence adduced at trial was sufficient to prove that defendant aided or abetted in the killing of Hazime. There was testimony that defendant returned to the lounge with the sole purpose to "get the Arabs”. Defendant himself testified that instead of fighting with the men immediately after the incident in the bar he returned home to get two friends and a gun. We believe there was sufficient evidence to establish that defendant entertained the requisite specific intent to kill both Hazime and Berry. Therefore, a rational trier of fact could have found that defendant possessed the specific intent to kill Hazime.
Defendant’s underlying argument is also without merit. Because both parties agreed that the principal’s state of mind was not in issue at trial and defense counsel noted that there was no evidence from which the jury could make that determination, under the aiding and abetting theory the jury would have had to have found that defendant possessed the requisite specific intent to kill Hazime. Defendant was not harmed by an instruction which limited the jury’s ability to find specific intent under an aiding and abetting theory.
Defendant’s last claim is that he was denied the effective assistance of counsel under both the Michigan (Const 1963, art 1, § 20) and United States Constitutions (US Const, Am VI).
In People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), the Michigan Supreme Court set forth a bifurcated test for ineffective assistance of counsel claims.
Recently, in Strickland v Washington, — US —; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United States Supreme Court set forth the standards to be used by a court for reviewing an ineffective assistance of counsel claim under the Sixth Amendment. The defendant must identify "the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment”. 104 S Ct 2066. Counsel’s performance is to be evaluated in light of prevailing professional norms and the defendant must make two showings: (1) "[t]hat counsel’s performance was deficient”. 104 S Ct 2064. It must be shown "that counsel made errors so serious that counsel was not functioning as the 'counsel’ guaranteed the defendant by the Sixth Amendment”. 104 S Ct 2064; and (2) it must be shown by the defendant "that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 104 S Ct 2064. The test here is "but for counsel’s unprofessional errors, the result of the proceeding would have been different”. 104 S Ct 2068. A finding of reasonable probability is necessary. 104 S Ct 2069. However, the trial court "need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”. 104 S Ct 2069-2070.
In our opinion, because Strickland now applies to a federal constitution Sixth Amendment claim, to the extent that the Beasley standard in Garcia conflicts with Strickland, we believe that Strickland must be followed for federal claims. However, for state constitution ineffective assistance claims, we believe that the Garcia test must be followed until the Michigan Supreme Court states otherwise. Addressing the state constitution ineffective assistance claim raised in the instant case, after a thorough review of counsel’s overall performance as required by Garcia, we find that counsel’s performance was constitutionally adequate.
As a result of our review of all of defendant’s allegations of error, mistakes and/or omissions committed by defense counsel, we also find under Garcia that either there were no errors at all (counsel’s alleged omissions were matters of trial strategy) or, when there were errors, they were minimal and defendant would not have had a reasonably likely chance for acquittal. Evaluating defendant’s federal claim under Strickland, we find that the defendant has not shown any actual prejudice.
Affirmed.
The standards under each prong of the test are discussed in People v Coyle, 104 Mich App 636; 305 NW2d 275 (1981), lv den 415 Mich 851 (1982), as follows:
"In Michigan, the merit of claims of ineffective assistance of counsel is determined by applying a bifurcated test. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). The first branch of the inquiry focuses on the Sixth Amendment right to counsel, for which the Supreme Court has endorsed the standard established in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974). People v Garcia, supra, 264. To satisfy defendant’s right to counsel, his lawyer 'must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.’ Id. Aside from reviewing the overall performance of counsel, an appellate court will also examine particular mistakes of counsel to safeguard defendant’s right to a fair trial, which is the other branch of the inquiry. For this purpose, the Garcia Court adopted the standard developed in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969):
" 'However, even where assistance of counsel satisfies the constitutional requirements defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance for acquittal.’ Garcia, supra, 266.” 104 Mich App 639. | [
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Per Curiam.
Plaintiff Marsha Christopher was attacked by a dog while delivering mail in the City of Taylor. She suffered serious injuries and she and her husband filed this suit against Robert Baynton, the city’s pound master, the City of Taylor, and "John Doe I and II” alleging negligence, intentional tort, and nuisance. The trial court found that the City of Taylor and Robert Baynton were protected by governmental immunity and, therefore, granted defendants’ motion for summary judgment. Plaintiffs appeal as of right.
We first consider whether the city’s activities in enforcing its animal control ordinance are governmental functions. Plaintiffs argue that the activities of the pound master in enforcing the animal control ordinances are not of the essence of governing. Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978). We feel that protection of the public from vicious, dangerous or diseased animals is a nonproprietary governmental function and, therefore, the trial court properly granted summary judgment in favor of the City of Taylor. Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1985).
We next consider whether Robert Baynton, the pound master, is also protected by governmental immunity. Plaintiffs argue that Mr. Baynton’s activities are ministerial and, therefore, he is not protected by governmental immunity. Lower level government officials, such as Mr. Baynton, are immune when they are performing discretionary decisional acts within the scope of their employment. Ross, supra.
We feel that Mr. Baynton’s activities are discretionary and, therefore, he is protected by governmental immunity. Plaintiffs basically claim that Mr. Baynton was negligent in failing to properly dispose of the animal pursuant to the animal control ordinance. While Taylor’s animal control ordinance provides some guidance as to how Mr. Baynton is to perform his job, the ordinance grants Mr. Baynton a rather large amount of discretion in determining whether an animal is vicious and how it should be disposed of. All parties note that Taylor’s ordinance is substantially similar to the Dog Law, MCL 287.261 et seq.; MSA 12.511 et seq. The disposition of an animal under the Dog Law is a discretionary act. Finley v Barker, 219 Mich 442; 189 NW 197 (1922); Youngblood v Jackson County, 28 Mich App 361; 184 NW2d 290 (1970).
We next consider whether the lower court properly dismissed plaintiffs’ allegations of an intentional tort. Plaintiffs alleged that Mr. Baynton recieved several complaints regarding the dog which attacked plaintiff and wilfully failed to comply with the animal control ordinance by impounding and destroying the dog. For legal support to this allegation, plaintiffs rely on Shunk v Michigan, 97 Mich App 626; 296 NW2d 129 (1980). In that case, plaintiffs suffered injuries as a result of coming into contact with PBB (polybrominate biphenyl). The plaintiffs alleged that the Department of Public Health wilfully and intentionally failed to take appropriate actions to control the use and manufacture of PBB as required by statute. MCL 408.1031; MSA 17.50(31). This Court held that plaintiffs properly pled a cause of action.
In the instant case, the lower court considered Shunk and found that it was distinguishable, relying on Disappearing Lakes Ass’n v Dep’t of Natural Resources, 121 Mich App 61, 69; 328 NW2d 570 (1982), lv gtd 417 Mich 935 (1983). Since the trial court’s decision in the instant case, Shunk has been reconsidered by this Court again after the case was originally remanded. Shunk v Michigan (After Remand), 132 Mich App 632; 347 NW2d 767 (1984). In that opinion, this Court stated:
"Plaintiffs’ sole claim is that defendants acted intentionally and wilfully in refusing to take action under MCL 408.1031; MSA 17.50(31). However, as this Court has recently explained, negligence does not become an intentional tort merely because the government acted wilfully or intentionally in doing or failing to do a particular act, since such a rule would virtually eliminate the doctrine of governmental immunity. Elliott v Dep’t of Social Services, 124 Mich App 124, 128-129; 333 NW2d 603 (1983). Instead, the government’s tortious activity must fall outside the exercise or discharge of a governmental function. Elliott v Dep’t of Social Services, supra, p 129; Smith v Michigan, 122 Mich App 340, 345; 333 NW2d 50 (1983). Generally, the intentional tort exception to the governmental immunity doctrine has been limited to traditional intentional torts, Randall v Delta Charter Twp, 121 Mich App 26, 34; 328 NW2d 562 (1982), and acts of omission rather than commission are not generally characterized as intentional torts. Elliott v Dep’t of Social Services, supra, p 130, citing Randall v Delta Charter Twp, supra, p 34.” 132 Mich App 636.
This Court concluded that summary judgment was properly granted on plaintiffs’ allegation of intentional tort since plaintiffs failed to present any factual evidence in support of their claim. In the instant case, plaintiffs’ claim is similarly flawed. The trial court therefore did not err in granting summary judgment as to plaintiffs’ claim of intentional tort.
Plaintiffs finally claim that the lower court erred in granting summary judgment as to her allegation of intentional nuisance. In Randall, supra, pp 34-35, this Court stated:
"Plaintiff next claims that the township’s failure to enforce its ordinance constituted a common-law nuisance. Although we agree that a properly pled claim of nuisance may serve to avoid the immunity provisions of the statute, Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), plaintiffs complaint does not allege such a claim. Plaintiff has failed to allege that the township participated in the creation of the inlet or that it had any interest in or right of control over the property. See Radloff v State of Michigan, 116 Mich App 745; 323 NW2d 541 (1982); Rosario, supra. Therefore, plaintiff has failed to state a claim. Steman v Coffman, 92 Mich App 595, 598; 285 NW2d 305 (1979); Coburn v Public Service Comm, 104 Mich App 322, 327; 304 NW2d 570 (1981).”
In the instant case, plaintiffs have failed to allege that the City of Taylor participated in the creation of the nuisance or had any interest in or right of control over it. The facts of the instant case are insufficient to support a claim of intentional nuisance. The lower court, therefore, did not err in granting summary judgment.
Affirmed. | [
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Per Curiam.
Defendant was convicted of carrying a concealed weapon in an automobile, MCL 750.227; MSA 28.424. After a jury trial in August, 1971, defendant failed to appear for sentencing and remained a fugitive until July, 1980, when he was arrested in a foreign jurisdiction. After defendant unsuccessfully contested extradition, he was extradited and sentenced to a term of imprisonment of 169 days (which is the time spent incarcerated while contesting extradition) and $2,000 in costs for the extradition. The transcripts of his lower court record are lost and cannot be settled under GCR 1963, 812.2(b). On appeal defendant contends that the loss of those records requires a peremptory reversal. We do not agree.
Merely because the records are unavailable does not give rise to a presumption of entitlement to an automatic reversal.
" 'Doubts should be resolved in favor of the integrity, competence and proper performance of their official duties by the judge and the State’s attorney. * * * If any presumption is to be indulged it should be one of regularity rather than of irregularity * * * Such a presumption of regularity indicates that the court constitutionally discharged rather than unconstitutionally disregarded its state and federal duties.’ Bute v Illinois (1947), 333 US 640, 671, 672 (68 S Ct 763, 92 L Ed 987). The presumption of regularity has been recognized in Michigan. People v Auerbach (1913), 176 Mich 23, 43.” People v Carson, 19 Mich App 1, 7, fn 10; 172 NW2d 211 (1969), lv den 383 Mich 780 (1970).
"We do not mean to be understood as saying that the unavailability of the transcript of the proceedings at which an accused person was convicted necessarily affects the validity of his conviction. The failure of the state to provide a transcript when, after good faith effort, it cannot physically do so, does not automatically entitle a defendant to a new trial. Norvell v Illinois (1963), 373 US 420 (83 S Ct 1366, 10 L Ed 2d 456), reh den 375 US 870 (84 S Ct 27, 11 L Ed 2d 99); United States, ex rel Smart v Pate (CA 7, 1963), 318 F2d 559, 562; contrast United States v Randolph (CA 7, 1958), 259 F2d 215. We hold, rather, that where there is no transcript the defendant may offer proof in support of his assertions of what occurred when he was convicted.” Id., pp 7-8.
The unique twist to this case is that the ten-year delay between conviction and claim of appeal is wholly attributable to the defendant.
"The appellant is bound to act with reasonable promptness after the trial in securing the transcript from the reporter, and if his failure to secure the transcript is due primarily to his own negligence or delay, rather than to the death or disability of the reporter, a new trial will generally be denied.” 19 ALR2d 1098, 1107.
Here defendant did not attempt to protect his rights. Although this appeal is technically timely, GCR 1963, 803.1, the nine-year delay between conviction and sentencing is a mockery of our system. The state has a right to rely on expeditious claims of appeal by defendants. To allow such a claim to stand under circumstances such as this would be to allow form to overtake substance.
While we agree that a defendant has a constitutional right to appeal where, as here, he has compromised his position by his own misconduct, that right must be balanced. The state’s responsibility for lost transcripts should diminish as the defendant-caused delay lengthens. When the delay is as extreme as it is here, and only the right to appeal is alleged (no specific error is noted as in Carson, supra), we cannot reward defendant for being a fugitive for nine years.
Accordingly we deny defendant’s request for peremptory reversal or a new trial.
Affirmed. | [
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Per Curiam.
Plaintiff Susan Ledbetter appeals as of right the trial court’s judgment which reduced an initial jury verdict awarded in her favor. Defendants cross-appeal from the judgment entered against them.
In 1978, plaintiff Susan Ledbetter borrowed $7,-200 to start a dress shop. This loan was renewed five times, with a new promissory note being drawn each time. Each note was secured by inventory and fixtures on hand or after-acquired, but not by any real property, mortgage instruments or bank accounts. While the notes allowed the bank, in case of default, to declare the indebtedness immediately due and payable, they did not provide for any setoffs or seizure of funds on deposit.
When plaintiff Susan Ledbetter closed the store for financial reasons in April, 1980, and defaulted upon the loans, defendant bank did not proceed against the collateral, but, rather, later seized the bank accounts on deposit. Defendant Orton, president of the bank, stated that this was done in accordance with the language on the notes which granted the bank the right to pursue any legal method approved by the state.
Initially, there were discussions concerning alternative methods of paying the notes. One suggestion was to incorporate the debts into the first mortgage held by the bank on the house and lower the interest rate on the mortgage, based on defendant Orton’s belief that the mortgage contained a collateral security clause which, in any event, would permit the bank to foreclose on the mortgage in order to recover the amounts owed on the dress shop notes. Subsequently, Orton discovered that this was not the case, but failed to so inform plaintiffs. Nevertheless, defendant Bucklew, vice-president of defendant bank, inserted a collateral security clause into plaintiffs’ mortgage. Upon default, defendant Bucklew, as previously noted, debited the funds on deposit with the bank in five different accounts in which Susan Ledbetter held a joint interest to offset the debts and, thereafter, in December, 1981, commenced foreclosure proceedings, refusing to accept any further late payments.
Plaintiff Susan Ledbetter testified at trial that, during the course of discussions with defendant Orton, he mentioned on approximately four occasions the existence of a collateral security clause in the mortgage. Although she had asked him for a copy of the mortgage, she stated that he never honored this request. Subsequently, she contacted defendant Bucklew who informed her that the previous offer to take out a new loan of $25,000 and incorporate this into the mortgage, along with the note obligation, exceeded an acceptable percentage of the value of their home. At this time, she asked for and received a copy of the mortgage, whereupon she noticed that the collateral security clause had been inserted into the mortgage. That this clause was so inserted was verified by the mortgage copy filed with the register of deeds.
This action ensued, with plaintiffs alleging fraud, conversion, and the intentional infliction of emotional distress. An amended complaint was filed additionally alleging gross negligence, but that count was amended by stipulation into a count alleging ordinary negligence and a count alleging wilful and wanton misconduct. At trial, the counts relating to fraud and conversion were dismissed. The jury returned a verdict in favor of plaintiff Susan Ledbetter but found no cause of action with respect to plaintiff Robert Ledbetter. Defendants then moved to reduce each of the separate verdicts, including the verdicts on the intentional infliction of emotional distress count and the wilful and wanton misconduct count by 40%, contending that juror affidavits had been obtained which indicated that two of the jurors had misunderstood the application of plaintiffs’ comparative negligence. The lower court reconvened the jury, conducted voir dire and sent the jury to deliberate again. A second verdict reduced plaintiff’s aggregate awards by 40%. A judgment in favor of plaintiff Susan Ledbetter was entered on December 30, 1983, in a total amount of $38,100, plus costs and interest.
Plaintiff argues that the unanimous verdict followed by individual polling and discharge ended the function of the jury and that the jurors’ affidavits raise no allegations of outside influence or clerical error which would allow for impeachment of the original verdict. Plaintiff further posits that the jury violated its instructions (as well as Michigan law) by applying comparative negligence to reduce the damages awarded for wilful and wanton misconduct and intentional infliction of emotional distress.
Michigan, like most other jurisdictions, adheres to the general rule that the affidavits of jurors regarding their own misconduct are not admissible for the purpose of impeaching their verdict. Mandjiak v Meijer’s Super Markets, Inc, 364 Mich 456, 460; 110 NW2d 802 (1961). However, in Routhier v Detroit, 338 Mich 449; 61 NW2d 593 (1953), the Supreme Court, though recognizing the general rule, observed that there may be instances where there was, in fact, no agreement reached by the jurors, thereby resulting in the absence of any verdict. According to the Court, juror affidavits are competent to show this latter defect. The Court noted:
"’Only when jurors have agreed to the verdict are they estopped from impeaching it. Consequently, affidavits that they never assented to it are admissible. Thus, where some of the jurors have not in fact agreed to the verdict, but, being persuaded by the majority of their fellows that it was only necessary for a majority to agree, failed to object to it when it was returned, their affidavits are admissible to show that they had never consented to the verdict.’” 338 Mich 452.
In Routhier, it was held not to be improper for the trial court to set aside the jury verdict on the day after rendition of the verdict where the jury was recalled and polled and it was discovered that one of the jurors had not agreed to the jury verdict.
More recently, in Hoffman v Monroe Public Schools, 96 Mich App 256; 292 NW2d 542 (1980), lv den 409 Mich 931 (1980), in clarifying the general distinctions between mistakes inherent in the verdict and those vitiating the verdict itself, this Court held that:
"In all cases, whether civil or criminal, once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. After that point, oral testimony or affidavits by the jurors may only be received on extraneous or outside errors (such as undue influence by outside parties), or to correct clerical errors or matters of form. See * * * Harrington v Velat, 395 Mich 359; 235 NW2d 357 (1975), Hampton v Van Nest’s Estate, 196 Mich 404; 163 NW 83 (1917), Marchlewicz v Stanton, 50 Mich App 344; 213 NW2d 317 (1973). Information on extraneous errors has always been permissible under the 'Iowa rule’, since it does not relate directly to the thought processes or inner workings of the jury. We carve out an exception for clerical errors since, presumably, the correct information will already exist on the record and it will merely be a matter of conforming the written judgment to the earlier in-court statements; no invasion of the juror’s room or minds will be necessitated.” 96 Mich App 261.
In Dunham v Veterans of Foreign Wars Club of Muskegon, Post 446, 104 Mich App 541; 305 NW2d 260 (1981), lv den 412 Mich 912 (1982), this Court recognized the clerical-error exception in allowing the jury to be reconvened where "the verdict as transmitted to the written word did not constitute the true verdict”. 104 Mich App 544.
In Brillhart v Mullins, 128 Mich App 140; 339 NW2d 722 (1983), this Court held that the trial court erred in reconvening the jury to correct an alleged mistake in the amount of the verdict. Before entry of the judgment, defendant filed a motion for new trial or remittitur, to which he appended affidavits from seven jurors indicating that they thought they were awarding plaintiff 30% of $50,000, or $15,000. The trial court ordered the jury to be reconvened to determine whether a mistake had been made. At the evidentiary hearing, each juror testified that he or she had agreed that plaintiff was entitled to $15,000. The trial court granted defendant’s motion for remittitur, reducing a $35,000 verdict to $15,000. This Court reversed, stating that "the jurors’ misunderstanding of the comparative negligence instruction inheres in the verdict and is not subject to attack by impeaching affidavits”. 128 Mich App 151.
In the case sub judice, the jury was presented with a verdict card drafted by defendants. The jury returned the following unanimous verdicts in favor of plaintiff:
"Intentional Infliction of Emotional Distress
"Against Brown City Savings Bank —0
"Against Douglas Orton —$ 500.00
"Against Richard Bucklew —$ 2,500.00
"Negligence
"Against Brown City Savings Bank —$ 5,000.00
"Against Douglas Orton —$ 500.00
"Against Richard Bucklew —$ 5,000.00
"Wilful and Wanton Misconduct
"Against Brown City Saving Bank —0
"Against Douglas Orton —0
"Against Richard Bucklew —$50,000.00”
It also determined that plaintiff was 40% negligent. After this verdict was affirmed by individual polling, the panel was discharged. Thereafter, defense counsel obtained affidavits from two jurors attesting to the fact that it was their belief that the entire amount of monies awarded on the verdict form would be reduced by 40%.
A hearing was then held to determine whether all the jurors, in finding plaintiff 40% negligent, understood that this percentage of negligence could only be set off against the amount awarded under the negligence count and not against the amounts awarded under the counts of intentional infliction of emotional distress and wilful and wanton misconduct. After the trial court instructed the jury to deliberate the issue, it reduced, by 40%, its original award of damages on the intentional infliction of emotional distress and wilful and wanton misconduct counts. We believe that the lower court erred in reconvening the jury and permitting the jury to alter the verdicts.
