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Smith, J.
“This case is an instance of what is getting to be chronic litigation between home owner and contractor. The one invariably claims that the contractor agreed to build a house on his lot for so much, money, whereas the other usually insists that the agreed arrangement was that of ‘cost-plus’ construction. The parties in cases of such nature rarely reduce their commitments to writing. When they do, apparently inevitable controversies respecting extras and subsequent modifications — occasioned by claimed oral agreement from time to time as work progresses- — make up a congeries of trouble for our trial courts.” Barnes v. Beck, 348 Mich 286, 287.
Such is again our issue here. The plaintiff; built a house for the defendants. In the words of the circuit judge: :
“What was the contract between the parties litigant?
“The issue is not without difficulties. This, by reason of there being no written contract between the parties. The plans and specifications, while of importance and in writing, are nevertheless not a contract. The contract of building rests entirely in parol. It may be stated in this connection, by fair inference, that every such oral contract is an open invitation to misunderstanding and disagreement.
“The plaintiff contends the contract was a cost-plus contract, and sues on that basis. The defendants contend that the contract was for an agreed definite sum, namely, $15,000, for the complete job for house and garage.”
The record does not disclose why there was no writing. “Defendants claim,” held the circuit judge, “and so testified that they asked plaintiff for a contract in writing and that plaintiff refused to give them such. Plaintiff’s testimony on this point corroborates that of defendants, his reasons therefor not being particularly illuminative or impressive.”
The plaintiff has been paid $14,866.09. He seeks in this action the further sum of $10,782.85, the balance allegedly due under the cost-plus arrangement. Defendants, in addition to denying the validity of tlie plaintiff’s additional claim, sought in recoupment the sum of $3,513.69 for items allegedly included in the plans and specifications (hut furnished and paid for by the defendants), for items never furnished by the plaintiff, as required by the plans and specifications, and for changes in construction which the plaintiff made to effectuate savings in an unknown amount. >
The trial court held that the contract finally negotiated between the parties was for a flat sum of $15,000 for the house and garage. Expenses for certain deviations (a garage door replaced by the defendants, a stone front on the house, and certain fixtures the cost of which exceeded that set forth in the specifications) were added by the court to this sum, bringing the total to $15,891.25. Of the amount claimed in recoupment, the plaintiff admitted $845.77 and the court allowed an additional $364.50 for linoleum and fill dirt supplied by the defendants at their own expense. Thus, adding the extras to the contract price, and deducting the payments made to plaintiff and the recoupment, a net credit in the defendants’ favor of $185.11 was found. Thereupon judgment of no cause of action was entered against the plaintiff and in favor of the defendants for this amount. From a denial of the motion to set aside the judgment and for a new trial the plaintiff takes a general appeal.
The defendants were at the retirement stage of life. Mr. McNutt had stopped work in 1947. Just prior to seeking out the plaintiff to build this house, the defendants’ farm had been taken by condemnation for the Wayne County airport. In the spring of 1947 the defendants visited the plaintiff with “ideas out of some books” for a home. Without a set of definite plans the plaintiff refused to discuss costs with the defendants. He suggested an architect in Monroe, whom defendants consulted. The parties met several more times before they bad the final plans from tbe architect. Plaintiff then testified as to the formation of the contract:
“I looked them over and told them it was impossible to bnild the home that was represented by exhibit 1 for any $16,000. Mrs. McNutt said that they asked the architect to draw plans for $16,000 and how come? I said, I couldn’t tell, but I knew it couldn’t be built for anywheres near that. They said that’s what they wanted to pay. And I said, ‘Well, if that’s the case, you might just as well stop right here. The only way that I can possibly take the job would be a cost plus 10% on the minimum of $16,-000. Any cost above that would be paid by Mr. and Mrs. McNutt.’ They said they have to think it over.
“I believe there was another meeting. That meeting took place in just a day or so. At this next meeting I believe I went to their home. Mr. and Mrs. McNutt were both present. At the next meeting Mr. and Mrs. McNutt said they would consider the bedroom and garage be deleted from the plans and specifications. When they made known that fact to me, as far as I was concerned, it didn’t make any difference, but I pointed out the fact they intended to put it on later it was going to cost them more money again and seeing that they wouldn’t have to pay on only a minimum of $16,000 at 10%, I thought they would be ahead to go ahead with it, and they agreed to it. They merely said, go ahead and start the job; on the basis of 10% I started the job.”
The defendants’ version of the negotiation of the contract differs:
“After we told Mr. Bodary that 15,000 was all we could spend, Mr. Bodary said he would build the house for 15,000 but not the garage. He would build the house without the garage. At that time I just decided to build the house, not the garage.”
With .reference to later garage developments:
“We got the idea about a garage when Mr. Bodary asked us if we wanted a garage built, and we asked if we had enough saved, and he said he thought we had, out of the 15,000. Our agreement with Mr. Bodary made at a later date was that he would build a garage from savings effected in the changes of construction.”
The house to be constructed was to have 3 bedrooms, bath and lavatory, utility room, living room, kitchen and breakfast nook, solarium, a hall leading to the garage, recreation room in the basement, and a fireplace in both the recreation room and the living room. Under the circumstances thus presented, construction was begun about July 1, 1947, and com-' pleted in late February or early March, 1948, at which time the defendants took possession. Some variation from the plans and specifications occurred during actual construction. Asbestos shingles were •replaced with asphalt; fancy trim and fan-shaped window were eliminated from the exterior of the attic; plywood was substituted for oak flooring; plaster in place of plastic tile was used in the kitchen and lavatory; wooden casements were used in place of thermopane; and field stone, in place of brick, was placed around the picture window.
Mrs. McNutt testified that throughout the period of construction none of the bids received by plaintiff from subcontractors for various phases of the work, e.g., heating, electrical, plumbing, et cetera, were submitted to the defendants for approval.
It is-true,-, as plaintiff contends, that the defendants selected many of the electrical and plumbing fixtures and certain finishing material, vis,.,"linoleum. Some, it seems, cost more than was set forth in the specifications. Much of the difficulty here was caused by the fact that the parties were building in a post-war boom period when materials were not readily available. In addition to this, the catalog numbers in the specifications were no longer current ; therefore, new items had to be chosen. Some of the items the defendants chose because the plaintiff himself failed and neglected to provide them as required by the plans and specifications. These he admitted in defendants’ recoupment. One major item which the defendants were forced to provide and pay for themselves was the fill dirt for the grading of the area around the house which the plaintiff refused to do although the trial judge found that the “specifications provided for rough grading.”
The payments made to the plaintiff by the defendants are also a source from which they draw conflicting inferences. It is undisputed that the plaintiff was paid the sum of $14,866.09. The last amount of this was paid in 1948. Mrs. McNutt related the transaction:
“Q. And when you gave him the final check on March 5, 1948, of $3,000, did he show you anything then?
“A. No, sir.
“Q. Did he ask for anything?
“A. He asked for $3,000. I said, ‘You don’t mean to tell me that’s getting that close?’ He said, ‘Yes, pretty near.’
“Q. What do you mean by ‘that close’?
“A. I meant pretty near to that $15,000.
“Q. You mean it was close to $15,000?
“A. Yes, sir.
“Q. And what did he say?
“A. He said, ‘Pretty — getting pretty near.’
“Q. ‘Pretty near?’
“A. Yes.”
Yet the plaintiff made no further demand for funds due him from the defendants until December, ¡1949. He testified that he “wanted to give them plenty of time, after I knew they owed me 10 or 11 thousand dollars.” On the other hand, the defendants themselves made no demand upon the plaintiff for any compensation for work and materials they were required to furnish and pay for as a result of the failure of the plaintiff to perform in certain particulars. Mrs. McNutt explained their failure to seek reimbursement from the plaintiff as follows:
“A. Because when we went to him, he told us he was all done and through. We figured we wouldn’t do it, and rather than to get Mr. McNutt into trouble, we didn’t do it. We didn’t ask him.
“Q. But you made no demand whatsoever?
“A. No, rather not get in trouble and have Mr. McNutt sick, wouldn’t do it.”
(Mr. McNutt died following the trial and during the course of this appeal.)
What was the type of contract entered into by the parties? The facts presented by each side at the trial were diametrically opposed and the facts argued on appeal are no closer to agreement. The plaintiff testified that the contract could only have been “cost plus.” In support of this he offers the testimony of the plumber subcontractor to the effect that Mrs. McNutt “told me when she was picking out the fixtures that it was a cost-plus job, cost-plus material.” Mrs. McNutt, on the other hand, testified that she “never mentioned such a thing to him.” In fact, it appeared from her testimony that she had little conception of the meaning of the term “cost plus” as it is used in the building trades. With respect to the disputed issues of fact the trial court held as follows:
“One of the sharply disputed areas disclosed by the record pertains to the matter of savings on the house by way of substitution of materials, et cetera, in order that a garage might be built within the aforementioned- $15,000 overall price. Viewed in ■the light of the background of the testimony of the '■respective claims of the parties litigant as to what was the contract between them, this testimony is 'consonant only, in reason and by fair inference, with an overall definite sum for the’ construction of ,the house and the garage. The record is devoid of any reason, in fact, or otherwise, for such savings in the construction of the house except in connection with the purpose of such savings, namely, the building of a garage. Nor by fair inference, is such discussion about savings, or of savings in fact, consonant with a cost-plus contract.” .
“The testimony relative to consultation with and submission to defendants of invoices,' cost sheets, subcontractors prices and contracts, by. plaintiff, except in a. few instances, is to the effect that he did not deem such necessary under the terms of his claimed contract.
“The further fact that' in the various payments by
defendants to plaintiff- in the aggregate sum. of $14,-866.09, the last payment of which, in the sum of $3,000 was made on March 5, 1948, at which time defendants were in possession of the house, no mention seems -to have been made of a sum approximately- $10,000 yet owing, is not consonant with reason or common sense. Nor by fair inference, from the record, is such compatible with the cost-plus type of contract which plaintiff contends he had with the defendants. * * *
“Coming back to the -issue in the case at bar, namely, what was the contract between the parties, the court is of opinion that viewing all of the testimony pertinent to this issue as such testimony sounds in the record, the plaintiff has not met the required burden of proof. The court therefore is of opinion and so finds, that the contract between the parties "was for the fixed'sum of $15,000, this sum to include the house and garage as now constructed, with.- certain deviations therefrom by reason of what might be termed extras, as well as of items left incomplete or undone. In this field of extras, so-called, are 2 items of consequence, namely, the cobblestone front and the matter of grading of the premises.”
(With respect to these latter 2 items the court took additional testimony and incorporated adjustments with respect thereto in his decree.)
The plaintiff urges in the review of this case that the findings of the court below are against the great weight of the evidence and therefore a gross miscarriage of justice.. We have carefully reviewed this voluminous record, realizing full, well the burden of the trial court. Controlling issues of fact were sharply contested. The circuit court,, careful in its findings, assayed the credibility' of the witnesses who appeared before it. and weighed their testimony. We. are constantly aware that a trial court has the'opportunity to observe the witnesses, their demeanor, and to weigh the other intangibles not available to us on the printed page.. Thb opinion of my Brother Black in Barnes v. Beck, 'supra, might well be read with profit at this point, particularly that portion dealing with our function in 'non-jury cases and the. more advantageous position (for determination of facts) of the trial judge. • In the ease before us we are not persuaded, as appellant asserts, that the judgment of the trial. court was “against the great weight of the evidence,” or that the evidence clearly preponderates in the direction opposite to his findings and conclusions. See Jones v. Eastern Michigan Motorbuses, 287 Mich 619.
Other questions raised by appellant are nof meritorious and are not, therefore, discussed. The judgment of the circuit court is affirmed. Costs to ap-pellees.
Sharpe, Edwards, Woelker, Kelly, Carr, ; and Black, JJ., concurred with Smith, J.
Dethmers, C. J., concurred in the -result. | [
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Carr, J.
(dissenting). Complaint was made in the recorder’s court of the city of Detroit against defendant and appellant, John Cole, Jr., his father, .John Cole, Sr., and his brother, Robert Cole, for the offense of obtaining money under false pretenses in violation of CL 1948, § 750.218 (Stat Ann § 28.415). .Following a preliminary examination the case was dismissed as to Robert, the other defendants being held for trial. The jury acquitted John Cole, Sr., and returned a verdict of guilty as to the remaining defendant. Subsequently sentence was imposed for a maximum term of not more than 10 years and a minimum term of not less than 2-1/2 years. A motion for a new trial was made and denied. On leave granted defendant John Cole, Jr., has appealed, claiming that prejudicial and reversible errors occurred during the course of the trial.
The information averred that the defendants named therein, by means of false pretenses and with intent to cheat and defraud, obtained from one John Albert May the sum of $3,000. It was charged specifically that said defendants, representing that they had authority to contract with May for the sale and distribution of Yernor’s ginger ale in the State of California, induced May to enter into a contract for certain indicated territory by representing that there were 200 customers therein when in truth and in fact there were but 130; that among said customers were several theaters, which representation was false; that the territory was producing $200 to $300 net per week, whereas the actual amount was less than $100; and that the rights of May in the territory in which he was to operate as described by defendants would be exclusive. It was further averred that May believed said false pretenses and representations, was deceived thereby, and induced to deliver to said named defendants the sum of $3,000.
The information as filed set forth the alleged false representation with reference to the revenue from the sale of Yernor products in the territory assigned to May, but omitted the words “per week.” On the trial of the case the complaining witness testified on direct examination, and apparently without objection, that he was told by defendants that drivers in said territory were earning upwards of $200 a week. jOn re-direct examination the matter was again men tioned, and at that time counsel for defendants raised the question that the testimony was not competent because the inf ormation' in its then form did not specify the period of time to which the alleged statement referred. Attention having been thus called to the omission in the allegation, a motion was made on behalf of the people for leave to amend by inserting the words “per week” so that the charge as set forth would accord with the testimony. The motion was granted, and in response to an inquiry from the trial judge counsel for defendants indicated that he did not wish to ask for an adjournment.
It is claimed on appeal that the trial judge was in error in permitting the amendment to the information. It may not be said, however, that the information in the form in which it was filed failed to charge an offense. Other false representations and pretenses were alleged therein. It may be noted, also, that the claimed defect was not called to the attention of the court prior to commencement of the trial, as contemplated by CL 1948, § 767.76 (Stat Ann 1954 Rev §28.1016). Counsel for appellant have called attention to cases holding that an amendment to an information is not proper if the effect is to allege another and entirely different crime on which an examination has not been had, and to other decisions indicating that an information charging no offense at all is not subject to amendment. We are not dealing with either situation in the case at bar. The amendment did not result in charging appellant with a different offense than as 'originally set forth. The examination was held on a complaint charging the offense of obtaining money by false pretenses. The omission of the words “per week” did not render the information void, particularly in view of the other false pretenses alleged. The trial court did not abuse his discretion in allowing the amendment. Ap pellant may not complain that he was prejudiced thereby.
It is further contended on behalf of defendants that the trial judge should have directed a verdict of not guilty on the ground that the information failed to allege that the defendants John Cole, Sr., and John Cole, Jr., were officers of a corporation on behalf of which, it is claimed, the defendants acted in the negotiations with May. Reliance is placed on the decision in People v. Brown, 71 Mich 296, in which respondent was convicted under an information alleging that he had obtained 2 promissory notes by means of false pretenses, which apparently consisted of misrepresentations designedly made as to the financial standing of a certain corporation. However, the information did not allege that the complaining witness had any dealings with the corporation, 'either directly or by agent, nor was there any allegation as to the consideration for the notes, the payee’s name therein, or the matter of negotiability. It was not' made to appear that the complaining witness was in any way concerned with the purposes or responsibility of the corporation to which the alleged misrepresentations pertained. It was accordingly held that the information charged no offense, and the conviction was set aside. The facts in the instant case are' wholly different than were involved in People v. Brown. Here the information clearly charged a violation of the statute, setting forth the false pretenses designedly and knowingly made by defendants and alleging, further, that the complaining witness believed and relied thereon and was induced to pay to the defendants named the sum of $3,000. The trial judge was not in error in refusing to direct a verdict on the ground alleged.
It is also argued that the criminal prosecution was improper because of civil aspects of the situation in which the parties concerned were involved. The fact that the acts and conduct of an individual may result in imposing on him liability for damages does not preclude prosecution for a criminal offense committed in connection with such acts and conduct. See People v. Field, 290 Mich 173, where it was recognized that:
“Settlement of civil action between employer and complaining witness in prosecution of employee for embezzlement would be no bar to such criminal prosecution (PA 1931, No 328, § 174).” (Syllabus 3.)
On the trial of the case testimony was introduced tending to show that after the complaining witness had parted with his money, and while he was endeavoring to operate in California in the delivery of Vernor’s ginger ale, certain modifications were made in the original contract, or at least attempted. On hehalf of appellant it is argued that the claimed making of a modification with reference to territory in which May might operate resulted in the latter relinquishing any right to recover damages that he might have because of misrepresentations made to him. Regardless of the effect that the claimed modification might have on a civil action to recover damages, it could not operate to protect appellant from the consequences of criminal conduct on his part. The issue in the case at bar is not whether May might recover against appellant in a suit based on fraud and misrepresentation, but, rather, whether appellant committed the offense with which he was charged. The trial judge was not in error in refusing to direct a verdict on any of the grounds urged by counsel for defendants.
On the trial counsel for defendants submitted to the court certain requests to charge. Among them was a proposed instruction to the effect that the testimony of May, the complaining witness, was conflicting in that he made contradictory statements on the stand, and that if the jury had a reasonable doubt as to the truth of his testimony the defendants should be acquitted. The request was not given in the form presented, although the matter of determining the credibility of the witnesses was covered clearly and fully. Insofar as defendants were entitled to an instruction to the jury on the subject matter of the request, their rights were protected. It was not error to refuse the request in the form presented. It rested with the jury to determine whether the testimony of the complaining witness was conflicting in material respects, and it was likewise the province of the jury to give such weight and consideration to his testimony as was deemed proper. Contradictory statements, if made, did not necessarily require that all of the testimony of the complaining witness be disregarded or that the defendants be acquitted. The testimony of May was corroborated in certain respects by other witnesses.
The court was also asked to instruct that:
“It is not a lawful method for a complaining witness to prefer criminal charges for the purpose of the collection of a claimed debt and if you find that the purpose of the complaining witness, John Albert May, was not to secure a conviction under the criminal laws of the State of Michigan, but to compel the defendants to pay him the money to which he claimed to be entitled, then your verdict should be not guilty.”
The request was apparently predicated on testimony given by May on the preliminary examination to the effect that he sought a return of his money and when repayment was refused made the complaint in the criminal proceeding. On the trial he denied that his purpose was to enforce payment of damages. Our examination of the record brings us to the conclusion that the giving of the request in the form submitted would have been improper. The fact that recovery of damages might have been had an a civil action by May was patently before the jury,'and it may be inferred that due consideration of his possible interest in the ease was given in weighing his testimony. The decisions to which counsel for appellant have directed attention are not in point in view of the record in the case at bar. •
Complaint is also made because thé trial judge did not give defendants’ request's to '.charge with reference to statements of opinion arid to honest ‘mistakes made without intent to defraud. Such matters were fully covered in the general charge given, the court emphasizing that intent to deceive was an essential element of the crime charged, and that “there must be a false representation of a fact which is material and something which is present and existing; that is to say, it must be as a material fact, a false representation of something which is material.” It must be assumed that the members of the jury understood the statements as to the elements of the offense and realized, in consequence, that a conviction could not be based on mere statements of opinion or on mistakes made honestly without intent to deceive and defraud. We find no error prejudicial to appellant in the failure to give the specific request to charge above indicated.
It is apparent that the case was tried on behalf of the prosecution on the theory that there was concert of action between the defendants. The trial judge instructed the jury that the innocence or guilt of, each defendant must be determined separately, but that if the jury found “from the evidence in this case that this defendant, together with another, agreed to commit the crime here charged; that is, if you find from the evidence that they entered into an illegal conspiracy to commit this crime, then-each would be liable and answerable to the law not only for his own acts, but he would be answerable to the law for the acts of the other party who was engaged in the commission of this offense, provided those acts came within the scope of their illegal agreement.” Following an illustrative explanation of his meaning, the trial judge stated further:
“So, members of the jury, I charge you as a matter of law that if you find from the evidence in this case beyond a reasonable doubt — and I will define that term to you — that 2 or more or all of these defendants agreed and conspired to commit the crime charged in this information, and if you further find beyond all reasonable doubt that this defendant was present, aiding, assisting and abetting the other in the commission of the particular crime charged in this information, that he was there assisting him to carry out this crime that they had agreed to commit there — if you find all those facts, members of the jury, established by the-evidence in this case beyond all reasonable doubt, then the acts of the other within the scope of the illegal agreement would be the acts of this defendant, and the acts of this defendant would be the acts of the other so’long as they came within the scope of the illegal agreement. Now, that does not mean, members of the jury, that if someone was committing a crime and somebody was sitting idly by and not doing anything in conjunction with it that the one sitting idly by could be found guilty; but if he did something, if he was present and did acts in furtherance of it, as I have defined that to you, then he would be guilty equally of the offense. Presence alone is not sufficient to constitute the offense unless there is some further activity within the scope of the agreement.”
Appellant contends that the reference to conspiracy in the charge was erroneous and prejudicial, and calls attention to the fact that a conspiracy was not charged in the information. It was not required that the people set forth the means or methods by which the defendants committed the alleged offense. The general rule in this respect was stated in People v. Quider, 172 Mich 280, 285, 286, as follows:
“In criminal proceedings the accused is entitled to demand and know the nature and cause of the accusation against him. Beyond that, technical elaboration of pleadings fails to subserve the ends of justice, and becomes but ingenious pitfalls for one side or the other. In charging the offense, a detailed recital of the evidence by which it will be established is not required. Such facts must be averred that, if admitted, would constitute the offense and establish the guilt of the accused. The elements of the offense must be so stated that he can know what he is to meet and prepare for his defense. The particular transaction must be so identified that his acquittal or conviction will be a bar to a subsequent prosecution for the same offense.”
Under the information in the instant case the people were clearly .entitled to introduce testimony tending to establish concert of action between the 2 defendants on trial. Whether there was in fact an agreement between them amounting to a conspiracy, so as to render each liable for the acts of the other in the carrying out of such agreement, was for the determination of the jury. Since a verdict of not •guilty was returned in favor of defendant John Cole, Sr., it is a fair inference that the existence of such an agreement or conspiracy as was involved in the theory of the prosecution was not found. We do not think' that the trial .judge was in error in explaining to the jury the legal effect of concert of action by parties carrying out an unlawful agreement to commit a criminal offense, and, in any event, the appellant was not prejudiced thereby in view of the verdict ' of acquittal of the codefendant. The evidence in the case with reference to appellant’s conduct, without reference to that of his associates, was sufficient to make an issue of fact for the jury as to his guilt, and the record fully supports the verdict returned. People v. Franz, 321 Mich 379.