We note initially that, according to Hoffman, supra, the polling and discharging of the jury terminated its function as a jury. Moreover, the mistake involved herein related to a misunderstanding of how to apply comparative negligence law which, pursuant to Brillhart, supra, inheres in the verdict. This mistake did not involve clerical errors for which an exception to the general rule has been recognized. Rather, the mistake here is more readily compared to those which address the thought processes and inner workings of the jury and, as such, is beyond challenge. Hoffman, supra. Accordingly, we hold that the original verdict should be reinstated and, therefore, we need not address plaintiffs claim that the jury violated its instructions and Michigan law by using plaintiff’s comparative negligence to reduce the damages awarded for defendants’ intentional infliction of emotional distress and wilful and wanton misconduct.
Next, defendants argue on cross-appeal that the award for damages for defendants’ wilful and wanton misconduct constitutes an award for exemplary damages which, in addition to the award for intentional infliction of emotional distress, provides plaintiff a double recovery. Defendants further assert that the award for damages for the intentional infliction of emotional distress and negligence similarly constituted a double recovery for the same injuries.
We note preliminarily that defendants failed to raise the issue of double compensation below. While such failure normally precludes this Court from considering an issue raised for the first time on appeal, this rule is not inflexible and will not be applied "where the issue is one of law concerning which the necessary facts have been presented”. Loper v Cascade Twp, 135 Mich App 106, 111; 352 NW2d 357 (1984). This condition is present and therefore the issue herein merits consideration.
Exemplary damages are compensation to the plaintiff for injuries to feelings, not as punishment to the defendant. Veselenak v Smith, 414 Mich 567; 327 NW2d 261 (1982). In Veselenak, the Supreme Court discussed the conduct which gives rise to the the threshold of injured feelings necessary to support an award of exemplary damages:
"This court has held that the act or conduct must be voluntary. This voluntary act must inspire feelings of humiliation, outrage, and indignity. The conduct must be malicious or so wilful and wanton as to demonstrate a reckless disregard of plaintiffs rights(Citations omitted; emphasis added.) 414 Mich 574-575.
Although the above illustrates that a finding of wilful and wanton misconduct would appear to incorporate much the same conduct as would support an award of exemplary damages, we note that an award of actual damages may now also include compensation for shame, mortification, mental pain and anxiety. Veselenak, supra, p 574. Consequently, the instant case cannot necessarily be said to involve an award of exemplary damages, especially where the jury did not specifically award such. An award of damages does not become exemplary damages merely because it compensates for some form of mental anxiety. At issue is whether there was a double recovery for the same injury, not the label attached.
Similarly, we agree with defendants that an award for the intentional infliction of emotional distress shares elements common to a claim that defendants acted wilfully and wantonly, see Holmes v Allstate Ins Co, 119 Mich App 710, 714-715; 326 NW2d 616 (1982), lv den 417 Mich 1018 (1983), for a discussion of the elements of intentional infliction of emotional distress; but, the key inquiry in ascertaining whether these two awards amounted to a double recovery is as to what injury is sought to be compensated. The nature of the conduct, i.e., "the source of the mental distress and anguish”, is of little relevance. What matters is whether all mental distress was compensated in the one award. See generally discussion in Veselenak, supra, pp 576-577.
In this connection, the trial court’s instructions to the jury with respect to negligence and the intentional infliction of emotional distress emphasized that damages for emotional or mental distress were only proper where "bodily harm resulted”, that a finding of emotional distress must be followed by a determination that plaintiff was "harmed or damaged”, and that plaintiff had the burden of showing "a definite physical injury”. In other words, the damage award for these counts was restricted to physically-manifested injury. As the trial court’s instructions stated, the injury sought to be compensated by the $2,500 award against defendant Bucklew was "the physical injury as a result of mental distress”.
Mental anguish damages, however, are not so circumscribed. A plaintiff is not limited to recovery for physical pain and anguish, but, rather, is entitled to damages for mental pain and anxiety which naturally flow from the injury, i.e., for shame, mortification, and humiliation. Beath v Rapid R Co, 119 Mich 512, 517-518; 78 NW 537 (1899); Grenawalt v Nyhuis, 335 Mich 76, 87; 55 NW2d 736 (1952); Veselenak, supra, p 574. As the Supreme Court stated in Veselenak:
"[J]uries are not asked to differentiate between mental states, such as shame, mortification, humiliation and indignity. Juries are asked to compensate mental distress and anguish, which flows naturally from the alleged misconduct and may be described in such terms as shame, mortification, humiliation and indignity. In addition, if the plaintiff is being compensated for all mental distress and anguish, it matters not whether the source of the mental distress and anguish is the injury itself or the way in which the injury occurred.” (Emphasis in original.) 414 Mich 576-577.
Therefore, when the trial court instructed the jury that exemplary damages could be awarded to compensate for plaintiffs outrage, mortification, humiliation, and indignity caused by defendants’ malicious, wilful and wanton conduct or by conduct that involved elements of fraud or wanton and reckless disregard for the plaintiffs rights, it was clear that the injury sought to be compensated was the mental pain and anguish she suffered, which was not identical to the prior award for physical injury. Thus, the award of $50,000 was proper and is to be viewed as a statement by the jury that plaintiff suffered mental pain and anguish for which $50,000 was just compensation.
Unlike Veselenak, where the Supreme Court noted that "if the jury deliberated as instructed * * * the giving of an exemplary damages instruction permitted [plaintiff] to be doubly compensated for one injury”, 414 Mich 576, such was not the case here in light of the lower court’s emphasis on the physical aspects of the injury in instructing the jury on intentional infliction of emotional, distress. This is also unlike Veselenak in that there the jury specifically awarded both compensatory and exemplary damages so that there was some question concerning the extent to which mental anguish was compensated in the award of ordinary damages. We find no double recovery. Accordingly, the original verdict should be reinstated in full.
Defendants further maintain that the award for negligence and intentional infliction of emotional distress against defendants Bucklew and Orton were similarly awards of double recovery since they both were awards for mental distress. However, the allegation of negligence included, among other things, damages for injury to plaintiffs reputation. Moreover, the trial court gave the same instructions to the jury on these two counts with respect to damages, so that these two awards, as noted above, represent the physical manifestation of the injury sustained, irrespective of the source, and cannot be said to constitute a double recovery. Inasmuch as this claim was supported by the evidence and the award against defendant Orton for negligence amounted to only $500, we will not speculate as to what elements of injury were contemplated by this award.
We finally note that much of the confusion concerning damages was due to the form of the verdict card, which specified the nature of the conduct without stating the injury that each award sought to compensate. Because defendants devised the verdict card, in addition to the lack of objection to the instructions and the nature of the awards, defendants are in a weak position to challenge the award.
Defendants’ second argument on cross-appeal is that the trial court erred in permitting plaintiffs counsel to submit the issue of "off-setting funds” to the jury, even though it had previously dismissed the count of conversion which had been based on defendants’ off-setting of funds from plaintiff’s and her children’s accounts.
In plaintiff’s original complaint, she alleged that defendants’ unauthorized withdrawals of plaintiff’s funds from her personal savings account amounted to conversion and intentional infliction of emotional distress. Similarly, in her amended complaint she alleged that defendants both negligently and wilfully and wantonly removed funds from her account including the accounts of her children. The trial court ruled that the testimony concerning setoffs from the children’s accounts was irrelevant and granted defendants’ motion for summary judgment as to the claim alleging conversion. But a finding that the setoffs would not support a claim of conversion does not preclude consideration of those acts as they relate to other allegations. Indeed, plaintiff testified that she was left penniless and completely and emotionally devastated by such setoffs. In other words, this was part of the conduct alleged to have constituted the intentional infliction of emotional distress. Moreover, the issue of negligence remained and the manner of setoff was particularly relevant in determining whether the bank’s actions were reasonable, as well as in determining whether defendant Bucklew notified plaintiff prior to off-setting her funds. This claim is without merit.
Finally, defendants argue that the trial court erred by denying defendants’ motion for a directed verdict on the intentional infliction of emotional distress count, since the testimony did not establish that defendant, by inserting the collateral security clause into the mortgage, intentionally inflicted emotional distress. We disagree.
The testimony established that, although defen dant Orton had represented to plaintiff that her mortgage contained a collateral security clause which would allow the bank to foreclose on the house in the event of default on the notes, such was not the case. Instead of notifying plaintiff of this error, he left the matter unsettled and went on vacation. Such representations by defendant Orton caused plaintiff distress since she believed that the bank could repossess their house at any time. Her request for a copy of the mortgage went unheeded until defendant Bucklew intervened. Upon realizing that the mortgage did not contain the collateral security clause, Bucklew photocopied the mortgage, inserted the clause and mailed it to plaintiffs, intending it to appear as if the mortgage on file at the bank contained the typed-in clause. It was established that this was a highly irregular procedure. We believe this testimony establishes a genuine issue of fact as to whether such constituted extreme and outrageous conduct. There was also reasonable dispute as to whether this action was intentional or reckless;
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Per Curiam.
Defendant Wayne County appeals as of right from judgments entered for plaintiff, University Emergency Services, P.C. Plaintiff, a provider of emergency medical services, filed a complaint seeking declaratory judgment as to which of the defendants was liable for past, present and future payments for emergency medical care provided to prisoners charged with violation of state criminal statutes. By contract, the City of Detroit agreed to pay for the medical care of prisoners charged with the violation of city ordi nances. However, the contract left it for the courts to determine whether the city is liable for the medical expenses of those taken into custody for violations of state law. Plaintiff also contracted with Wayne County to provide care for prisoners "deemed to be the responsibility of the sheriff”.
Based on the vague provisions in their contracts, both the city and the county denied responsibility for the cost of treating prisoners in the custody of the Detroit police and charged with violating state law. The city asserted that, no matter who has custody, payment is the county’s responsibility. The county maintained that its liability for medical care does not begin until the accused is formally arraigned.
The trial court held the county liable for the expenses of enforcing state law, citing MCL 801.4; MSA 28.1724, which provides:
"Except as provided in section 5a, all charges and expenses of safekeeping, and maintaining prisoners and persons charged with an offense, shall be paid from the county treasury, the accounts therefor being first settled and allowed by the county board of commissioners.”
Plaintiff moved for entry of a judgment of $209,-295 against the county, based on its claimed treatment of 5,847 prisoners "for the period July 1, 1980, through August 31, 1982”. Plaintiff submitted a list of prisoners treated during this period, along with the offenses with which they were charged. A hearing was held on the county’s objections to entry of judgment and motion for new trial on May 6, 1983. The county’s attorney argued that the decision assigning liability to the county violated the Headlee Amendment. He also argued that the county should have an opportunity to audit the list submitted by plaintiff prior to judgment being rendered. The trial judge agreed that the county was "entitled to review what the charges were” and adjourned the matter to May 20. The motion for new trial was denied.
At the May 20 hearing, plaintiffs attorney stated that 4,095 of the prisoner-patients were arrested on state charges, while 1,712 others were "in dispute”. The county’s attorney stated that an additional 178 were in dispute. The court entered judgment for plaintiff for the expenses of treating the 4,095 and ordered "that the parties shall have 45 days in which to agree upon the liability for the remaining 1,712”, as well as the 178 contested by the county. Counsel for the county objected to the court’s award of statutory interest from the date that the complaint was filed, since the claims for some of the patients had not accrued by then.
Unable to reach agreement on responsibility for the remaining 1,712 patients, the parties again appeared before the court on September 16, 1983. Plaintiff and the city had agreed, based on application of a statistical average, that the city would admit responsibility for 342 of the 1,712. This left 1,370 patients whose treatment would be charged to the county. The county objected and demanded a factual determination by the court on the disputed claims which, in its view, numbered about 1,300. A supplemental judgment was entered in plaintiffs favor, with statutory interest from the time that the action was commenced. The county was given 90 days to present evidence that it was not responsible for some or all of the 1,370 prisoners covered by the supplemental judgment. The county appeals from both judgments, raising five issues.
First, the county argues that the word "charged”, as used in MCL 801.4; MSA 28.1724, refers to formal arraignment on the warrant and, until then, the county is not liable for medical care. This argument was persuasively rejected by the trial judge, who noted that People v Ross, cited by the county for the proposition that "charge” is a specific legal action, actually states only that "charge” is defined as "the first step in the prosecution of a crime”. Further, the trial judge noted that:
"Prior to February, 1982, MCL 801.4; MSA 28.1724 read as follows:
"’All charges and expenses of safekeeping and maintaining convicts, and of persons charged with offenses, and committed for examination or trial, to the County Jail shall be paid from the County Treasury; the accounts therefor being first settled and allowed by the Board of Supervisors.’ (Emphasis added.)
"However, with the passage of the amended statute the words 'to the County Jail’ were omitted. This suggests that the Legislature amended the statute in order to clear up all doubts that custody over the prisoners is not a requirement for the imposition of liability upon the county.”
The court found additional support in Mixer v Supervisors of Manistee County, where the Court held that, with regard to enforcement of state law, "[t]he suppression of crimes and disorder is made chargeable on the county”. Finally, in OAG, 1947-1948, No 793, p 722 (June 30, 1948), as relied upon by the trial court, the Attorney General stated that merely because a prisoner was confined in a hospital for treatment instead of the county jail, the county is not free from liability for his care and maintenance while in the hospital. It was the Attorney General’s opinion that "charged with offenses” does not mean formal charges must be brought prior to incarceration, but that it is enough that formal charges are later filed.
As the Supreme Court stated in Michigan v De Fillippo, "[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law”. Whether the person making the arrest wears a state or local badge, or whether he is a private citizen, he acts pursuant to state authority. Medical expenses attendant to the arrest are, therefore, chargeable to the county. "Under the general laws the expense of enforcing the criminal statutes of the State must be borne by the counties.”
The county next contends that the trial court interpreted the amendment of MCL 801.4 in a manner that violated the Headlee Amendment’s prohibitions against the state requiring "any new or expanded activities by local governments” or mandating "an increase in the level of any [local] activity” without full state funding. This argument lacks merit.
" 'New activity or service or increase in the level of an existing activity or service’ ” does not include a statute "which provides only clarifying nonsubstantive changes in an earlier, existing law”. Moreover, a judicial interpretation of an existing statute which results in new expenditures does not violate the Headlee Amendment.
Third, the county argues that the court lacked a sufficient legal and factual basis for entering money judgments. Contrary to their assertions, the complaint clearly contains a request for monetary relief. There was a reasonably certain factual basis for the damage award. Plaintiff submitted a complete list, derived from its records, of the arrestees to whom plaintiff provided emergency medical care, along with the offenses with which they were charged. The county had access to plaintiff’s records, but apparently failed to make use of the opportunity. Denial of defendant’s motion to require answers to interrogatories was not an abuse of discretion under the circumstances.
Fourth, the county contends that the judgment improperly incorporates claims which are unaudited and unverified. According to the county, the statute contemplates a claim procedure where charges for medical care are examined by the county for reasonableness, audited, and allocated against the proper accounts in the budget.
The statute requires that charges of maintaining prisoners "shall be paid from the county treasury, the accounts therefor being first settled and allowed by the county board of commissioners”. Nevertheless, under the contract, payment was to be made "according to standard County procedure”. It is uncontroverted that defendant never audited any claim submitted by plaintiff pursuant to the contract. The records necessary to conduct an audit were available to the county. Under these circumstances, the county is deemed to have waived whatever protection it enjoys under MCL 801.4. Once the claim was determined valid by the trial court, the county was properly compelled to pay it.
Finally, the county contends that it was error for the trial court to apply statutory interest to the entire amount awarded as damages, when some of the claims accrued after the complaint was filed. The trial court’s judgments award interest on all claims from June 9, 1982, the date the action was commenced. MCL 600.6013; MSA 27A.6013 provides that interest shall be allowed on a money judgment in a civil action "from the date of filing the complaint”. In Foremost Life Ins Co v Waters (On Remand), this Court, noting the purpose of the statute (to compensate for loss of the use of funds), held that interest should be awarded only from the date that defendant began delaying payment, when the delay began subsequent to commencement of the action.
In its brief, plaintiff also states that it is not making a claim for interest from the date of filing of the complaint for those patients treated subsequent to June, 1982. Interest should not be awarded on claims for payment for treatment of individuals after June 9, 1982, who were arrested on state charges. Therefore, while affirming the trial court’s award, we remand to the trial court with instructions to amend the supplemental judgment as follows. The number of state-charged individuals treated after June 9, 1982, shall be determined, then multiplied times the proper contract rate, and that figure subtracted from the $48,936 (the amount awarded plaintiff against defendant county in the supplemental judgment) to arrive at the amount on which interest is to be computed.
The county’s argument that statutory interest may not be awarded in contract actions lacks merit. The statute "applies to all damages sought and sustained in a civil action brought for the recovery of money damages”.
Affirmed and remanded with instructions._
Const 1963, art 9, §§ 25, 29.
235 Mich 433, 444; 209 NW 663 (1926).
26 Mich 422, 424 (1873). See, also, Stowell v Board of Supervisors for Jackson County, 57 Mich 31; 23 NW 557 (1885), cited by the trial court for the principle that "[e]ven though the money disbursed in enforcing state laws are for the benefits of the state, the counties are made liable for the amounts expended as a means to distribute the financial burden”.
OAG, 1947-1948, No 793, pp 722-723 (June 30, 1948).
443 US 31, 36; 99 S Ct 2627, 2631; 61 L Ed 2d 343, 348-349 (1979).
MCL 764.16; MSA 28.875.
Grand Rapids v Kent County Board of Supervisors, 40 Mich 481, 485 (1879).
Const 1963, art 9, §§ 25, 29.
MCL 21.233(7); MSA 5.3194(603)(7).
Birmingham & Lamphere School Districts v Superintendent of Public Instruction, 120 Mich App 465, 477-478; 328 NW2d 59 (1982), lv den 417 Mich 1100.19 (1983).
McQuaid v Oakland County Board of County Auditors, 315 Mich 234; 23 NW2d 644 (1946).
125 Mich App 799, 802; 337 NW2d 29 (1983).
Goins v Ford Motor Co, 131 Mich App 185, 202; 347 NW2d 184 (1983). See, also, Militzer v Kal-Die Casting Corp, 41 Mich App 492, 496-497; 200 NW2d 323 (1972), lv den 388 Mich 789 (1972). | [
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] |
Per Curiam.
Defendant was convicted of two counts of armed robbery, MCL 750.529; MSA 28.797, after a jury trial in September, 1983. Defendant was sentenced to concurrent prison terms of 60 to 100 years, with a recommendation of no parole. Defendant appeals to this Court as of right.
Defendant’s first claim is that the trial court erred in finding the defendant competent to represent himself. A criminal defendant’s right to proceed in propria persona is guaranteed by the Michigan Const 1963, art 1, § 13 and by MCL 763.1; MSA 28.854. The right to self-representation is implicitly guaranteed by the Sixth Amendment to the Constitution of the United States. Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975). However, this right is not absolute. In People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976), the Court listed three requirements to be considered when a defendant asks to proceed in propria persona: (1) the request must be unequivocal; (2) the defendant must act knowingly, intelligently and voluntarily; and (3) defendant’s self-representation will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business.
The first and third requirements were clearly met in this case. The issue is whether defendant’s waiver was knowing, intelligent and voluntary. The defendant must be aware of the dangers and disadvantages of self-representation. The record should show that he knows what he is doing and that his choice was a fully informed one. People v Holcomb, 395 Mich 326, 337; 235 NW2d 343 (1975); Faretta v California, supra. There are no exact guidelines regarding what warnings should be given to a defendant who wishes to proceed in propria persona. In this case, after prompting by the prosecutor, the judge asked the defendant if he understood the charges and possible penalties, if he still wanted to represent himself and whether he wanted the assistance of standby counsel. The trial judge commented on the defendant’s ability to conduct his own defense stating:
"[Defendant,] to me, is an intelligent man and he speaks very eloquently and he seems to know what he’s doing as far as this court is concerned. He might not think exactly the way we think about handling something, but he knows what he is doing as far as I’m concerned and I don’t think there’s anything wrong with him mentally. I think he’s a sharp intelligent individual * * *.”
Furthermore, we note that the trial court complied with GCR 1963, 785.4(3) by informing the defendant of his right to counsel at no cost to himself. The record clearly reflects it was defendant’s choice to proceed in propria persona.
The choice was unequivocally made by defendant against the advice of the court and able trial counsel. Defendant was assisted by appointed counsel acting in a standby capacity. We find no error in the trial court’s decision to allow defendant to proceed in propria persona.
Defendant also claims that errors he made in the course of his self-representation deprived him of effective assistance of counsel. This argument is foreclosed to defendant. In Faretta, supra, the United States Supreme Court stated:
"The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel’.” Faretta, 422 US 835, fn 46.
Defendant also claims that the trial judge erred by not instructing sua sponte on lesser-included offenses. Defendant specifically declined such instructions even though standby counsel urged him to request them. Defendant relies on People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), which held that the trial court must instruct a jury on the lesser-included offense of second-degree murder in cases where the defendant is charged with first-degree murder. This is the only exception to the rule requiring that a request must be made for instructions on lesser-included offenses. People v Kamin, 405 Mich 482, 493, fn 1; 275 NW2d 777 (1979); People v Stephens, 416 Mich 252, 261; 330 NW2d 675 (1982). Reviewing courts in this state have expressly declined to expand the Jenkins rule to include other offenses. People v Johnson, 409 Mich 552, 562; 297 NW2d 115 (1980); People v Casey, 120 Mich App 690, 697; 327 NW2d 337 (1982). The trial court did not err by not instructing on lesser-included offenses on its own motion.
Finally, defendant claims that there was no evidence that he was armed and the jury was improperly instructed on the "armed” element of armed robbery. The complainant testified that defendant held his hand in his pocket in such a way that it was believed that he had a gun. A number of cases have held that a concealed hand, held in such a manner as to resemble a pistol, may satisfy the "armed” element of armed robbery. People v Jury, 3 Mich App 427; 142 NW2d 910 (1966); People v Washington, 4 Mich App 453, 455-456; 145 NW2d 292 (1966), lv den 379 Mich 783 (1967) . Defendant claims, however, that People v Saenz, 411 Mich 454; 307 NW2d 675 (1981), and People v Parker, 417 Mich 556; 339 NW2d 455 (1983), cert den — US —; 104 S Ct 2180; 80 L Ed 2d 561 (1984), preclude conviction based on a reasonable belief that defendant was armed. In both of those cases there was no evidence that the victims saw a weapon or another item fashioned to simulate a weapon. The Court ruled that it was error to instruct the jury that it could convict merely on the victims’ reasonable belief that the defendant was armed. Parker, supra, and Saenz, supra, require more than a belief that the defendant was armed in order to convict.
In this case the trial court gave the instruction provided in CJI 18:1:01(4), which repeats the language of the statute. That instruction requires that, in order to satisfy the "armed” element of the offense, the jury must find that the defendant was in fact armed with a dangerous weapon or that the defendant used an item fashioned to simulate a dangerous weapon. This instruction is more than the "merely reasonable belief’ instruc tion that the Court disapproved of in Parker and Saenz. Since the instruction did not state the erroneous standard at issue in those cases, there was no error.
Defendant’s convictions are affirmed. | [
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D. C. Riley, P.J.
Defendant was convicted by a jury of the lesser included offense of voluntary manslaughter, MCL 750.321; MSA 28.553, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). The court sentenced defendant to not less than 6 months and not more than 15 years on the manslaughter charge and to a consecutive term of 2 years on the felony-firearm charge.
On February 2, 1980, at approximately 12:30 a.m., the defendant and Harold Ewing, deceased, were involved in a gun battle at the home of John Sellers. Around 2 a.m. on that same day, Ewing died of multiple gunshot wounds. The circumstances of the gun battle are in dispute. It is undisputed, however, that defendant went to Sellers’ house to purchase a pill known as a "deb”. Ewing answered the door and told defendant that Sellers was asleep. Defendant repeated his request to see Sellers and Ewing returned to the bedroom a second time but again informed the defendant that he could not awaken Sellers.
At this point the conversation between Ewing and defendant turned into a confrontation. Ewing allegedly aimed a handgun at defendant and then struck defendant alongside the head with the gun. A struggle ensued, whereupon defendant gained possession of one gun and Ewing obtained a second handgun. Both the defendant and Ewing were wounded, the latter fatally, during the exchange of gunfire which followed.
At approximately 10 a.m. on the same day, a Detroit police officer took a statement from the defendant while he was in the hospital. Defendant was suffering from a gunshot wound in the chest and a blow to his head. He was attached to a life-support machine, had tubes inserted into his nose, and had intravenous devices attached to his arms. The officer transcribed the oral statement which defendant made but did not read before signing. The parties disagree as to whether defendant was informed that Ewing had died prior to defendant’s giving his statement.
Defense counsel did not move to suppress the statement or request a Walker hearing. However, he did object to the admission of the statement into evidence. The statement revealed that defendant told the officer that a "deb” is "like speed”, that Ewing was "bossing” him around and that the defendant fired the first shot. The prosecution used the statement to impeach the testimony of defendant.
The defendant’s first issue on appeal is that the trial court erred in permitting the use of defendant’s statement for impeachment purposes without first sua sponte conducting a Walker hearing. The essence of this argument is that the failure of defense counsel to make a specific request for a Walker hearing did not waive the trial court’s duty to conduct such a hearing. The appellate counsel aptly cites several federal cases for this position, including United States v Powe, 192 US App DC 224; 591 F2d 833 (1978).
In Powe, the defendant was convicted by a jury of distributing a controlled substance. That defendant stated that her confession was made in response to offers of leniency and, therefore, was not voluntary. The court held that generally a trial court is not required to address a question of the voluntariness of a confession sua sponte. However, certain "alerting circumstances” may impose a duty on the judge to assume a more active role and investigate the need for a hearing on the voluntariness of a confession. Alerting circumstances may be a defendant’s mental, emotional or physical condition, evidence of police threats, or other obvious forms of physical and mental duress. Powe, supra, 843, fn 31. The court limited its holding to cases where "a substantial question of voluntariness was raised”. Id., 844.
In Michigan, the general rule noted in Powe is followed; however, the exception recognized in that opinion has not yet been analyzed or adopted by this Court. In People v Shipp, 21 Mich App 415, 420; 175 NW2d 529 (1970), it was noted without citation to authority:
"The court is not required to hold a Walker-type hearing on its own motion. If we were to require the court to intercede under the circumstances presented here, we would be placing a truly unwarranted burden upon the court. Defendant has cited no authority which would compel such a procedural innovation. We consider that it would be injudicious for us to do so here.”
The circumstances in Shipp are distinguishable from those in Powe or those in the instant case. The Shipp defendant was captured by police immediately after an armed robbery. The arresting police officer asked the defendant if he had robbed the gas station, to which defendant replied "yes”. Trial counsel made no request for a Walker hearing and no steps were taken to suppress the admission. There was no allegation that the admission was in response to an offer of leniency or that the circumstances of the case should have alerted the trial court that the admission was involuntary.
Shipp was cited in People v Pitts, 25 Mich App 92, 94; 181 NW2d 78 (1970), for the rule of law that a court was not required to hold a Walker hearing on its own motion. In that case, several police officers testified that the defendant admitted his guilt at the scene of the crime. Once again there were no alerting circumstances as required in Powe. The other Michigan cases which can be cited for the general rule under discussion also do not have the requisite alerting circumstances which would activate the Powe exception. See People v Graves, 98 Mich App 112, 118-119; 296 NW2d 4 (1979), People v Stephens, 71 Mich App 33, 37; 246 NW2d 429 (1976).
The premise of the Powe exception is that a conviction based upon an involuntary confession deprives the defendant of due process. Powe, 591 F2d 833, 839. "[T]he proscription against the use of involuntary confessions reflects the basic societal conviction that the very integrity of the criminal justice system is compromised when it operates to take advantage of a person whose volitional capacity is seriously impaired.” Id., 841. (Footnote omittéd.)
In this case, the defendant made his statement roughly eight hours after being seriously wounded in the chest and struck on the head. He was attached to a life-support machine and had various tubes attached to his body. Defendant had been given pain medication and was in a weakened state both physically and mentally. He also testified that he did not read the officer’s transcription of his statement but he signed it while the officer held defendant’s head up so that he could see the line he was signing. This weakened mental and physical state was an alerting circumstance which should have triggered the court’s sua sponte inquiry into the voluntariness of the statement. The burden placed on the trial court by this holding is immense, therefore, we necessarily rule narrowly. This case is clearly one in extremis; in many ways the subtle, friendly coercion that can be exerted on one who is helpless and seriously wounded in a hospital room is more effective than offers of leniency, in rendering one’s statements involuntary.
This case must be remanded for a Walker hearing. If the court finds the statement was involuntarily made, a new trial shall be held for defendant. However, if the court determines that the confession was voluntarily made, the conviction will stand.
Defendant’s other issues have been considered and we find no reversible error on those grounds.
Remanded.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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] |
Per Curiam.
Plaintiffs appeal an order granting summary judgment to defendants pursuant to GCR 1963, 117.2(1).
Plaintiffs Kenneth and Dorothy Cowden own a parcel of land in Leslie, Michigan, which is leased to plaintiff Ken Cowden Chevrolet, Inc. Defendants own a large parcel of land to the immediate north of the dealership. This parcel is not involved in the lawsuit. In addition, defendants own a long, narrow strip of land just east of the dealership. The strip, which is about 16-1/2 feet wide, separates the dealership from Churchill Road.
On September 7, 1977, plaintiffs filed this action. Five counts were pled, but only counts I and II are pertinent to this appeal. Count I alleged a claim based upon nuisance. Plaintiffs averred that defendants had allowed the strip of land to grow in a wild and uncultivated state and that the land is at an elevation of 10 to 15 feet. Plaintiffs asserted that as a result of the condition of defendants’ land persons exiting from plaintiffs’ parking lot had an impaired view of the traffic on Churchill Road. The high grass and hill allegedly also damaged plaintiffs’ business by blocking the view from Churchill Road which resulted in an increase in vandalism and theft. Plaintiffs alleged that defen dants’ hill caused drainage and erosion of the soil onto plaintiffs’ land.
Count II alleged that a tree, located on the boundary line between plaintiffs’ property and defendant’s property, obstructed the view of plaintiffs’ business sign. Plaintiffs sought permission to remove the tree at their own expense.
Defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), claiming that land which is in its natural state cannot give rise to a nuisance action. The trial court agreed with defendants’ argument and granted the motion except as to defendants’ failure to mow the weeds on the strip.
Summary judgment premised on GCR 1963, 117.2(1) requires that all well-pleaded facts be accepted as true and that an inquiry be made as to whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery. Pontious v E W Bliss Co, 102 Mich App 718; 302 NW2d 293 (1981).
Plaintiffs argue that the natural state of defendants’ property created a dangerous condition which gives rise to an action of nuisance. Plaintiffs cite one Michigan case which is inapposite to the facts at bar. In Buckeye Union Fire Ins Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970), the Court held that an unoccupied deteriorating building which presented a fire hazard to neighboring buildings constituted a nuisance. The Buckeye case stands for the proposition that a nuisance action may lie for lack of due care; a showing of overt action is not required. Buckeye does not involve a piece of property in its natural state.
Similarly, Lemon v Curington, 78 Idaho 522; 306 P2d 1091 (1957), is not germane to the case at bar. In that case, the roots of trees located on defen dant’s land had encroached onto plaintiffs land causing damage to plaintiffs home. There has been no allegation of encroachment herein.
We agree with the rule adopted by the Illinois Court of Appeals in Merriam v McConnell, 31 Ill App 2d 241, 246; 175 NE2d 293 (1961):
" 'In order to create a legal nuisance, the act of man must have contributed to its existence. Ill results, however extensive or serious, that flow from natural causes, cannot become a nuisance, even though the person upon whose premises the cause exists could remove it with little trouble and expense.’ ” (Emphasis in original.)
The Illinois court denied injunctive relief to plaintiff who sought to have defendants, adjoining landowners, restrained from growing box elder trees infested with box elder bugs. See also Wisconsin v Sensenbrenner, 262 Wis 118; 53 NW2d 773 (1952), Roberts v Harrison, 101 Ga 773; 28 SE 995 (1897).
The general rule stated in Merriam is in accord with the approach adopted by 2 Restatement Torts, 2d, § 840, p 166:
"(1) except as stated in Subsection (2) [not relevant here], a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land.
"Comment on Subsection (1):
"a. The term 'natural condition’ of land means a condition that is not in any way the result of human activity. The term comprehends soil that has not been cultivated, graded or otherwise disturbed; * * * trees, weeds and other vegetation on land that has not been made artificially receptive to it by act of man * * *.”
Also, see 58 Am Jur 2d, Nuisances, § 27, p 589, and 66 CJS, Nuisances, § 8b, p 743.
Plaintiffs assert that since the hill causes a safety hazard to customers pulling out of the driveway, a public nuisance has been alleged. Generally, an action for public nuisance may be maintained only where a statutory violation is alleged and an individual can show that he has sustained damages of a specific character distinct and different from the injury suffered by the public generally. Morse v Liquor Control Comm, 319 Mich 52; 29 NW2d 316 (1947), Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1975), Indian Village Ass’n v Shreve, 52 Mich App 35; 216 NW2d 447 (1974). Since plaintiffs have not alleged a statutory violation in the complaint, they have not stated a cause of action based upon public nuisance.
Affirmed. No costs, a question of first impression having been raised.. | [
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Per Curiam.
Plaintiff brought this action for a writ of mandamus to compel defendants to issue a regulated use license to operate a pawnshop. The trial court issued the writ of mandamus upon a finding that defendant City of Birmingham’s regulated use ordinance as applied to plaintiff bore no reasonable relationship to the public health, safety and general welfare. Defendants appeal by right. A settled statement of facts has been filed pursuant to GCR 1963, 812.2(b) as a substitute for a transcript of proceedings in the lower court, no record having been made.
Title V, Chapter 39, § 5.101(6) of the Birmingham City Code provides:
"No regulated use shall be permitted within one thousand (1,000) feet of any lot for which a Certificate of Occupancy has been issued for another regulated use * * * >>
It appears that plaintiff was denied a regulated use license because its location would be within 1.000 feet of two establishments which were regulated uses under Title V, Chapter 39, § 5.2(2)(g) of the ordinance.
However, according to the settled statement of facts, plaintiff applied for a license on December 12, 1979, and defendants denied the application on February 4, 1980. The two existing regulated uses on which defendants rely were not issued certificates of occupancy until after plaintiffs application was denied. As noted above, the ordinance prohibited establishment of a regulated use within 1.000 feet of another lot for which a certifícate of occupancy for another regulated use has been issued. Since no certificate of occupancy had been issued at the time of plaintiffs application, § 5.101(6) of the ordinance did not require or permit denial of the license. We hold that the writ of mandamus was correctly issued.
This finding makes it unnecessary to consider the constitutional challenge raised by plaintiff and addressed by the trial court. Lisee v Secretary of State, 388 Mich 32, 40-41; 199 NW2d 188 (1972), In re Winkle, 372 Mich 292; 125 NW2d 875 (1964), app dis 379 US 645; 85 S Ct 611; 13 L Ed 2d 551 (1965).
Affirmed. | [
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Per Curiam.
On June 17, 1978, the owner of a machine shop in Dearborn, Michigan, awakened while sleeping in his establishment, confronted an intruder in the act of burglarizing the premises. At that time the burglar put his hands up and said, "God bless you, man. Don’t shoot. I’m stealing. I’m desperate.” The man then fled. Police were summoned and a window was found to be broken and tools were discovered to be missing. The owner of the shop described the burglar as being a white male, about 5 feet 10 inches tall, weighing 150-160 pounds with a bush-type “afro” haircut, a scraggly looking beard and a particular gap in his teeth.
From this description, police prepared a photographic display of more than 10 individuals, including defendant, for the victim. The photographic display took place one or two days after the offense. No identification was made by the victim, in part because defendant’s photo in the photo array was one that had been made in 1972.
Within the same time frame, while investigating another burglary which had taken place within two blocks of this crime, the officer in charge of this case noticed a man remarkably like the one described to him by the victim in this case in the Dearborn Police Department offices. Intrigued by the close match-up in physical characteristics with the description given him by the victim in this case, the officer told others present that the defendant should be arrested for "investigation” of breaking and entering. On June 20, 1978, defendant was arrested and, while in custody, made two statements to the police. A corporeal line-up was held on June 21, 1978, at which the complainant identified the defendant. Thereafter, an arrest warrant charging the defendant with breaking and entering was obtained.
A bench trial was held and defendant was convicted of being guilty of breaking and entering but mentally ill. He was sentenced to serve from 3 to 10 years imprisonment. He appeals by right.
Defendant raises several issues on appeal, two of which we find deserving of comment.
First, defendant argues that his arrest for "investigation” on the ground that he was "suspected” of breaking and entering was unlawful. If so, the second statement that defendant made to police while in custody was not admissible at trial. Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975), Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
Probable cause is the single basis for arrest without a warrant and a fundamental requirement for obtaining an arrest warrant. The probable cause requirement has deep and fundamental roots in Anglo-American law and in the fundamental law of this country. US Const, Am IV; Const 1963, art 1, § 11. Constitutional law, Michigan statutes and court decisions narrowly circumscribe the right of the police to detain any citizen for investigative purposes. MCL 764.15; MSA 28.874, Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968), Adams v Williams, 407 US 143, 148-149; 92 S Ct 1921; 32 L Ed 2d 612 (1972), People v Jeffries, 39 Mich App 506, 511; 197 NW2d 903 (1972), People v Lillis, 64 Mich App 64, 70; 235 NW2d 65 (1975). Thus, while a "reasonable suspicion” that criminal activity has been or is taking place may suffice for a brief stop to investigate or determine identity, probable cause alone is the foundation for a valid arrest. Lillis, supra, 70.
The use of the words "investigation”, "suspicion” and "suspect” by the arresting officers is not, nor should it be, the single focus of a court’s inquiry into the presence or absence of probable cause. Rather, the court should look to facts which support or detract from the assertion by the prosecution, having the burden of proof, that the arrest was supported by probable cause. Our courts have repeatedly held that probable cause to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense. Michigan v DeFillippo, 443 US 31, 37; 99 S Ct 2627; 61 L Ed 2d 343 (1979). Adams v Williams, supra, 149. Tested by this standard, the police officers here had more than suspicion, despite their use of that term. From the facts before us, we find that probable cause for a valid, though warrantless, arrest existed.
The complainant had given the police a detailed description of the intruder at the time of the break-in, days before the arrest. The description included the fact that the burglar had a particular hair style, particular beard and a pronounced gap in his teeth. Officers investigating another burglary in the same general area, occurring at or near the time of the crime in the instant case, noted that the defendant matched the description when they saw him in Dearborn Police Department offices. Because the police had probable cause for the arrest that they made, the trial court correctly admitted into evidence defendant’s second statement, given on the morning of June 21, 1978.
Further, we find that defendant’s trial counsel was not constitutionally ineffective in presenting the insanity defense interposed at trial. Counsel performed "at least as well as a lawyer with ordinary training and skill in the criminal law”. People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976).
Defendant’s other allegations of error are merit- less. People v McLeod, 407 Mich 632; 288 NW2d 909 (1980), People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980).
Affirmed.
Cf. People v Martin, 94 Mich App 649; 290 NW2d 48 (1980), in which defendant was arrested for "investigation of murder”. In Martin, "the officers repeatedly acknowledged that the defendant was arrested for investigatory purposes only”. Id., 653. As there is "no such crime” as "investigation of murder”, the arrest was unlawful. Id. In the present case, it is clear that the defendant was arrested for breaking and entering, a cognizable offense, upon probable cause to believe the defendant committed the crime. The officer’s isolated remark was superfluous and inaccurate. | [
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D. C. Riley, J.
Defendants appeal as of right from writs of mandamus issued by the trial court ordering defendants to levy assessments for engineering fees and administrative costs incurred as a result of two drainage projects. Although the drainage districts were separate and involved separate drainage areas, our statement of facts to follow applies to both drains.
The Blakely Drain and the Brownstown Creek Drain are major drains which cross the several communities involved in this litigation. In 1967, Brownstown Township and the City of Woodhaven petitioned the Wayne County Drain Commissioner for improvements in the two drains which in volved widening and relocation, pursuant to the provisions of Chapter 20 of the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq. Although these were separate drainage areas and, thus, treated as separate drainage districts, it was anticipated that both drains would be constructed at the same time.
The Blakely Drain Improvements Drainage District was established in March, 1967, with the cities of Trenton, Woodhaven, Gibraltar, River-view, Romulus, Southgate, and Taylor and the townships of Brownstown and Huron participating. Some units of government paid the first installment due under each district assessment roll in 1979 and are not involved in this appeal.
The Brownstown Creek Drain Improvements Drainage District was established in April, 1967, with the cities of Woodhaven and Gibraltar and the townships of Brownstown and Huron participating.