Appellant further complains that the trial judge displayed a prejudiced attitude toward the defense in the case, and that the verdict of the jury may have heen affected thereby. The claim is based, in the main, on colloquies between defendants’ counsel and the judge, which in certain instances were somewhat extended and argumentative. Not all of such colloquies occurred in the presence of the jury, but some did so occur, and perhaps indicated a measure of irritation on the part of both counsel and judge. The trial consumed approximately 15 days. Counsel for defendants was persistent in stating objections to rulings by the court, and a situation developed analogous in certain respects to that discussed by the Court in People v. O’Hara, 278 Mich 281, 306. The test to be applied is whether what occurred prevented the appellant here from having a fair and impartial trial. The record does not justify the conclusion that the defendants were prejudiced in the eyes of the jurors by exchanges between counsel or between the court and counsel. The fact that defendant John Cole, Sr., was acquitted indicates that the jurors based their conclusions on the testimony in the case rather than on occurrences having no tendency to establish guilt or innocence on the part of either defendant. The record indicates that the matter of appellant’s guilt received fair consideration from the jury, and that the jurors were not influenced or prejudiced by the occurrences of which he now compla-ins.
Other matters referred to by counsel in their briefs and on oral argument do not require consideration. We do not find that any reversible error ¡occurred on the trial of the appellant, and conviction and sentence should be affirmed.
Dethmers, C. J., and Sharpe, J., concurred with Carr, J.
Edwards, J.
My Brother has recited the relevant facts and with his conclusions on the issues presented by the appellant the writer concurs in all respects except the last. Dealing with this issue, Mr. Justice Carr says as follows:
\ “Appellant further complains that the trial judge displayed a prejudiced attitude toward the defense the case, and that the verdict of the jury may have .been affected thereby. The claim is based, in the main, on colloquies between defendants’ counsel and the judge, which in certain instances were somewhat extended and argumentative. Not all of such colloquies occurred in the presence of the jury, but some jdid so occur, and perhaps indicated a measure of irritation on the part of both counsel and judge. The trial consumed approximately 15 days. Counsel for defendants was persistent in stating objections to rulings by the court, and a situation developed analogous in certain respects to that discussed bv the Court in People v. O’Hara, 278 Mich 281, 306. The test to be applied is whether what occurred prevented the appellant here from having a fair and impartial trial.”
After a careful review of this record, the writer is persuaded that the trial judge did exhibit an unwarranted partiality toward the prosecution and that certain aspects of his conduct toward defendant and defendant’s witnesses and counsel'may well have influenced the jury in its Verdict. This record contains ■16-printed pages of close and-sometimes heated cross-examination by the trial judge of the defendant and the defendant’s principal witness. It does not disclose any similar judicial cross-examination of the prosecution witnesses. A relevant portion of the court’s cross-examination of the defendant himself follows:
“A. I don’t know when the charter was obtained for the corporation from the State of California; you would have to find that out from my brother. '
“The Court: Wait a minute, Mr. Prosecutor. If he has records, make him produce them. He is a witness on the stand. He can’t say ask his brother.
“A. I don’t have any, sir, on that.
“The Court: Well, are they here in court?
“A. No, sir, I don’t have anything pertaining to that.
“The Court: Where are they?
“A. They could be in California. * * *
“The driver in the Arcadia area. was a fellow named Blackwood. He serviced this area for a period of 3 to 4 months prior to February of 1952. The party who underwent brain surgery was a man named Denewith. He had a contract signed by the corporation. It was a form contract that we were using at the time. I do not have the contract with me.
“The Court: Where is it?
“A. It would be in our files in California. If I had known you wanted this—
“The Court (interrupting): You knew this case was coming up, didn’t you?
“A. Yes.
“The Court: You knew you were going to take the stand; you conferred with your attorney?
“A. Yes, but if I knew they would ask all these questions—
“The Court (interrupting): The Court is asking a question.
“Mr. Leib [Defendant’s attorney]-: May I interrupt?
“The Court: I am asking a question.
“Mr. Leib: No, but I object to the question by the court. ’ _
_ “The Court: I am asking the witness a question. Please be seated.
“Mr. Leib: Thank you, your Honor.
“The Court: You knew you were coming down there to testify, didn’t you?
“A. Yes, sir.
“The Court: Do you have the records here? Can you get the records by tomorrow morning?
“A. I don’t think we could get them in that soon.
“The Court: Where are the records?
“A. Well, they are in our office in Long Beach. You would have to get an okay from the fellow that is handling it. He would have to get an okay to take them out, and then they would have to be airmailed back. We do have a record of the accounts of the area. If we had known you had wanted them we would have brought them back.
“The Court: The Court wants nothing. The Court is asking these questions and wants to know whether you have them.
“A. We do have them.”
A similar cross-examination by the trial judge with a bit of a reverse twist took place in relation to the testimony of defendant’s brother and principal defense witness:
“A. Certain demonstrations were held in May’s territory in various markets. I have a list of those markets where the demonstrations were made. The—
“The Court (interrupting): Well, where are your records that you made that record from?
“A. They are all in the bankrupt referee office in Los Angeles.
“The Court: When did you make that particular reference ?
“A. Back in September.
“The Court: Back in September?
“A. Yes.
“The Court: Back in September? When did you come to Detroit, now?
“A. I have been here 3 times in the last 2-1/2 months.
“The Court: When was the last time you came here ?
“A. I was here about a month ago.
“The Court: Well, you came here for this trial, did you not, as a witness?
“A. That is right.
“The Court: Did you bring any records with you?
“A. I brought records every time I came.
“The Court: What records do you have here now?
“A. Everything I have I have turned over to Mr. Leib.
“The Court: What are they?
“A. Relative to advertising, demonstrations, the contracts, anything that pertains to Mr. Depencier, Mr. May, Mr. Woods, Mr. Secrist or Mr. Miles.
“The Court: How is it the receiver doesn’t have those particular papers?
“A. Well, because, after all, I was informed way back in September, September or October, that this trial was coming up.
“The Court: Well, did you withhold these particular records from the receiver?
“A. We were not in bankruptcy at that time. We didn’t go into bankruptcy—
“The Court (interrupting): That isn’t what I asked you. You say the receiver has certain records now, is that correct?
“A. That is correct.
' “The Court: And you have certain records now?
“A. That is right.
“The Court: Did you withhold these records from the receiver in the bankruptcy court?
“A. They were withheld before we were in bankruptcy.
“The Court: They were withheld before you were in bankruptcy, before you went into bankruptcy ? Well, the records were turned over after a receiver was appointed?
“A. No, the records were turned over to Mr. Leib before we were in bankruptcy.
“The Court: Do you mean the records were turned over to Mr. Leib before you went into bankruptcy?
“A. That is right.
■ “The. Court: When did you go into bankruptcy?
“A. November the 6th, 1953.
“The Court: November the 6th, 1953? Well, this warrant was issued October 2d, 1953 ?
“A. Well, in the — October the 2d?
“The Court: Yes.
“A. Pardon me? Well, we weren’t in bankruptcy then. I still had access to all the files.
“The Court: Well, you haven’t turned over the accounts and all the records pertaining to the situation, have you?
“A. These accounts were—
“The Court (interrupting): No, wait, just answer my question.
“A. Pardon me!
“The Court: Have you turned, over all of the accounts ; I mean the accounts of the area and the entire transactions between Mr. May, Mr. Depender, and the other people here involved?
“A. Have I turned them over to whom?
“The Court: To Mr. Leib.
“A. Yes.
“The Court: He has all the records?
“A. Certain records in regard to Mr. May and Depencier.
“The Court:- All right. The Court will rule on that in the absence of the jury a little later on. Go ahead.
“Mr. Leib: Thank you.
• “Q. (By Mr. Leib, continuing): Now, then, Mr. Cole, do you have an independent recollection of the number of stops or demonstrations that were put on for Mr. May?
“A. 16.
“Q. 16 stops?
“The Court: Wait a minute, now. Did you use these records to refresh your memory before you took the stand?
“A. No, I have known this for some time. I have known this for — ever since Mr. May was active in the territory. I know everything that goes on in that business out there. I know practically every account. I made a study of it. I run the business 7 years, almost, myself.
“The Court: My question was did you use any of these records to refresh your memory at the present time ?
“A. No, I know—
“The Court (interrupting): You can answer it yes or no. What is difficult about the question? Did you use any of the records to refresh your memory ?
“A. No.
“The Court: All right, go ahead:
“A. 16 demonstrations were run in Mr. May’s territory.
“Q. All right. Now, do you know where those demonstrations were held?
“A. Yes, sir.
“Q. Where were they held?
“The Court: No, don’t use any notes to refresh your memory unless you know. If you do the prosecutor is entitled to have the other records.
“A. There was the Reece Market, there was 2 Taylor’s Markets, there was the El Rancho Market, there was the Box Market, Better ■ Food Market, Ralph’s Market, 2 Market Baskets. How many does that make?
“Q. Ask the court reporter. For the purpose of refreshing your recollection, Mr. Cole, was a demonstration held at the Gold Stripe Market?
“A. Yes, sir.
“Q. Was a demonstration held at the Dude Ranch Market?
“A. In Pomona, Yes.
“Q. Was a demonstration held at the Ewing and Green Market?
“A. Yes, sir.
“Q. Was a demonstration held at the Moody Market?
“A. Yes, sir.
“Q. Was a demonstration held at the Wonder Market?
“A. Yes, sir.
“Q. Was a demonstration held at Ralph’s Market?
“A. Well—
“The Court (interrupting): Well, aren’t they leading, Mr. Prosecutor?
“Mr. Kotelly [Prosecuting Attorney]: Yes, your Honor.
“The Court: I will sustain the objection.
“The Witness: Ralph’s Market—
“The Court (interrupting): Wait a minute. I have ruled on it, Mr. Cóle.
“Mr. Leib: Merely, your Honor, for the purpose of refreshing the witness’ recollection.
“The Court: No, there is a proper way of doing it. Let’s try the lawsuit.
“Q. Well, now, then, Mr. Cole, do you have an independent recollection of the name of these markets without referring to your notes?
“A. Yes, sir.
“Q. You have an independent — you can testify without your notes?
“A. I can testify to most of the markets, yes.
“Q. Well, can you testify to all of them without referring to notes?
“A. I am not sure I can tell them all, but most of them, 15 or 14 of them.
“Q. And is it necessary for you to refer to your notes ?
“A. No, sir.” .
The portions of the record cited illustrate the vigor of the trial court in examination of defendant and his principal defense witness. If similar vigor was displayed in cross-examination of the people’s witnesses by the judge, this record does not disclose it and since his conduct is placed in issue by defend ant’s issues on appeal we would presume if similar episodes had appeared during the people’s case the prosecution would have seen them included.
In a leading case the supreme court of Tennessee dealt thus with a somewhat similar situation : state of mind may be apparent to all'concerned.” Parker v. State, 132 Tenn 327 (178 SW 438, LRA 1916A, 1190).
“His Honor, instead of permitting the counsel for the State to conduct the cross-examination of the plaintiff in error, in the main took charge of this matter himself. This circumstance alone could not have failed to impress the jury that the trial judge was hostile to the prisoner. In addition to this, the language used in framing the questions was sometimes exceedingly sharp, and at all times closely resembled similar performances on the part of opposing counsel. After 7 pages of the transcript had been thus used the prisoner was turned over to his own counsel, but the latter had brought out material covering only 4 or 5 lines, when his Honor took the witness in hand again, and cross-examined him to the extent of 2 more pages. The prisoner was recalled by the State in rebuttal, and the trial judge again took him in hand and examined him for 2 additional pages. Thus we have 11 pages of the transcript, comprising fully a third of the prisoner’s personal testimony taken up with his cross-examination by the presiding judge, and conducted in a manner not at all appropriate to questions propounded by that officer. While it is true that the judge may ask questions now and then for the purpose of clearing up points that seem obscure, and supplying omissions which the interests of justice demand, it is not proper that he conduct an extended examination of any witness, and particularly a prisoner on trial for his liberty or his life. Such a practice, if tolerated by this court, would be far more hurtful to the administration of justice than the escape of many prisoners. It is essential that trials shall he managed fairly, and that trial judges shall not only be just to both sides, but that they shall observe in their demeanor an even tenor, so that an impartial
See, also, Knapp v. Kinsey (CCA), 232 F2d 458, certiorari denied November 5, 1956, 352 US 892 (77 S Ct 131, 1 L ed 2d 86).
American Jurisprudence says upon tbe point in question :
“The assumption by the trial judge of the burden of cross-examining the accused in a criminal case with the use of sharp language in framing the questions is reversible error.” 3 Am Jur, Appeal and Error, § 1056, pp 606, 607.
We do not intimate that a trial judge may not, in the interest of justice, participate in the questioning of a witness or witnesses. We believe, however, that hostile cross-examination of a defendant in a criminal prosecution is a function of the prosecuting attorney and that a judge before whom a jury case is being tried should avoid any invasion of the prosecutor’s role. People v. Egan, 331 Ill 489 (163 NE 357); Smith v. State, 12 Okla Crim 513 (159 P 941); Annotation, 84 ALR 1172; Annotation, 57 LRA 875, 882. We believe also that it .was error for the judge to decline to entertain defense counsel’s objections to his questions and to rule thereon in advance of requiring an answer from the witness. We believe the trial court’s strong intimation, in questioning defendant’s principal witness, that certain records had been withheld deliberately from the bankruptcy .court in California may well have reacted with prejudice on the minds of the jurors. We believe the instances of judicial advice to the prosecuting attorney on the conduct of his case are similarly undesirable, although of and by themselves they certainly would not constitute prejudicial error. 53 Am Jur, Trial, § .71.
Two other colloquies pertaining to defendant’s brother and principal defense witness exhibit rather more emotion on the part of the trial judge than the records seem to warrant:
“Q. Now, do you have any idea of the number of stops that were in Mr. Depender’s territory?
“A. Over 150; pretty close to 200 accounts.
“The Court: Well, aren’t the records the best evidence if they are here?
“Mr. Leib: Your Honor, we don’t have those records.
“The Court: Well, I don’t lmow'what records you have.
“Mr. Leib: Well, I will be glad to show them to your Honor.
“The Court: No, the Court is not interested except that the procedure is that if a person testifies to something the records are the best evidence.
“Mr. Leib: I have no further questions.
“The Witness: I wonder if I could say one thing, your Honor?
“The Court: No, there is nothing before you. You "just be quiet. Wait a minute. Excuse the jury.
(Thereupon the jury was excused from the courtroom. )
(The following proceedings occurred in the absence of the jury) :
“The Court: One more statement like that from the witness and I will cite him for contempt of court. Bring out the jury.
(Thereupon the jury was recalled to the courtroom.)
“A. * * * Approximately $3,000 was spent on Mr. May’s account according to the records maintained by our auditor for the corporation. I do not have that ledger sheet with me in court. I am unable to obtain it but my attorney is attempting to get it.
“Q. Now, can you get it?
“A. Not me, no.
“Q. You knew that this case was coming here today, didn’t you?
“A. I didn’t know we were going in bankruptcy until this trial put us in bankruptcy. I wasn’t expecting—
“The Court (interrupting): Now, witness, that
is not the question, is it? I might say I have forewarned you before, Mr. Cole. I will excuse the jury.
(Thereupon the jury was excused from the courtroom, and the following proceedings occurred in the absence of the jury):
“The Court: Bead that statement to me, Mr.. Smith.
(The last question and answer were read by the-reporter.)
“The Court: Did you understand the question?.
“A. Yes, sir.
“Q. How far in school have you gone?
“A. Two years of college.
“The Court: The question is clear, isn’t it, whether or not you have those records, isn’t that true?
“A. I was trying to explain it.
“The Court: Why, your statement now is contemptuous.
“A. Your Honor, may I say something?
“The Court: No. I will recess for about 5 or 10-minutes. Step down.
“The Court: Witness, your remarks, in the opinion of the court, are contempt of the court. The-question running in the court’s mind at this timé-is whether the court should find you guilty of contempt of court and sentence you forthwith. If he-does that, he will cause a mistrial in the case and, therefore, the case will have to be started de novo just as soon as a new jury can be selected. The witnesses in this case have been in the courtroom for a number of days, and the question in the court’s mind is-whether or not he should sentence you for contempt of court. The only thing that is further running-through the court’s mind is the hardship it would put these witnesses to who have appeared here s<> many days; but I warn you that, if you make any kind of a further statement, whether they have been here or not will make no difference to the court, ;and the court will take your previous attitude into consideration. You started off on the stand with a chip on your shoulder right from the beginning. The court noticed that attitude, and the court will not mention it again.”
The record does not reveal what constituted the contempt. In 1 instance the witness asked the court’s permission to volunteer a statement and in the other, on cross-examination, he gave a somewhat indirect and self-serving answer. The record does not disclose any action or tone of voice on the part of the witness which in anywise threatened the orderly conduct of the trial. It would seem that the trial judge could have dealt with these matters with less heat. It is of course true that, standing alone, those comments recited above which were made in the presence of the jury would not ordinarily be considered sufficiently prejudicial to warrant reversal.
The same general observations may be made about several colloquies between the trial judge and defense counsel. Although we agree with Mr. Justice Carr that of and by themselves these colloquies probably did not represent reversible error, they did contain some comments tending to belittle defendant’s lawyer in the presence of the jury:
“Mr. Leib: Well, perhaps — may I ask your Honor for clarification?
“The Court: No, the court is not teaching law at the present time. The court has ruled. Go ahead.”
In all of these matters the trial judge has great power and wide discretion. Nor do we intend here to restrict his power to participate properly in the questioning of witnesses, or his control over the conduct of witnesses and of attorneys in Ms courtroom. 53 Am Jur, Trial, §§ 75, 81, 90.
A fair and impartial trial by jury demands, however, the display of impartiality on the part of the-trial judge. This Court has never hesitated to order a new trial in the interest of justice when it thought, the wide discretion of the trial judge had been abused so as to prejudice the rights of a litigant. People v. Neal, 290 Mich 123; In re Parkside Housing Project, 290 Mich 582; McDuff v. Detroit Evening Journal Co., 84 Mich 1 (22 Am St Rep 673).
In all of these aspects of the administration of' justice we would do well to keep in mind Judge-Learned Hand’s admonition:
“Justice does not depend upon legal dialectics -so-much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge.”'. Brown v. Walter (CCA), 62 F2d 798, 800.
Although we feel this record contains evidence from which the jury might properly have concluded that defendant was guilty of the crime charged, there was also considerable evidence to the contrary. On any view of the facts this was a close case. While this has no bearing on the errors we cite in the conduct of the trial judge, it does bear on the question of whether or' not such errors were prejudicial! We feel constrained to hold that the errors cited; taken together, may well have created an atmosphere of prejudice which deprived defendant of a fair trial and contributed to his conviction.
We, therefore, hold that the judgment of the court below should be reversed, the sentence vacated, aiid the case remanded for new trial.
Smith, Voelker, and Black, JJ., concurred with Edwards, J.
Kelly, J., did not sit. | [
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] |
Black, J.
(after stating the facts). The question before us is whether the rule of Dikeman v. Arnold, 78 Mich 455, 469, 470, supported by the assembly of authorities shown in Lamberts v. Lemley, 314 Mich 417, sustains plaintiff’s claim that the covenant for conveyance of a marketable title as contained in this listing contract serves to unsettle defendant’s reliance on Casey v. Hetherington, 220 Mich 176; Koffman v. Pack, 224 Mich 102; and Kostan v. Glasier, 337 Mich 287. We hold that it does and, to set this recurrent issue at rest, affirm that a listing, contract, in form as here declared upon, is enforceable — as between the parties on due performance by the broker — regardless of disclosure at the time of signing that the party obligating himself for payment is not outright owner of the land contemplated for sale. This simply reaffirms Dikeman’s rule, quoted as follows (pages 469, 470 of report):
“We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in nowise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it after-wards, has never been recognized as a legal defense to an action for breach of the contract.”
Other questions raised by defendant in support of the judgment below are deemed of no merit. The first is that the listing contract as sued upon is indefinite and incomplete and hence void under the statute of frauds. The contract itself negates such contention. The second is that plaintiff did not allege and prove that the produced purchaser was able, as well as ready and willing, to purchase according to the stipulated terms. With regard to this second contention, due amendment of the declaration was allowed and the fact of the produced purchaser’s ability to acquire was attested by open court stipulation.
Reversed and remanded for entry of judgment in favor of plaintiff. Costs to plaintiff.
Dethmers, C. J., and Sharpe, Smith, Edwards," Voblkeb, Kelly, and Cabe, JJ., concurred. ¡
CL 1948, § 566.132 (Stat Ann 1953 Rev § 26.922). — Reporter. | [
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Edwards, J.
Cyriel Viaene was a carpenter. His claim before the workmen’s compensation commission, filed January 12, 1955, shows that he suffered compound comminuted fractures of the right leg, ankle and foot, on September 6, 1949, when a scaffold collapsed while he was working on a house. His employer was the builder — one William L. Mikel, the defendant and appellant in this proceeding. The claim also asserts that Mr. Viaene, the plaintiff and appellee in this proceeding, is still totally disabled.
When this matter was set for hearing before a referee of the workmen’s compensation commission on June 16, 1955, defendant’s counsel appeared and made a motion to dismiss. The motion contended that plaintiff, having previously filed and lost a circuit court negligence suit against the same defendant, was barred from the instant proceeding by having made a final election of remedy.
After argument and submission of briefs, the referee denied the motion to dismiss. Appeal was taken from that denial to the workmen’s compensation appeal board, and the referee’s denial of the motion recited was affirmed by order of the appeal board. On leave granted by this Court, appeal is now taken from that order.
A portion of the opinion on review of the appeal board is pertinent to our current discussion:
“As of the time of the claimed injury, September 6,1949, the defendant was not an approved own risk carrier under the provisions of the workmen’s compensation act and did not carry workmen’s compensation insurance. He was, however, subject to the act if he regularly employed 4 or more employees at that time. Plaintiff avers that he did not know how many employees the defendant had at the time of his injury; that this information was not available to him and that he did not know the facts with regard thereto until the testimony was presented in the circuit court hearing. The decision of the circuit court denying him relief therein was not based upon any finding as to the number of employees employed by the defendant.