Early in 1968, the two drainage boards contracted with Angelo J. Marino, a civil engineer, for the preparation of plans and specifications for the improvements to each drain. Thereafter, in 1969 and 1970, hearings were conducted for the purpose of apportioning the costs of the projects among the various communities. These hearings adjourned with several communities voicing objections to the apportionment of costs proposed. In 1971, Environmental Engineers, subcontractors to Marino, filed a notice of lien on each district, alleging Marino’s failure to pay for services rendered, and terminated their services as of December, 1970.
In the succeeding 2-1/2 years, the engineers engaged in negotiations with the boards to settle the matter. In July, 1973, each district hired Consulting Engineers Associates, Inc., who provided a status report in December, 1974, which reported that plans for the Brownstown and Blakely drains were available to both districts in June of 1969 and that Marino had substantially completed his work. The consulting engineers concluded that any delay in beginning construction was not attributable to Marino but rather to the substantial cost of the project and other difficulties which had been encountered.
Soon thereafter, in mid-1975, each district contracted with another engineering firm, Canton Engineering Associates, Inc., to complete each project. The record indicates further that in November, 1976, the drainage boards and Marino reached agreement as to the value of the services rendered under the contract: $528,623.01 for the Blakely Drain and $245,818.50 for the Brownstown Creek Drain.
In March, 1978, Marino brought two suits, one against the drain commissioner and the drainage districts to enforce the agreement for payment of fees and costs, and a second suit to require that a final order be adopted and a special assessment roll be prepared and levied.
In the fall of 1978, while the Marino suits were pending, final apportionment orders were entered after hearing and notice in the two drainage districts. In December, 1978, each district adopted a special assessment roll assessing the total costs of each project against defendants, including the monies owed Marino. The defendant communities were assessed $310,000 for engineering fees and administrative costs for the Brownstown Creek Drain and $697,451 for the Blakely Drain. The assessments were payable in five annual installments, commencing April 1, 1979.
In January, 1979, the trial court entered an injunction in each of the Marino suits which substantially set forth the arrangements made at the hearing in December, 1978, arid ordered the projects closed out after payment of fees, costs, and assessments levied in accordance with thé final apportionment orders.
In March, 1979, each of the participating communities were notified of the due date for the first (of five) annual installments, i.e., April 1, 1979. In October, 1979, those communities which failed to make the first annual payments were ordered to show cause in the Marino suits. In January, 1980, the plaintiffs started these suits to compel defendants to levy the taxes and pay the assessments.
On March 7, 1980, after hearing arguments on defendants’ motions for accelerated and/or summary judgment, the trial court held that the districts each had the capacity to sue by virtue of the statute, even though the project was abandoned, that the defendants failed to make a timely objection as provided for in the statute, and, finally, that they failed to object to the apportionment orders by utilizing certiorari proceedings.
Three weeks later, the trial court held a hearing on the plaintiffs’ complaints for writs of mandamus to require levying the assessment. The court concluded that, under the statute, defendants were obligated to pay for the expenses of the project and that they were obligated to pay for the engineering and other expenses incurred by the districts.
Before us, therefore, are defendants’ consolidated appeals from the trial court’s denial of their motions for accelerated judgment and their appeals from the court’s grant of plaintiffs’ motions for writs of mandamus.
I
We first must decide whether the defendant communities were barred from contesting the apportionments or levy of assessments by the statute of limitations set forth in the Drain Code of 1956.
MCL 280.469; MSA 11.1469 states:
"After the tentative apportionments of cost have been made, the drainage board shall set a time, date, and place it will meet and hear objections to the apportionments. Notice of the hearing shall be published twice in the county by inserting the notice in at least 1 newspaper published in the county, designated by the drainage board, the first publication to be not less than 20 days before the time of the hearing. The notice shall also be sent by registered mail to the clerk or secretary of each public corporation proposed to be assessed, except that a notice to the state shall be sent to the state highway director and a notice to the county shall be sent both to the county clerk and the county road commission. The mailing shall be made not less than 20 days before the time of hearing. The notice shall be signed by the chairperson and proof of the publication and mailing of the notice shall be filed in his or her office. The drainage board may provide a form to be substantially followed in the giving of the notice. The notice shall include tentative apportionments to the several public corporations. After the hearing, the drainage board may confirm the apportionments as tentatively made, or if it considers the apportionments to be inequitable, it shall readjust the apportionments. If the readjustment involves the increasing , of an assessment and an increase shall not be consented to by resolution of the governing body of the public corporation whose assessment was increased, before any readjusted apportionments are confirmed the drainage board shall set a time, date, and place for a rehearing and shall give notice of the hearing as in the first instance. The notice shall also set forth the apportionments as readjusted. After confirmation, the drainage board shall issue its order setting forth the several apportionments as confirmed. The order shall be known as the final order of apportionment.”
The tentative apportionments were set by the drainage boards on June 14, 1978, for both districts. The minutes from the Brownstown Creek Drainage Board meeting on August 23, 1978, and the Blakely Drainage Board meeting on September 6, 1978, indicate that an affidavit of publication and notices of hearing were presented, thereon, for publication in various newspapers. Further proofs of service of notice by registered mail were presented, evidencing a mailing to all parties in interest.
Therefore, it is concluded that, pursuant to the statute, defendants received notice of the tentative apportionments. At the meetings of August 23, 1978, and September 6, 1978, there were no objections to the final apportionments.
MCL 280.483; MSA 11.1483 states:
"Neither the final order of determination nor the final order of apportionment shall be subject to attack in any court, except by proceedings in certiorari brought within 20 days after the filing of such order in the office of the chairman of the board issuing the same. If no such proceeding shall be brought within the time above prescribed, the drain shall be deemed to have been legally established and the legality of the drain and the assessments therefor shall not thereafter be questioned in any suit at law or in equity, either on jurisdictional or nonjurisdictional grounds.”
Defendants did not seek a review in the circuit court within the 20-day prescribed period of limitations. Unless equity will allow, defendants’ objections are barred by the statute of limitations. Defendants claim, however, that the statute of limitations should not apply because there was fraudulent conduct on the part of the drainage boards.
In Emerick v Saginaw Twp, 104 Mich App 243, 247; 304 NW2d 536 (1981), this Court stated:
"An exception to the plain language of the Drain Code has grown up in Michigan under prior statutory language for cases where fraud is alleged and properly pled. An entire lack of jurisdiction could be challenged in a similar fashion. However, mere irregularities in the proceedings were to be settled under the statute. See Kinner v Spencer, 257 Mich 142; 241 NW 240 (1932), Patrick v Shiawassee County Drain Comm’r, 342 Mich 257; 69 NW2d 727 (1955).
"Under the court rules of Michigan, fraud must be pled with specificity. GCR 1963, 112.2. Mere allegations or conclusions are not sufficient to apprise a defendant of the nature of the claim of fraud.
"In addition, an essential element of the tort of fraud is reliance upon fraudulent representations or conduct which amounts to fraud at law. The aggrieved party must allege a causal link between the inequitable conduct of a defendant and the resulting harm.”
Our reading of the record below persuades us that the trial court was correct in denying the motions for accelerated judgment. The statute is clear. It sets forth a specified length of time for objections to be filed. The record indicates that this time elapsed and no objections were made. The defendants’ allegations are insufficient to comply with GCR 1963, 112.2.
The defendants allege, in an attempt to demonstrate fraud, that they did not appeal because they did not believe that the apportionments were final. However, they did not allege that the apportion ments were incorrect. Rather, they argue that since the project was abandoned they should not pay anything since they did not receive the benefits they were seeking. This can not be construed as fraud.
The defendants argue that the assessments were unreasonable. We do not agree. Defendants petitioned for the project. The drainage boards were formed in response to those petitions to determine the feasibility of the project. The hiring of an engineer and the administrative expenses involved therewith were all necessary parts of the feasibility study. Further, just as the amount of the assessments are properly within the drainage boards’ discretion, so is the discretion of whether to abandon the project. While this Court has found no cases that have addressed the issue of whether a community is liable for the costs incurred in determining the feasibility of a drainage project when the project is abandoned, we conclude, as did the trial court, that the statute does impose a duty upon the cities and townships to pay certain engineering fees and administrative costs where a drainage project has been abandoned.
The Drain Code sets forth the remedy to contest the drainage boards’ decision. This remedy was not followed by the defendants, nor did they properly plead fraud on the part of the drainage boards. Hence, they are barred by the statute of limitations from challenging the apportionments or levy of assessments.
II
The defendants also claim that it was error not to dismiss the plaintiffs’ complaints for writs because the drainage districts were not the proper parties to bring the suit. Again, we affirm the trial court’s decision.
The drainage district has the power to institute legal action pursuant to MCL 280.5; MSA 11.1005. We read the statute to say that the county treasurer is obliged to advance the amount of the assessment "if bonds or other evidence of indebtedness have issued to finance the project”. Here, neither the county treasurer nor the county was involved in the projects, and there is no provision in the Drain Code prohibiting the drainage districts from instituting legal proceedings against the communities to compel levy of the assessments. Hence, pursuant to the drainage districts’ powers to sue, they were the proper parties to bring suit. Further, even though the projects were abandoned, the drainage districts continue as corporate entities until their debts are paid. MCL 280.478; MSA 11.1478.
Ill
Defendants also argue that the court erred by granting the writs of mandamus compelling the defendants to levy the assessments.
In Beadling v Governor of Michigan, 106 Mich App 530, 533; 308 NW2d 269 (1981), this Court stated:
"The issuance of a writ of mandamus is not a matter of right but is discretionary and is governed by equitable principles. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 43-44; 257 NW2d 73 (1977).
" 'Mandamus lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty. Miller v Detroit, 250 Mich 633; 230 NW 936 (1930). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v Ottawa Circuit Judge, 343 Mich 440; 72 NW2d 146 (1955), Bills v Grand Blanc Twp, 59 Mich App 619; 229 NW2d 871 (1975), State Board of Education v Garden City School Dist, 62 Mich App 376; 233 NW2d 547 (1975).’ Board of County Road Comm’rs of Oakland County v State Highway Comm, 79 Mich App 505, 509; 261 NW2d 329 (1977).”
This Court will not interfere with the grant or denial of mandamus absent a clear abuse of discretion. Cyrus v Calhoun County Sheriff, 85 Mich App 397, 399; 271 NW2d 249 (1978). Iron County Board of Supervisors v City of Crystal Falls, 23 Mich App 319; 178 NW2d 527 (1970).
Defendants maintain that they have no clear legal duty to pay the assessments and that, therefore, the writs of mandamus were inappropriate. MCL 280.462; MSA 11.1462, states:
"County drains which are necessary for the public health may be located, established and constructed under the provisions of this chapter where the cost thereof is to be assessed wholly against public corporations. ” (Emphasis added.)
The above-emphasized statement indicates that the defendants are liable for the costs related to a county drain. Even though a drain was not constructed or repaired in this case, the Drain Code states that a drainage board shall employ an engineer and that engineering fees and administrative costs are to be assessed against the community.
MCL 280.468; MSA 11.1468 states in part:
"The drainage board shall secure from a competent engineer, plans, specifications, and an estimate of cost of the proposed drain, which, when approved and adopted by the board, shall be filed with the chairman thereof.”
MCL 280.480; MSA 11.1480 likewise states:
"The cost of any drain project shall include * * * (2) the administrative and other expenses of the drainage board including the cost of service and publication of all notices; (3) all engineering, legal and other professional fees; (4) interest on bonds for the first year, if bonds are to be issued, and interest on moneys advanced pursuant to section 479; and (5) an amount not exceeding 10% of the gross sum to cover contingent expenses.”
We conclude that the defendants had a clear legal duty to pay the assessments. The fact that the projects were abandoned is not relevant to their duty to pay the fees and costs occasioned by the feasibility study.
Defendants challenge the writs by maintaining that the drainage districts did not have the authority to abandon the project. This challenge is without merit. MCL 280.221; MSA 11.1221, states in part:
"If no contract shall be let within 5 years after the date of filing the petition to locate, establish and construct, or deepen, widen, straighten, tile, extend or clean out a drain, the drain commissioner may determine that the petition shall be deemed abandoned and no further action shall be taken to construct the drain. Time during which any litigation shall be pending to contest the validity of such proceedings shall not be counted as a part of such 5-year period. If the drain commissioner determines the petition shall be abandoned, he shall issue his order to that effect; provided, that such determination of abandonment shall not be issued within the 5-year period. Notice of the order shall be given by publishing a notice in a newspaper of general circulation in the county. The provisions of this section shall apply to all petitions which are in full force and effect on the date of January 1, 1973, or thereafter.”
Defendants misconstrue the statute when they argue that the five-year rule prescribed by the statute was violated because the drainage boards were in litigation from 1970-1979 and had contracted with new engineers in February, 1978.
The lawsuits brought by the engineer were not to contest the validity of the proceedings but rather to collect fees for his services. Hence, abandonment was proper.
In addition, defendants maintain that the abandonment was improper because the drainage boards contracted with new engineers within five years of the abandonment. However, the paragraph preceding the above-cited section states in part:
"At the time and place fixed in the notice therefor, the commissioner shall receive bids for the construction of the drain.”
Section 221 refers to contracts for the construction of the drain, not contracts with engineers. Therefore, the statement, "If no contract shall be let within 5 years”, should be interpreted as referring to a construction contract. If, after five years from the filing of the petition to locate, establish, construct, deepen, widen, straighten, tile, extend, or clean out a drain, no construction contract has been let, the drainage boards have the authority to abandon the projects. Therefore, since no contract for construction of the projects had been let, and no litigation contesting the validity of the proceedings had been pending within five years preceding the drainage boards’ determination of abandonment of the projects, the drainage boards properly could abandon the projects. Thus, defendants’ allegations that the drainage boards did not have the authority to abandon the projects is meritless.
Further, defendants maintain that the writs of mandamus should have been denied because proper notice of abandonment of the projects was not given to the communities and they were not given an opportunity to be heard on the abandonment of the projects.
MCL 280.221; MSA 11.1221 states the procedure for notice in regards to abandonment. The trial court found that defendants had received some notice and that the drain commissioner had performed his duty. The trial court’s finding was not an abuse of discretion. The defendants had a right to notice of the order of abandonment, but they did not have a right to have a hearing on the issue of abandonment. The writs of mandamus were properly issued.
IV
Finally, this Court must determine whether the tax assessment notices sent to defendants were defective and violative of statutory intent so as to invalidate the 1979 assessments. Each of the defendant communities received notices in mid-March, 1979, of the assessments due on April 1, 1979.
Defendants raise three objections to the assessments. First, they contend that the assessments were not based on the actual or estimated cost of the projects. However, since the projects were abandoned, the costs at issue were incurred in the feasibility study and represent the actual, as well as the final, cost of the projects. Therefore, the assessments were not defective, and defendants cannot withhold payment of assessments premised on a hope that the project will be reinstated.
The defendants’ second argument, that the notices were defective because they did not have sufficient time to levy a tax, is also without merit.
From our reading of MCL 280.474; MSA 11.1474, it appears clear that the failure to notify defendants at least 30 days in advance does not excuse defendants from making their installment and interest payments.
Finally, defendants contend that they should be excused from paying the 1979 installment in that the notices improperly reflected an illegal rate of interest. Defendants argue that the assessment notices included a pre-due date interest figure which was as much as 30% of the original amount due.
We do not agree. The assessment rolls stated that six percent per annum rate applied. The predue date interest rate referred to is interest on the settlement owed to the engineer which accrued prior to the assessments due date.
MCL 280.474; MSA 11.1474 states in part:
"The chairman of the drainage board shall then certify to each public corporation assessed the amount of the total assessment against it, the amount of the various installments if the assessment is divided into installments, the due date of each installment, and the rate of interest upon installments from time to time unpaid. The chairman each year, at least 30 days before the time of the levying of taxes by each public corporation, shall notify it of the amount of the installment and interest next becoming due, but the failure to notify a public corporation shall not excuse it from making payment of the installment and interest.” (Emphasis added.)
The trial judge’s injunctive order of January 16, 1979, ordering the drainage boards to pay the engineer pursuant to the consent judgment between the parties, stated:
"3. That judgment be entered against Blakely Drain Improvements Drainage District, a body corporate, in favor of the plaintiff, Angelo J. Marino, in the amount of $528,623.01, plus interest at the rate of 6% per annum, from November 10, 1975, to December 20, 1978, and
"4. That Charles N. Youngblood, Chairman of the Blakely Drain Improvements Drainage Board, having prepared a special assessment roll, assessing the total cost of said project, in the amount of $697,451 on December 20, 1978, not including interest of 6% due on said special assessment roll, and specifically including the amount due the plaintiff, within said special assessment roll pursuant to MCL 280.473 and 280.474, provided said special assessment roll shall be due in not more than five annual installments, with the first installment to be due not later than April 1, 1979, and provided further than in accordance with §§ 473 and 475 of Act 40 of the Public Acts of Michigan of 1956 as amended MCL 280.473 and 280.475 that taxes levied by a public corporation for the payment of assessments shall not be deemed within any statutory or charter limitation.”
Thus, the interest owing to the engineer was part of the costs to be assessed against the defendants.
Affirmed. No costs, a public issue being involved. | [
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To compel respondent to require plaintiff, in a suit against relator, to file security for costs, the suit having been brought for the personal work and labor of the plaintiff, who had complied with the requirements of How. Stat., Sec. 7717 e.
Denied July 2, 1895, with costs. | [
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To set aside a judgment and quash the writ of attachment by which the proceedings were instituted. ' '
Denied October 10, 1895, with costs.
In February, 1894, the writ was issued out of the Wayne Circuit Court upon an affidavit setting forth that plaintiffs were residents of Chicago, Ill.; that the defendant (relator here) was a resident of Eaton County, Mich.; that defendant had no property in Eaton County and that there is no property of defendant subject to attachment within the County of Wayne.
Defendant was not served and did not appear.
Publication was had, defendant’s default entered and judgment entered in July, 1894.
In April, 1895, defendant moved to set aside the judgment and quash the wilt. (1), because plaintiffs were non-residents of the State of Michigan and defendant resided in Eaton County; and (2) because no affidavit of the commencement of publication was filed as required by Act No. 8, Laws of 1891.
The circuit judge permitted the affidavit to be filed nunc pro tune and denied the motion to quash. Kespondent cited Stringer vs. Dean, 61 M., 196. | [
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] |
To set aside an order confirming report of commissioners on partition.
Denied March 2, 1892, with costs.
The only question involved was whether the commissioners had fairly and impartially partitioned the property in question. | [
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To compel respondent to issue an attachment for costs against the attorneys in a suit brought against relator in which judgment of non-suit was rendered in favor of relator, and for costs, on the ground that the attorneys had an arrangement whereby they were to receive a moiety of the amount recovered, and had at one time an assignment-of the claim, and therefore had a beneficial interest in the suit under Sec. 8988, How. Stat.
Denied June 22, 1892, with costs.
It appeared that shone months before the judgment, the attorneys had re-assigned the claim to plaintiff, and respondent answered that there was no proof offered before him tending to show that said attorneys had any arrangement of the nature alleged, or any further interest than as attorneys, and respondent had found as a fact, that the only purpose of such assignment originally was as security for fees, the amount of which had not been determined. | [
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] |
To compel respondent to strike cause from docket.
Order to show cause denied April 21, 1891.
Relator’s attorney had officed with him, but had left the city a short time before the service óf notice of trial, and the notice' was left with relator’s clerk in charge. | [
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To compel respondent to accept relator’s liquor bond and the tax, and to. issue a receipt therefor.
Granted December 2, 1892, without costs.
Despondent insisted that the local option law was in force in that county, but the coiut held that the proceedings were invalid. | [
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To set aside a judgment of non-suit, which was ordered in an action for slander commenced by capias, because plaintiff bad failed to comply with an order directing tbe defendant to file a statement of tbe particulars of the álleged slander.
Granted, without costs, April 29, 1884.
Held that the facts were given in the affidavits for the writ with abundant fullness, and the court should not have gone beyond' limiting plaintiff to the case set out in the affidavits, in case he failed to give further particulars. | [
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To compel the issue- of patents for-certain lands.
Denied December 23, 1891, with costs. | [
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] |
To compel respondent to receive from relator, who is the owner •of an undivided interest of a lot in the city of Detroit, which had been sold for city taxes, a proportionate amount of the whole tax and cancel the sale as to such undivided interest.
Granted January 5, 1860. | [
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40
] |
To compel the approval of a liquor dealer’s bond by the council of tlie village,'organized under tlie General Incorporation Law, approved April 1, 1875, as amended by Act No. 52, of 1883, which empowers such villages to suppress saloons.
Denied October 7, 1885. | [
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Cooley, J.
Certiorari .to review the proceedings off the common council of the village of Hudson in ordering one of the streets of the village to be paved, and the cost assessed' against the owners of the abutting lots. Irregularities supposed to be fatal are alleged in the votes of the council, the descriptions of land are said to be so defective in some cases as to render the assessments ineffectual, and the plaintiff in certiorari claims that more of his land is assessed than belongs in the district for which the pavement is ordered. The name of the plaintiff does not appear in the proceedings, but it is alleged by him that certain described lands which are assessed to another person are his lands. All the proceedings of the common council are returned with the writ, but the return is silent respecting the ownership by the plaintiff of any of the lots assessed.
It is a new thing in this State to seek a remedy by certiorari for wrongs in tax proceedings. The fact that the bar has not heretofore, while litigation in tax cases has been so abundant, resorted to this remedy is some evidence that it has not been thought applicable; and this consideration derives force from the fact that if it is admissible for parties aggrieved to make use of it, it is in many cases a more speedy, convenient and effectual remedy, so far as the interests of complaining parties are concerned, than any other. Whether equally desirable on public grounds is another question, but litigants are accustomed to govern their actions by their own interest. The first question for consideration on the record, therefore, is whether the writ will lie in these cases.
The difficulty with the plaintiff’s title, which is a very serious one, we pass over with the simple remark that the general rule undoubtedly is that the return to a certiorari must show everything on which the plaintiff relies for relief, and that if the return is insufficient, he must cause it to be supplemented by amendment. He cannot rely upon the affidavit for the certiorari to supply the deficiencies of the return. That is unquestionably the general rule, and the plaintiff seems to be called upon to show how his case is exceptional. It is certain that if we look at the return alone he seems to be a stranger to these proceedings.
That the employment of the writ of certiorari in tax cases may be very troublesome will be obvious on very little reflection. The writ is one easily obtained; a considerable number of officers may allow it; it is issued on no other consideration than the allowance; and the plaintiff incurs no responsibility for consequent damages. The writ when served is supposed to remove the record into this Court, so that all proceedings of the officers to whom it is addressed are immediately stayed. If it will lie in the case of village pavement taxes, it will lie in the case of all other taxes ; for on no ground or principle that occurs to us can any distinction be drawn. If, therefore, the writ is upheld in this case, it is reasonable to anticipate its use in many other cases where taxation is complained of, and the assessment and collection of township, city, county and State taxes, and all local levies, may be interrupted and stayed at any stage wherever a suggestion of illegality can be made sufficiently plausible to induce a circuit court commissioner or other competent officer to allow the writ. That endless confusion may be brought into tax proceedings in this manner is unquestionable.
But the writ is also inexpedient for other reasons. It is not a flexible remedy; all we can do under it is to quash or refuse to quash the proceedings. If the complaining party were to resort to suit in equity, he might be required, as a condition to any relief, t.o do what under the circumstances appeared to be just; and if he is injured to the extent only of a part of the taxes, he will be decreed to pay the remainder. He may also be required to deposit the amount of the tax, or to give security for it, before the proceedings of officers are stayed; and the court has ample power to do aomplete justice between the party complaining and the public where all the facts are before it. But there is nothing so flexible in the remedy by certiorari; and under the operation of its rigid rules if it is made use of in tax cases the complaining party may perhaps escape a public burden where justice would require that he should bear it; and even if he were justly relieved from a wrongful burden, the mischief introduced by his writ would be likely to be greater than those it would cure; and public improvements which were generally desired might be stopped on the complaint of a single party concerned whose injury, if any, may be insignificant. Some of the errors assigned on this writ, even if well assigned, might on bill in equity be found immaterial, and others, perhaps, should go to a partial relief only. It is much better, therefore, that the plaintiff be left to the customary remedies.
Cases of laying out drains, in which it has been customary to allow this writ, are different in that they invade the premises of parties, and perhaps appropriate some portion of them. They are not tax cases purely. But even in those cases we are accustomed to quash the writ wherever considerations of equity seem to require it, and the Legislature has deemed it wise to provide a different remedy. Tucker v. Parker ante p. 5.
The other Justices concurred. | [
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Cooley, J.
The purpose of this suit is to enforce an alleged oral agreement for the partition and conveyance of lands.
The parties to the agreement were John F. Dragoo and Peter Dragoo his brother, sons of Jacob Dragoo, who died intestate in Berrien county in the year 1838, leaving seven children and one grandchild. He left a very small property, and John F. Dragoo was appointed administrator. The estate was settled without complaint, though there seems to be some dispute respecting the method of settlement; the complainant alleging that John F. and Peter purchased the interest of the others and took the property. In the year 1839, three parcels of land, aggregating about one hundred and forty acres, were purchased and conveyed to John. The theory of the bill is, that the purchase was made by John and Peter jointly, and that in or about the year 1847 an agreement was made between the brothers that the land should be divided between them by a certain line represented in part by an existing fence, and that John, who held the title for both, should convey the north half to Peter. This is denied by the defendants. It seems highly probable, however, that there had been an understanding between these brothers which contemplated their occupying, improving and owning the land jointly, and bearing jointly the expense of caring for and supporting the other children, who were nearly all minors; but what the conditions of this understanding were, is not very clear. John at the time of the supposed understanding was a man of family, and lived upon the land. Peter was a bachelor, but in the year 1848, he was married to a woman who had a farm a few miles from the land in controversy, and went to live upon it. He died within a year thereafter, and John and the widow were appointed administrators and settled the estate by regular proceedings.
When Peter went to live upon his wife’s farm the two brothers divided between them the personal property, and defendants claim that whatever understanding had previously existed for a joint ownership or for a partition of the land was then abandoned. This is denied by complainant, and upon this claim and denial all the controversy turns. It is certain that with the exception of a parcel in respect to which no question now arises, John always treated the land as his own, selling off some parcels of it, and cultivating the remainder in his own interest, and that what remained unsold at his death has since been claimed, and occupied and used by his heirs. John.died in the year 1861, and in the year 1871 complainant, who was a posthumous child and is sole heir-at-law of Peter, filed this bill against the heirs of John to compel specific performance of the alleged agreement.
The circumstance that first attracts attention is, that the bill is filed to set up and enforce a parol agreement for the conveyance of lands nearly a quarter of a century after it is said to have been made. In most cases this would be a conclusive objection to the relief prayed. But the delay is excused in this case by the fact that complainant only reached her majority the year before the bill was filed, and may never have become fully aware of her rights before that time. Laches is not to be imputed to a minor or other person incompetent to act on his own behalf. Smell v. Dee 2 Salk. 415; Mills v. Dennis 3 Johns. Ch. 367; Dow v. Jewell 21 N. H. 470 ; Chandler v. McKinney 6 Mich. 217. Still, great delay is always an important fact in these cases ; for time obscures and destroys evidence even when it does not absolutely take away rights of action ; and a parol contract is never to be enforced unless it is satisfactorily proved. And the older the supposed facts are, when they are to be made out on the recollection of witnesses, the more are they open to doubt and suspicion; so that if the delay is sufficiently excused the evidence that is to establish the case requires to be examined with unusual care and circumspection.
But in this case if the facts are as complainant says, it is remarkable that no one made claim on her behalf during the period of her legal minority. When her father died her mother survived, and there is every reason to suppose that, whatever the facts were, she was cognizant of them. Tet she took no steps to assert any claim on behalf of complainant ; and the relatives of complainant on her mother’s side, several of whom lived near them, were equally neglectful of her interests. There is no pretence of collusion by them with the surviving brother to deprive the orphan of any property belonging to her, or of any disposition to refuse assistance in the enforcement of her rights ; and the neglect to show some interest in her behalf during the long period of her minority, if they believed she was unjustly-excluded from her inheritance, is, to say the leastj an unusual circumstance and noticeable as such.
But if the evidence concerned recent transactions, instead of dealings which took place thirty years before the proofs in the case were taken, we should be compelled to say that it was too vague, uncertain, ambiguous and unsatisfactory to justify the overturning of titles in reliance upon it.
It the first place the alleged contract must be made out, if at all, on the admissions of John F. Dragoo, made for the most part in casual conversations with his neighbors. No one pretends to have been present when any bargain between the brother’s was made, no one claims to have heard the terms and conditions of any understanding deliberately talked over between them. If the supposed contract was ever made, witnesses were never called to it, and knowledge of its existence only came to others casually and as it were by accident. But this supposed contract related to nearly all these parties had ; it concerned the estate they were cultivating and improving for their home. ~We can understand how Peter under the circumstances alleged might have left the title to his share in the hands of his older brother, but that he should have failed to provide himself with any evir dence of his rights which would be available in the event that death or other casualty interfered with their plans, is remarkable. It is not claimed that there was intentional secrecy, or reason for any; so that we are to suppose the brothers took no pains whatever to provide for the ordinary contingencies of life, so far as their arrangement might be affected by them. And in his last days it does not appear that Peter took any steps to secure to his wife and his expected child any interest in the land which he had left in John’s possession.
But again: the evidence adduced on the part of complainant is as consistent with a temporary arrangement which was abandoned when Peter went to live on his wife’s farm, as with one which was permanent and contemplated a final division notwithstanding their separation. In other words, it is as consistent with the theory of the defendant as with that of complainant. This is as much as to say that the case of complainant is not made out.
But the difficulties with the case do not end here. No court can grant specific relief on the basis of a parol contract unless there have been important acts of part performance which raise in favor of complainant a strong- equity. No such acts are shown in this case. There was joint occupancy and improvement for a short time, but the joint-expenditure of either labor or money was small, and there is little if any reason to suppose that Peter Dragoo made any change in his business affairs or abstained from making any because of the supposed contract. And the joint occupation and improvement, which, if anything, must be considered acts of part performance, were discontinued as soon as Peter married.
The supposed contract was also vague in respect to the line of partition, and it would be difficult to satisfy ourselves, if we were guided exclusively by complainant’s evh dence, where the line should be made out. But it is unnecessary to point out other difficulties in the case. It is enough to say that we do not find in it those circumstances which justify setting aside the titles to land and compelling their conveyance in supposed conformity to parol agreements.
The decree appealed from should be set aside and decree entered for defendants with costs of both courts.
Graves, O. J. and Campbell, J. concurred. | [
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Craves, C. J.
The plaintiff alleged in substance as her' cause of action that under a fraudulent promise of marriage by the defendant, upon .which she relied as being in good faith, but which was in fact made with intent to corrupt her chastity and entice her to America and away from her home and friends in Cermany, he succeeded in his purpose and caused her to bear two children by him, and subsequently renounced-her and refused to take her in marriage. She recovered damages and he alleged error.
It is questionable whether the record fairly raises any point whatever, or at least any which is not plainly frivolous. But if otherwise it is only this, that the plaintiff was not competent to sue on the cause of action stated in the declaration.
The suit we are told is not on contract; is not for a violation of promise of marriage with circumstances of aggravation ; but upon a tort; on an imputed fraud and deception by which the plaintiff was ensnared and injured; and then it is said she was not entitled to sue in her own name for such an injury. The statute, we are informed, does not authorize an action by the seduced female, and Oomp. L., §§ 6195, 6196 and 6197 are cited.
The nature of the action is correctly stated but the consequence is not well drawn. The statutory provisions, so far as they go, are enabling provisions, and not disabling or restrictive regulations. The purpose of the Legislature was to extend the bounds of remedial justice in this class of cases and confer a title to sue on particular representatives of the injured woman. A ground of action on her own account was fully recognized, and having provided that when of full age she might appoint a relative to sue, and hence implying that the suit would be for her right and in her behalf, it would be very unreasonable to impute to the Legislature a contrary idea and suppose that they regarded the cause of action as one which would belong to another. The design and effect were to furnish additional facilities for sueing on the cause of action arising to the woman and not to deprive her of any which then existed at the common law, or which might exist under favorable modifications.
In the absence of statutory regulations bearing on the subject it has been said by several courts of distinguished ability that, notwithstanding the element of fraud practiced against her, the female is a consenting party in every case of seduction and for that reason is not entitled to complain for damages. Paul v. Frazier 3 Mass. 71; Conn v. Wilson 2 Overton 233 ; Weaver v. Bachert 2 Penn St. 80; Woodward v. Anderson 9 Bush 624; Hamilton v. Lomax 26 Barb. 615.
Without pausing t© examine the soundness of this doctrine it is sufficient to say here that our statutes before cited imply most distinctly a right of action, and also a light to enforce it in the name of the in jured female if of full age.
The record disclosing nothing else worthy of notice, it follows that the judgment should be affirmed with costs.
Cooley and Campbell, JJ. concurred. | [
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Cooley, J.
The defendants who'' prosecute this writ of error are the sureties on the bond of John McKeown, executor and residuary legatee under the will of John T. Mc-Keown, deceased. The bond was given under the statute (Comp. L. §4366) and its condition is that the principal obligor shall pay the debts and legacies of the testator. On the giving of this bond the executor became entitled to all the property of the estate, and was at liberty to take, possess and dispose of it at discretion, without returning into court any inventory or account whatsoever. McElroy v. Hathaway 44 Mich. 399 ; Batchelder v. Russell 10 N. H. 39; Colwell v. Alger 5 Gray 67. By the same act the testator’s debt and legacies were made personal liabilities of the executor, which he and his sureties must pay and discharge, even though they might exceed the assets. Hatheway v. Weeks 34 Mich. 237 ; Chapman, v. Craig 37 Mich. 370; McElroy v. Hatheway 44 Mich. 399 : Tarbell v. Whiting 5 N. H 63; Colwell v. Alger 5 Gray 67; National Bank v. Stanton 116 Mass. 435.
This suit is brought upon the bond, against the principal and sureties, to recover the amount of an alleged indebtedness of the testator to one Culver. The sole evidence of indebtedness to Culver, which was produced on the trial, .consisted in an order of the judge of probate, purporting to be an allowance of Culver’s claim at a sum specified. The proceedings in the probate court resulting in this allowance are very imperfectly reported to us, but the following facts are either stated, or are inferable from the recitals in the probate records.
After the executor had duly qualified, a commission for the hearing and allowance of claims was issued, and in due time was returned. Culver, who for some reason had not presented his claim to the commissioners, applied to the court, after the commission had been returned, for an order reviving it. On August 6,1878, the following order was entered by the probate court:
“Tn the matter of the estate of John T. McKeown, deceased. This day having been appointed for hearing the petition of Edmnnd F. Culver, praying for the revival of the commission to the commissioners on claims against said deceased, or for the allowance of his claim by the court, and the attorney for the executor of the last will and testament of said deceased being present in court and consenting thereto, it is ordered that the claim of said petition be examined and adjusted by the court, at the probate office in the city of Detroit, on the fifth day of September next, at ten o’clock in the forenoon, and that notice of said hearing be given by publishing the same once a week, for three successive weeks previous to said day of hearing, in the Detroit Post and Trilune, a newspaper printed in said county of Wayne.”
It will be noticed that this order purports to be made by consent of the “ attorney for the executor,” and it is supposed to bind the executor to the proposed hearing. Preceding steps were not proved, and the executor therefore appears in court on the making of this order by the force of this consent alone. The recital in the order attracts attention by the fact that the person giving the consent is not named. Who was this attorney, and what was his authority ? Was he employed generally to take charge of all matters pertaining to the estate, or was he specially employed in the particular proceeding ? Was he an attorney at law, or was he a layman specifically empowered to answer this claimant’s petition ? These are questions which the probate records ought to answer, but upon which these records are silent. The jurisdiction of a court over the person of a litigant cannot be left to rest upon so vague and ambiguous a recital as appears here. No attorney, by virtue merely of a general retainer, can have authority to bind his client to any particular action'by such a consent; and no person, not a member of the legal profession, could give the consent at all, unless specifically and formally empowered for the very purpose, and the authority produced and proved in court. And in any case the record should identify and name the person assuming and acting upon the authority, for the very sufficient reason — if for no other — that some particular person should appear of record to be responsible for the act, in order that the executor may know to whom he should look for indemnity in case any one has assumed to-enter an unauthorized appearance for him. Consent to an order, in such a case, stands in the place of process to bring the party before the court, and the same reasons which require that .an officer shall return process over his own signature, make it imperative that some named person shall stand responsible for the supposed consent.
It is not possible, therefore, to derive any support for the subsequent proceedings from the recital of consent which is contained in this order. Still, as the order for publication was general, and in terms as much applicable to the executor as to the sureties, compliance with it would doubtless be sufficient to bring the executor before the court if it was sufficient as to the sureties; and we may therefore leave out of view the supposed consent, and proceed to inquire whether the order for publication was of force for any purpose. This is the most important question in the case.
Here, however, we are confronted with the difficulty that it does not appear that the publication was ever made. It appears that counsel for the plaintiff claimed on the trial that the order was published, and proof thereof duly filed in the probate court; and as evidence of this he brought into the court the probate files and submitted them in gross, claiming that the evidence was there. This was not admitted by the defendants, and the plaintiff went no farther in making the proof. It seems to have been assumed that it was the business of the defendants, after the assertion was made that the proof was in the files, to search the package through and prove the negative if he did not find it; and that counsel’s assertion was prima facie correct until it had been disproved. This is a mistake. The party asserting a fact must prove it; and if it is a fact supposed to be of record, he must produce the record on which he relies, and submit it to inspection. As well might he produce a record of deeds and require that his assertion that a particular conveyance appearing in it should be received as sufficient evidence of the fact until disproved, as to make a similar assertion respecting the mass of papers constituting the probate files. The other party is not to be called upon to prove a negative by any such device. It would be going but a step farther for a party to call a witness, and on an assertion that he would testify to certain facts, insist that they were therefore proved, until the other party, by interrogating him, disproved the assertion.
But supposing the publication proved, let us see how the case will stand. The plaintiff, to maintain his judgment, must establish the following propositions: First, that claims must be proved and allowed where the executor, as residuary legatee, has given bonds to pay debts and legacies, or at least that they may be, as in other cases; and second, that when the judge of probate proposes himself to hear and pass upon claims, notice by publication is an admissible process for bringing the parties concerned before him. If he fails in supporting either of these propositions, he fails altogether.
That in respect to the proof of claims there are essential differences between this ease and the ordinary case of administration, is obvious on the most cursory examination of the statutes. An executor who gives the customary bond has no authority whatever to dispense with the proof of claims, or to make any admissions respecting them which can bind either himself or the estate. Fish v. Morse 8 Mich. 34. His duty is to defend the estate against claims; not to allow them; and he can pay only such as are judicially approved. The necessity for the allowance of claims is therefore imperative and absolute. But the executor, who is residuary legatee and has given bond as such, may settle and pay the claims at discretion, and nobody except the sureties in his borid can question his acts, for the very obvious reason that no one else is concerned. Even the sureties could question them only in case attempt was made to charge them personally upon his default in making payment. The giving of such a bond substantially completes the administration; and if the further intervention of the judge of probate is admissible for the adjustment of claims, it is certainly not essential unless it may be when a claim is asserted which the executor disputes. The settlement of claims is the personal affair of the executor and the claimants, to be disposed of in their own way and at their own pleasure.
That it has been customary to issue a commission in these cases is probable, but in Alger v. Colwell 2 Gray 404, under statutes analogous to our own, it was deemed quite unnecessary. In that case, as in this, the executor had given bond as residuary legatee. Afterwards, having discovered that the liabilities exceeded the assets, he petitioned to have his bond canceled and the ordinary executor’s bond substituted, and also that a commission be issued for the hearing and adjustment of claims. The first prayer was denied on the same grounds which influenced this Oourt to the judgment in Hatheway v. Weeks 34 Mich. 237; and the second was denied also. The Supreme Oourt, approving of the action of the probate judge in denying the first prayer, added that as the bond “ stands as security to creditors for the payment of their debts in full, there was no occasion to appoint commissioners to receive and examine their claims; and he was, therefore, correct also in refusing to appoint them.”
But let it be admitted that by reason of failure of the executor and the claimant to agree it was proper to bring the claim before the judge of probate for allowance, and we have still to see whether publication of notice is an admissible method for bringing the parties before him. That it is not the most proper method is very obvious, for the very sufficient reason that the only persons -to be notified are the executor and his sureties ; and a personal notice to them is more simple, more certain to accomplish its purpose, and must generally be more inexpensive. The judge of probate should, therefore, have ordered personal notice to be given, even if publication would answer the requirements of the law. But in our opinion it would not answer the requirements of the law in a case of this description, .and any general words in the statutes, which would seem to admit of such a notice, must be restricted in their operation to estates which are being settled in the ordinary way.