“In support of its contention that plaintiff is barred from proceeding under the workmen’s compensation act, the defendant cites the case of Osborne v. Van Dyke, 311 Mich 86. The cited case is clearly distinguishable from the present case. In the Van Dyke Case there were 2 different employers ,and the claim of being an employee of the one was inconsistent with the claim of- being; an employee of the other. In the present situation the plaintiff’s claim in both the circuit court and the workmen’s compensation proceedings has consistently been that he was an employee of the defendant .at the time of his injury. The only jurisdictional inconsistency between the 2 proceedings is that workmen’s compensation was the proper forum if the defendant regularly employed 4 or more employees, whereas circuit court was the proper forum if the defendant did not regularly employ 4 or more employees. The number of the defendant’s employees was a matter which was peculiarly within the knowledge of the defendant. The plaintiff had no certain knowledge on the.subject and the only way he could find out was to start a proceeding. Which proceeding he started first was necessarily a matter of chance. To hold under such circumstances that he proceeded at his peril would be to turn workmen’s compensation procedure into a game of Russian roulette.”
It should be noted at the outset that the opinion just quoted is in error as to the number of employees required by the workmen’s compensation statute to vest exclusive jurisdiction in the workmen’s compensation commission as of the date in question. As of September 6, 1949, the statutory figure was 8 employees rather than the 4 recited in the opinion. PA 1912 (1st Ex Sess), No 10, pt 1, § 2a, as added by PA 1943, No 245, as amended (CL 1948, § 411.2a [Stat Ann 1943 Cum Supp § 17.142(1)]), as amended by PA 1949, No 238 (Stat Ann 1950 Rev § 17.142 [1]), effective September 23, 1949.
Appellant presents to us for our review only 1 question: “May an injured employee sue his employer in circuit court and then, after a full and complete hearing on the merits, sue his employer in the workmen’s compensation department!” We believe that this question implies 3 legal defenses, 2 of which are briefed and argued to us by appellant while the third appears to be the real issue in the case. These defenses are as follows: (1) That plaintiff-appellee has made an election of remedies; (2) That in his second proceeding he is estopped because of inconsistency of the second remedy with the one first sought; and (3) That plaintiff-appel-lee’s workmen’s compensation proceeding is barred by the' circuit court judgment on grounds of res judicata. We shall discuss and decide these in order.
•l.vElection of remedies. Appellant contends that whén Mr. Viaene, the plaintiff-appellee, went into the "circuit court and sought and received a trial of hjs negligence action involving this accident that this,, of and by itself, represented an election of" remedies which bars his current proceeding. Appellant cites, to us for authority on this point Twork v. Munising Paper Co., 275 Mich 174; and Morris v. Ford Motor Company, 320 Mich 372.
It is plaintiff’s claim that the facts in relation to the number of employees of defendant-appellant Mikel were peculiarly within the employer’s knowledge, and that although he, the plaintiff, filed suit in circuit court implying jurisdiction therein, that during the course of trial testimony developed which either implied or indicated that on the crucial date Mikel had 8 or more employees. It is plaintiff’s contention, likewise, that the circuit court proceeding never decided this issue as a matter of fact but that the circuit judge, without determining the jurisdiction problem posed by the number of employees, dismissed the suit, after plaintiff’s proofs, on the ground that no negligence had been shown. It is plaintiff’s contention that he never had but 1 remedy, but was unable to ascertain accurately which it was until certain preliminary facts had been discovered. He relies upon Hansen v. Pere Marquette R. Co., 267 Mich 224.
It is clear that, under the then existing statute,' if defendant-appellant Mikel had fewer than 8 em-. ployees on September 6,1949, no jurisdiction existed’ in the workmen’s compensation commission, andl plaintiff’s only remedy, if he had one, would he at common law in the circuit court on allegation of negligénce.
It is equally clear that if, on the other hand, on September 6, 1949, defendant-appellant Mikel had 8 or more regular employees, exclusive jurisdiction was vested in the workmen’s compensation commission and no jurisdiction ever, existed in the circuit court to hear and decide the litigation filed therein.
This Court long ago stated the legal principle succinctly, as follows:
“An election of remedies implies that a party- has a choice of remedies.” Bryant v. Kenyon, 123 Mich 151, 155.
In Hansen v. Pere Marquette R. Co., 267 Mich 224, 227, Justice Potter reiterated the same principle:
“It is claimed, plaintiff by commencing suit in the Federal court, made an election of remedies. To constitute an election of remedies, there must he in fact 2 or more available remedies between which the party has a right to elect. 20 CJ, p 20. An election of remedies implies that a party has a choice of remedies. Bryant v. Kenyon, 123 Mich 151. There is a difference between an election of remedy and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions upon which recovery could not he had. McLaughlin v. Austin, 104 Mich 489; McAfee v. Bankers Trust Co. of Muskegon, 262 Mich 276. Had plaintiff first prosecuted his claim before the department of labor and industry and it had found he was engaged in interstate commerce at the time of injury, and he had then begun suit in the Federal court and Ms case had been there dismissed because he was not engaged in interstate commerce, plaintiff would have been penalized for his mistake.”
The general rule on this matter is cited by American Jurisprudence as follows:
“While there is some conflict of authority on the question whether the institution of an action at law bars a subsequent claim under the compensation act where such action is unsuccessful or'unavailing, the rule generally prevailing is that it has such effect only where, or to the extent that, such action constitutes an appropriate and effectual remedy for the injury in question.” 58 Am Jur, Workmen’s Compensation, § 65, pp 620, 621.
Further, an ALR annotation provides the following language:
“It has generally been held that where an injured employee, under a mistake of law or fact, brings an action for damages against his employer which he is not entitled to maintain, he is not precluded, .on the ground of election or estoppel, from claiming compensation under a workmen’s compensation act.” 94 ALR 1430, 1432.
Utah Idaho Central R. Co. v. Industrial Commission of Utah, 84 Utah 364 (35 P2d 842, 94 ALR 1423). Tate v. Estate of Dickens, 276 App Div 94 (93 NYS2d 504). See annotation 94 ALR 1430 and cases cited thereunder.
In asserting that the doctrine of election of remedies bars appellee’s claim, appellant relies upon the Twork and Morris Cases cited by him as noted above. Both of them, however, involve the reverse situation where a claimant having proceeded to determination of his claim under workmen’s compensation proceedings subsequently sought to file suit in a common-law action in circuit court.
In the Morris Case the Court noted (p 375) the distinction from the Hansen Case, which wo have previously discussed:
“In the Hansen Case plaintiff had instituted suit in the Federal court and that court held he could not recover under the Federal employers’ liability act because his employer was not engaged in interstate commerce. The subject matter having been one, as it developed, over which the Federal courts had no jurisdiction, we held that the proceedings there constituted no bar to prosecution of a claim before the department of labor and industry. Such is not the situation in the instant case.”
In addition to the fact distinction between our instant proceeding and the Tworlc and Morris Cases, there was involved in them a specific statutory provision in the workmen’s compensation act upon 'which these decisions relied and which is absent here. CL 1948, § 416.1 (Stat Ann 1950 Rev § 17.212).
We note (without feeling it necessary to discuss or decide under the facts currently before us) the disagreement within this Court over the question as to whether proceedings under the workmen’s compensation act are a final bar to subsequent circuit court action. Demkiw v. Briggs Manufacturing Company, 347 Mich 492, the majority opinion, p 493, dissent, p 499.
In this case we are not confronted with any statutory bar to a subsequent workmen’s compensation proceeding. Further, as noted above, on the current fact situation plaintiff-appellee clearly never had more than 1 remedy with the forum for that remedy existing exclusively in workmen’s compensation proceedings if the employer had 8 or more' employees, and exclusively in circuit court if there were fewer. We hold that for the reasons given the' defense of election of remedies is not available to appellant to bar this proceeding.
2. Inconsistent theories. Several of the cases relied upon hy appellant were decided, in whole or in part, on the ground that in a subsequent action plaintiff was estopped by the inconsistency of his suit as compared to the set of facts upon which he formerly relied. Mintz v. Jacob, 163 Mich 280; Donovan v. Curts, 245 Mich 348; Osborne v. Van Dyke, 311 Mich 86; Morris v. Ford Motor Company, supra.
Estoppel is an equitable doctrine. The essential elements thereof, as related to the party against whom this defense is asserted, include “knowledge, actual or constructive, of the real facts.” 19 Am Jur, Estoppel, § 42, p 643. We agree with plaintiffappellee’s contention that in this situation the key jurisdictional fact as to how many regular employees appellant had was peculiarly within appellant’s knowledge, and, at least under the factual, situation which this record reveals,-not necessarily within the knowledge of plaintiff-appellee.
3. Res jibdicata. Appellant’s real defense, implied but not stated by his question and not argued by his briefs, appears to us to be that the circuit court action was res judicata as to the issue of jurisdiction. Apparently to establish this defense appellant sought and received an opportunity to supplement the record before this Court by the testimony taken before the circuit judge applicable to the number of appellant’s employees. We have reviewed this supplemental record. The evidence contained therein is certainly far from clear and satisfactory. Nor are we aided very much by the portion of the circuit judge’s opinion bearing on this issue which is quoted to us:
“Plaintiff, also, through his counsel, called the court’s attention to the possible application of the Michigan workmen’s compensation act to the case at bar (PA 1912 [1st Ex Sess], No 10, as amended), in which case the workmen’s compensation commission would he the proper forum.
“On the issue of jurisdiction, the court is of opinion and so finds the fact to be, that plaintiff has not met the burden of proof, as such proof finds support in the record,' to bring the case at bar within the purview of the compensation act. Moreover, this matter comes too late to warrant consideration. The pleadings in this case are broad in scope. The question of jurisdiction was not raised either in the pleadings nor in the pretrial statement. Nor was such question raised by motion of any kind prior to conclusion of the plaintiff’s case, nor was Court Rule No 35 (1945), in re discovery, invoked.”
We simply cannot ascertain the meaning of the key sentence recited above: “On the issue of jurisdiction, the court is of opinion and so finds the fact to be, that plaintiff has not met the burden of proof, as such proof finds support in the record, to bring the case at bar within, the purview of the compensation act.” Patently in the circuit court proceeding plaintiff had no such burden of proof. If anything, the burden was upon him in that proceeding to prove the contrary, and in addition, it was for jury determination.
We believe that if the issue of fact pertaining to the number of employees had indeed been decided squarely by the circuit court that this adjudication would bar the instant- proceeding since no litigant is entitled to 2 determinations of the same issue in subsequent forums of competent jurisdiction. Perhaps the leading case in the United States on this subject is Jacobson v. Miller, 41 Mich 90, wherein the opinion was written by Mr. Justice Cooley. The opinion is lengthy and does not bear quotation here, nor does the headnote which we quote below do it entire justice.
“An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.”
The United States supreme court dealt with the same problem in this language:
“It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, — as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, — the whole subject matter of the action will be at large, and'open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.” Russell v. Place, 94 US 606, 608 (24 L ed 214).
See, also, State, ex rel. City of Breckenridge, v. District Court of Wilkin County, 136 Minn 151 (161 NW 388).
In Schumacker v. Industrial Accident Commission, 46 Cal App2d 95 (115 P2d 571), the California district court of appeal dealt with a workmen’s compensation claim on a set of facts which presented identical principles to those with which we are currently dealing, and applied the rules cited above.
We believe that the jurisdictional issue of how many employees appellant had regularly in his employment on September 6, 1949, was not necessary to nor precisely dealt with by the circuit court adju dication on-the issue of negligence and, hence, that the defense' of res judicata is not applicable in the instant case. On the pleadings before us we are confronted by a showing of serious injury arising out of employment, with subsequent long-time disability. Plaintiff is entitled to have the jurisdictional issue concerning the number of defendant-appellant’s employees on the date in question squarely tried and squarely decided.
The order of the appeal board affirming denial of defendant-appellant’s motion to dismiss is affirmed. Costs to appellee.
"'Dethmers, C. J:, and Sharpe, Smith, Voelker, Kelly, Carr, and Black, JJ., concurred.
See seetion 6, added 1952, 334 Mich xl. — Reporter. | [
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Smith, J.
In this case we must construe a declaration in assumpsit to determine whether it states a cause of action against the individuals named defendants. The trial court decided that it did . not and dismissed the suit as to them after the-plaintiff had completed his opening statement. The plaintiff appeals.
The controversy, in brief, related to the payment of a commission upon the sale of the corporate defendant. The declaration in its pertinent portions is as follows:
' “5. On or about November 2, 1955, the plaintiff acting through its partner, the said John Ó. Mac-Par lane, was orally authorized by the said Walter J. Woodhams on' behalf of the said Woodlin Metal Products Company and on behalf of himself and defendants Ellie Woodhams and Carlyle Serr individually that the .'same arrangement set forth in exhibits A and B attached hereto would apply to a proposed attempt by the plaintiff to secure a purchaser for the said Woodlin Metal Products Company by negotiating a sale of the same to Muskegon Motor Specialties Company, a Michigan corporation, having its principal office and place of business in Muskegon, Michigan.
“6. Negotiations ensued as a result of which the said Woodlin Metal Products Company was sold in its entirety to Muskegon Motor Specialties Company, for a total purchase price of $1,406,449.70, the final settlement and closing of sale taking place on March 19, 1956, pursuant to agreement reached on December 14,1955. By agreement of the negotiating parties, the said Woodlin Metal Products Company was sold to the said Muskegon Motor Specialties Company through the sale of. its entire outstanding capital stock instead of the sale of its assets as such.
“7. Throughout the negotiations of such sale and throughout the prior discussions and conferences between the plaintiff and the defendant Walter J. Woodhams and his attorney, Harold 0. Love, the said Walter J. Woodhams and his said attorney were authorized to represent and did in fact represent Walter J. Woodhams individually, the defendant Ellie Woodhams, the defendant Carlyle Serr and the defendant Woodlin Metal Products Company.
“8. The plaintiff in accordance with the agreement of the said Walter J. Woodhams, as president of Woodlin Metal Products Company, individually,and as agent for Ellie Woodhams, and Carlyle Serr, procured a purchaser for and negotiated the sale of Woodlin Metal Products Company through the sale of 100% of its outstanding capital stock to the said Muskegon Motor Specialties Company and in doing so performed all of the acts required by it to be done to entitle the plaintiff to the payment of a commission agreed to be paid to it by the said defendants acting through their representative, Walter J. Woodhams, said commission being in the amount of $70,322.48.”
Exhibit A, referred to in paragraph 5 above, follows in its entirety:
“WOODLIN METAL PRODUCTS COMPANY
“Marshall, Michigan “December 16, 1954
“Mr. John 0. MacFarlane “1100 Buhl Building “Detroit 26, Michigan
“Dear Mr. MacFarlane:
“This will serve as your authorization to enter into negotiations with representatives of Borg-Warner Corporation in connection with the purchase by them of the Woodlin Metal Products Company. For this purpose you will have the exclusive right for 90 days to negotiate the transaction. If, during the period of 90 days, it appears likely that additional time will be required to complete the negotiations, you will have such additional time, within limits, as may be necessary.
“In the event a purchase is consummated by the Borg-Warner Corporation, you will be entitled to receive 5% of the gross purchase price.
“Very truly yours,
“Woodlin Metal Products Company
“(s) W. J. Woodhams
“Walter J. Woodhams,
President.
_ “WJW :vw”
Exhibit B, dated February 7, 1955, is in the same form, save that it contemplates a sale to the Mueller Brass Company.
At the close of the plaintiff’s opening statement the defendants, pointing to the distinction,between the sale of a corporation by sale of all of its capital stock rather than by sale of its assets, moved for an order dismissing the case as to the individual defendants, on the ground that:
“Ñow no place in the declaration is there any allegation that the defendants Walter Woodhams, Ellie Woodhams or Carlyle Serr, as stockholders of the company, ever agreed to pay any commission on the sale of this stock * * * and for that reason no agreement being alleged in the declaration, we ask that the declaration be dismissed as to these defendants individually.”
Plaintiff’s counsel, in reply, asserted that the cause of action was clear and clearly stated, that “the defendant filed an answer to the declaration and denied the entering into the agreements, went through a pretrial conference, and was satisfied that the pleadings were in order, which was one of the questions raised there, and sat through the discovery depositions involving the parties,” and that “certainly nobody was misled as to what the cause of action was or the proceeding.” Relying primarily upon paragraph 8 of its declaration (“The plaintiff * * * and in doing so performed all of the acts required by it to be done to entitle the plaintiff to the payment of a commission agreed to be paid to it by the said defendants acting through their representative, Walter J. Woodhams”), plaintiff nevertheless offered to amend the declaration as might be required. This request was denied.
“Mr. Sawyer: * * * If the Court feels there is any question about that or there is any uncertainty in it, I should like at this time to move to amend the declaration to so state.
“The Court: In this circuit you stick with your pleadings.
“Mr. Maclcey: They said they were satisfied.
“The Court: The pretrial statement, number 2, ‘Plaintiffs announce that they do not desire any amendments to their pleadings, and that same as filed raises the issues desired.’ It says, the ‘plaintiffs’ alone. I don’t know why it is down that way, but it is.
“Mr.. Sawyer: If the court please, I am satisfied the pleadings state a cause of action as they stand. I can do no more than state that. I am satisfied of it.”
The court thereupon found that there was “no allegation in here in the declaration to the effect that the individual stockholders authorized the payment of a 5% commission to the plaintiff for the sale of the stock,” denied plaintiff’s motion to amend, and granted the motion to dismiss.
It is well settled that on a motion to dismiss by the defendant for failure to state a cause of action all facts well pleaded in the declaration are admitted and every inference must be drawn in favor of the plaintiff and against the demurrant. Doyle v. Kammeraad, 310 Mich 233; Vega v. Briggs Manfg. Co., 341 Mich 218; Dodge v. Blood, 299 Mich 364 (138 ALR 322); Grand Central Market Corp. v. Jewish Children’s Home, 310 Mich 421; Society of Good Neighbors v. Mayor of Detroit, 324 Mich 22.
The plaintiff construes the above pleadings as setting up, first, an authorization to it to sell the company (upon “the same arrangement” set forth in exhibits A and B, as meaning upon 5% commission). It next pleads such sale through the sale of the entire outstanding stock, and it then asserts that in so doing it had done all required to entitle it to the commission “agreed to be paid to it” by the defendants. The commission not having been paid, suit followed.
Defendants view the declaration differently. They assert that “the same arrangement,” referred to above, was a commission to be paid by the company, that it related to the sale of assets (not stock), and that although the declaration speaks of a commission “agreed to be paid,” nowhere in the declaration is there an allegation “that the individual shareholders ever agreed to pay any commission.”
The success of the argument in the lower court represents a triumph of technicality over reasonable construction.
In ancient times pleading was a subtle craft, a jungle of “cumbersome, discursive, redundant and involved precedents.” (Sunderland, The Michigan Judicature Act of 1915, 14 Mich L Rev 551, 553 [1916]; see, also, Blume, American Civil Procedure [1955], §2-02). The failure to use words of art was fatal. Forms were cast in rigid molds of great complexity. In the professional excitement of legal thrust and parry, as we created such logician’s delights as .the negative pregnant, the spectator standing in the wings, the litigant himself, was forgotten. Public and professional reaction, while slow in coming, was inevitable. The essential requirement of pleading came to be recognized as nothing more complicated than giving the other party reasonable notice of the claim or defense. As Sunderland, supra, puts it, “The purpose of pleading has ceased to be the exemplification of the subtleties of pleader’s logic and has become the intelligible disclosure of the real nature of the respective claims of the parties.”
In this jurisdiction the judicature act of 1915, and court rules pursuant thereto, placed the emphasis squarely upon the notice feature of pleading, discarding ancient and technical tests, phrases and formulae:
“In the actions which are in this act retained, the forms of declaration now in common use may be employed; but no declaration shall be deemed insufficient which shall contain such information as shall reasonably inform the defendant of the nature of the case he is called upon to defend.” CL 1948, § 614.2 (Stat Ann § 27.812).
“The declaration shall contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend.” Mich Court Rule No 19, § 1 (1945).
In accordance therewith, as observed by Mr. Justice North in Spelman v. Addison, 300 Mich 690, 702: “In recent years, at least, this Court has taken a liberal attitude in passing upon sufficiency of pleadings.” The chief object of the declaration, we held in Michigan Aero Club v. Shelley, 283 Mich 401, 408 (1938 USAvR 134, 1 CCH Av 750), “is to apprise plainly the opposite party of the cause of action and the claim of plaintiff.”
So tested, we cannot hold that the declaration before us does not contain “such information as shall reasonably inform the defendant of the nature of the case he is called upon to defend.” The defendants here, we believe, were reasonably and adequately informed of the nature of the claim for damages within the purview of statute and court rules.
We are constrained, also, to observe that this matter was pending for many months, that discovery depositions had been taken and filed, that pretrial conference had been held, and that nowhere during these lengthy proceedings, so far as this record discloses, had defendants even intimated that the declaration did not contain such information as to “reasonably inform the defendant of the nature of the cause he is called upon to defend.” It was not until the jury had been empaneled and opening statement made that the alleged fatal deficiency was made the subject of motion to dismiss. We take this occasion to point out to the profession that it was the kind of debacle here experienced, resulting in delay of justice and unnecessary expense to all concerned, that the pretrial conference was, in part, intended to eliminate. If one of the parties to litigation is of the opinion that the pleadings are fatally defective it is his duty at this time (entirely independent of the doctrine of waiver by pleading over or going to trial without specifically raising the point) to raise the issue so that the matter may then and there be explored. We have passed the day when the art of pleading was a game of setting traps for the unwary and we do not intend to return to it.
In the view we have taken of the case it is not necessary to pass upon the court’s refusal to per-' mit amendment, save to agree, with Honigman (Michigan Court Rules Annotated, p 243) that “there has been a constant trend for increasing liberality in the matter of granting amendments.” Nor do we find it necessary, as requested by appellant, to instruct the trial court as to the scope of proper proofs at the trial to follow, or to anticipate error. Our doors, like the gates of hell, are always open.
Reversed. Costs to appellant.
Edwards, Voelker, and Black,- JJ., concurred with Smith, J.
Dethmers, C. J., and Sharpe, Kelly, and Carr, JJ., concurred in the result.
The corporate defendant was dismissed as a party by the plaintiff on the first day of trial.
PA 1915 No 314 (CL 1948, § 600.1 et seq. [Stat Ann § 27.1 et seq.]). | [
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Blair Moody, Jr., J.
We granted leave to appeal to consider whether contributory negligence is a defense in a products liability action where it is alleged that defendant’s failure to provide an adequate safety device was the proximate cause of plaintiffs injury. In so doing, we are asked to consider whether the decision of this Court in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), which held that contributory negligence was no defense where plaintiff’s injuries resulted from defendant’s failure to provide any safety device, is applicable to the facts of the case at bar. Because we find the distinction between "adequate” and "any” safety device is specious, we hold that the rationale of Funk controls and that contributory negligence is no defense in the instant case.
Accordingly, we reverse the Court of Appeals and the trial court and remand for a new trial.
Facts
On October 4, 1967, plaintiff, Karl Tulkku, suffered an injury to his left hand in a press accident at the Chrysler Sterling Stamping Plant. The press which plaintiff was operating at the time of the accident was one that required two operators for the completion of a cycle. In order to activate the press, each operator was required to depress two palm buttons and to hold them down until the press had completed its downward cycle. The palm buttons had been installed as safety devices to prevent an operator’s hand from being in the die area while the press was in operation.
At the time of the accident, plaintiff’s co-worker had depressed both of his palm buttons and plaintiff had depressed his right-hand palm button while attempting to blank a piece of metal caught in the rear of the press with his left hand. With only three buttons depressed, the press inexplicably cycled causing severe injury to plaintiffs hand.
Upon a subsequent investigation, it was discovered that the plastic case on the snap-action micro-switch .in plaintiffs left-hand palm button was broken in the area where the cover was screwed to the top of the switch. The broken plastic case caused the switch to fail with the result that the press completed its cycle without the palm button having been pushed.
Plaintiff brought suit alleging both negligence and breach of warranty against defendant Mack-worth Rees, the manufacturer of the palm button assembly, and Illinois Tool Works, the manufacturer of the switch.
At the close of proofs, plaintiff requested the following instruction be given regarding contributory negligence:
"It is the plaintiffs claim in this case that the defendants were negligent in supplying a defective and inadequate safety device; namely, the Mackworth Rees palm button and the Licon switch which was a component part of that palm button. * * * In this case the defendants have asserted contributory negligence or lack of due care on the part of the plaintiff in his own behalf as a defense. While contributory negligence is a defense in many negligence actions, I instruct you that where the defendants have failed to provide a proper, adequate and suitable safety device, contributory negligence is no defense whatsoever. You may not consider contributory negligence if you find that there was such a failure on the part of the defendants to provide a proper, adequate and suitable safety device and that such failure was a proximate cause of the plaintiffs injuries.”
The trial court refused the proffered instruction but rather gave the Standard Jury Instruction concerning contributory negligence, i.e., that contributory negligence would bar plaintiffs negligence claim.
The jury returned a verdict of no cause of action. The Court of Appeals affirmed. 76 Mich App 472; 257 NW2d 128 (1977).
Discussion
The issue in the instant case is clearly drawn, i.e., whether contributory negligence should act to bar recovery where evidence has been presented of defendant’s negligence in the design or manufacture of a safety device.
One of the first courts to reject application of the defense of contributory negligence in a factual setting involving safety devices was the New York Court of Appeals in Koenig v Patrick Construction Corp, 298 NY 313; 83 NE2d 133 (1948). In Koenig, a window cleaner was seriously injured when he fell from a ladder which was not equipped with any safety devices. The court refused to consider the plaintiffs alleged contributory negligence, enunciating the following policy:
"They [workmen] usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to thé concurrent negligence of the injured worker in Using the equipment, the beneficial purpose of the statute might well be frustrated and nullified.” Koenig, supra, 318-319. (Emphasis added.)
This statement of policy of the Koenig court was quoted and adopted in full by this Court in Funk. In Funk a construction worker was injured when he fell from the roof of a building on which he was working. In a negligence action, plaintiff charged that his injury resulted from defendant’s failure to implement any reasonable safety precautions. Drawing on Koenig, the Funk Court rejected contributory negligence as a defense and held as follows:
"We discern no reason why the same principle [as stated in Koenig] should not govern if the trier of fact finds that the employer-defendant’s breach of a common-law duty to provide safety equipment is the cause in fact of plaintiff’s injury.” Funk, supra, 114.
Defendants in the instant case would have us limit this holding in Funk to fact situations where there was a total abrogation of the duty to provide safety equipment. We reject this contention.
This Court in Funk carefully considered the policy ramifications of its decision and articulated them as follows:
"The policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury.” Funk, supra, 104. (Emphasis added.)
There is nothing in this important statement of policy which would lead us to conclude that the policy was meant to apply only to the employer or manufacturer who totally abrogated his duty.
An inadequate or defectively designed safety device is the practical equivalent of no safety device. But the inherent danger posed by the inadequate safety device may constitute a greater risk for the employee than no device at all. The construction- worker or the employee in an indus trial setting has come to rely on the effectiveness of the safety equipment he or she uses. There is no way this employee can protect himself from inherently dangerous, defectively designed safety equipment because there is no way the employee can comprehend or appreciate the danger posed.
The Court in Funk concluded:
"A jury could properly conclude that a cause of Funk’s injury was the job environment created by the defendants which had conditioned him to work without regard to the conspicuous absence of safety equipment.” Funk, supra, 112-113.
This rationale is equally true when applied to the facts of the instant case. The employee has become "conditioned” to believe that the equipment being used is what it says it is, namely, safety equipment. The employee cannot and should not be required to temper his or her behavior because of a defect about which the employee has no awareness.
To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the Koenig and Funk courts extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care, as the New Jersey Supreme Court has noted:
"It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against. We hold that under the facts presented to us in this case the defense of contributory negligence is unavailable.” Bexiga v Havir Manufacturing Corp, 60 NJ 402, 412; 290 A2d 281 (1972). (Citations omitted.)
If we are to continue to foster the protection of the worker and to encourage manufacturers to take all reasonable precautions in designing and manufacturing safety devices, we cannot allow the discredited doctrine of contributory negligence to undermine these goals.
We, therefore, hold that contributory negligence is no bar to recovery where evidence has been presented of defendant’s causal negligence in the design or manufacture of a safety device.
Our holding today necessarily requires remand to the trial court for a new trial. We note that during the pendency of this appeal, this Court decided Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), and the Michigan Legislature enacted legislation which affects the manner in which products liability actions are to be treated by the courts of this state. MCL 600.2945; MSA 27A.2945. However, we must presently decline to consider the effect of Placek and that legislation, if any, on the holding we have reached today as this complex issue was neither argued nor briefed before us.
Conclusion
We, therefore, conclude that contributory negligence will not bar recovery where evidence has been adduced of defendant’s causal negligence in the design or manufacture of a safety device.
The Court of Appeals is reversed.
Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody Jr., J.
Coleman, C.J., concurred in the result. | [
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Motion by respondent for reconsideration of this Court’s order of March 5, 1979 (ante, p 1101) denied.
Coleman, C.J., and Ryan, J., would grant the motion for reconsideration for the reasons stated by Justice Ryan in this Court’s order dated March 5, 1979. | [
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Blair Moody, Jr., J.
This appeal follows an order of the State Bar Grievance Board issued December 15, 1977, which affirmed the decision of Oakland County Hearing Panel No. 4 denying petitioner Freedman’s reinstatement as a member of the State Bar.
The facts of this case are not in dispute. Petitioner Freedman was suspended from the practice of law commencing August 2, 1974 for a period of two years or until further order of the board. The suspension was ordered pursuant to a stipulation agreed upon by petitioner and the State Bar Grievance Administrator regarding a conviction in Federal court for housing fraud. The petitioner was charged with making a false statement in connection with an application for mortgage insurance sought for a client in his real estate business. Petitioner pled nolo contendere to the charge and was convicted on May 29, 1974. He was sentenced to imprisonment for a period of two years and to pay a "committed” fine in the amount of $5,000. According to his testimony before the panel, he served eight months in the Federal penitentiary at Terre Haute, Indiana. Petitioner was released April 28, 1975 on parole which expired May 28, 1976 without the fine having been paid.
On March 28, 1977, the present petition for reinstatement was filed with the State Bar. Petitioner by his own admission has never been an actively practicing member of the bar. Rather, his activities have centered on the real estate business. Prior to petitioner’s conviction in 1974, the record indicates that he bought and sold homes under the corporate name of Bal Investment Com pany. At that time, he was listed in the telephone directory and the Lawyers Handy Book as an attorney. According to petitioner, he used his legal skills primarily in relation to his real estate transactions. Since his release from Federal prison, petitioner has been employed repairing houses for other real estate investors.
The findings of the hearing panel were in relevant part as follows:
"3. The petitioner filed a statement with the State Bar Grievance Board incidental to this petition for reinstatement which is false and misleading with respect to his qualifications to practice. His statement dated May 3, 1977, asserts, T passed the State Bar in 1960 and practiced law in Detroit until I was suspended from the practice of law on August 2, 1974, by the Michigan State Bar.’ At the hearing, the .petitioner was asked, 'Do I understand that you never formerly practiced law as an attorney and maintained a law office and practiced?’ He answered, T did not, sir.’ * * * The panel is satisfied that the oral testimony was correct and that petitioner has not ever engaged in active law practice and that his written statement to the contrary in support of his present petition was false and reflects adversely upon petitioner’s integrity.
"4. Petitioner has not practiced law since suspension; however, he has been representing himself as an attorney in that he has permitted himself to be listed as an attorney in the telephone directory and in the Lawyers Handy Book published by National Bank of Detroit and has advertised himself as an attorney in the telephone directory yellow pages continuously during the period of suspension.
"5. Petitioner’s personal and business conduct since his suspension has not demonstrated genuine remorse, exemplary conduct, and an appropriate attitude toward the standards imposed upon members of the bar, in the following particulars:
"A. Petitioner was suspended because of his conviction of criminal activity in housing frauds, in which he would purchase HUD housing units, make minor repairs and restoration, resell them to unsophisticated members of the public, and pursue fraudulent and criminal schemes to arrange FHA financing for the purchasers for his own benefit and gain.
"B. After his release from prison, petitioner returned to the same business office where he was previously engaged in his criminal activities, and engaged in business activities related to the same business, providing repairs for homes purchased by speculative investors, obtaining city building and occupancy permits, and generally engaging in private business in the same field as led to his conviction and suspension from the bar.
"C. Until the date of hearing he had made no effort to pay the $5,000.00 fine which was imposed as a part of his sentence or to make payment on an $8,000.00 civil judgment which had been rendered against him in 1976 in Wayne County Circuit Court. He had, however, arranged for a mortgage lien in favor of his mother to be placed upon his home, sheltering his equity from the claims of other creditors, and to have the new Cadillac Seville automobile which he drives provided to him by a business client. Subsequent to the hearing, at which this issue was raised, the panel was informed that he had paid the civil judgment and arranged for payment of the fine.”
In affirming the hearing panel’s denial of reinstatement, the Grievance Board simply adopted the panel’s findings.
When a petition for reinstatement is brought before the State Bar, the person so petitioning assumes the burden of establishing his eligibility by "clear and convincing evidence”. State Bar Rule 15, § 7. See also In the Matter of Trombly, 398 Mich 377, 381; 247 NW2d 873 (1976). Pursuant to this strict burden, the petitioner was required to demonstrate the following:
"(a) He desires in good faith to be restored to the privilege to practice law in this State;
"(b) The term of suspension prescribed in the order of suspension has elapsed or 5 years have elapsed since revocation of the license;
"(c) He has not practiced law contrary to the requirement of his suspension or revocation and has not attempted to do so since he was disciplined;
"(d) He has complied fully with the terms of the order for discipline;
"(e) His attitude towards the misconduct for which he was disciplined is one of genuine remorse;
"(f) His conduct since the discipline has been exemplary and above reproach;
"(g) He has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and that he will conduct himself in conformity with such standards;
"(h) He can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise to act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.” State Bar Rule 15, § 7.
A finding against petitioner by the panel or board must be sustained by "a preponderance of the evidence”. State Bar Grievance Administrator v Crane, 400 Mich 484, 493; 255 NW2d 624 (1977). Our function in bar grievance matters is to determine whether the State Bar Grievance Board’s findings "have proper evidentiary support on the whole record”. State Bar Grievance Administrator v Estes, 390 Mich 585, 593; 212 NW2d 903 (1973). See, also, State Bar Grievance Administrator v Posler, 393 Mich 38, 39; 222 NW2d 511 (1974). Our concern is the protection of the public, not the punishment of the attorney under investigation. See In the Matter of Trombly, supra, 382, citing In re Echeles, 374 F2d 780, 782 (CA 7, 1967). See, also, Steere v State Bar of Texas, 512 SW2d 362 (Tex Civ App, 1974); In re Barton, 273 Md 377, 381; 329 A2d 102, 104-105 (1974).
A review of the full record in the instant case indicates proper evidentiary support for the denial of reinstatement.
One significant point weighing against petitioner in this proceeding was his failure to attempt repayment of the $5,000 fine incident to his conviction in Federal court. The fine was a "committed” fine, one which required payment prior to release from prison. However, payment was not made because petitioner executed a pauper’s oath based on an affidavit of indigency in November, 1974. He was thus released from prison without having paid the $5,000.
From that point on, petitioner’s conduct has been less than exemplary in this matter. Rather than squarely face the responsibility which was directly connected to his suspension, petitioner openly admitted avoiding the issue altogether until the day of the hearing:
"Q. [Mr. Reizen]: And you indicated and admitted part of your sentence was a five thousand dollar fine and that was imposed upon you in May of 1974, is that correct?
"A. [Petitioner]: That’s correct.
"Q. Then up until today, have you made any payments with respect to that fund [sic, fine]?
"A. I have not.
"Q. Have you even talked to anybody prior to today about paying that fund [sic, fine]?
"A. Nobody has contacted me regarding payment. I did not have the means of paying so I did not contact them.
”Q. I see. So when your attorney says you have made arrangements with Mr. Kalil seated here, isn’t it true that those arrangements were made this morning about five minutes before the hearing started?
"A. I stated that counsel, and — I stated that I did talk to Mr. Kalil today and I do have arrangements to call him this week and meet with him, possibly Thursday.”
In fact, the record reflects that before the hearing Assistant United States Attorney Charles Kalil had sent unanswered demand notices to petitioner. These letters were dated May 23, 1977 and June 10, 1977.
By petitioner’s own admission, his gross income from repair work in 1976 was "[a]bout twenty-three — twenty-four thousand”. Yet, some two years elapsed between petitioner’s release from Federal prison and his initial attempt to pay his obligation. Even then, he acted only under the pressure of possible denial of reinstatement.
Ultimately, petitioner has agreed with the United States Attorney’s Office to repay the fine in increments of $25 or $50 a month, according to his attorney. Given the level of petitioner’s annual income, we see no reason why such an attempt was not made prior to the reinstatement proceeding to defray this obligation. Petitioner had the burden by clear and convincing evidence to persuade the panel and board he has the proper understanding of and attitude towards the standards imposed on State Bar members and can be safely recommended to aid in the administration of justice. We find the evidence presented basis enough for the denial of reinstatement ordered by the hearing panel and board. State Bar Grievance Administrator v Estes, 390 Mich 597.
We find less persuasive, but significant, the fact that petitioner failed to remove his listing as an attorney from the telephone directory or Lawyers Handy Book. Though the evidence regarding the reasons for this failure is not entirely clear, the fact of the listings remain as a potential improper representation to the profession and the public.
Neither was petitioner entirely accurate in the statement which accompanied his petition to the board concerning his practice prior to suspension. The statement that he "practiced law” for some time after graduating from law school when he was not engaged in an active practice of any kind leaves room for an incorrect impression of petitioner’s activity during this period.
Our review of the whole record, then, indicates there is proper support for the findings by the hearing panel and board that the petitioner did not establish his eligibility for reinstatement by clear and convincing evidence. We are especially cognizant of the fact that the hearing panel and board were in a position to observe the petitioner’s demeanor and to hear the other witnesses firsthand. In the Matter of Trombly, supra, 382.
Affirmed.
Coleman, C.J., and Williams, Fitzgerald and Ryan, JJ., concurred with Blair Moody, Jr., J.
Effective October 1, 1978, a new rule replaced this former provision which governed cases arising at the time petitioner sought reinstatement. See GCR 1963, 972. Clause (e) of the former rule has been removed. Two new clauses have been added. See GCR 1963, 972.2(8) and (9). Otherwise, the rule remains virtually the same. | [
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Coleman, C.J.
(for reversal). Leave to appeal was sua sponte granted in these cases to resolve a substantial conflict among our lower courts as to the constitutionality of Michigan’s felony-firearm statute, MCL 750.227b; MSA 28.424(2), which states:
"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 [carrying a concealed weapon] or section 227a [unlawful possession of a weapon by a licensee], is guilty of a felony and shall be imprisoned for 2 years.”
"The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.”
In Wayne County Prosecutor v Recorder’s Court Judge (People v Alexander), the evidence indicated that the defendant, Annette Gail Alexander, shot and killed a man with a shotgun. She was convicted in a single trial of second-degree murder and felony-firearm. The trial judge sentenced her on the murder conviction, but refused to impose the mandatory two-year sentence for felony-firearm because he believed to do so would violate constitutional prohibitions against double punish ment. In People v Brintley, the evidence indicated that defendant carried and exhibited a handgun while he robbed a woman. He was convicted in a single trial of armed robbery and felony-firearm. The trial judge sentenced him on the armed robbery conviction and also imposed the mandatory two-year consecutive sentence for felony-firearm.
The question presented is whether separate convictions and consecutive sentences for both a felony and for felony-firearm in cases such as these violate the Michigan and United States constitutional prohibition against being twice placed in jeopardy for the same offense.
The Court of Appeals concluded in both of these cases that the Michigan and the United States Constitutions were violated, and therefore vacated the defendants’ respective convictions for felony-firearm.
We reverse, reinstate the convictions and remand People v Alexander to the trial court for imposition of the mandatory two-year consecutive sentence for felony-firearm.
I
Although different panels of the Court of Appeals have reached widely divergent conclusions as to the constitutionality of the felony-firearm statute, almost all of them seem to agree that the Legislature intended to create a separate crime distinct from the felony or attempted felony and intended that cumulative punishment should be imposed. We agree.
The statute decrees that any person carrying or possessing a firearm during a felony or attempted felony "is guilty of a felony” and shall be imprisoned for two years. This two-year sentence must be imposed "in addition to” the sentence for the felony or attempted felony and must be served "consecutively” to and "preceding” the sentence for that crime. (Emphasis added.)
This language is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes. For example, the habitual offender statute regarding second offenders states:
"A person, who after having been convicted within this state of a felony, or an attempt to commit a felony, or, under the laws of any other state, government or country, of a crime which if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction as follows: If the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person may be placed on probation or sentenced to imprisonment for a term not more than 1-1/2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court; if the subsequent felony is such that, upon a first conviction the offender might be punished by imprisonment for life then such person may be placed on probation or sentenced to imprisonment for life or for any lesser term in the discretion of the court.”
There is no language in this statute indicating that the defendant shall be deemed guilty of a separate felony or that a consecutive sentence is to be imposed. The one sentence originally imposed for the felony which gives rise to the habitual offender proceedings is simply increased.
The language of the felony-firearm statute is also significantly different from the language used by the Legislature in those statutes which establish mandatory minimum sentences. For example, the armed robbery statute states;
"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is indicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison.” (Emphasis added.)
Again, there is no indication of an intent to establish a separate felony or require a consecutive sentence. The sentencing judge is merely required to impose a single sentence with a minimum term of at least two years.
The language employed by the Legislature in the felony-firearm statute, especially when analyzed against the backdrop of the sentence enhancement and mandatory minimum sentencing provisions quoted above, leaves no doubt that the Legislature intended to make the carrying of a weapon during a felony a separate crime and intended that cumulative penalties should be imposed. The Legislature has clearly expressed its judgment that carrying a firearm during any felony which may, but need not necessarily, involve the carrying of a firearm, entails a distinct social harm inimical to the public health, safety and welfare which deserves separate treatment. In order to deter the use of guns, the Legislature has chosen to create a separate crime.
We are thus squarely faced with the question of whether separate convictions and cumulative punishments for both a felony and for felony-firearm violates the Double Jeopardy Clause of the United States or Michigan Constitutions.
II
In Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), the United States Supreme Court stated that the Double Jeopardy Clause does not substantively restrict the legislative branch:
"Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v Wilson, 420 US 332, 339-340 [95 S Ct 1013; 43 L Ed 2d 232] (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to deñne crimes and ñx punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown, supra, 165. (Emphasis added.)
Then, after recognizing that the Double Jeopardy Clause protects against multiple punishments for the same offense, the Court stated that in the single prosecution context (such as that in the cases at bar), the clause only serves to ensure that the defendant is not subjected to more punishment than the legislative branch has authorized:
"The Double Jeopardy Clause 'protects * * * against multiple punishments for the same offense.’ North Carolina v Pearce, 395 US 711, 717 [89 S Ct 2072; 23 L Ed 2d 656] (1969). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v United States, 357 US 386 [78 S Ct 1280; 2 L Ed 2d 1405] (1958); Bell v United States, 349 US 81 [75 S Ct 620; 99 L Ed 905] (1955); Ex parte Lange, [85 US] 18 Wall 163 [21 L Ed 872] (1874).” Brown, supra, 165. (Emphasis added.)
The Court’s citations to Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), Bell v United States, 349 US 81; 75 S Ct 620; 99 L Ed 905 (1955), and Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874), in support of this proposition are illuminating. In Gore, the Court rejected a defendant’s double jeopardy challenge to his multiple convictions and consecutive sentences arising from a single sale of narcotics. Mr. Justice Frankfurter, speaking for the Court, concluded his opinion by stating:
"In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, * * * these are peculiarly questions of legislative policy.” Gore, supra, 393. (Emphasis added.)
Even Mr. Chief Justice Warren, in dissent, stated:
"The problem of multiple punishment is a vexing and recurring one. It arises in one of two broad contexts: (a) a statute or a portion thereof proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.
"In every instance the problem is to ascertain what the legislature intended.” Gore, supra, 393-394. (Emphasis added.)
In Bell, the Court began by stating:
"Once more it becomes necessary to determine 'What Congress has made the allowable unit of prosecution,’ United States v Universal CIT Credit Corp, 344 US 218, 221 [73 S Ct 227; 97 L Ed 260 (1952)], under a statute which does not explicitly give the answer.” Bell, supra, 81.
The defendant contended that his single act of simultaneously transporting two women across state lines for immoral purposes constituted a single offense and could not, as the lower courts had ruled, be the basis for cumulative punishments under separate counts of one indictment. The Court stated:
"The punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment. Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so?” Bell, supra, 82-83.