Notice by publication in probate cases is generally admissible, because the settlement of an estate is a proceeding in rem, to which all persons interested are, in contemplation of law, parties; the estate is the res, and the successive steps are required to be taken in a limited time, and are supposed to be watched by the parties concerned for the protection of their respective interests. In such a case notice by publication is reasonably certain to reach the parties; and it may, therefore, be quite proper to provide for that species of notice, and to make it sufficient for jurisdictional purposes. In many cases any other notice would be impracticable, because of the great number of the parties in interest, and the difficulty of finding and reaching them for personal service. Every heir and every beneficiary under a will may be interested in disputing an alleged indebtedness, and every creditor also, wherever there is danger that the allowance of further claims will preclude payment in full. But the case is wholly different when an executor who is also residuary legatee has given bond to pay all claims. ' There is no longer a proceeding in rem, for the res disappears when the estate passes from the control of the probate court and becomes merged in the individual estate of the executor himself. What before was a jus ad rem in the creditor, to be enforced by the aid of the probate court as a lien upon an estate in its charge, becomes now a personal obligation of the executor and his sureties, attaching itself to no specific property, and concerning no other persons whomsoever. The court has no power, for the purpose of enforcing this obligation, to follow the property which before constituted the assets of the testator; and the heirs, the beneficiaries under the will, or the creditors, are not to be summoned when the demand is to be proved, because they have no interest in the question of its proof, and therefore no right to be heard upon it.
It seems plain, then, that the right to establish the claim in controversy on merely constructive notice to the parties concerned cannot be admitted on any assumption that tbe proceeding is a proceeding in rem. The res having disappeared, and the demand having become the personal obligation of the executor and his sureties, they are entitled' to have it treated as a personal obligation in the proceedings to prove it. They are entitled to their day in court, and to personal service of process, or a substitute therefor, to bring them before the court. Merely constructive notice which may never reach them, and which would be insufficient in the case of other personal demands, will be insufficient in this case also.
It follows that the supposed allowance of the claim by the judge of probate was ineffectual and the judgment • based upon it is erroneous. It will be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, J.
The writ of certiorari in this case is issued at the instance of William H. Proctor, and brings before us the proceedings in a case in which said Proctor and Thomas Haggerty were garnished at the suit of Thomas Lewis, as debtors of Joseph Martin and Isaac Finehart, before Daniel Sheehan, justice. The garnishee summons was served on Proctor alone, and without any return of not found as to Haggerty, the justice proceeded with the case, and Proctor disclosed an indebtedness of himself and Haggerty to the principal defendants in the sum of thirty-seven dollars and twenty cents. On a subsequent day a summons to show cause why judgment should not be rendered against the garnishees was issued, which was served on Haggerty alone, and returned without any showing that Proctor could not be found. On the return-day Haggerty appeared, and made various objections to the proceedings as being without jurisdiction, but these were overruled, and he was put on the stand as a witness. lie then testified that when these proceedings were commenced Proctor & Haggerty were not indebted to Martin & Finehart in any sum; but that he himself had been garnished for the debt which Lewis was now endeavoring to reach, and had paid it. The justice disregarded this evidence, and gave judgment for the plaintiff. Proctor knew nothing of these last proceedings until it was too late to remove the ease to the circuit court, but as soon as he heard of them he took steps to remove the proceedings into this Court.
The proceedings before the justice were full of errors, but we need consider only the entry of a joint judgment against two persons, as to one of whom there was neither service nor attempt to make service. There is no authority of law for this.
The proceedings must be quashed with costs of this Court.
The o'ther Justices concurred. | [
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Graves, C. J.
The defendant was convicted of the crime of forgery, and having alleged exceptions and no judgment having been given he asks to have the verdict set .aside and a new trial granted.
He was sworn as a witness in his own behalf, and on cross-examination the prosecuting attorney was allowed to ask him if he did not know as matter of fact that a certain information to which he had pleaded was based on the complaint of A. T. White. His counsel excepted to the ruling, and the defendant replied that he could not answer; and further, that he never saw the complaint. The record fails to show that the question was open to exception. People v. Cummins 47 Mich. 334; Driscoll v. People 47 Mich. 413. And moreover the reply given tends to show that what was elicited was of no consequence.
Certain genuine signatures of the person whose name the defendant was accused of forging were submitted without objection, that the jury might compare them with the alleged forgery, and in charging the jury the trial judge informed them in substance that they were expected to apply their own judgments to ascertain the evidentiary effect of a comparison of the signatures and not entirely rely on the testimony which experts had given on it. The charge was not in these terms, but such seems to have been its meaning.
The case raises no question concerning the submission of the papers. On the contrary it appears that they were introduced without objection and with the understanding that the jury should “ consider ” them. The signatures were therefore before them as evidence and they had heard the experts and surely they were entitled to use their own faculties in instituting a comparison and in reaching an opinion. Whatever facts had been put in evidence and from whatever source, were present to afford such light and such assistance as in the judgment of the jury they were fitted to affoi’d. But the process of investigation by inspection and comparison and the attainment of a satisfactory conclusion required the application of personal intelligence, no matter how much light and assistance proceeded from extrinsic sources. And the instruction to the jury suggested nothing beyond their province under the circumstances presented. Vinton v. Peck 14 Mich. 287; Crist v. State 21 Ala. 137; Moore v. United States 91 U. S. 270. The question is not ruled by the Foster case 34 Mich. 21.
The attempt to get a review by means of a finding by the trial judge on overruling a motion for a new trial, as though there were a special verdict, is without precedent and wholly unwarranted.
The case calls for nothing further.
The exceptions are overruled, and the court is advised to proceed to judgment.
Cooley and Marston, JJ. concurred. | [
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Cooley, J.
This suit is brought upon a justice’s judgment against Peter Nickodemus and Helene Nickodemus, who are, and were when the judgment was rendered, husband and wife. Helene Nickodemus alone defends, and the sole question made in the case is whether the judgment was valid as to her.
The proof of the judgment consisted in the justice’s docket. The docket recited the commencement of suit by summons; the return of the summons personally served on both defendants; the appearance of both in the case; two adjournments of. the case by consent of defendants without pleadings; declaration by the plaintiff on the second adjourned day “ orally in assumpsit on the common counts and specially in writing;” oral plea of the general issue and a further adjournmenton the defendants’ application; and still another on the plaintiff’s application; and finally, the defendants failing to appear on the day to which the cause was last adjourned, an ex parte trial and judgment for the plaintiff. On the trial certain deeds of land appear to have been given in evidence, but for what purpose does not appear. The files of the justice were not put in evidence, and we have no knowledge what the plaintiff declared upon specially in writing.
The circuit judge held that it did not appear affirmatively that the justice had jurisdiction of the case, but he certainly had jurisdiction of an action of assumpsit, and of a case upon the common counts. We cannot assume, in the absence of all proof, that the plaintiff added to his oral declaration a count upon a cause of action which the justice could not try, or, even if he had done so, that the case was tried and judgment rendered upon the bad count instead of upon those which were good. The parties having been regularly brought into court, no presumption can be induged that the justice lost jurisdiction by any misstep afterwards. It is suggested that the introduction of the deeds in evidence showed that he was assuming to take cognizance of a dis puted title to lands; bnt they might have been entirely admissible for many other purposes. Under the statute a justice’s judgment may be proved by the docket, — Comp. L. §§ 5488-5490; — and there being no other question in the case, the plaintiff should have had judgment.
The judgment will be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Graves, C. J.
In 1880 Joseph. H. Omo and one Decker purchased of the plaintiff a hotel in Blissfield and the property was deeded to their wives. It was subsequently arranged that the hotel should be carried on by Omo or by Omo and his wife and a negotiation was at once opened between, the plaintiff’s husband and the defendant Joseph H. Omo, for the hotel furniture, and a trade was finally concluded. In the course of the negotiations, both the plaintiff and Mrs. Omo were somewhat consulted, and the latter advised with her husband in regard to the condition and value of some portion of the articles. This action was brought to recover the purchase price, it being claimed that Mrs. Omo was a joint purchaser with her husband. She denied having any other interest in the purchase of the personal property than that of a wife and insisted that her husband was alone liable.
The record states that the evidence is all returned, and so far as it has any real bearing on the issue it appears to us to be as consistent with the position of the defense as with that of the plaintiff, and we think the learned judge did not succeed in properly explaining the case in this aspect of it to the jury.
It was very important that the relation between the defendants should have its just influence on the force and bearing of the facts as evidence on the question whether Mrs. Omo was dealing as a joint purchaser or merely in her character of wife. Any failure in that direction might very well lead to false inferences. Sears v. Giddey 41 Mich. 590. There is reason also for thinking that the charge was somewhat at fault in what was said concerning Omo’s credit. There was perhaps ground for saying that there was some misunderstanding between him and the witness Tracy ; but there was hardly a foundation for a direct and special reference of Omo’s veracity to the consideration of the jury. In singling this matter out as a specific subject of charge and in laying so much emphasis upon it the judge rather implied that there was something much more serious than seems to have been the case.
It is scarcely expedient to go further on this record. But in order to guard against any chance of missupposition we take pains to observe that our determination extends to no question not mooted by counsel.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Graves, C. J.
The plaintiff, claiming to be a judgment creditor of the “ Condensed Oil Manufacturing Company ” for services rendered to the company, and that collection by execution had failed, prosecuted this action against the defendant as a stockholder to compel him to make payment. The trial judge ordered a verdict against the plaintiff. The alleged judgment against the corporation was before a justice, and was given on a confession made by the president and without a showing of authority from the directors. Whether this confession was sufficient to confer jurisdiction may be open to some discussion, but the point is now waived.
The circuit judge was of opinipn that the plaintiff’s debt was not a labor debt within the meaning of the provisions on which the plaintiff relies, — Const., article 15 § Y: Comp. L. § 2852 — and hence that the defendant was not liable for it.
We think this view is correct. The plaintiff’s connection with' the company and the nature of his occupation were fully explained by him as a witness. He said : “ The kind of labor I rendered to the said company was that of traveling salesman or agent, selling their goods. My duties consisted in soliciting orders for the sale of the company’s goods from customers, who were using those or similar goods in different towns through the country. I carried samples with me always; I carried this assortment of samples with me to each customer or man I solicited. I was to receive a salary or compensation at the rate of $1000 per year; that was my agreement.”
From this it seems evident to the Court that he was not a labor performer for the corporation in the sense contemplated in the provisions for holding stockholders liable. He had no part in carrying on the establishment, nor in the manufacture. He was a mere outside agent or representative of the company to bring business to it, upon a salary. As regards the present question, his position was nearer the position of an officer of the corporation than that of a laborer.
The judgment is affirmed with costs,
The other Justices concurred. | [
0,
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] |
Campbell, J.
The only question arising in this case relates to the right of plaintiff to recover a portion remaining unpaid of his salary as judge of probate of Berrien county, as fixed by the board of supervisors in the beginning of January, 1873, when his four-years’ term was opening. He was elected in 1872, and the salary thus fixed at $1500. In January, 1875, the salary was sought to be reduced to $1000, but he declined to receive that rate except under protest, and sued seasonably for the balance. The court below gave judgment in his favor, on the ground that the action of January, 1873, was the first action had under the law of 1871, requiring the supervisors to act, and was binding.
This was, we think, correct. In Powoiellds case 40 Mich. 587, the first action taken by the board, as then shown to us, was after the law had been amended in 1873, and we held it could not subsequently be changed. It afterwards appeared on an application for a rehearing, that earlier action had been had, and the judgment was recalled. The law of 1873 was a mere amendment of that of 1871 so far as it concerned "Wayne county, and no further, and would not, in our opinion, justify the rescission of the vote fixing the salary at the beginning of plaintiff’s term. It does not, like the law of 1871, repeal the former legislation, and it is manifestly designed for no such purpose.
We think the judgment should be affirmed with costs.
The other Justices concurred. | [
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Graves, C. J.
February 12, 1873, the plaintiff sold to the defendant and Samuel A. Plumer a tract of twenty acres of land near the Grand Trunk junction, blit the title was granted to the defendant. The consideration was $20,000, of which $5000 was paid down. To secure the remainder the defendant executed his note and mortgage to plaintiff’s wife for $1166.67, and another note and mortgage to ithe plaintiff himself for $10,833.33. The note to the plaintiff was dated February 12, 1873, and was drawn payable to his order seven years after date, with annual interest on all parts unpaid at seven per cent. The plaintiff is a Frenchman who speaks English imperfectly and can neither read nor write, and who at the time of the transactions which are brought into question was far advanced in years, being now upwards of eighty-six. Payments of varying amounts were made at intervals, and some five or six years ago the defendant received or got possession of the note and mortgage and destroyed them. A dispute arose. The defendant held several acquittances as evidence of payments made, and held also a paper purporting to be a receipt under the plaintiff’s mark, and witnessed by Mr. Elwell, for $1700, and bearing date February 20, 1875 and likewise held a further paper purporting to be a discharge of the mortgage executed and acknowledged by the-plaintiff August 7, 1877.
The defendant claimed that he paid the plaintiff in cash the $1700 as indicated by the receipt and paid the remainder of the debt, which was a few cents less than $1800, at the date of the discharge. The plaintiff positively denied .having received either of said sums or any portion of them and denied having given the receipt, and also denied having executed and acknowledged the instrument set up as 'a discharge with any knowledge or suspicion of its being other than a release of a parcel of the mortgaged premises from the lien of the mortgage, and he insisted that there was still owing to him these two sums together with interest. He finally brought this action of assumpsit on the note to recover the amount alleged to be in arrear and the jury found in his favor. The defendant seeks a reversal on exceptions to certain rulings at the trial and the grounds on which they rest have been carefully examined. With one exception they are so obviously untenable that any attempt to discuss them would be hardly reasonable. They raise no-point of present importance nor afford any basis for future precedent. The single objection justifying more notice is-grounded on that part of the judge’s charge which referred to the facts and theories respecting the payment of the $1700.
As would readily be supposed, the subject of the payment, of this money was the center of serious controversy, on which each party adduced such testimony as he could, not only direct and positive but also by showing circumstances to-induce favorable inferences and presumptions. And in the course of the examination of Mr. Lillibridge, a witness for the defendant, it appeared that'about the 12th of February, 1876, at which time a payment was made of $394.33 and being about a year subsequent to the date of the alleged payment of $1700, the witness made a careful computation of the amount still remaining unpaid. And taking this fact to be as stated by the witness the plaintiffs counsel seems to hare argued that said computation did not regard this sum of $1700 as having been paid, but treated it as still behind, and that the parties recognized the computation so made up as correct, and the defendant paid and the plaintiff received interest payments upon the faith of its showing the accurate amount. In the course of his instruction to the jury on this subject the trial judge took occasion to explain the opposing positions of the parties and to inform the jury what law would be applicable to any view of the facts they might find to be true.
A very plausible argument is now made to satisfy the Court that the trial judge in this portion of his charge first assumed a state of things which was untrue, and then attached certain consequences in point of law most seriously prejudicial. The learned counsel cites, and very correctly, the testimony requisite to his contention, ■ and then says: “Yet, upon this testimony, the court charge: The .testimony is undisputed that upon that computation the settlement was had, that there was no controversy, but that it was accepted as a proper and as a correct statement of the account between the parties; that it was not only accepted a§ such, but that the payment of interest was made upon it in accordance with its terms; ’ ” and “ as a matter of law, the court then charged, having thus settled the fact, as follows : ‘ That statement, as between the parties acted upon, carried to its consummation by a payment of the money which it called for, would constitute what is called in law an account stated as between the parties; and that account stated would bind them unless very peculiar circumstances existed; unless an evident patent mistake or fraud is shown to have existed in the transaction.’ ”
There was no testimony, it is said, on which to base this charge. Now it is very obvious that the contention at this point turns on the meaning of the trial judge and the sense in which he was understood by the jury. The office of a charge is — 1st, to explain the issues; 2d, to notice the positions taken by the parties and suggest, so far as the case may require it, the principles of evidence and their application ; and 3d, to declare what rule or rules of law will be applicable to any state of facts which may be found on the evidence. The charge is of course an important part of the trial and it is generally more or less colored by circumstances pertaining to the trial which are never committed to the record. These matters are present to the jury and to the judge when his instructions are given, and his manner and style of instruction and their apprehension of his meaning may be much influenced by them.
An appellate court must commonly labor under more or less disadvantage from the impossibility of having the case in exactly the same state in which it was when the trial judge dealt with it. Yarious lights and shades which tended to give it character and expression in the court below are not perpetuated by writ of error or appeal. But while .this difficulty must be acknowledged, it is the part of justice to restrict its influence as far as practicable by conceding much to the discretion of the trial judge and by making such favorable intendments as the state of- the case will permit. Cowles v. Richmond & Danville R. R. Co. 84 N. C. 309, 311; Evanston v. Gunn 99 U. S. 660.
Now the record before us contains the whole charge, which was delivered entire and not in scattered requests, and after careful consideration we are not able to agree with the learned counsel for the defendant. The clause extracted must be read with the context and with the rest of the record, and the conclusion from the whole is that the judge did not mean to be understood and was not understood as laying it down that the matters referred to were facts admitted or facts not disputed.
On the contrary it seems to the Court that he intended to state these facts hypothetically, — to state them as facts claimed by tbe plaintiff or his counsel to be true and on the truth or correctness of which the jury were to pass, and that he actually left the question of their accuracy to the jury and that they so understood him.
And the Court is further of the opinion that there was some warrant in the case for this mode of submission. This view of the charge disposes of the objection and deprives it of all force.
If the result of the trial was other than it should have been it seems not to have been the fault of the trial judge.
The judgment must be affirmed with costs.
Cooley and Marston, JJ. concurred. | [
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Graves, C. J.
Prior to July 2d, 1878, the defendant was a married woman keeping house with her husband and children. At that time he died. Retween January 1876 and April 26, 1877, a considerable account was made for family groceries. The items were charged on an ordinary pass book which had endorsed upon it “Mr. Roberts.” This suit was brought against Mrs. Roberts to recover the unpaid balance of the account, and the jury found against her. The only dispute was whether the debt was against her or against her husband.
The evidence for the plaintiff consisted in this pass book and his testimony tending to show that she owned a separate estate including the place of residence and that the goods were procured and sold on her individual credit, and moreover, that she had repeatedly promised to make payment. She denied that the articles were obtained on her ■ credit and denied having promised to pay for them. She adduced other evidence tending to show that the goods were furnished in the usual way where the liability rests on the husband as the responsible head of the household.
The learned judge instructed the jury in substance that if she owned a separate estate, and the goods were procured and sold on her credit, and she had promised payment, the plaintiff was entitled to recover; otherwise not. He added instructions and explanations specially applicable to the inquiry, and very favorable to the defendant.
The rulings in regard to evidence were all proper. The whole question was one of fact and the admitted evidence was germane, and in submitting it to the jury the judge gave no instruction of which the defendant has any right to complain. The jury accepted the plaintiff’s version and not that of the defendant.
There is no error and the judgment must be affirmed with costs.
Cooley and Campbell, JJ. concurred. | [
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] |
Graves, C. J.
Borchard agreed in writing to build for Greenstine a walnut counter, with zinc-lining, cupboard and mirror top, with mirror plate, for $227.50.
Borchard made an article which seemingly answered the description, and it was delivered and set up in Greenstine’s saloon and he paid the contract price for it. It was stained and looked like walnut, and the plaintiff supposed it to be of that wood. But in the course of a week something fell on it and bruised it, and it was then revealed that the top and door-panels and some other parts were merely whitewood, and so stained and finished as to resemble walnut. The plaintiff, relying on defendant’s agreement to make a walnut counter for the payment of the agreed price, contended that the article supplied, set up and paid for, was not a walnut counter, but an article composed of different and cheaper materials, and he brought this action for his damages arising from the alleged breach. He recovered $40, and error is brought by Borchard to reverse that recovery.
Tha case stands on narrow grounds. The doctrine of rescission has no application. The contract is the foundation of the action and the terms are plain. The parties saw fit to specify in writing what it was to which they agreed, and no extrinsic understanding at the time could be admitted. The case is the simple one of a suit against the manufacturer for damages, because an article made for the customer, according to a written undertaking to make one of a kind particularly specified, is found, after delivery and payment, to be of inferior materials and of inferior value.
The defendant claimed that under his agreement he was at liberty to put in whitewood where he did so, and to sustain this contention he offered evidence to the effect that it is usual and customary for manufacturers, where customers, bargain for walnut counters, to make the panels or other parts where it would be especially desirable and important to have the wood firm, hard and rich, of mere whitewood. The judge excluded the evidence.
The ruling was correct. The effect of such evidence, if any, must have been to derogate from the intent of the plaintiff and to defeat a right secured to him by the contract.
There is no error and the judgment is affirmed with costs.
The other Justices concurred. | [
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] |
Graves, C. J.
The defendant was sheriff of Muskegoncounty, and having received for service an execution and also an attachment in favor of the “ Lima Machine Works ” and against Seneca G. Lapham and Bufus K. Smythe, constituting the firm of Lapham, Smythe & Go., he levied the same on sixteen railroad flat cars, narrow-guage, and the Spring Lake Iron Company replevied them. The jury found for the defendant, and assessed his damages at $240. The record is much longer than it should have been and-the explanation is not perfectly apparent. The nature of the case may be indicated by referring to the surrounding facts.