The Court went on to conclude that Congress had not expressed a clear intent to authorize multiple convictions and cumulative punishments, and that absent such a clear expression, "doubt will be resolved against turning a single transaction into multiple offenses”. Bell, supra, 84.
In Lange, the defendant had been convicted in a single proceeding of stealing United States mail bags. The punishment authorized by Congress for this offense was imprisonment for one year or a monetary fine. The trial judge sentenced the defendant to one year’s imprisonment and a monetary fine. After the defendant had paid the fine, the judge vacated the original sentence and resen-tenced him to one year’s imprisonment. The Supreme Court reversed and discharged the defendant on the ground that he had been twice punished for the same offense. The trial judge had exceeded his authority.
It is argued, however, that the rule articulated in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), requires that the felony-firearm statute be struck down as violative of the Double Jeopardy Clause.
In Blockburger, the Court stated:
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, supra, 304.
It is contended on the basis of Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), and Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), that this rule is a constitutional test which must be satisfied in every case, despite the Court’s statement in Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975), that "[t]he test articulated in Block-burger v United States [citation omitted] serves [the] function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction”. Iannelli, supra, 785, fn 17.
We need not decide whether the Blockburger rule is a constitutional test, because even if it is, it is satisfied in these cases.
In applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges. Thus in Harris v United States, 359 US 19; 79 S Ct 560; 3 L Ed 2d 597 (1959), the Court affirmed multiple convictions and consecutive sentences for both purchasing narcotics from an unstamped package and receiving or concealing the same narcotics with knowledge that they had been unlawfully imported, despite the fact that both convictions were based on evidence of one act of possessing narcotics. Different statutory presumptions stemming from the proven fact of possession supplied the different legal elements of the two offenses. The Court stated:
"[T]he violation, as distinguished from the direct evidence offered to prove the violation, was distinctly different under each of the respective statutes.” Id., 23.
Similarly, in Iannelli v United States, the Court stated:
"In determining whether separate punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does not.’ Id., at 304. As Blockburger and other decisions applying its principle reveal, see, e.g., Gore v United States, 357 US 386 [78 S Ct 1280; 2 L Ed 2d 1405] (1958); American Tobacco Co v United States, 328 US 781, 788-789 [66 S Ct 1125; 90 L Ed 1575] (1946), the Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli, supra, 785, fn 17.
Looking only to the "statutory elements” of the offenses in the cases at bar, the Blockburger rule is satisfied.
In Wayne County Prosecutor v Recorder’s Court Judge, where the defendant was convicted of both second-degree murder and felony-firearm, the prosecution was legally required, in order to convict the defendant of second-degree murder, to prove a homicide and malice aforethought — neither of which is legally required in order to convict the defendant of felony-firearm. On the other hand, in order to convict the defendant of felony-firearm, the prosecution was legally required to prove first, that the defendant carried or possessed a firearm —an element which is not necessary to secure a conviction for second-degree murder — and second, that the firearm was carried or possessed during the commission of any felony or attempted felony. The prosecution was not legally required to prove second-degree murder. It could have secured a conviction by proving any felony other than carrying a concealed weapon or unlawful possession of a weapon. Although factually in this particular case the prosecution relied bn proof of the murder in order to secure the felony-firearm conviction, legally it was not required to do so. Any proper felony would have sufficed. It is possible, legally, to commit felony-firearm without committing second-degree murder. Despite a "substantial overlap in the proof offered to establish the crimes”, Iannelli, supra, 785, fn 17, "the violation, as distinguished from the direct evidence offered to prove the violation, was distinctly different under each of the respective statutes”. Harris, supra, 23. Legally, "each provision requires proof of a fact that the other does not”. Blockburger, supra, 304.
The same rationale applies to People v Brintley, in which the defendant was convicted of both felony-firearm and armed robbery. In order to convict the defendant of armed robbery, the prosecution was legally required to prove an assault, a taking and an intent to permanently deprive the owner of his or her property — none of which are legally required to convict the defendant of felony-firearm. On the other hand, in order to convict the defendant of felony-firearm, the prosecution was legally required to prove two things: first, that the defendant carried or possessed a firearm — a fact which is not necessary to secure a conviction for armed robbery (any "dangerous weapon” or "article” used or fashioned so as to lead the victim to believe it is a dangerous weapon will satisfy the "armed” requirement of the armed robbery statute); second, that the firearm was carried or possessed during the course of any felony or attempted felony. The prosecution was not legally required to prove armed robbery. Any proper felony would have sufficed. Each of these statutes legally requires proof of a fact which the other does not. Proof of felony-firearm does not necessarily prove armed robbery. And, as in Harris v United States, supra, the mere fact that one factual occurrence, there the possession of narcotics and here the possession of a gun, is employed to supply proof of an element of two distinct crimes does not violate the Blockburger rule. A substantial overlap of factual proofs is permissible. Iannelli, supra.
A similar rationale was used by the United States Court of Appeals for the Eighth Circuit to uphold a state defendant’s multiple convictions and consecutive sentences for both robbery and using a firearm in the commission of a felony. Kowalski v Parratt, 533 F2d 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976). The Court stated:
"Although the appellant assumes that count II [felony-firearm] required proof of the robbery alleged in count I, that is not the case. The weapons statute is satisfied by proof that a weapon was possessed or used during any felony.” Id., 1073. (Emphasis added.)
III
In some cases this Court has focused on the factual proofs involved and has concluded that both of two convictions and their attendant punishments cannot stand. See, for example, People v Cook, 236 Mich 333; 210 NW 296 (1926), People v Martin, 398 Mich 303; 247 NW2d 303 (1976), and People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). However, a common thread running through these cases is that none of them involved statutes which evidenced a clear legislative intent to authorize separate convictions and cumulative punishments based on one occurrence.
In People v Cook, supra, the defendant was convicted of possessing intoxicating liquor pursuant to a single statute which prohibited all of the following activities with respect to such liquor: manufacturing; selling; keeping for sale; giving away; bartering; furnishing; transporting; possessing; or keeping a place where such liquor is (a) manufactured; (b) sold; (c) stored; (d) possessed; (e) given away; (f) furnished. There was no clear indication in this statute that the Legislature intended to authorize separate convictions and cumulative punishment for each of these activities based on one factual occurrence. After the defendant had served the sentence for his possession conviction, he was retried and reconvicted pursuant to the same statute for transporting the same liquor. Factually, both of these convictions were based on the same act of transporting one load of liquor to one place. The Court interpreted the statute as follows:
"If a person does a single one of the above stated things he violates this law, and is subject to its penalty; but because the doing of one of these things necessarily involves the doing of one, many, or all of the others, it cannot be said that for the single act he is liable to a punishment many times greater than the legislature prescribed. The whole statute makes a single crime and its clear purpose and intent is to forbid and punish every conceivable act which has to do with intoxicating liquor.” Id., 336.
In this context the Court then declared:
" 'It is elementary that a prosecution and conviction or acquittal of any part of a single crime bars any further prosecution for an offense made up of the whole or part of the same crime.’ ” Id., 336-337.
The Court analyzed the facts of the case and stated:
"[W]e cannot conclude other than that the conviction of defendant for possession bars his subsequent prosecution for transporting the same liquor. It would have been physically impossible to transport it without possessing it, and under the facts in the instant case, it could not have been possessed by the defendant in the automobile in front of the house on John street where the officers were stationed, and where it was taken from him, without it having been transported to that point. Proof of the facts stated would necessarily have brought conviction for either possession or transporting.” Id., 336.
The defendant’s conviction for transporting the liquor was reversed and he was discharged.
In People v Martin, supra, the defendant had been convicted in a single trial of delivering and possessing the same heroin. Factually, both convictions were based on proof of one act of possession incident to delivery. The defendant argued on appeal that the multiple convictions were invalid because the Legislature did not intend by enactment of the possession and delivery statutes to authorize a separate conviction for possession when the only possession involved was possession incident to delivery and argued that such multiple convictions violated the Double Jeopardy Clauses of the Michigan and United States Constitutions. The possession and delivery statutes did not evidence a clear legislative intent to authorize multiple convictions. The Court held that because, factually, the possession giving rise to the possession conviction was the same possession as that involved in the delivery conviction, both convictions could not stand:
"Testimony at trial indicated that a police informant brought 1/2 ounce of heroin directly from defendant. The defendant personally cut the heroin and delivered it to the informant. Defendant was charged in a two-count information with (1) delivery and (2) possession of a certain 15.62 grams of heroin. There is no dispute over the fact that it was the same 15.62 grams of heroin in each count.
"Possession of the heroin present in this case was that necessary to its delivery.
"On the evidence adduced at this trial, there is no doubt that unlawful possession was a lesser included offense of delivery.
"When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.
"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.” Id., 307-309.
The Court relied inter alia on People v Cook, supra, and on O’Clair v United States, 470 F2d 1199 (CA 1, 1972), cert den 412 US 921; 93 S Ct 2741; 37 L Ed 2d 148 (1973). O’Clair, like Cook, involved multiple convictions based on a single statute which did not clearly evidence a legislative intent to authorize multiple convictions based on one factual occurrence. Indeed, the Court in O’Clair concluded as a matter of statutory interpretation that Congress had not intended to authorize multiple convictions.
In People v Stewart, supra, the Court, relying on People v Martin, supra, reached the same result in a nearly identical case involving sale and possession of heroin. The only significant difference between the two cases was that the Stewart case involved the predecessor statutes of the ones involved in Martin. There was again no clear expression in these predecessor statutes of an intent to authorize separate convictions and cumulative punishments.
These cases stand for the proposition that where the Legislature has not clearly authorized multiple convictions and cumulative punishments, both of two convictions and their attendant punishments cannot stand. They are inapposite because the Legislature has clearly expressed in the felony-firearm statute an intent to authorize multiple convictions and cumulative punishments.
IV
We reverse the Court of Appeals in each case and reinstate the defendants’ respective felony-firearm convictions. We remand Wayne County Prosecutor v Recorder’s Court Judge (In the Matter of People v Annette Gail Alexander) to the trial court for imposition of the mandatory two-year consecutive sentence for felony-firearm.
Williams, Fitzgerald, and Ryan, JJ., concurred with Coleman, C.J.
Kavanagh, J.
(to affirm Court of Appeals). Michigan’s felony-firearm statute, MCL 750.227b; MSA 28.424(2), authorizes the imposition of separate criminal sanctions for committing a felony and for committing it while in possession of a firearm. The question before us is whether by enacting this provision the Legislature has impermissibly authorized double punishment for the same offense.
We hold that the substantive offense and the underlying felony are the "same” for double jeopardy purposes, and that conviction of both violates the Michigan and Federal double jeopardy provisions. Const 1963, art 1, § 15; US Const, Am V. We also hold that the expressed legislative intent to authorize separate convictions and punishment for the two offenses does not avoid violation of these constitutional guarantees.
I
The felony-firearm statute states:
"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 [carrying a concealed weapon] or section 227a [unlawful possession of a weapon by a licensee], is guilty of a felony, and shall be imprisoned for 2 years. * * *
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.”
Annette Gail Alexander killed a man with a shotgun. She was convicted of both second-degree murder, MCL 750.317; MSA 28.549, and possessing a firearm while committing the murder. MCL 750.227b; MSA 28.424(2). She received a 2-1/2- to 10-year prison sentence for the murder count, but the trial court refused to impose the mandatory 2-year sentence. for the felony-firearm conviction, stating that to do so would punish the defendant twice for the same offense. The Wayne County Prosecutor filed a complaint for superintending control, or alternatively, application for leave to appeal with the Court of Appeals.
In an opinion released September 20, 1978, the Court of Appeals vacated defendant Alexander’s felony-firearm conviction on the ground that it violated her right to be free from double punishment. Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978).
Curtis Brintley exhibited a handgun while robbing a woman. He received a five- to ten-year sentence upon conviction for armed robbery, MCL 750.529; MSA 28.797, and a two-year consecutive sentence upon conviction of the felony-firearm provision. On appeal as of right to the Court of Appeals, that Court vacated his felony-firearm conviction, again reasoning that defendant had been twice punished for the same offense. People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978).
We agree with the Court of Appeals disposition of these two cases, and affirm.
II
There is no doubt that in enacting the felony-firearm statute the Legislature intended to create an offense distinct from the underlying felony. The statute provides that possessing a firearm during the commission of a felony is a felony in and of itself. Subd (1). The mandatory sentence provision also states that the felony-firearm sentence is to run before and consecutive to the sentence imposed for the underlying felony. Subd (2). When comparing the language used in this statute to that employed in sentence enhancement provisions or ihinimum sentence provisions, it is clear neither of these alternatives was intended.
III
Because this statute creates a separate and distinct offense, we must determine whether it is the "same” offense as the underlying felony. If it is, punishment for both violates our constitutional prohibitions against double jeopardy:
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” US Const, Am V.
"No person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15.
A
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), states the rule for determining whether two offenses are the "same” for Federal double jeopardy purposes:
"Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., 304.
This test focuses upon the statutory elements of the two offenses, not upon the evidence introduced at trial to establish their commission. Iannelli v United States, 420 US 770, 785, fn 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975).
Under Blockburger a necessarily included lesser offense, as we have defined it in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), is the "same” offense as the greater. The greater offense contains all of the legal elements contained in the lesser, plus more. Each provision does not require "proof of a fact which the other does not”. Because it is legally impossible to commit the greater without committing the lesser, they are the "same” offense. The lesser is logically included in the greater.
An offense can also be necessarily included in another if the Legislature decides to so structure the law. This is true whenever a statute provides that one crime is committed only as and when another crime is committed. Such an offense would be necessarily included not as a matter of logic, but on account of legislative determination. Such an offense would also be the "same” for double jeopardy purposes under Blockburger. .
The "logically” included offense principle was employed by the United States Supreme Court in Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), to preclude separate convictions of both joyriding and auto theft. The "legislatively determined” included offense principle was employed by the United States Supreme Court in Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), to preclude conviction of both felony murder and the underlying felony:
"When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.”
See, also, Johnson v Hampton, 434 US 947; 98 S Ct 471; 54 L Ed 2d 307 (1977) (felony-murder and arson).
Looking only to the statutory elements, the prosecutor asserts here that because any felony may be the underlying crime in a felony-firearm prosecution, there is no one specific felony which is necessarily included by statutory mandate.
We are not persuaded.
Every prosecution for felony-firearm must charge 1) possession of a firearm, 2) during the commission of a specified felony. Cf. People v Westerberg, 274 Mich 647; 265 NW 489 (1936). Only proof of the underlying felony charged will supply the second element which the Legislature has determined to be necessary to effect a felony-firearm conviction.
This does not, as the prosecutor suggests, do violence to Blockburger by converting the test into a factual one. The focus is still on the legal elements, and it is the specification of the felony in the charge that has the effect of making it a necessarily included offense under the law.
We are satisfied that this conclusion comports with the reasoning of the United States Supreme Court in Harris, supra.
B
Michigan precedent is in line with this result.
In People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), this Court was unanimous in deciding that conviction of both the possession and the sale of heroin is improper when, on the facts of the case, the possession and sale are but one indivisible criminal act. In Stewart, the possession was the " 'necessary’ prerequisite” to the commission of the sale, and when the jury found the defendant guilty of one, it necessarily also found him guilty of the other. Id., 548-549. See, also, People v Martin, 398 Mich 303; 247 NW2d 303 (1976).
The logic of Martin and Stewart of permitting only one conviction applies with equal force here. When the juries found defendants in these cases guilty of the possession charge, they necessarily found them guilty of the underlying felony. The felony here was the " 'necessary’ prerequisite” to the felony-firearm charge, and on the facts, constituted one indivisible criminal act. This renders them the "same” offense, and under the authority of Stewart and Martin, one conviction is all that may be had. Stewart, supra, 548-549; Martin, supra, 307-310.
IV
We are asked to find the necessarily included offense principle applied in Brown and Harris distinguishable because Brown and Harris both involved two trials rather than one.
We do not regard the distinction as controlling.
Blockburger was a single trial case, and both Brown and Harris used the Blockburger test.
"If two offenses are the same under this test [Block-burger] for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. * * * Unless 'each statute requires proof of an additional fact which the other does not,’ * * * the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.” Brown, supra, 166.
In Iannelli, supra, a single-trial case, the Court observed:
"When both charges are considered at a single trial, the real problem is the avoidance of dual punishment. This problem is analogous to that presented by the threat of conviction for a greater and a lesser included offense, and should be treated in a similar manner.” Id., 786, fn 18.
Moreover in Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), a multiple prosecution case, the Court acknowledged:
"Even if the two indictments had been tried together, the cumulative-punishment issue would remain.” Id., 154, fn 23.
Multiple prosecutions do engender double jeopardy concerns that are not present in single prosecutions, Brown, supra, 432 US 165-166, fn 6. But protection from multiple punishment for the same offense lies at the core of the Double Jeopardy Clause, and this protection is as applicable to single prosecutions as to two. Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874).
V
Finally, the people contend that, assuming both convictions are for the "same” offense, there is no double jeopardy here because the Legislature has expressly authorized the double punishment.
It is urged that the Double Jeopardy Clause does not limit the Legislature to the same extent as it does the executive and judiciary. While conceding that no branch of government may secure multiple convictions for the "same” offense through the use of multiple trials (a prohibition the people term "procedural double jeopardy”), the people argue that the Legislature is not limited as to what it may authorize in a single proceeding. Hence, "substantive double jeopardy”, the guarantee disallowing multiple punishment at a single trial, only limits the discretion of courts and prosecutors. The Legislature is free to create and define crimes as it wishes, and indeed to provide for double punishment at one trial should it desire. Hence, it is asserted that when the Legislature has clearly expressed its intent to provide double punishment at a single trial, as it has here, the Blockburger test has no application. Once the legislative intent has been determined, it must be given effect.
We disagree.
Determination of legislative intent is the beginning, not the end, of analysis necessary to decide a double jeopardy question. Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977).
We do not accept the suggestion that "procedural” double jeopardy limits the Legislature while "substantive” double jeopardy does not, or that the Legislature can authorize multiple punishments at one trial which it could not authorize at successive trials.
If the Legislature may not intentionally subject a defendant to the harassment, anxiety, and expense of defending multiple charges of the "same” offense at successive trials, which the people concede, it may not intentionally do so at one trial. Jeopardy attends each charge of an offense, regardless of its occasion.
"[T]he purpose of the ban on double jeopardy is to prevent 'repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.’ Green v United States, 355 US 184, 187; 78 S Ct 221, 223; 2 L Ed 2d 199 (1957). It would seem apparent that if the state cannot constitutionally obtain two convictions for the same act at two separate trials, it cannot do so at the same trial. Although admittedly there is less expense, anxiety and ordeal when the blows are delivered at once, one can hardly say that one is not punished, hurt, or embarrassed, if one receives two convictions.” O’Clair v United States, 470 F2d 1199, 1203 (CA 1, 1972).
We are convinced that Blockburger is a constitu tional test that must be used whenever it is asserted that two offenses are the "same”. We are satisfied that the language of the United States Supreme Court in Jeffers, supra, and Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), indicates a similar view.
"Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopbrdy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in this case. We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v United States [supra].” Simpson, supra, 11-12.
VI
We vacate the felony-firearm conviction and affirm the conviction of the underlying felony in each case. We adopt Judge Riley’s explanation of the reasons for this disposition, as set forth in 85 Mich App at 742-743.
Affirmed.
Levin and Blair Moody, Jr., JJ., concurred with Kavanagh, J.
403 Mich 832-833 (1978).
His codefendant, Carlos Robinson, was not convicted of felony-firearm and is not involved in this appeal.
The Court of Appeals opinion indicates that the trial judge sentenced Brintley to serve two to ten years in prison for the felony-firearm conviction. The abstract of conviction and sentence in the trial court file states that the sentence was simply two years. The Department of Corrections confirms that the sentence was a determinate two years.
Amendment V of the United States Constitution states:
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
Article 1, § 15 of the Michigan Constitution similarly states:
"No person shall be subject for the same offense to be twice put in jeopardy.”
Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), and People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978).
See, for example, People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978); People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978), People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), and Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978). Most of the cages construing the statute as merely a sentence enhancing or sentence augmenting device have done so only to avoid perceived constitutional problems. See, for example, People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), opinion of Bashara, P.J.
MCL 769.10; MSA 28.1082. Similarly, see the third and fourth offender statutes, MCL 769.11; MSA 28.1083 and MCL 769.12; MSA 28.1084.
MCL 750.529; MSA 28.797.
MCL 750.529; MSA 28.797.
In Kowalski, as in the cases at bar, there were no multiple prosecution problems. The convictions and punishments resulted from a single proceeding. Compare Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), especially the concurring opinion by Brennan, J.
See MCL 335.341(l)(a); MSA 18.1070(41)(l)(a) and MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). Compare the felony-firearm statute, MCL 750.227b; MSA 28.424(2), especially the separate felony and consecutive sentencing portions thereof.
See 18 USC 2113, subds (a) and (d).
See MCL 335.152; MSA 18.1122 and MCL 335.153; MSA 18.1123.
Compare the felony-firearm statute, MCL 750.227b; MSA 28.424(2), especially the separate felony and consecutive sentencing portions thereof.
Compare the habitual offender statute for second offenders, a sentence-enhancement provision. MCL 769.10; MSA 28.1082.
Compare the last sentence of MCL 750.529; MSA 28.797, the armed robbery statute.
The Oklahoma felony-murder statute in Harris is structurally identical to the felony-firearm statute: it also incorporates the commission of "any” felony as a statutory element. Okla Stat 1971, tit 21, § 701. In finding a double jeopardy violation in Harris the Supreme Court focused upon the particular felony which was used at trial to satisfy this statutory element.
The people concede that Blockburger is a constitutional test for determining whether successive prosecutions are permissible, and that legislative intent cannot override this protection. It is only in the single trial context that the people argue Blockburger is a tool of statutory construction. | [
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Hooker-, J.
The bill in this cause was filed to obtain the dissolution of a copartnership, and an accounting. Both parties have appealed. The learned circuit judge who heard the cause, heard proofs in open court, upon the subject of the existence of the copartnership, and rendered an interlocutory decree, determining that the relation existed, and referred the cause to a commissioner to take proofs and make a report upon the account. The report being filed, exceptions were taken by both parties, and, upon a final hearing, a decree was made settling the account and directing a sale of the copartnership property.
Before stating the questions that we are called upon to decide, a brief outline of facts will be made. The defendant Angelí, while a resident of Seville, in Gratiot county, Mich., concluded to rent his farm, and take his family to the State of New York, which he did. Subsequently he purchased a parcel of land,near the Agricultural College, at Lansing, Mich., with the design of platting and putting it upon the market. He negotiated with the complainant with a view to forming a copartnership in this venture, and the complainant came to Lansing and engaged with him in carrying out the project. The business was done in the name of Angelí & Chase. A disagreement finally resulted in the filing of the bill.
The questions discussed are the following:
(1) Must the question of the existence of the copartnership relation be considered settled by the interlocutory decree, no appeal being taken therefrom, within the statutory period computed from the time of its entry ?
(2) If not conclusive, was there a copartnership ?
(3) If the parties were copartners, was any of the land included in the partnership assets ?
(4) If so, was lot 80 included, and if not, upon what basis should it be excluded ?
(5) Has Clara E. Angelí an inchoate right of dower in the premises, as against the complainant ? This is alleged to turn upon the place of residence of the defendants, at the time the copartnership relation is said to have been formed, which is in dispute ?
(6) Whether a modification of the provisions for the sale of the property should be made ?
(7) The allowance of $1,800 to the complainant for personal services is questioned.
(8) The right of defendant Horace Angelí to the allowance of certain items relative to changes in a septic tank and sewer.
(9) Certain items of account which need not be here specified.
(10) Additional solicitor’s fees to complainant.
In discussing these various questions the testimony will be referred to so far as deemed necessary, to make clear the facts found, upon which legal conclusions are based.
The Interlocutory Decree. The interlocutory decree, after reciting that the cause had been heard and argued, contains the following :
“And it appearing to the court that a partnership existed since July 1, 1901, and exists between Charles H. Chase and Horace B. Angell, and that an accounting ought to be had,” and decreed a reference to a commissioner to take an account and report, “reserving to the court the right to declare the particular rights of the parties in said partnership until the making and entry of the final decree in said cause.” The complainant asserts that the first decree, although in some respects interlocutory, is final upon the question of copartnership. As we have found that the proof sustains the claim of copartnership, it is unnecessary to consider that question.
The Copartnership. In the brief statement made we have not attempted to discuss the testimony, or indicated our conclusions upon disputed questions. The first important inquiry is whether a copartnership ever existed, defendant’s claim being that what passed in relation thereto amounted to no more than an agreement that the parties should at some future time enter into a copartnership, the terms of which were never settled. Angell purchased the premises on a contract May 2, 1901. He obtained his deed May 10th, and recorded it May 14th, of the same year. Prior to July 12, 1902, Chase lived in Ithaca, Mich., where he owned and published a newspaper.
In May or June, 1901, Angell who had known Chase from boyhood, called upon him and told him of his investment, that it was near the Agricultural College, and that he contemplated platting the property, and improving it with a view to the sale of lots. Early in June they had another talk and a proposal of copartnership was made. Subsequently they met at Lansing, and talked the matter over, and there is evidence that the terms of a copartnership were agreed upon. This was disputed by the defendant, but the circuit judge was convinced of its truth, and we are of the same opinion. He fixed the date of the agreement as July 1, 1901. From that time conferences were frequent, and correspondence voluminous in regard to the project. Some time was spent over the question of sewers for the territory. Complainant visited Lansing several times in relation to the work of platting the premises, and went to Detroit in the effort to negotiate a copartnership loan on the premises. He moved upon the premises, and began work in clearing them up, and in building a store, ice-house, and other buildings at joint expense. They made a lease of the store in the name of Angelí & Chase, and did many other things for the common interest, among which were their dealings and loans made at the City National Bank at Lansing under the same name. They filed a bill as co-partners in relation to a controversy with the college authorities, and this bill alleged that they were copartners. We need not further quote the evidence which leads to the conclusion stated. In short, we are of the opinion that the parties not only agreed that they would go into partnership upon equal terms, but that they actually entered upon the business of the copartnership, each doing work, putting in funds, improving the premises, and incurring joint indebtedness in the firm name. That they understood that they were copartners in a general way, is not inconsistent with an intention to put their arrangement in writing, with such modifications as they should afterward agree upon, and, like any other partially performed oral contract for the sale of lands, the statute of frauds is not an insuperable objection to treating the lands as part of the assets, under such circumstances as have been shown in this cause.
Lot 80. Among the lots platted was a tract of 15 acres or so, called “ Lot 80,” and at one time Mr. Angelí expressed a desire to withhold that from copartnership control. Mr. Chase replied that he thought that could be arranged, but the terms were never agreed upon. While this is true it is obvious that the complainant consented to its withdrawal, upon fair terms, and while these were never agreed upon, equity requires that the arrangement be carried out, upon a reasonable division of values, as they then existed. From our examination of the testimony we conclude this to have been of more than the average value per acre of the lands, and we are not satisfied that the decree of the circuit judge should be modified in this respect.
Items of Account. The decree as to items allowed for the team furnished by McCloskey, for time spent by complainant when upon trips, and the disallowance of defendant’s claim for board furnished to complainant’s wife, will be affirmed. We think that his conclusions in relation to allowance to be made for the services rendered by the respective parties is a reasonable and just one, and that it should not be disturbed. No deduction will be made from the items allowed defendant for changes in the septic tank and sewer.
Dower. We are also of the opinion that the court did not err in holding that Mrs. Angell had an inchoate right of dower in said lands, not only upon the ground which he decided it, but for the further reason that before the parties fairly entered upon the performance of the agreement, which alone could take the contract out of the statute of frauds, Angell had again taken up his residence in Michigan and reacquired a domicile here if he ever lost it. Angell’s representations before the board of review cannot have the effect of an estoppel, or otherwise affect the rights of his wife, if there was anything improper in it, which may be doubtful.
Homestead. The defendants’ brief makes claim for an allowance by wáy of homestead, it appearing that Angell and wife resided in temporary quarters upon the premises on their return from New York. The decree is silent upon the subject, leading us to infer that the question was not raised in the circuit court, but neither answer makes such a claim, and we find no proof warranting the belief that a homestead was established before the parties entered upon the performance of the copartnership agreement.
The result of the foregoing discussion is the affirmation of the decree of the circuit court in the matter of accounting. It leaves the disposition and division of the property to be determined. The learned circuit judge was of the opinion that it was not advisable to attempt a partition of the premises, and decreed that the premises be sold subject to the rights of dower in Mrs. Angelí. It is contended by defendants’ counsel that the interest of Mrs. Angelí cannot be divested through the husband’s alienation of an undivided interest in the land and that the law does not permit of the application of the doctrine of commutation of dower in this case. It is a general rule at common law that the husband cannot, by 'any act of his, prejudice his wife’s right of dower, and this rule has been adhered to in Michigan. In several cases it has been held, and such is believed to be the rule generally adhered to in the United States, that land owned by copartners, as part of their firm assets, where each has a legal title, is held in common subject to a liability to have it applied to partnership obligations and accounting, each having a lien on the interest of his copartner for any balance due him, and that when the firm is dissolved, or can no longer continue business, real estate constituting part of its assets may be divided by compulsory partition, if it be shown that it will not be required to satisfy liabilities of the firm. Roberts v. McCarty, 9 Ind. 18; Danvers v. Dorrity, 14 Abb. Prac. (N. Y.) 208; Patterson v. Blake, 12 Ind. 436; Jackson v. Deese, 35 Ga. 88.
And in Gray v. Palmer, 9 Cal. 639, it was held that a surviving copartner might, by one suit in equity, obtain a decree declaring realty, the title to which stood in the name of his deceased copartner, ■ to belong to the copartnership, directing a sale of so much thereof as'was necessary to pay partnership debts, and making a partition of the remainder. Upon this subject, the court say:
“As between the partners, the partnership property-may consist either of real or personal estate, or of both, and in each case their ultimate rights are the same. And it does not matter in whose name the real estate may be held, he is only a trustee for the partnership, and the real estate, for the purpose of disposal and distribution, is to be treated as personal estate. An exception may be stated, as where there are no partnership debts to pay, in which case the real estate should be partitioned if practicable. (Story on Partnership, §§ 83, 92, 93.) And this being the true character of partnership real estate, the surviving partner has an equitable lien upon it for his indemnity against the debts of the firm, and for the balance that may be due to him from the firm. (Collyer on Partnership, § 135 and note.) For the same reason, the widow and heirs have only an interest in the net partnership property after all the partnership debts are discharged.”
For a general discussion of the subject, see Freeman on Cotenancy and Partition, § 443.
In Tenney v. Simpson, 37 Kan. 353, it was said that upon dissolution of the partnership and a full payment of its debts, the partners became tenants in common of its real estate, and the. court will decree a partition.'
In this case, while these parties are not technically cotenants in a legal title, in equity, they are such to all intents and purposes. While the legal title is in Angell, he holds it in trust for the uses of the firm, its creditors, and his copartner, and equity will compel such conveyance, as the necessities of the business, and the rights of his copartner require. We have two statutes that confer the power upon courts of justice, to compel persons having dower interests, to be satisfied with a provision in lieu thereof, first, 3 Comp. Laws, § 8953, which applies to proceedings instituted by widows, to recover dower in lands which the husband has conveyed without his wife’s concurrence, and second, 3 Comp Laws, § 11100, which covers cases of sales under judgments or decrees for partition. It provides:
“11100. Sec. 88. In all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any of the lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law applicable to annuities and survivorships, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties.”
Were this a case where Angelí had deeded a half inter-: estin the land to Chase and Chase had filed a bill for partition, it would have been within the terms of the statute, and the court would have authority to sell the property, giving full title, and providing for Mrs. Angell’s contingent interest, in one of the methods mentioned in the statute. We are of the opinion that this is none the less a case for partition, because it is based upon an equitable right which the court may compel Angelí to turn into a legal title by conveyance. Equity has authority to partition equitable estates as well as legal. See 17 Am. & Eng. Enc. Law (1st Ed.), p. 684. No reason occurs to us for holding that section 11100 should not apply to a case where the bill is filed to partition equitable titles, and to compel conveyance to carry out the decree. The situation is such that a sale subject to dower rights would be likely to materially lessen the price obtainable for the land, for, in the hands of any one except Angelí, the outstanding contingent estate would be an obstacle to the sale of lots, which would practically prevent it. This would give to Angelí such an advantage at the salo as to enable him to deprive complainant of much of the profit on his venture, which should arise out of the increase in value of the property.
It is therefore, in our opinion, a proper case in which to apply this statute. The land was bought and, we assume, is still to be held, subject to purchase-money, and possi bly other mortgages, which underlie the right of dower. Mrs. Angell’s right, therefore, is only in the equity of redemption, and it is upon this basis, and its value on July l,1901,thatthe compensation must be made. It follows that some method must be devised to provide for (1) the mortgage; (2) the dower interest as it shall be ascertained; (3) the payment of the debts of the copartnership; (4) the balance which shall be found between the accounts of the copartners; (5) a division of the fund or land remaining (if all is not sold) between the copartners.
We are not sure that the record contains the testimony required to make the necessary computations, certainly we can obtain little aid from the briefs as to some of them. We think, therefore, that the case should be remanded for the circuit court to consider the proofs and such other testimony as may be offered, pertinent to such questions (provided that it shall deem any further testimony necessary, and permit it to be introduced), and make such other, and further decree, not inconsistent with the decree of this court, as shall be just to the parties, unless upon the settlement of a decree in this court counsel can agree upon one, which will end the litigation-here with the approval of this court. The complainant is entitled to the costs of both courts against the defendant, except such as apply solely to the partition proceedings, which should be paid from the property.
The prayer for enlarged solicitor’s fees will be denied.
McAlvay, C. J., and Grant, Blair, and Montgomery, JJ., concurred. | [
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McAlvay, C. J.
Plaintiff, a Michigan corporation, entered into a contract in writing with defendants, April 14, 1904, on certain terms and conditions making defendants its exclusive agents in the city of Detroit for the sale of its multi-cabinet line of sectional filing cabinets, etc., at certain discounts, agreeing to do certain things as to advertising and furnishing catalogues; accounts to be due and payable in 30 days. In consideration of discounts and the services to be performed, defendants agreed to maintain a stock of not less than $500 worth of plaintiff’s goods, and give them prominence in their salesrooms and in advertising, to the exclusion of all similar goods. The right was mutually reserved to terminate the agreement on 30 days’ notice. For the purposes of this case it is not necessary to print this contract at length. Goods were delivered to defendants under this agreement. Soon after-wards defendants began to complain on account of non- fulfillment of the agreement by plaintiff in several particulars. On August 11, 1904, they gave notice of cancellation of the contract. In December, 1904, plaintiff sued defendants in the circuit court for Wayne county in assumpsit, declaring on the common counts for goods sold and delivered, and filing a verified bill of particulars showing a balance of $606.25. Defendants pleaded the general issue, giving notice of set-off and recoupment, claiming damages for failure to perform the terms and conditions of a written contract and supplemental amendments thereto, adding an affidavit denying plaintiff’s claim, and stating that all goods on hand were then stored and held for plaintiff as already notified, together with a bill of particulars of set-off and recoupment.
Pending the suit and before trial these parties by their attorneys entered into a stipulation in writing, as follows (omitting entitling and signatures):
“It is hereby agreed by and between the parties to the above-entitled cause, by their respective attorneys, that the bill of particulars of plaintiffs filed in said cause correctly sets forth the merchandise sold and delivered by the plaintiff to the defendants and the price charged therefor, and the amount unpaid is $606.25.
“This stipulation is made in pursuance of a talk over the telephone between Mr. Rackham and Mr. Greening to obviate the necessity of plaintiff having its witnesses, Louis O. Walker and Morse, come to this city a second time for the purpose of giving their testimony as to the facts above admitted.
‘1 This stipulation is not intended to be considered as a waiver of any claim made by the defendants as set forth in their set-off and recoupment.
“Dated February 14, 1906.” ■
When the case came on for trial the plaintiff offered in evidence this stipulation and the files in the case, and rested. Defendants asked for a directed verdict, for the reason that in his opening plaintiff’s attorney had stated that defendants were agents for plaintiff under a written contract, which had not been introduced in evidence, and no proof had been made to show its fulfillment. The court denied this motion, and defendants excepted. No error is assigned upon the denial of this motion.
Defendants then proceeded to trial, offering the contract in evidence, and putting in testimony which was claimed to show default in fulfillment of the contract on plaintiff’s part, and damages by reason thereof. Plaintiff offered proof in rebuttal. The court instructed a verdict for plaintiff for the full amount claimed. From the judgment entered thereon defendants have brought the case to this court for review upon writ of error. The errors assigned are all upon the charge and direction of the court, and refusals to charge, and upon the refusal of the court to allow defendants, under Circuit Court Rule 24c, to have the opening and closing in taking testimony. This last assignment of error is abandoned, not being discussed in defendants’ brief.
The only question to consider is whether the court erred in directing a verdict for plaintiff. The court held that the stipulation given above was an admission by defendants of the receipt of the goods and the balance due plaintiff. We think it warrants that construction. It recites, among other things, “that the bill of particulars of plaintiff filed in said cause correctly sets forth the merchandise sold and delivered by the plaintiff to the defendants and the price charged therefor, and the amount unpaid is $606.25.” During the trial defendants’ attorney, in urging the application of Circuit Court Rule 24c, said:
“We concede what they claim, but we propose to reduce their claim by a set-off and recoupment.”
The stipulation did not waive the right to claim set-óff and recoupment, and the defendants put in all the proofs they desired under their notice of such defense. The amount paid to Mr. Keberg of $28.85 per week for 17 weeks is the only item of which there is definite proof. Keberg was recommended to defendants by plaintiff’s agent who dealt with defendants at the time the contract was made. No claim is made that he was not competent, but that, by reason of default on plaintiff’s part in fulfilling the contract, defendants should recoup Keberg’s wages as part of the damages sustained by them. Plaintiff’s bill of particulars shows goods sold and delivered to defendants to the amount of $1,061.90, with total credits of $455.65, which includes goods returned and some discounts. The testimony of defendant Fitzsimons shows that about $300 worth of these goods were sold. There was evidence in the case tending to show that plaintiff had defaulted in not furnishing catalogues and doing advertising as agreed in the contract, but nothing definite as to the damages arising therefrom in any particular. If, for the purpose of selling these goods, a new department was created in defendants’ business, and Keberg was employed to manage that department, money paid him might be an element of damages, if shown that such damages arose'from the breach of the contract by plaintiff. No such showing has been made. Nor is there any testimony in the case which would warrant the jury in fixing damages upon any item set up in defendants’ bill of particulars of set-off and recoupment. It is elementary that damages for breach of contract must be proved with reasonable certainty, and are not to be inferred or fixed arbitrarily by the jury.
The conclusion of the court was correct in directing a verdict for plaintiff. The judgment is affirmed.
Carpenter, Grant, Hooker, and Moore, JJ., concurred. | [
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Per Curiam.
Defendant asks the Court to reconsider its policy decision in People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), that:
"In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.”
We accept the invitation, and hold that in trials commenced more than 30 days after the decision in this case, a trial judge may instruct the jury on the lesser included misdemeanor offense if the value of the property involved is the only element which separates the misdemeanor from the felony charged.
I
Defendant was charged with receiving and concealing stolen property with a value in excess of $100. MCL 750.535; MSA 28.803. He was convicted by a jury, pled guilty to a supplemental information charging him as a second offender, and in April 1976 was sentenced to serve a 2- to 7-1/2-year prison term. Defendant’s conviction was affirmed by the Court of Appeals on November 8, 1978.
In March, 1975 Robert Ropp owned a 1932 Ford which had a 1967 Cadillac V-8 engine in it. On March 30, 1975, Ropp discovered his 1932 Ford vehicle was missing from the place where it was being stored. The Cadillac engine turned up behind a piece of paneling in the garage of defendant’s father.
Although defendant’s main theory of defense at trial was that he purchased the engine from an other person for $15, without knowledge that it was stolen, he also contended that the engine was worthless and hence the element of value had not been established.
Owner Ropp testified that in his view the engine was worth anywhere from $800 to $1200 at the time it was taken. The people called an expert witness who testified that if the dismantled engine were cleaned up, it would be valued at anywhere from $400 to $800. The testimony of defendant was in conflict with that of Ropp and the expert as to the worth of the engine. During cross-examination defendant testified that he had engaged in trading engines over the years, and that a normal engine pulled from a car with 40,000 miles would be worth around $150. However, defendant testified that the engine involved in this case was junk, and therefore there was nothing unusual about paying $15 for it.
When the trial began, the judge’s preliminary instructions included the following:
"The law divides a crime of receiving and concealing stolen property into two types, depending on whether the fair market value of the property exceeds $100 or is $100 or less. You may find the defendant not guilty or guilty. If you find the defendant guilty, you must state in your verdict whether the value of the property exceeds $100 or is $100 or less.
"If you find the defendant guilty but have a reasonable doubt whether the value of the property exceeds $100, it is your duty to find him guilty of receiving or concealing stolen property of $100 or less.”
Before the trial judge’s charge to the jury, the decision by this Court in People v Chamblis, supra, was brought to his attention. The assistant prosecuting attorney and defense counsel concurred that based on Chamblis, an instruction on receiving stolen property under $100 could not be given. In his final charge to the jury, the judge thus limited the verdict to guilty as charged or not guilty. The jury chose the former.
II
As enunciated in Chamblis, the reason behind the policy established therein was that those who commit serious crimes ought to be punished for such offenses, while those who do not commit serious crimes should hot be tried for those serious crimes only to be found guilty of a much lower offense. We are striving for a realistic relationship between the original charge and the offense committed, and we believed that the cause of justice would be better served, the potential harassment of an accused minimized, and undesirable compromise by the jury limited by establishing a rule which precluded instruction on lesser included misdemeanor offenses when the charged offense is punishable by imprisonment for more than two years.
In the case at bar, the defendant was convicted under MCL 750.535; MSA 28.803, which reads in pertinent part:
"A person who buys, receives, or aids in the concealment of any stolen, embezzled, or converted money, goods, or property knowing the same to have been stolen, embezzled, or converted, if the property purchased, received, or concealed exceeds the value of $100.00, is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00, or both. If the property purchased, received, or concealed is of a value of $100.00 or less, the person is guilty of a misdemeanor. On a third or subsequent conviction under this section the person is guilty of a felony, punishable as herein provided, although the value of the property purchased, received, or concealed did not exceed $100.00.”
As the statute is designed, while the essence of the offense, receiving and concealing stolen property, is the guilty knowledge of the person, the gravity of the offense is measured in terms of value. A dollar demarcation is used to distinguish the seriousness of harm to the state. Nonetheless, value is a factor which is not necessarily controlled by the conduct of a defendant in carrying out the criminal transaction. Rather, the element which distinguishes a felon from a misdemeanant derives from a legislated cutoff. Further, as defined by the court, the term "value” in cases of this nature means market value at the time and place of the crime. See People v Hanenberg, 274 Mich 698; 265 NW 506 (1936).
The combination of the legislative measurement of the seriousness of harm to the state by value in conjunction with the jurisprudential definition of value as market value compels us to conclude that offenses, the gravity of which is determined by an element which does not necessarily have anything to do with the actus rea or mens rea of the accused, should be excluded from the policy of Chamblis.
Not only are the underlying reasons for the Chamblis rule absent from this type of case, but the defendant is denied a defense even though the aggravating circumstances of the crime depend on what the market value is found to be at the time of the criminal transaction. Stated another way, granting that the essence of the gravity of the offense of receiving or concealing stolen property is whether the value exceeds $100, this essential characteristic does not necessarily directly relate to the conduct or intent of the accused. In such a situation, it is appropriate, on request, for the trial judge to instruct on the lesser included offense. In fact, it would be an unrealistic verdict, contrary to the policy of Chamblis, for a defendant admittedly guilty of receiving and concealing stolen property to be found not guilty of any offense solely on the determination of a value expert that the stolen property was worth $99, when an alternative exists in the very statute under which the defendant was charged. The jury should be able to reject an opinion of a person as to the value of property and still be able to convict a defendant it finds received or concealed the stolen property.
Ill
At the time of the trial in this case, the rule of Chamblis was the law in Michigan and precluded the trial judge from giving an instruction on the lesser offense of receiving or concealing stolen property of a value of $100 or less. Both the prosecutor and defense counsel recognized this, and consequently defense counsel did not object to the failure to give such an instruction. The trial judge committed no error in instructing as he did, and in fact would have been guilty of error if he had instructed otherwise. Defendant suffered no injustice in having the law as it existed at the time of his trial applied to his case. It is solely as a matter of policy that we alter the Chamblis rule today.
Consequently, defendant’s application for leave to appeal is denied.