July, 1879, Lapham, Smythe & Co., the judgment and attachment debtors, agreed with the plaintiff corporation to-furnish it a large quantity of wood, and in order to facilitate performance they proceeded to make a railroad from the plaintiff’s furnace into the forest. With the view of equipping the road they purchased from the “Lima Machine Works ” a quantity of car-wheels on credit. Subsequently it was deemed expedient to cover the enterprise- of making and running this railroad with a corporate character, and accordingly the “ Ravenna & Spring Lake Narrow-gauge Railroad Company ” was organized.
January 13, 1880, Lapham, Smythe & Co. executed a bill of sale to this corporation for the engine and cars belonging to the road before the incorporation, and for certain other property. The articles purchased of the “ Lima Machine Works” were included. On the same day, the railroad company executed to the plaintiff corporation a lease of the road for five years, together with its equipments and including the property in controversy.
April 11, 1880,- Lapham, Smythe & Co. executed a bill of sale to the plaintiff corporation of all their right and interest in the cars in question. The judgment on which the execution issued was obtained April 26, 1880, and the levy was made the same day. The attachment was levied on the 16th of May. The action was resisted on the ground that the transfers of the property directly and indirectly to the plaintiff corporation were made with intent to hinder, delay and defraud the creditors, including the “Lima Machine Works” of Lapham, Smythe & Co.
The errors assigned are on the direction to the jury, and it must be admitted that the charge as printed in the record is ambiguous and misleading. ' It is not worth while to discuss it. Several of the allegations of error, however, do not seem to be well based. But one or two are well grounded beyond doubt.
The plaintiff corporation claimed as a purchaser in good faith and for value, and contended that the title so acquired could not be affected by any intent of its grantors to defraud creditors, and there was evidence for the jury on this theory. But the circuit judge, although in some parts of the charge he seemed to recognize and approve the view that the plaintiff’s right as lessee would be good if the lease was taken in good faith, yet laid it down in another place, without qualification, that if the jury should find that the sale was made with'the intention of hindering and delaying the creditors, then existing, of Lapham, Smythe & Co., then the sale -would, be void as to tbe creditors so hindered or delayed. By this the plaintiff’s right was made to depend entirely on whether those from whom it received title acted in good faith, and the question of good faith on its own part was treated as immaterial, and an examination of the charge in all its parts confirms the opinion that the jury were influenced by this direction. The ruling was of course wrong. It is not necessary and would not be profitable to dwell upon the case in the shape in which it comes.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, J.
Harris sued Mrs. Cohen for a nuisance created by allowing water to escape from her adjacent lot upon his, to the detriment of his cellar, into which it ran in considerable quantities through the soil. The water was partly from a leak in the fresh-water supply pipe, which broke and needed repairs, and partly from the waste-water pipe connecting with the drain, which also leaked and overflowed upon the same premises. The bottom of the plaintiff’s cellar was kept more or less covered with water, and the walls and wooden flooring were damaged. The case was not allowed to go to the jury, on the ground that the defendant was not personally in possession, and that she was not liable, as the case stood, for the neglect of her tenant. The whole mischief originated during such tenant’s occupancy.
It is now claimed that the tenancy was of such a nature as to make it her duty to make repairs on the premises, and that it might be treated as her default.
' There was no obligation averred or shown, making defendant responsible to her tenant for repairs, or in any way referring to repairs. In the absence of such a duty, the responsibility must usually rest on the tenant, and such has been our holding in Fisher v. Thirkell 21 Mich. 1 and Clark v. Babcook 23 Mich. 163.
The present case does not rest on any averment or claim appearing on the record that the premises were in bad condition when leased, and we need not consider what are the qualifications arising from such a state of things. The declaration very explicitly connects all the grievances with the possession of defendant by her tenant. It contains nothing to take the case out of the ordinary rules of tenancy. We are bound to assume that this was the theory on which the case was tried. The only charge requested of the court, after the intimation of opinion on the defendant’s responsibility had been given, left out of view entirely any question which might have arisen out of what is in this Court claimed to be a new leasing, and asked relief upon the ground of general liability on the part of the lessor.
Without, therefore, considering points which we ■ think do not arise, we must affirm the judgment with costs.
The other Justices concurred. | [
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Cooley, J.
The writ of error in this case brings before us the proceedings on the probate of the will of William H. Pice, late of the county of Kalamazoo, who died December 3, 1880. Plaintiff in error is his widow and was named sole executrix in the will. Defendants are his heirs at law. The will was admitted to probate in the probate court, but denied it in the circuit court. Two objections were made to it in the pleadings: First, that Pice was insane when he executed it; and second, that it was obtained from him by undue influence. This second objection was abandoned on the trial.
A copy of tbe will is given in tbe margin, and its provisions are seen to be simple and not obviously unreasonaable. Tbe evidence disclosed tbe fact, however, tliat on tbe day of its execution proceedings were pending in tbe probate court for tbe appointment of a guardian for Nice, and tbe appointment was actually ordered a few hours after tbe will bad been signed and attested. As these proceedings were made important and perhaps controlling by tbe rulings of tbe circuit judge, it is necessary to understand exactly what they were. .
Tbe petition for the appointment of a guardian was made by two of tbe children of Nice, and by a third person, whose relations to him are not stated. The petition states that Nice is possessed of real and personal estate, estimated at $21,500, and that be is, as petitioners believe, “ mentally incompetent to have the charge and management of his property,” and that, as they are informed and believe, he “ is expending and has expended money within the past few days foolishly and unnecessarily, and for articles and property which he did not need, and paid and agreed to pay more than the same was worth.” Rice was notified to answer, and appeared and procured an adjournment, but on the adjourned day, instead of contesting the application, went to the office of Mr. Shakespeare, an attorney, and had his will prepared and executed, and then a vent home. The petitioners appeared before the probate judge, and the order appointing a guardian was made, the judge reciting therein that it appeared to him that Rice was “ insane and incompetent to have the care of his property.” Rice was, at this time sixty-eight years of age, and had been married to the plaintiff about three years and six months.
The defendants in this case contended that the order appointing a guardian was prima facie evidence of the incapacity of Rice to make a will, and that the plaintiff must overthrow this prima facie case by affirmative evidence. The circuit judge assented to this view, and instructed the jury as follows : “ This determination of the probate court is on the first view, or prima facie, evidence of the testator’s insanity and incapacity to make a will, and shifts the burden of proof to the proponents, and renders it necessary for them to establish before you by a preponderance of the evidence that the deceased was mentally competent to make a will at the time of the execution of the instrument here proposed for probate.”
If the question of testamentary capacity had been involved in the application for the appointment of a guardian, and had been determined by the appointment, the circuit judge would have been correct in his ruling. But in fact it was in no way involved. The substantial averment in the petition was that Rice was mentally incompetent to have the charge and management of his property, and was wasting it. Insanity was not alleged or put in issue, and the recital of the existence of insanity in the order which was made was very likely an inadvertence. But, whether inadvertent or intentional, it went beyond anything to which Rice had been called upon to answer, and was of no force. The order judicially determined that Rice had become unfit to manage his property, and it determined nothing more. But this is not inconsistent with testamentary capacity; the state of being unfit to manage property is not even inconsistent with capacity to make contracts; and the principal reason for the appointment of a guardian often is that a party possessing the capacity and power to contract is employing it foolishly. But if a party has capacity to make a contract, and to bargain in respect to its terms with another who may be supposed to have an interest in getting the better of him, he must certainly have authority to execute, as his own voluntary and spontaneous act, a testamentary disposition of his property. Testamentary capacity is not, therefore disproved by the determination that cause exists for guardianship.
It follows that the circuit judge erred in his rulings respecting this appointment. It was competent to prove it, as a part of the decedent’s history contemporaneous with the alleged testamentary act, and as throwing light upon his actions and conduct about that time; but as an adjudication it was without important bearing.
A number of witnesses who had known the decedent in his life-time, and had seen more or less of him at about the time the will was executed, but who were not medical experts, were allowed to testify that in their opinions he was then insane. Some of them expressed opinions in connection with a statement of facts upon which the opinions were based, and some apparently did not. These opinions were objected to, but were received upon the supposed authority of decisions by this Court. The eases relied upon were evidently misunderstood. In Beumbien v. Cicotte 12 Mich. 459, 501, opinions by non-professional witnesses were held to be admissible, when they could speak from personal observation, but it was said that “ in every case the witnesses who speak from their own observation are expected to describe, as well as they can, what has led to their conclusions, as well as their means of observation.” In Kempsey v. McGinniss 21 Mich. 123, 138, a similar statement is made: “ In the case of such professional witnesses, as well as in that of unprofessional witnesses, — who are allowed to give their opinions only from personal observation, — the facts upon which the opinion is founded must be stated, and the jury must be left to determine whether the facts stated, as well as the opinions based upon them, are true or false.” The principle of these eases is that the witnesses must explain to the jury the grounds for their opinions so far as the circumstances will admit; and we are constrained to say that in some instances this was not done on this trial, and that opinions were received of the reasonableness of which the jury were given by the facts stated no means of judging.
This error may have had an important influence in the case, for it is very evident that some of the witnesses had no just conception of what was meant by insanity or by testamentary capacity. And some of the questions had a plain tendency to mislead them in this regard. Thus, this question was put to one witness : “ Well, supposing him to have had a valuable farm of 160 acres of land, and some hundreds of acres of swamp land, and some real estate in the village, and some personal farm property, and also to have had a wife and children and grandchildren, what would you say in your opinion as to his ability to plan and execute a will, judging from what you related to the jury as to his appearance and conversation, and what you knew of him formerly % ” Here the suggestion to the witness by the question is of something complicated and difficult, requiring a recollection and comprehension of the several items of a considerable estate, and the several members of a considerable family, and he is invited to compare the man as he then was with the man as he had formerly known him. If, under such circumstances, the witness is impressed that there has been a great weakening of mental powers, as it seems probable was the case here, it will not be surprising if he expresses an opinion unfavorable to mental capacity for the supposed act. But no act can well be more simple than the gift of his property by an old man to tlie members of his immediate family; and it ought not to be considered, by court, or witness or juror, to be an act requiring strong mind or considerable capacity. The power to make such a gift becomes an important protection in that period of life when incapacity to labor and to conduct profitable enterprises has arrived, and it is important to see that it be not taken away by erroneous notions as to what is required for testamentary capacity. It is very evident, we think, that some of the witnesses in this case expressed opinions to the jury which had been formed by standards altogether incorrect and misleading; and the opinions themselves were consequently worthless.
Much of the evidence in the case, which was put in to prove insanity, had a tendency to show delusions on certain subjects. The decedent, it is said, talked foolishly about “ greenbacks; ” he imagined himself a high federal officer, and he solicited votes for an office when no election was pending. But we look in vain in the will, whose provisions were dictated by himself, for any trace of these delusions, or any evidence that it was in any way influenced by them. Conceding the delusions, therefore, does not dispose of the will, or necessarily determine that it should be set aside. Fraser v. Jermison 42 Mich. 206. The most remarkable evidence on this branch of the case is of statements made by decedent that his wife made the advances in courtship, and that on one or more occasions she inflicted outrageous personal injury on him after marriage. No attempt was made to show that the decedent was really under delusion in respect to these matters, and “the natural .tendency of the evidence was to prejudice the jury against the plaintiff by leading them to believe or to suspect that she was an unworthy person and undeserving of her husband’s bounty. But the existence of a delusion that his wife was unworthy of esteem, or was abusing him, would be a singular reason for setting aside a gift which he had deliberately made in her favor.
Such errors as occurred in the instructions are sufficiently indicated by what has been already said. After the full examination of the general subject of testamentary capacity in the case of Pierce v. Pierce 38 Mich. 412, and Fraser v. Jennison 42 Mich. 206, we do not deem it necessary to enlarge upon it here. But we repeat what we have said in substance in those cases, that a will is not to be set aside merely because the party making it was weak, or sometimes foolish, or lacked the average mental capacity of his neighbors, or did not dispose of what was his own as others who could know nothing of his reasons might think he ought to have done, nor necessarily because he was subject to delusions, when it is manifest that the delusions did not affect his gifts.
The case must go back for a new trial, and the plaintiff in error must recover the costs of this Court.
We are compelled to say, however, that the record which has been brought to this Court is inexcusably voluminous. The bill of exceptions is apparently made by’ simply attaching a heading and a conclusion to the stenographer’s notes, and it was at least three times as large as was necessary for presenting the alleged errors. This method of preparing a bill of exceptions may be labor-saving to counsel, but it is oppressive in its expense to the parties and it imposes unnecessary labor in dealing with the ease in this Court. In taxing the costs, therefore, the plaintiff will be allowed for one-third the expense of the record, and no more.
The other Justices concurred.
Will of william h. rice.
In the name of God, amen, I, 'William H.'Rice, of the township of Comstock, in the county of Kalamazoo and State of Michigan, of the age of sixty-eight years, and being of sound mind and memory, do make, publish, and declare this my last will and testament, in manner following ; that is to say :
First. I 'give and bequeath to my wife, Nellie M. Rice, the sum of 'two thousand dollars ; also my house and lot in the village of Kalamazoo, on Dutton street, number forty-three.
Second. I give and bequeath to my son Parley H. Rice the north one hundred acres of what is known as my swamp land in the township of Comstock, Kalamazoo county, Michigan, this being in addition to the sum of six thousand dollars, including interest, that I have already advanced the said Parley H. Rice.
Third. I give and bequeath to my son Noah Rice the west one hundred and ten acres of my present homestead.
Fourth. I give and bequeath to my two grandsons, children of my deceased son Henry, the east forty acres off the east end of my present homestead; also the one hundred and twenty acres of land on the swamp, just south of the land bequeathed to my son Parley.
Fifth. I give and bequeath to John Dunlap, son of my second wife, forty acres of land on section twenty (20) just south of land owned by W. F. Stillwell, in the township of Comstock.
Sixth. I desire it to be distinctly understood that the bequest to my wife is in addition to any and all rights of dower she may be entitled to in my estate.
And lastly. I give and bequeath all the rest and residue and remainder my personal and real estate to my two sons before mentioned, and the heirs of my son Henry now deceased, in equal shares, and I hereby appoint my wife, Nellie M. Rice, sole executrix of this my last will and testament, hereby revoking all former wills by me made.
In witness hereof I have set my hand and seal this seventh day of November, A. D. 1879.
Wm. H. Rioe. | [
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] |
Cooley, J.
Tbis is an appeal from tlie denial of an application to set aside a foreclosure sale in chancery. The mortgage which was foreclosed was given by Soloman and Lonis Nadeau and their wives, but it is assumed in the proceedings that the equity of redemption had passed in his life-time to Zephiam Loranger now deceased, of whom the defendant Esther Loranger is widow, and several of the other defendants heirs at law. Two of these defendants are infants and six are non-residents. • Before the foreclosure was begun, Fix as owner of the mortgage made a written agreement with the widow that he would-foreclose and bid in the land, and pay to her $950, less the sum that should then be due on the mortgage, and which proved to be a little more than one-third of this sum. The hearing in the court below was upon exceptions to tbe confirmation'of tbe report of sale.
A number of irregularities occurred in the foreclosure, but no one of them is important in view of tbe main fact that complainant allowed tbe premises to be struck off to another person for $425, less than half what be bad agreed to pay to tbe widow. No one pretends that this was a fair price for tbe land or even such a price as it should bring on any forced sale. Tbe complainant’s agreement is very conclusive evidence that wrong was done in the sale.
It is said, however, that tbe contract with tbe widow was a fraud upon tbe rights of tbe heirs, or of tbe creditors, if there are any. But this is not a proceeding to enforce tbe contract with Fix, or to determine who would have been entitled to tbe moneys if Fix bad paid to tbe widow what be agreed. Tbe plain fact is that tbe land has been sold for a grossly inadequate price, and the parties interested in the equity of redemption — perhaps all of them — have suffered it because they relied upon this contract. There has been no such public sale with open competition as tbe law contemplates ; and under tbe circumstances it is only just that one be now ordered.
Complainant, it appears, has received a conveyance from tbe party who bid at tbe sale, so that the rights of no third party are involved. Tbe sale must therefore be vacated, and tbe petitioners against it must recover the costs of this Court.
Graves, C. J. and Marston, J. concurred. | [
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Campbell, J.
Lindley, as plaintiff in certiorari, removed a judgment recovered against him under the Landlord and Tenant Act into the circuit court for the county of Wayne. ■The proceedings were had before Mr. Flowers, a circuit court commissioner, and were affirmed. They were begun on the 6th day of July, 1882, and were based on a refusal to yield up possession of a lqt held from month to month, notice to quit having been served more than a month prior to the first of July, 1882. Although the affidavit for certiorari relies on the want of notice, there was evidence of such notice served on the 6th of May, which under the decisions in this State would be valid for the 1st of July, but not for an earlier day. Chamberlin v. Brown 2 Doug. (Mich.) 120; Hogsett v. Ellis 17 Mich. 366 ; Shaw v. Hoffman 25 Mich. 163.
The chief defense relied on seems to have been that in June the complainant had sued before the same commissioner, and the judgment was appealed to the circuit court. There is nothing in the record to show what this judgment was. It is very certain it could not have been lawfully obtained on a cause of action that did not accrue until July, and there can be no presumption of identity. We need not therefore inquire whether it was pleadable in bar or in abatement. It has, as the record stands, no bearing on this controversy.
The only other grounds of certiorari relate to questions of practice. It could not prejudice the parties to have the jury shut up in the jury-room by the commissioner instead of by a constable, especially when no one made any objection. Neither can it be very important that the commissioner at the request of the jury went into the jury-room, when he told them he would give them no instructions. Smoke v. Jones 35 Mich. 409. In these special cases the jury are judges of law and fact, and would not be expected to require instructions unless they thought proper. The commissioner expressly denies giving them any, and as they ■could not, so far as we can see, have come to any different conclusion from the one they adopted, there can be no presumption that his visit did any harm. Toledo, Ann Arbor & Grand Trunk Ry. Co. v. Dunlap 47 Mich. 456.
As the circuit court was required by law to disregard all matters not affecting the merits, and as the judgment of that court appears to us to have been given in accordance with this principle, it must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
May 9, 1882, proceedings were commenced before a circuit court commissioner to recover possession of certain lands. An appeal was taken, the cause tried in the circuit court and judgment rendered in favor of the plaintiff.
During the pendency of this case, and on the léth of July, 1882, an action of ejectment was commenced to recover possession of the same premises, the plaintiff claiming title in fee. Both cases were tried substantially at the same time, upon the same evidence, and the plaintiff recovered judgment in this case also. They come here upon writ of error and were heard together.
On the 12th day of April, 1881, the premises in dispute were leased by James Gribson through Dr. S. S. Stephenson of Detroit to Perry Carter of East Saginaw, to be occupied for hotel purposes.
The term was for “two years, subject to a sale as hereinafter provided, from and after the 1st day of May, 1881.” The following provision was contained in the lease:
“ And it is hereby mutually agreed by the parties hereto that said first party shall have the right at any time during the continuance of this lease to sell said property, provided that if said premises are sold during the first year of this lease, such sale shall be subject to this lease for said year, and if sold after the first year under this lease, such sale shall be subject to this lease for said year, or to such compromise and agreement as may be entered into by the parties hereto; and it is hereby further agreed that said second party shall have the refusal of said premises to purchase or to rent.”
Stephenson sold the premises within the first year-to the plaintiff, notified Carter thereof, and Carter moved out at the expiration of the first year and delivered the keys of the house to the agent of Stephenson.
March 20, 1882, while Carter was in possession under the lease, he purchased the premises from Charles P. Hess. The defendant claims title to the premises under Carter, and was let into possession of the premises by Carter, while the latter was in possession under the lease referred to. The defendant also offered to show title in him from Carter by a chain of title from the government, and also tax deeds to a third person from the State in April, 1882. This evidence tending to show title in defendant, and also the tax deed, was rejected by the court upon the ground that defendant occupied the same position that Carter would, and that the latter could not dispute his landlord’s title, and this raises the principal question in each case.
"When the lease was offered in evidence it was objected to as being incompetent and immaterial. The objection was overruled. In this Court, as showing its incompetency, it was argued that the plaintiff had not and did not call either of the subscribing witnesses thereto to prove its execution. We are of opinion that this specific objection should have been pointed out in the court below so that the objection might have been removed by calling the subscribing witnesses. It was also urged that, even if a sale was made during the first year of the lease, the term would not end at the expiration of that year; that the true construction of the instrument would require the lessee for the remainder of that year to pay rent to the lessor, and for the second year to lessor’s grantee. This, we think, is not the proper construction; that the construction placed upon the lease by the parties themselves, Carter moving out and delivering up the keys, was correct.