However, pursuant to GCR 1963, 865.1(7), we hold that for trials commencing more than 30 days after the decision in this case, the rule of Chamblis is modified to allow a trial judge to instruct the jury on a lesser included misdemeanor offense if the value of the property involved is the only element which separates the misdemeanor from the felony charged.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Defendant’s friend Dale Brownlee testified that he and defendant pulled the engine from Ropp’s 1932 Ford on March 29, 1975 at Clem Banks’ residence. According to Brownlee, defendant showed him a receipt for the engine at that time. Clem Banks testified that defendant brought the car out to his house and told him that the car belonged to defendant’s father who used it for racing. The police testified that at the time they approached the defendant’s residence to inquire about the car engine, defendant denied that the engine was in his garage. Later, defendant informed police that he had a receipt from Amos Morley for the engine. At first, defendant was unable to produce the receipt; but later he brought a receipt to the police station. Defendant testified at trial that he had purchased the engine from Amos Morley for $15. The police could find no such person, nor did the other witness know Morley. He also testified that he did not deny the engine was in the garage when the police came, but said only "What engine?”. Defendant also testified that Amos Morley brought the 1932 Ford with the engine to defendant’s house a week before defendant finally picked up the engine. (This would have been before the date the car was taken.) Although defendant testified that the receipt was given to him on the date that Amos Morley brought the vehicle to his home (i.e., March 24, 1975), the date on the receipt was March 29, 1975.
But for this Court’s decision in People v Chamblis, supra, the instruction was appropriate. See People v Martin, 91 Mich 650; 52 NW 68 (1892); People v Sims, 46 Mich App 29; 207 NW2d 426 (1973). | [
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Grant, J.
(after stating the facts).
The ques tions of the passage of title to the poles and of the surrender or discharge of the contract as to them were properly submitted to the jury. Whether title to the poles had passed depends upon the intent of the parties. The marking of the poles with defendant’s log mark was evidence of ownership. 2 Comp. Laws, § 5085. Was it understood by them that the title should pass, notwithstanding the arrangement that the poles were to be inspected after-wards ? That intent was a fact to be determined from the acts, conduct, and statements of the parties. Upon this point there was a clear conflict of evidence. The same is true of the other question involving the surrender or discharge of the contract as to the poles.
The learned circuit judge correctly instructed the jury that the plaintiff had fully performed the contract as to the posts and ties. He had delivered them at the places designated. They had been inspected and accepted. The delivery was complete. Payment was then due. The defendant did not pay. Under these circumstances, the plaintiff could have rescinded the contract, retaken the goods, and ignored the title of the defendant. If he had failed to pay upon delivery and had taken possession of the goods without payment, the plaintiff could have recovered them in a proper action. 24 Am. & Eng. Enc. Law (2d Ed.), p. 1185; 2 Mechem on Sales, § 1682.
This claim of defendant was not mentioned by the circuit judge in his charge. Was there evidence to sustain it ? Mr. Wilson, an agent for the defendant, testified that in a conversation with plaintiff, plaintiff told him that the timber was worth more than it was the year before, and that “the defendant had lost any supposed rights that it might have had to take it away, and couldn’t have it.” In' another conversation the same witness testified that plaintiff “ either wanted us to go there and take the timber on the terms which I have stated, or else to release the timber from the mark. He thought it should be released if there was anything in the mark that prevented him from selling the timber.” Plaintiff had had negotiations with one Gilpin to purchase the timber, but Gilpin hesitated on account of the defendant’s mark upon it. Mr. Wilson testified that he saw Mr. Gilpin and told him he could purchase it, and he would release it to Mr. Watson, that he subsequently saw Mr. Watson and told him specifically what he had done, and that plaintiff said it was satisfactory.
‘ ‘ I asked him if he wanted a written release from me, or if he wanted me to send to the Naugle Tie Company and get a written release. He said it was not necessary; that if I had been there and released the timber to Mr. Gilpin, and would now release it to him, that was sufficient.”
Another witness, Mr. Dean, who was sent by the defendant to see if there was any timber there, testified that plaintiff said to him:
“ There is no use of your going over to the island, because all the timber was shipped, and there was none there.”
In a letter of January 7,1904, plaintiff wrote defendant, demanding payment for the timber taken, and in that letter wrote:
“ I have waited and done without my money now for a year and now must insist on a settlement in full. If not, I shall proceed at once to enter suit. As for your Mr. Dean not going over to the island to count up, that does not annoy me, as the timber is worth the money where it is. I care nothing about what you did not take. It is what you have got I want pay for.”
j This letter was in reply to one from defendant of December 39, 1903, in which defendant wrote:
1 “ If it is true that the material cannot be inspected and tallied now, the only way that I know to handle the posts and poles that are still on the island would be to make a new contract for a specified amount of poles of certain lengths and sizes, to be delivered the first thing in the spring and to make.such payment on them as we might mutually agree upon. This, however, is only a suggestion, and I should be glad to hear from you upon it.”
This evidence certainly tended to sustain the defendant’s theory. The evidence upon this branch of the case was the same in case of the posts and ties that it was in case of the poles. If it was proper to leave the question to the jury in the one case, it was also in the other.
We think there was a conflict of evidence, and are therefore compelled to reverse the judgment, and order a new trial.
Blair, Montgomery, Hooker, and Moore, JJ., concurred. | [
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Moore, J.
This is a proceeding in equity to establish complainant’s title to a certain note and mortgage claimed as a gift causa mortis, from the deceased intestate, by-delivery and without written assignment. Louis Almond, the deceased intestate, at the time of his death was about 75 years of age.
It is the claim of complainant that on December 26, 1904, being then in possession of the note and mortgage, and conscious of approaching dissolution, Mr. Almond called complainant to the room where he was sitting, and in the presence of her husband and daughter, whom he had previously called, gave her the note and mortgage and made delivery thereof to her. The case was tried in open court. The court decreed that the legal title to the note and mortgage be confirmed in the estate of deceased, and dismissed the bill of complaint.
We agree with the solicitor for complainant that the important question in the case is one of fact. The record is somewhat voluminous. We have examined it with care. It would profit no one to set out in detail what it contains. It does show, however, that Mr. Almond was a man of intelligence, and that he had the note and mortgage with him when it is claimed he gave them to complainant. The note was payable to “ Louis Almond or order.” Mr. Almond did not indorse it. The record also shows that the complainant filed a petition after his death for the appointment of her brother-in-law as administrator, in which petition she stated “that said deceased had personal estate situated and being in the county of St. Clair, aforesaid, of the estimated value of $500 and upwards.” The record shows that, excluding the note and mortgage, deceased did not have $50 worth of personal property. See Bellis v. Lyons, 97 Mich. 398. There is other testimony of much significance. We have no doubt the court below reached a right conclusion. '
The decree is affirmed, with costs.
McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred. | [
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Carpenter, J.
A suit to recover taxes assessed for the year 1905 was brought by said plaintiff against each of the above-named defendants. The facts in each case being the same, the two suits were consolidated. They were tried before the court without a jury. A finding of facts was made, and judgment rendered in favor of defendants. The proceedings are brought before this court for review by a case made after judgment. The defendants are corporations engaged in maritime commerce or navigation. Their articles of association name Portsmouth township as the location of their general office for business. The corporations listed their property for taxation for the year 1905 in said township. No property of said defendant corporations was in fact situated in said township, and their general business office was located in Bay City. Defendant corporations were therefore taxable, not in plaintiff’s township, but in Bay City ( Teagan Transportation Co. v. Detroit Board of Assessors, 139 Mich. 1 [69 L. R. A. 431]), and it was in fact there taxed.
Plaintiff contended in the lower court and contends in this court that the principle of estoppel applies, and obligates defendants to pay said taxes. Does that principle apply ? Plaintiff insists that it. does. It insists that the tax was assessed and obligations thereby imposed on plaintiff, because defendants stated in their articles of incorporation, in their report to plaintiff’s assessing officer, and verbally to said assessing officer, that their general business office was located in said plaintiff township. It is true that such statements were made, and the consequent liabilities resulted therefrom, but there is no finding of facts that plaintiff’s assessing officer believed that defendants’ general office for business was actually located in said township, and from the facts found no such inference can be drawn. It appears from said finding of facts that after the foregoing statements were made, plaintiff’s assessing officer was in such doubt as to his duty that he “consulted the assistant prosecuting attorney, who advised him that the principal business office of such a corporation was wherever the officers swore it was located, and it is there that such corporations are liable for assessment.” It is to be inferred from the finding of facts that the property was assessed in plaintiff township, not because its assessing officer believed defendants’ general business office was there located, but because he believed that defendants had a right to select, and by the statements above referred to had selected, that township as the situs for the taxation of their personal property. It appears, too, from said finding that the defendants “ acted in good faith, and had not at that time been advised that the excepting of navigation companies from the general provisions of section 11 of the general tax law had been held unconstitutional.” (It is to be observed that what is above referred to as an exception to the tax law — declared unconstitutional in Teagan Transportation Co. v. Detroit Board of Assessors, supra — made the personal property of transportation companies taxable in the municipality, “ which is stated in their articles of association to be the location of their general office for business.”) This, then, is not a case in which plaintiff’s taxing officer was deceived by any statement of fact made by defendant. It is a case in which everybody concerned acted upon the erroneous assumption that the law which had already been declared unconstitutional was constitutional. It is simply a case of a mutual mistake of law. It is ruled by Smith v. Sprague, 119 Mich. 148, where we held that the doctrine of estoppel did not apply. See, also, McKeen v. Naughton, 88 Cal. 467; Brewster v. Striker, 2 N. Y. 19; Bigelow on Estoppel, p. 572.
Plaintiff also contends that defendants are estopped because they did not appear before the board of review and contest their assessments. This contention is answered by the following decisions: City of Detroit v. Transportation Co., 140 Mich. 174; Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466.
Judgment affirmed.
McAlvay, C. J., and Grant, Blair, and Moore, JJ., concurred. | [
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Hooker, J.
George and Jane Clinton being husband and wife, the latter filed a bill for divorce, in the course of which proceeding they made a written agreement relating to their property rights. He conveyed to her the home for her life, to be held by her for the use and benefit of herself and their children as a home. He reserved a life estate in himself in the event o£ his surviving his wife, with remainder to the children after the termination of the life estates, unless he should survive all, when the fee would revert to him. There was a mortgage upon the premises at the time, and he agreed that he would pay it within two years, and have the premises discharged from it, the amount of the mortgage being $225 and interest, and if, in the “meantime," Jane should make any payments of principal or interest thereon, or procure any other person to do so, she or such other person should be subrogated to the right of the mortgagee, or have a lien corresponding to the amount so paid, as security, and to assure the final payment of said principal and interest in full “by the party of the first part.” The mortgage and note were dated June 21, 1882, and matured in three years, and were therefore due at the time the agreement aforesaid was made, which was November 30, 1886. George Clinton never made any payments upon the mortgage. This mortgage was assigned to William H. Withington. The date of this assignment does not appear, but the record shows that Mrs. Clinton made payments to Withington upon the mortgage as follows: April 17, 1899, $12, November 9, 1899, $12, a number of small payments aggregating $243. Withington’s executors assigned the mortgage to the claimant, Mrs. Clinton, on June 11, 1904. She had not fully paid the mortgage, but it was given to her by Mrs. Withington after her husband’s death. She had lived in their family for some years.
George Clinton is said to have died on October 15, 1904. Thereupon Mrs. Clinton filed this claim against his estate to obtain reimbursement for the amount of the mortgage and interest, or at least the amount of her payments. The claim was disallowed by the commissioners on claims, but on appeal it was allowed by direction of the circuit judge, the jury finding the sum of $267 for money paid by the claimant and $94.15 for interest, a total of $361.15. The court had previously overruled a motion to direct a verdict for the defendant based upon the claim that, while the claimant’s testimony showed she paid money to Withington, such payments were not shown to have been made upon the mortgage in furtherance of any understanding with Withington, but only that she expected that it was so paid, and therefore did not establish her claim under the provisions of the agreement, and, further, that the statute of limitations (3 Comp. Laws, § 9375) is a bar to this claim. It is contended (1) that the agreement did not create a personal liability on the part of the deceased to pay this mortgage; (2) that by its terms the right to subrogation depended upon payment made by complainant within two years after the date of the agreement; (3) that, if there were ever a valid claim in personam, it is barred by the statute of limitations.
The deceased made an agreement to pay this mortgage within two years. This created a personal obligation, which matured at the expiration of two years without payment. A right of action accrued then.
Had there been no such promise, there was still the obligation to pay the mortgage, and any party in interest might pay it, and be subrogated to the rights of the mortgagee. The mortgage was executed by both George and Jane Clinton, contained an express promise to pay $225 and interest, and was under seal, as also was the separation agreement. Therefore the statute had not run until 10 years had expired. See 3 Comp. Laws, § 9734, and note. The mortgage was dated in June, 1882, payable in 'three years, the separation agreement in November, 1886. George Clinton died October 15,1904. The personal obligation under the mortgage became barred in June, 1895, that under the separation contract in November, 1898, unless the running of the statute was arrested, and there is no evidence that it was arrested by any act of the deceased.
It is contended that payments made by Mrs. Clinton had the effect of extending the statutory period, she being a joint promisor in the mortgage, but this is ruled otherwise in the case of Home Life-Ins. Co. v. Elwell, 111 Mich. 689, and cases cited.
It is said in the appellee’s brief that the right of action did not accrue until after the payment of the mortgage by claimant. We have already said, and it can hardly be questioned, that the right of action for the breach of this contract accrued at the expiration of two years, when the breach occurred. What other promise was there made in that contract? None except that, if she should choose to pay within the two years, she might have a lien on the land, for the payments, by way of subrogation, which she would have had without such provision if she chose to take an assignment of the mortgage, and perhaps without it. But that does not justify the treatment of such a payment as creating a personal obligation to pay such sums from other property on which a personal action will lie. If the separation agreement could be construed as a promise to repay her for all payments that she might afterwards make on the mortgage, that contract (being under seal) would be barred by the statute in 1898 at the farthest. Payments made after that time would not only be made on a mortgage, whose personal obligation was barred, under section 9734, but under a contract whose vitality came to an end under the same statute in November 30, 1896, if it be said that a right of action accrued immediately upon such payment and on November 30, 1898, if the expiration of the two years mentioned in the contract was essential to the accruing of such right of action, and the record shows that but $8 was paid within the latter period, and we should still be compelled to reverse the order for the reason that it was error to refuse to direct a verdict for that amount. But we think that the contract did not create a personal liability to reimburse claimant for such payments as already stated, and therefore the entire claim was barred. We are constrained to say, therefore, that the statute is a bar to the personal claim of the claimant.
What her rights may be as to foreclosure of the mortgage, under the doctrine of subrogation, need not be considered, as they are not before us.
The order is reversed, and a new trial is ordered.
McAlvay, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred. | [
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Sherwood, J.
The proceedings in this case were commenced before Robert White, Esq., a circuit court commissioner for the county of Iosco, to compel the delivery of books and papers to the defendant under How. Stat. § 8589. The plaintiff claims that he was duly elected to the office of supervisor in the township of Sherman, in said county, on the 6th day of April, 1885, and that the books and papers which he seeks to recover of the defendant are those pertain ing to the office to which he claims to have been elected, and which are withheld by the defendant wrongfully. In the case of the Attorney General on relation of the plaintiff against the defendant, post p. 516, decided at the present term of this Court, it was held that the defendant is entitled to the office of supervisor in the said township of Sherman. That case necessarily rules this.
The judgment at the circuit, which was in favor of the defendant, must be affirmed with costs.
The other Justices concurred. | [
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Champlin, J.
In this cause the paper writing alleged to be the last will and testament of Eliza H. Disbrow was propounded for probate in the probate court for the county of Kent, by the said Levi M. Schofield, proponent, in and by a petition filed in said court, upon the 15th day of July, 18S4-, which petition was in the usual form. The said contestant appeared, and filed her answer to said petition, thereby objecting, as one of the heirs-at-law and next of kin of said deceased, to the allowance and probate of said paper writing as the last will and testament of said Eliza II. Disbrow, deceased, for the reason that the said deceased, at the time of the making and execution thereof, was not of sound mind of testamentary capacitjr; that she was under restraint and undue influence at the time of the execution thereof, and was unduly influenced to make the same by the said proponent and his wife, Mrs. Levi M. Schofield, the legatees and devisees named in said instrument; and that the said instrument was not, in fact, the last will and testament of said deceased. And upon the hearing of said matter, the probate judge of said court having decided in favor of the validity of said will, an order was entered in said cause allowing the same, and admitting it to probate as the last will and testament of said Eliza II. Disbrow, deceased, from which order or decree of said probate court an appeal was taken by said contestant to the circuit court for the county of Kent. And said appeal having been duly perfected, an order was entered framing the issue in said cause as follows, to wit: “ Whether the paper writing probated by the probate court of Kent county, as the last will of said deceased, is, in fact and law, the last will of said Eliza II. Disbrow, deceased.” And the said cause having been brought to trial before a jury duly impaneled to try the same upon the issue thus framed, the said jury found the said issue in the affirmative, and judgment was thereupon rendered by said court in the usual forms, upon and in accordance with the said verdict, declaring the said will to be the last will and testament of said Eliza Ii. Disbrow, deceased.
On the trial in the circuit court, Mrs. L. M. Schofield, who was named as a legatee in the will, was produced as a witness by the proponent, and asked the following' questions:
“ Question. Now, I will call your attention to this will. Before this will was made, did you have any conversation with her upon the subject of her making her will V
Whereupon the attorneys for said contestant objected to said question, and to the witness answering the same, for the reason that said question was incompetent and inadmissible, for the reason that the said witness, Mrs. Schofield, was made incompetent and disqualified as a witness in her own behalf, being a person for whose benefit the suit or proceeding was prosecuted, and a party in interest, and therefore the statute (How. Stat. § 7545), was a bar to the admission of her testimony on the point in question, and excluded her from answering the said question, and from testifying on the point, for the reason that the matter, if true, must have been equally within the knowledge of the deceased', Mrs. Dis-brow,t and not known to any other person; and that the said circuit judge overruled the said objection and allowed the said question to be put, and answered by said witness. And the said witness answered the said question as follows:
Answer. Well, there was in January. I suppose this would be what would come under that head. In January she was very much troubled. In the morning she came down, she would say, £ I could not sleep; my mind is in such a condition, I cannot sleep.’ I wanted to know what was the matter. She said her affairs was not in a shape that she would want to leave them if she should drop off. I said : ‘Put them in a shape that you can relieve your mind. Don’t let such a thing as that keep you awake.’ For she would feel very badly when she didn’t get her sleep, and she said she wanted to talk to me about it. I said I had nothing to say on that question ; that must be for herself; she must go to her lawyer and make her own will; I had nothing to do with that. She was then going down to Mr. Taggart’s every day for four or five days, and then she said : ‘I feel easier. I have got that thing settled.’ ”
This constitutes the first assignment of error. The ruling of the court was correct. The contestant had introduced testimony tending to prove that Mrs. Schofield had exerted an undue influence over the testatrix in making her will, and she was introduced for the purpose of rebutting this evidence. She was not a party to the proceedings to establish the will. She may be interested, but such interest is remote and contingent. The debts must first be paid, and these may consume the whole estate. Under statutes or practice where interested persons are disqualified, she would be a competent witness. Freeman v. Spalding 12 N. Y. 373; Lawyer v. Smith 8 Mich. 411-424. Put our statutes have removed the disqualification of a witness on the ground of interest, and there appears to be no reason why she is not a competent witness.
The second assignment of error is substantially the same as the first, and must be overruled for the same reason.
The third and fourth assignments of error are based upon the refusal of the court to give the following instructions, namely :
Third. If you find that a confidential relation existed between the parties, as the contestant claims, and that Mrs. Disbrow reposed her confidence in Mr. and Mrs. Schofield, and that they had such influence over her as is claimed, that influence must be kept free from.selfish interest and cunning and overreaching bargains, and in their dealings with her no selfish advantage must have been taken of this influence. Such influence must be exercised in good faith and not abused. It must be directed with reference to Mrs. Disbrow’s best interests, and not to further their own selfish interests at her expense.
Fourth. If you find that this confidential relation in fact existed, and that the Schofields possessed the influence over Mrs. Disbrow that it is claimed they did, and that she reposed her trust and confidence in them as claimed, the situation would impose a solemn obligation upon thd Schofields to abstain scrupulously from attempting to derive any pecuniary benefit to themselves which selfish motives might suggest, at the sacrifice of those interests which they were bound to protect; for if confidence is reposed in that manner, it creates a high and sacred trust and an obligation and duty which must be observed. If confidence is reposed, it must be faithfully acted upon and preserved from any intermixture of imposition. If the means of personal control are given, they must always be restrained to purposes of good faith.
The confidential relation alluded to in the above requests refers to the evidence introduced by the contestant, tending to prove that the proponent of. the will was, at the time of the death of Mrs. Disbrow, and had been for two years prior thereto, pastor of the Westminster Presbyterian church, of' which Mrs. Disbrow was a member and constant attendant up to the.time of her death, which was very sudden, and while she was walking upon the street; and Mrs. L. M. Schofield was the wife of her pastor. She resided in her pastor’s family, and by her will made Mr. and Mrs. Schofield her sole legatees and devisees of all her property.
The contestant’s counsel claims that these requests should have been given to the jury for a standard of conduct or morality that should govern the jury in their deliberations over the point whether Rev. Mi’. Schofield and wife did what they ought not to have done in obtaining this will when confidential relations existed between them and the old lady. 'And they insist that when such relation exists, a different kind of conduct is required on the part of beneficiaries under a will, where they procure the testator to make the gifts to them, than would be required of strangers; that in such cases there is a “ technical morality ” which imposes a duty, where confidence is reposed, to faithfully act upon it and preserve it from any intermixture of imposition; and if influence is acquired it must be kept free from the taint of selfish interest and cunning and overreaching bargains. The question presented is whether the charge of the court sufficiently covered the point presented.