We have no doubt but that in the first case, tried upon appeal in the circuit, the ruling of the court in excluding the deeds was correct. The action was to recover possession of the premises, and in such an action the tenant could not, nor could those claiming under him, deny the landlord’s possessory right to the premises. This is not open to controversy in this State. Bertram v. Cook 32 Mich. 518.
In the ejectment case the same rule would apply to the same extent. In that case, however, the plaintiff went farther. She claimed and recovered a judgment giving her the premises in fee. Where the landlord seeks to recover the possession he can do so under the lease; but if he goes farther and claims the premises in fee, the tenant is not estopped from denying any right claimed by the plaintiff farther or greater than that of possession. This fully protects the landlord, who regains his possession, and the tenant having gained no advantage by taking a lease, the parties then are in proper position to litigate the title should they desire so to do. If the plaintiff’s position is correct, a judgment in fee may be obtained by estoppel against the tenant, and thus the landlord has acquired an advantage which he would not be entitled to. Bertram v. Cook 44 Mich. 398, and cases cited. McGuffie v. Carter 42 Mich. 499 ; Fuller v. Sweet 30 Mich. 240.
As the plaintiff could by estoppel have recovered possession in the first case, there was no necessity for resorting to the action of ejectment simply to recover possession.
It follows that the judgment in the first case will be affirmed with costs, and that in the second reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, J.
Replevin for a cow. The suit was instituted under the general replevin law. It sufficiently appeared, as we think, that the cow was distrained by the defendant damage feasant, and that the plaintiffs had knowledge of tlie fact when they sued out the writ. It was decided in Campau v. Konan, 39 Mich. 362, that replevin under such circumstances could only be brought under chapter 214 of the Compiled Laws, which makes special provision for such cases. We adhere to this decision, and the judgment, which was given for the plaintiffs in the circuit court, must be set aside, with costs, and a new trial awarded. The court should have dismissed the case.
We think, however, that as the defendant did not dispute the title of the plaintiffs, but only claimed a lien of six dollars, he would not be entitled, on the suit failing, to any larger recovery besides his costs. This intimation of opinion ought to save further litigation.
The other Justices concurred. | [
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] |
Marston, J.
This was an action of trespass on the case brought to recover damages for the death of the intestate, caused by the alleged negligence of the defendant.
To properly understand the questions raised a brief reference to the facts will be necessary.
The Saginaw Company and the Stephenson Company were the owners of adjoining tracts of land upon which there was a vein of iron ore. These companies commenced mining upon their respective lands, and near to the division line, the defendant opening its mine within a very few feet of the line. These mines, at the time of the injury complained of, were known and worked as open mines; that of the defendant being down about thirty-five feet below the surface of the ground.
The Stephenson Company had given to its employees and others permission to erect and occupy dwelling-houses upon its land, and the defendant had given like permission to its employees to build upon its land. Under such authority a number of houses had been erected at varying distances from the mines, and the plaintiff, who was working for the Stephenson Company, had erected a dwelling upon its lands. With the permission of the last-named company, a building had been erected near the division line, and a stock of merchandise kept therein for sale, and at this place the miners and their families did a good share of their trading. The lands of these companies had not been fully cleared of their timber. There was no regularly laid out or opened street or highway across these lands, but there was a track or way across the Stephenson Company’s lands used by the miners and others, and also used by parties going between their houses and the store referred to.
On the 16th day of January, 1880, the plaintiff’s son, then sixteen years of age, had been to the store and was returning home, along the road, referred to, when he was struck on the side of his head by a stone which seriously injured him, and from the effects of which it was claimed he died some months afterwards. When struck he was about five hundred feet from the defendant’s mine, and it was claimed that the stone that struck him came from the mine of the defendant, a blast having been fired at that time.
The negligence charged in the declaration was, that the defendant did not protect or cover the place in which the blast was fired, and did not give any sufficient warning of the blast to be fired.
The principal matters of defense were, that the evidence did show that notice of the blast was given by the defendant ; that it was not therefore guilty of negligence and upon this ground the case should have been taken from the jury; that such an open mine could not be covered when blasting and carried on profitably, therefore the defendant could be guilty of no negligence in not covering it; that death was not caused by the injury, but by specific or typical pneumonia ; and they also offered to show that a mutual agreement was entered into between these companies, previous to the accident, by which each might in blasting throw rocks upon the land of the other, the mines being so near the division line that there was no means of preventing such a result. This evidence so offered was objected to and excluded. These are the main questions relied upon.
There was direct evidence in the case that a warning was given in the usual and customary manner before the blast was fired, and witnesses testified that they did not hear any warning although within hearing distance at the time. Under such circumstances while we might fairly suppose that a jury would believe testimony of a positive rather than that of a negative character, yet so many other considera/tions enter into the inquiry as to whether a sufficient warning was given or not, that it would be unsafe, as a general rule, for the court to withdraw such a question from the consideration of the jury. The relative positions of the several witnesses, the manner in which they were engaged at the time, their apparent interest or bias, their appearance upon the stand, these and other matters' require attention and deliberation, and where the trial judge declines to take the case from the jury, the case should be an exceeding clear one that would justify this Court in finding error. The question whether any and if so a sufficient notice was given was one of fact, upon which the evidence, though perhaps weak upon one side, was conflicting, thus bringing it clearly within the proper province of the jury to pass upon. If any error was committed by the jury, the remedy is not in this Court, but in the court below upon a motion for a new trial, or to set aside the verdict.
The objections relating to the evidence offered and! rejected, — to the duty of the defendant to cover its mine when blasting, — and to give sufficient warning, may be considered together.
Under the privileges extended by the Stephenson and defendant companies to their employees, the latter had a clear right to build their houses, and they, with the- several members of their respective families, to travel in and upon the road in question in the usual and customary manner to and from the store and wherever their business may have required them to go.
The fact that the way in question was not a legally laid out or opened public highway is of no importance in the present case. With the permission of the owners of the land, the people had been in the habit of using'this as they would a public highway, and this was known to the defendant. The deceased was not therefore a trespasser ; he was not in the wrong, at the time he received the injury, but was traveling on the road in question on business and as a matter of right. There is no middle ground in such a case, dependent upon the nature of the highway; if the way had been a public highway or a crowded thoroughfare, greater care might have been required of the defendant, but the rights of travelers thereon in either case would be the same. They would be rightfully there and could be charged with no illegality or negligence in traveling thereon upon business or pleasure. The injury cannot therefore be traced to any breach of the law or wrong on the part of the deceased, but solely to the fault of the'defendant, if either was in fault.
It was very strongly insisted upon in this Court, that counsel in the court below claimed that the defendant_had no right whatever to throw rocks from blasts in its mine upon the lands of the Stephenson Company, — that in so doing it was a trespasser, and that if a stone from its blast struck deceased, while upon the Stephenson lands, defendant would be liable as a trespasser at all events, regardless of the question of negligence, — citing in support thereof Hay v. Cohoes Company 2 N. Y. 159; St. Peter v. Denison 58 N. Y. 416; and Jager v. Adams 128 Mass. 27. It was claimed, therefore, that to meet the position so taken by counsel for plaintiff the defendant had a clear right to introduce the rejected testimony.
It must be borne in mind that this is not an action brought by the Stephenson Company to recover damages for stone thrown upon its land by the defendant. If this had been such an action the evidence might have been admissible. As however, the deceased was rightfully upon the road when injured, the Stephenson Company could not itself possess the right to willfully or carelessly endanger his life, nor could it give this right to another. And although the defendant may in the first instance have had authority to throw stones all over the Stephenson lands, yet when these persons acquired the right of travel thereon, or exercised that right with the permission of the owner of the land and the knowledge of the defendant, the rights of the latter thereby, became restricted, and from henceforth they must carry on their business with such a degree of care as the public safety required.
The validity of a judgment cannot, however, be successfully assailed in this Court because of the erroneous legal positions taken by counsel in the trial court, unless the court adopts such erroneous views; and then it is the error of the court and not of the counsel that works a reversal. Any other view would render judgments of very uncertain tenure. We must therefore look to the rulings and charge of the court, and not to the arguments of counsel, in order to ascertain whether any error was committed.
An examination of the record shows that the cause was not submitted- to the jury upon any such basis. The last clause of the tenth paragraph of the charge is the only one that would seem to give color to the position. When however we read the tenth, eleventh and twelfth paragraphs of the charge, which we must do, as they relate to the same subject, the difficulty disappears. The denial of the right of the defendant to throw stone in blasting “ upon the land of others without permission at least of the other parties,” as clearly appears by what follows, had reference to consent not simply of the Stephenson Company, but the parties who were in the rightful possession and who might be injured thereby. As already said the Stephenson Company ■could give no permission that would injuriously affect the rights of the deceased. Taking these parts of the charge and viewing them as a whole the court recognized the possessory rights of these occupants to dwell in their houses and to travel over this road; that while thus permitted to enjoy these rights, their lives could not be endangered by the carelessness of the defendants ; that if, in order to protect them, “ordinary prudence and caution would have required the defendant to cover and protect the place from which the blasts were to be fired so that rocks should not be thrown out by its blasts upon places where other people had a right to be, then the defendant was bound to cover or protect the place * * * notwithstanding it involved a greater expense on the part of the defendant in so doing.” The case was not therefore submitted to the jury upon the theory that defendant in throwing or permitting the rocks to be thrown upon the Stephenson lands was thereby guilty of a trespass and as such liable at all events regardless of the question of negligence. ' The fourteenth paragraph of the charge makes this very clear, in charging that if there was danger that the defendant in firing its blasts would throw its rock beyond its own location, and upon other places where the defendant had a right to be, then it was their duty to give notice of its blasts to all those who were where they had a right to be, and failure so to do would constitute negligence rendering it liable, if there was no contributory negligence on the part of the deceased. '
The case was therefore submitted to the jury to find, not whether defendant was a trespasser and liable as such, but whether it had been guilty of negligence, either by not covering the pit when blasting or in not giving sufficient warning.
It was argued that to require defendant to cover the pit when blasting would be so expensive, that mining could not be carried on profitably, therefore impracticable; that the law encourages mining, and would not require conditions that would prevent it being carried on except at a loss to the company.
The law undoubtedly aims to encourage the successful prosecution of business enterprises. It at the same time, with a due regard for the lives and protection of others, requires that certain safeguards be observed in the conduct and management thereof.
It is the duty of the master to remove known perils; he must provide safe machinery, employ suitable servants and must not subject them to unknown dangers or send them into dangerous places.
The owner of real estate must exercise ordinary care and vigilance in the use thereof, to prevent injury to persons having lawful right to be on or near the same. He cannot erect buildings in an insecure manner; or negligently permit unsafe walls to remain standing in an exposed place to endanger persons passing along the streets; or leave unguarded openings in his buildings where parties entering on business may be injured. If he does, the law holds him responsible, as he is bound to so control the use of his premises as not to produce injury to others.
In like manner railway companies may at certain places on their roads run at a high rate of speed, yet in entering and running through villages and cities, and when approaching certain crossings, a different rate must ordinarily be observed. They may also be required to station and maintain flagmen at certain points, and to erect bridges across streets and highways where the public safety seems to require it.
So where mining companies own the land where they have opened their mine, and contiguous thereto, they may conduct their operations with apparently very much less care than they could where the surface of the land over the mine was in the actual occupation of others; or where third parties were in the actual enjoyment of lands near to the mine; or a highway run close to the pit; or large numbers of people were in the habit of traveling near thereto by sufference of the owners of the land. What at a given time and place might be done with almost absolute safety, so that slight care would be deemed sufficient, would, if done in the same way, under other circumstances, be held gross if not criminal negligence.
In none of these cases where negligence is alleged and proved, could the answer be admitted, that the profits of the business carried on would not justify the extra expense. It is not the matter of profit or loss that determines or enters into the question of care or negligence, but rather that of danger to the public or third persons. Were it otherwise an insolvent corporation would be comparatively safe, and an almost worthless mine might be carried on with an utter disregard of the rights and safety of others. If mining at a particular place cannot be profitably carried on, and at the same time the rights of third parties be respected and protected, then it must be earned on at a loss or abandoned.
Whether a covering was practicable in the present case, and necessary, was we think fairly and properly submitted to the jury.
The next position relied upon is that the death of Beauchamp was not the natural and proximate result of the injury received, but was caused by active pneumonia.
The charge as given upon this part of the case is not and could not be questioned, if under the evidence the question was proper to be submitted to the jury at all. It is claimed by the defendant that it should not have been, and upon this point the case should have been taken from the jury.
¥e may well adopt what was said in Baltimore & P. R. R. v. Reaney 12 Md. 117. Where after speaking of cases where two or more independent causes concur in producing an effect and it cannot be determined which was the efficient and controlling cause — or whether without the concurrence of both the event would have happened at all — the court added: “ But it is equally true, that no wrong-doer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defence, that there was a more immediate cause of the loss, if that cause was put into operation by his own wrongful act. To entitle such party to exemption, he must show not only that the same loss might have happened, but that it rrwst have happened if the act complained of had not been done. Davis v. Garrett 6 Bing. 716.”
This case would seem to come clearly within the third rule laid down by Mr. Justice Cooley in his work upon Torts, p. 70, where the authorities are very fully collected: “If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.”
In the present case the physician who attended the boy was called as a witness by the defendant, and on direct examination testified that “ he died of pneumonia.” That at the time he was seized with pneumonia he was doing tolerably well; after the injury he went on improving slightly up to the time he had pneumonia. On cross-examination the physician further testified that, when first called, he found that the boy had received a compound fracture of the skull; that he then appeared to be a good, healthy, well-nourished boy; that he was insensible and remained se until the next day, when the depressed portion of the brain was raised.and a number of pieces of bone taken out; that there was a mass appeared subsequently protruding from the hole, which grew to be about the size of an English walnut; it was a fungus of the brain, and was removed; that he expected the boy to recover, and from the fact that he lived five or six months he had some hopes of a recovery. He also testified that there was complete paralysis of the right-side, which continued some time; that the boy had some-movement of his right side before his death, but had not completely recovered the use of his limbs; that his tongue-was at first paralyzed, but he afterwards so far recovered the use thereof as to be able to say yes and no. He also-, testified : “ I think he might have got well. Of course it was a serious injury, the chances were against his getting well, and yet the chances were that he might ultimately recover. The chances were against his recovery, and yet. there were chances for his recovery. I would put the-chances for his recovery in the minority.” Again: “I found him suffering from shortness of breath; I ascertained from his parents that he had a chill, followed by a cough and pain in his side.” “ As to the cause of this particular variety of pneumonia it is sometimes due to exposure to-cold, living in a vitiated atmosphere, overcrowded. * * * This boy was exposed to cold the same as we all are, niore or less; he was in a sick room, but they had some ventilation in there, I know, at my request. * * * I am unprepared to say what caused pneumonia in his case. * * * In my opinion it was a specific or typical pneumonia; the relation between it and the injured head were not close.”
Farther evidence similar to the above was given, but sufficient has been quoted to show the character thereof and the above is as favorable to the defendant’s position as the case will permit.
Is it clear beyond dispute, that the cold taken, pneumonia and death were independent and separate from the injury received and sickness resulting therefrom ? Can it be said with judicial certainty that the injury, the sickness and weakness following therefrom, did not directly cause or largely contribute to the attack of pneumonia, and that the party wrongfully injured was as able to withstand this resultant attack as he would have been if “ a good, healthy, well-nourished boy ” as at the time he received the injury ? If the injury received and sickness following concurred in and contributed to the attack of pneumonia, the defendant must be held responsible therefor. It cannot be said that here was a second wrongful act, or a disease, wholly independent of the first wrong, which caused the death of the. boy. People v. Cook 39 Mich. 239.
We have examined the other assignments and discover no error therein.
The judgment will be affirmed with costs.
Graves, C. J. and Cooley, J. concurred. | [
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Cooley, J.
This action is brought for the alleged seduction by the defendant of the plaintiff’s daughter. The declaration is given in the margin. The case coming on for trial, counsel for the plaintiff in his opening to the jury stated that the suit was brought for the recovery of such damages as she had suffered by the seduction of the daughter, and proceeded to call a witness. Counsel for the defendant thereupon objected to the introduction of any evidence on this view of the case, and insisted that the declaration was framed for the recovery under the statute of the damages suffered by the daughter herself. The court took this view of the declaration, and after giving leave to the plaintiff to amend — which was not accepted— directed a verdict for defendant. The only question now is whether the declaration is properly framed for the recovery by the mother on her own behalf.
The statute provides that “ it shall not be necessary in any action on the case for seduction, hereafter to be brought, to allege in the declaration, or to prove on the trial, any loss of service in consequence of such seduction; but if the female seduced be a minor at the time of the seduction, the action may be brought by her father, mother, or guardian ; and if such female be of full age, the action may be brought by her father or any other relative who shall be authorized by her to bring the same.” Comp. L. § 6195.
By the next section it is made unnecessary to allege or prove that the person seduced was the servant of the plaintiff, and § 6Í97 provides that “ the two last sections shall not be so construed as to prevent any person entitled to the services of the person seduced, from maintaining an action for the loss of service or other damage sustained by him in consequence of the seduction.”
It is apparent that the pleader had the statute in view in framing this declaration, for the recital of authorization by the daughter would be idle on any other supposition. But it is contended on the plaintiff’s behalf that that recital may be treated as surplusage, and the declaration is then good at the common law as a declaration by the mother upon her own injury. Hancock v. Wilhoite 1 Duv. 313. It will be observed, however, upon an examination of the declaration, that the grievance which was the supposed basis of the common-law action, namely, the loss of service, is nowhere alleged in it. The daughter was of full age, residing with the invalid mother, and giving her assistance ; but the relation of master and servant is not averred, nor is any loss of service, or even of what presumptively in the case of an adult child was voluntary assistance, alleged or suggested. Taking this fact in connection with the recital of the daughter’s consent to the action, which is without meaning unless the action is statutory, we are not left in doubt that the action is brought under the statute for the daughter’s injury. The defendant had a right to so understand it; and even if it were possible to support the declaration as at common law if there were no such statutory action, it would not be allowable to do so when the declaration so unmistakably suggests the statutory action, and no other.
The judgment must be affirmed with costs.
The other Justices concurred.
Kent County, ss.: Norah Ryan, of said county, plaintiff herein, by Loomis A. Miller, her attorney, being fully authorized so to do bv her daughter Mary A. Ryan, comes into this coprt and complains of Henry Fraliek, defendant herein, being in custody, etc., of a plea of trespass on tlve case.
For that whereas the said defendant, contriving and unjustly intending to injure the said plaintiff, heretofore, to-wit, on the 25th day of July, A. D. 1875, and on divers other days and times thereafter, and prior to the first day of November, A. D. 1875, at, to-wit, the city of Grand Rapids, in said county, seduced, debauched, and carnally knew Mary A. Ryan, daughter of the plaintiff, who was then of full age, to-wit, of the age of 22 years, and whose father was then dead; by means of which said premises said plaintiff has suffered great wrong and injury, to her damage $50,000.
And for that whereas, also, before and at the time of the committing of the said grievance herein next mentioned, at, to-wit, the city of Grand Rapids, in the county of Kent aforesaid, the plaintiff, being then, as now, a widow and an invalid, without means of supporting herself, had. a daughter, Mary A. Ryan, whose father was then dead, and who resided with the plaintiff and greatly assisted her in supporting and maintaining herself and family, yet the said defendant, well knowing the premises, but contriving and unlawfully intending to injure the plaintiff, on, to-wit, the 25th day of July, A. D. 1875, and at divers other times before the first day of November, A. D. 1875, at, to-wit, the city of Grand Rapids, in said county, falsely and wrongfully represented to the said Mary A. Ryan,who was then of the age of 22 years and unmarried, and fully competent to marry, that he was then a widower and unmarried, and in consideration of the promise of said Mary A. to marry him on request, he, the said defendant, promised to marry the said Mary A. Ryan within a reasonable time thereafter.
That the said M ary A., so confiding in the said promises of the defendant so made to her, and often and many times repeated, and also confiding in his earnest professions of love and affection, and his oft-repeated assurances that he would faithfully keep and fulfill his said promises, and at his urgent solicitation and request, by reason of his said promises to marry her, and fully relying on the same, did at length yield to his solicitations and desires, and permit the said defendant to have illicit sexual intercourse with her, and he, the said defendant, did then, by reason of his said promises, pledges, and profession so made as aforesaid, have illicit sexual intercourse with the said Mary A. Ryan, and did seduce and debauch her, and the said illicit intercourse was, during the next ensuing three months, many times repeated, and each time under a renewed promise of marriage. By reason of which said premises the said plaintiff has been greatly injured, to her damage fifty thousand dollars, and therefore she brings suit. | [
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