Upon an examination of the charge of the court we are satisfied that the court in a clear and perspicuous charge to the jury, covered the whole law applicable to the case, and that his refusal to charge in the language of the request was not error. lie instructed the jury upon the law covered by the requests that
“ The contestant claims that she has put evidence in tending to prove that Mrs. Disbrow made this will in favor of her religious adviser and his wife, both of whom it is claimed were her confidential and trusted friends, to the exclusion of the contestant, her niece, and a natural object of the testatrix’s bounty; and that Mr. and Mrs. Schofield had constant opportunities of exerting undue influence, and that the will is unreasonably and extravagantly in their favor. If you find from all the evidence in the case that such confidential relations in fact existed between the parties as claimed by the contestant, and that the opportunity for undue influence existed, as claimed, and if you find as a fact that the will presented was unreasonably and extravagantly in favor of Mr. and Mrs. Schofield, to the exclusion ox the natural objects of Mrs. Disbrow’s bounty, — if you find all this as a fact, it will not be without considerable significance; for an inference may legitimately be drawn therefrom which would be unfavorable to the freedom of action which a will requires. If you find as a fact the existence of the confidential relations claimed by the contestant to exist in this case, and that the trust and confidence claimed was in fact reposed, their dealings, while' they are to be closely scrutinized for the detection of any advantage being taken, yet if the influence they possessed was not in fact exerted, and did not in fact procure this will, then the will is her will, and should stand notwithstanding the existence of the confidential relations and the confidence reposed ; for the law does not, because of the existence of confidential relation or confidence reposed, however full the confidence or close the relation, incapacitate persons occupying such positions of trust from receiving the bounty of the testatrix ; and does not impose upon them the duty of refusing such bounty, or of advising or persuading testatrix not to give it.”
The foregoing instructions were given, at the request of the contestant’s counsel, and he further instructed the jury, upon this branch of the case, upon his own motion, as follows :
“ The proponent’s theory of the case is that the deceased, Mrs. Disbrow, had suffered from ill treatment at the hands of her brother, her only relative living here, and the only near relative she had seen for many years; that Mr. Schofield, in the matter of her differences with her brother, befriended her, and advised her for what he conceived' to be her good; that her life at Mr. Ball’s became so unpleasant that she felt she could not live there longer, and that she was received into the family of the Schofields as a boarder, partty because of her desolate condition, and was from thence considered and treated as one of the family ; and that she, from her association with the Schofields, and because of her kindly treatment, conceived and entertained a strong affection for the members of the family, and that, induced by such affection and by the expectation of continuing to share the home of the Schofields during life, she freely, without compulsion or undue influence, made the will in question in their favor, and did not even inform them of the fact until after a lapse of considerable time from the date of its execution. Such is the theory of the proponents. If that theory is maintained, this is a valid will.
The contestants, on the other hand, contend that the Schofields took advantage of the intimate and confidential relations established between them, and overpowered the will and mind of the testator, and induced her to make a will in their favor. And if you find the fact tó be that they did so take advantage of tbe situation, and overpowered her will and mind, either one or both of them, so that in the making of this will she was not a free agent, — if you. find that undue influence was used, in other words, in inducing her to make this will, the will should not be sustained.
* -x- -x- * * * -x- *• -Ji-
lt is not claimed in this case that there is any direct evidence of undue influence; but it is claimed by contestant that she has put evidence into the case which tends to prove indirectly, though not directly, that undue influence was used by the Schofields in procuring this will. And this claim is made from all the circumstances of the case.
It is claimed, among other things, that Mr. Schofield was the religious adviser of the testator; that he and his wife were the confidential friends and advisers of the testatrix, I should say ; that they had constant opportunities of exerting undue influence ; and that the will is unreasonably in their favor; and that the natural object of the testatrix’s bounty, the niece, was absent during this time, and is excluded by the terms of the will, as it appears. If you find that such confidential relations existed in fact, existed between the parties as claimed, and that au opportunity for undue influence existed as claimed, and if you find as a fact that the will presented was unreasonably and extravagantly in favor of Mr. and Mrs. Schofield, to the exclusion of the natural objects of Mrs. Disbrow’s bounty, these circumstances will be of some significance, as an inference may be drawn unfavorably to the freedom of action which a will requires. But such inference must be drawn by you as an inference of fact, and you must be able to say that such an inference is justified upon the whole evidence.
Naturally, in determining as to whether the will is unreasonably’in favor of Mr. and Mrs. Schofield, you will consider the relations existing between the testatrix and her immediate and near relatives. Her want of affection for her brother may be considered ; the fact, if you find it to be a fact, that she had assisted the niece, Mrs. Walker, in times past; the fact of her slight acquaintance with her; that she had not seen her in some fifteen years; together with the evidence tending to show that she entertained kindly feelings towards the Schofields, and expected to remain a member of their family.
You will readily perceive, gentlemen, that an inference might be drawn from the fact of the exclusion from her bounty of near relatives, with whom the deceased had been on intimate and friendly terms, more strong than would be justified by the exclusion of one against whom the testatrix entertained no kindly feeling, or one who was a comparative stranger. So, in determining the weight to be attached to the circumstance that confidential relations existed, you will consider how far these relations induced tru'st and confidence on the part of the testatrix ; or, on the other hand, how far the testatrix was in her business affairs self-reliant. If such confidential relations existed, the law imposed upon the Schofields the duty of abstaining from attempting to derive benefit to themselves by taking advantage of the situation and of the trust reposed; while if such confidential relations existed, and such trust and confidence was reposed, this is not sufficient to defeat the will, unless advantage was taken of the situation.”
We think the charge of the court above given covers the law respecting the technical morality which Mr. and Mrs. Schofield were bound to observe under the facts of this case as indicated by the bill of exceptions. This was not a case where it was claimed that an overreaching bargain had been made between persons occupying confidential relations, wherein a court of equity was appealed to to set the same aside because of a selfish advantage having been taken by the person exerting an undue influence in his dealings with another. The language of the third request applies to a case of this kind, and was inapplicable to the facts before the court.
The language of the fourth request is obscure when applied to the case under consideration. It asserts the rule of law that where there is a trust relation existing, and a confidence reposed in consequence thereof, that situation imposes upon the party occupying such relation a solemn obligation to abstain scrupulously from attempting to derive any pecuniary benefit which selfish motives might suggest at the sacrifice of those interests which he is bound to protect. But what interests are here alluded to that the Schofields were under any obligation to protect ? A person of sound mind, who is under no legal restriction, has the undoubted right to dispose of his estate by will to whomsoever he may choose. No kinsman has a vested right therein and no interests to be protected. The jury bad already been instructed, at the request of the contestant, as above cited, that if the influence the Schofields possessed was not in fact exerted, and did not in fact procure the will, then it is her will and should stand, notwithstanding the existence of the confidential relations and confidence reposed; for the law does not incapacitate persons occupying such positions of trust from receiving the bounty of the testatrix, and does not impose upon them the duty of refusing such bounty or advising or persuading the testatrix not to give it.
The contestant seems to contend that the person occupying such confidential relations must do or say nothing to influence the action of the testator in his favor. This is extending the principle too far. Technical morality does not inhibit a person standing in confidential relations to another, who reposes confidence in him, from using or exerting any influence whatever to obtain a benefit to himself of a bounty bestowed by the last will of such other person. If the influence exerted is not what in law is termed “ undue influence,” technical morality is not violated by its use.
The contestant requested, and the court charged in the language of the request, that “ influence obtained by modest persuasion and arguments addressed to the understanding, or by mere appeal to the affections, cannot be properly termed undue influence in a legal sense ; but influence obtained by flattery, importunity, superiority of will, mind or character, or by what art soever that human thought, ingenuity or cunning may employ, which would give dominion over the will of the testator to such an extent as to destroy free agency, or constrain him to do against his will what he is unable to refuse, is such an influence as the law condemns as undue, when exercised by any one immediately over the testamentary act, whether by direction or indirection, or obtained at one time or another.”
This is a correct statement of the law, and in connection with the other instructions given relative to undue influence, was all that the case required.
There appearing no error in the record, it must be certi fied to the circuit and probate courts that the will propounded as the last will of Eliza Ií. Disbrow, deceased, is her last will, and is entitled to be admitted to probate as such. The proponent will recover costs.
Campbell, J. concurred.
Cooley, C. J. and Sherwood, J. concurred in the result. | [
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Ostrander, J.
Upon a former appeal (142 Mich. 471) the contract of the parties was examined and construed, and it was held there was an executed contract for the sale and purchase of 10 barrels of whiskey, and that title to the whiskey was in defendants. The legal effect of the receipts and of their delivery to and retention by defendants was considered, and a copy of one of the receipts is there given. The suit was begun July 30, 1903, the plea being the general issue. The case having gone down for a new trial, defendants annexed to the plea a notice that they would show in their defense that before ordering the whiskey of plaintiff they opened negotiations therefor with an agent of plaintiff, who represented that the whiskey was stored in United States bonded warehouses, and that warehouse receipts, a form of which he exhibited, would make a complete and valid salé of the whiskey, and that title would pass upon delivery of -such receipts; that such receipts were negotiable, could be sold and disposed of by defendants, they could borrow money on them, and could obtain the whiskey by sending the receipts to plaintiff; that defendants had had no experience in buying whiskey in bond, believed what the said agent told them, and thereafter ordered the whiskey of plaintiff, and received what they supposed were genuine warehouse receipts, and did not learn that said receipts were not genuine until after some 24 days, when they notified plaintiff they were worthless, and returned them the receipts ; that the receipts were duplicate warehouse receipts, not negotiable, defendants could not borrow money on them, or dispose of them at any time; that title to the whiskey could not pass to defendants, except upon delivery of the original warehouse receipts; that the receipts sent were fraudulent, void, and of no value whatever. The court excluded evidence of a conversation with plaintiff’s agent, had before the order for whiskey was sent to plaintiff, and testimony of a witness that the receipts upon their face were duplicate receipts and passed title to no particular whiskey. The court said to counsel for defendants :
“ If you can show that the plaintiff before this suit was brought had given anybody else any authority to take those particular barrels of whiskey, you can do so.”
Counsel replied:
“We cannot do it, your honor. We cannot make any such showing. What we offer to show is that tho.se receipts are what is known as duplicate receipts; that they do not transfer the title of the property mentioned in the receipts to Veio Bros. They are absolutely worthless as receipts.”
This was the very question litigated and determined upon the first trial. Such an issue cannot be tried piecemeal. The undisputed evidence is that the whiskey described in the receipts was set apart for defendants, and is now in bonded warehouse, subject to their order upon payment of the purchase price. In the letter ordering the whiskey it is stated: “We always pay cash thirty days, less discount.” It is said the receipts sent were not unconditional and negotiable, because the whiskey would not be delivered without payment of the purchase price. It would seem that one way to secure relief from this situation, if relief was desired, would be to pay the purchase price as agreed. The receipts expressly state that the whiskey is “deliverable only upon * * * payment of the purchase price of said whiskey, or of the notes given therefor, and upon the return of this receipt properly indorsed and the written order of the holder thereof.” No error was committed in excluding testimony, or in directing a verdict.
The judgment is affirmed.
McAlvay, C. J., and Montgomery, Hooker, and Moore, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). If defendant was claiming, in a direct proceeding to enforce his bid, or in one brought by him to recover back money he had paid, that the bid was made under a misunderstanding for which neither the owner nor the auctioneer were responsible, we should be obliged to consider whether the matter was open to him. Vanleer v. Fain, 6 Humph. (Tenn.) 104. But this is not such a case. Plaintiff voluntarily repaid to defendant money, with the idea, mistaken or otherwise, that defendant had by mistake paid him, plaintiff, too much. He now seeks to recover back the money upon the theory that he was mistaken in sup posing that defendant had overpaid him. If, in fact, defendant had misapprehended what he was buying, it was very proper for plaintiff to offer to rescind the sale, or, if he did not care to do that, to repay him his money; the inference being that defendant had paid too much. If, in fact, there was no misunderstanding on the part of defendant, he should have refused the money. He obtained it fraudulently, and should now refund it. We are therefore of opinion that the testimony of defendant that he supposed he was buying the entire, and not a half, interest in the wheat, was properly admitted. For the same reasons the refusal to charge the jury as requested by defendant was not error.
A brief reference to some of the testimony will aid us here. It is not disputed that plaintiff owned only a half interest in the wheat, and that the handbills and the auctioneer so announced. No deception was practiced. Defendant knew the wheat was grown on land not belonging to plaintiff. The bids for the first piece proceeded with raises of five cents an acre, and, defendant says, had reached “ pretty near up to $4 when I went out there. * * * I think I made about three bids, but it was not more than three.” No one else misunderstood what interest was being sold. The first piece having been struck off to defendant, the second piece was immediately offered, and that he bid in at $4.10 an acre. ' A deposit was made as required by the terms of sale. Later he went with Mr. Fry, who owned the land upon which was the wheat last sold, and with his aid measured the wheat on both parcels; Mr. Atwood, who owned the other piece of land, being with them some .of the time. Defendant testified: “ When we went back, we were figuring up on a shingle, as we walked back down the road.” As a result defendant paid $81 for this wheat. He says he supposed he was buying the entire interest in the wheat, that he was not otherwise informed, and that he made no inquiry of plaintiff, the auctioneer, or the land owners, concerning the interest he was buying. That defendant did not, by a bid of five cents an acre above those who were bidding for a half interest in the wheat, acquire the entire interest fairly may not be disputed. That plaintiff in returning the money to defendant was confused about the mathematics of the transaction seems clear. He testified that defendant never claimed he supposed he had bought all of the wheat until he gave his testimony in justice’s court. And defendant’s testimony is, in part, that upon plaintiff telling him that a mistake had been made he replied, and made no other claim in relation to it, “Well, if it is as you say, I am entitled to half the money back. ” We cannot say, however, as matter of law, that defendant did not suppose he was buying the entire interest. And after a careful reading of the record we are unable to say there was no testimony tending to prove an intelligent accommodation upon the basis of defendant’s claim. That defendant offered, after the money was repaid to him, to annul the sale, and that he offered to pay back one-half of the $41, and that these offers were refused by plaintiff, is undisputed. No criticism is made of the paragraph of the charge last above quoted. The charge permits the jury to find an accommodation, if they also find a good-faith claim of defendant assented to by defendant.
The fifth assignment of error relates to a portion of the charge referred to in the foregoing statement of facts in which the court advised the jury that if defendant understood he was purchasing the entire of the wheat, there was no valid sale. It is said in the main brief for appellant that this could only have confused the jury, and in the reply brief that it permitted the jury 'to find there was no sale because of the failure of minds to meet. As we understand the objection, it is disposed of by what has been said.
We have thus answered, against the precise claims presented, all of the contentions of appellant save one. Should the verdict have been set aside and a new trial granted ? The amount involved is very small, and this fact might to some extent affect judicial discretion. But the evidence is so convincing that defendant knew what interest he was buying in the wheat, and it is so clear that plaintiff in returning the money to defendant was not mistaken about either the price bid per acre or the interest sold, but about the proper mathematical calculation of what should be paid for it, the evidence of anything in the nature of a compromise of any differences is so meager, and that of a miscarriage of justice so strong, we are constrained to overrule the decision of the trial court, reverse the judgment, and order a new trial.
McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred. | [
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Carpenter, J.
Complainant, the trustee in bankruptcy of Horace W. Avery, seeks by this suit in equity a decree compelling defendants to pay to him a certain fund, amounting to $4,337.93. This fund originally belonging to said bankrupt came into the hands of defendant, George E. Avery, nine months before the bankruptcy proceedings were instituted, but after said bankrupt was insolvent, though before his insolvent condition was known to the defendants in this suit. Said George E. Avery, by the consent of Horace, paid said fund to his codefendants, who were trustees in a deed of trust made by Nancy Avery, the mother of Horace and of each of the above-named defendants. The purpose of the payment was to repay the aggregate amount of certain advances theretofore made by said trustees to said Horace W. Avery. These advances were made in pursuance of the following provision in said deed of trust, viz. :
“The trustees during my life are authorized to use for the support and maintenance of my son Horace, his wife and family, such sum as they may deem necessary, not exceeding the sum of $208.33 per month. Payment thereof may he made directly to the said Horace W. Avery, or to his wife, or to any of his children, or the trustees may themselves expend such money in such support and maintenance.”
When each of said advances was made, a receipt was given by Horace, of which the following is a copy:
“Received of Avery trustees $208.33, being an advancement made to me by said trustees under the author ity of the declaration of trust executed by Nancy C. Avery, upon the transfer to them of her property, and dated July 25th, 1901.
“Horace W. Avery.”
The decisive, question in this case is this: Was Horace under any obligation to repay these advances ? If we consider only the declaration of trust and receipt, we should agree with complainant that he was not. But George E. Avery testifies — and he is corroborated by Horace — that these advances were made upon the promise of Horace that he would repay the same if he subsequently acquired funds, and that, in accordance with this promise, the payment complained of in this case was made. The learned'trial judge, who had the opportunity of observing the witnesses, credited this testimony, and dismissed complainant’s bill. Many reasons are urged why this decree is erroneous. Nearly all those reasons are answered when wé say that we, too, credit said testimony. We think the trial court correctly decided that these advances were made upon the promise of Horace that he would repay the same, if he- subsequently acquired funds.
Complainant insists that the decree is erroneous, because the trustees had no authority to advance money to Horace upon his promise to repay the same. It is said that they had authority to advance the money as a gift, but not as a loan. We answer this contention by saying that they had, in our judgment, authority to do precisely what they did. While they were not bound in advancing money to Horace to obtain his promise to repay the same, it was not improper for them to do so. Indeed, it was in furtherance of the trust that they should, and when they did, the promise of Horace to repay created an obligation which justified the payment under consideration.
The decree is affirmed.
McAlvay, C. J., and Grant,- Blair, and Montgomery, JJ., concurred. | [
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] |
Carpenter, J.
In October, 1903, complainant transferred to defendants land in exchange for shares of stock in the Walsh-De Roo Milling & Cereal Company, a corporation doing business at Holland, Ottawa county. He brings this suit to secure a reconveyance of said land, upon the ground that fraud practiced by the first-named defendant induced him to make said transfer. An issue was framed. The case was heard, testimony being taken in open court, and a decree entered dismissing complainant’s bill. That decree complainant asks us to reverse.
The testimony proves that complainant was deceived as to the value of the stock, for it was worth much less than the land exchanged for it. Did fraud for which defendants were responsible cause that deception ? The charges of fraud made in complainant’s bill of complaint are two in number:
(1) Certain false representations respecting the value of the stock made by said defendant William Brusse immediately before the exchange was made.
(2) Certain false representations respecting the assets and debts of the corporation made in its annual report filed in September, 1903, which report was sworn to by defendant William as secretary of said corporation.”
We will consider each of these charges of fraud separately.
As to the alleged false representations respecting the value of the stock a careful study of the conflicting evidence convinces us that the only false representation respecting the value of the stock made by defendant William was this, viz.: He predicted that the stock would prove a profitable investment. We think that complainant was not entitled to relief on account of this statement, because in making the exchange he did not rely upon it. He at that time owned stock in the company, and had already formed a judgment as to its value. In making the exchange in question he relied upon said judgment and upon the result of the information obtained by him from other stockholders and officers of the corporation.
Respecting the false representations in the annual report, if is quite clear that this report, which was sworn to by defendant William as secretary of the corporation, did contain material false representations. It is proper to say, however, that said defendant William acted in good faith in making this report. It contained false statements, because he was deceived by false entries on the books of said corporation made before he became its secretary. Complainant is not entitled to relief on account of the false statements in said report, because they were not brought to his attention before he made the purchase and they contributed in no way to deceive him.
We conclude, therefore, that the trial judge properly disposed of the case, and that the decree should be affirmed.
McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). Assuming that a court of equity may take jurisdiction to restrain action of the defendant corporation violative of contract rights, and to preserve in force a contract of insurance according to its terms (Langan v. Supreme Council Am. L. of H., 174 N. Y. 266; Messer v. Grand Lodge A. O. U. W., 180 Mass. 321; Meyer v. Insurance Co., 73 N. Y. 516), a jurisdiction which in this case is not questioned, we have investigated, with no little labor, the respective claims of counsel, the statutes which have been referred to, the history of defendant so far as it is disclosed, and the relations which have existed between defendant and this complainant. Complainant’s protest does not attack the regularity of the action which the representative body has taken. It is admitted that his status as a member cannot be learned from his certificate, and that the laws of defendant, the statute, and his application must be consulted to ascertain and to state his rights. His contention is that the rate of assessment is fixed, for him, by the certificate and by the by-law in force at the time he became a member. He concedes' that the rate of assessment he should pay is $1.40 a thousand, instead of $1 a thousand, not because the defendant had the right to increase the rate without his consent, but because by paying the increased rate he waived the right to complain. He contends that by the certificate he is promised a benefit upon attaining the age of 70 years, the amount thereof being fixed by the by-law in force in 1893 at one-tenth, annually, of the sum for which he was insured, and that the contract was not in this respect ultra vires. If it was ultra vires the powers of defendant when made, the objection was removed by the act of reincorporation, aided by the by-law passed in 1895, which not only re-enacted the law of 1893 as to the amount of endowment to be paid annually, but relieved the member from payment of any assessments after becoming 70 years of age. Stated broadly, the contention for defendant is that, to the extent that the certificate promises benefits to complainant, they may not be diminished by any change in the articles or in the laws of defendant; to the extent that benefits are made to depend upon the laws of defendant in force when the certificate was issued, and (or) thereafter adopted, complainant is bound to accept the benefits which, when his certificate matures, the laws then in force provide to be paid; that the rate and the number of assessments are made by the contract to depend, and must of necessity depend, upon the exigencies and the experience of defendant.
In so far as arguments have been addressed to the point that the parties to a mutual benefit certificate máy expressly agree to be bound by after-enacted by-laws, they are answered in favor of the validity of such contracts by a previous decision of this court (Borgards v. Insurance Co., 79 Mich. 440), and, we think, by the weight of authority (Ross v. Modern Brotherhood of America, 130 Iowa, 693; Supreme Commandery K. of G. R. v. Ainsworth, 71 Ala. 449; Beach v. Supreme Tent K. of M., 177 N. Y. 100, 105; 1 Bacon on Benefit Societies and Life Insurance [3d Ed.], §§ 185-188). See collection of cases in note to Supreme Council Am. L. of H. v. Champe, 63 C. C. A. 282. Such an agreement being found — and there can be no doubt that it was made in the present case — the effect of the particular by-law upon the particular member depends upon whether it was one which the association might lawfully make, whether it should be applied retroactively, whether it disturbs vested rights, whether it is reasonable; some or all of which considerations, and others, may be, notwithstanding the agreement, involved in any case. So far as any such considerations seem to be involved here, they will be noticed, and may be conveniently discussed under the heads the “assessments,” and the “disability benefits.”
As to assessments. No limit is fixed in the statute of 1869, or in that of 1893, or in the laws of the order, of the number of assessments which may be made. Indeed, -it is contemplated that assessments shall be made whenever necessary to pay promised benefits. It is true that the laws of 1893, 1895, .1897, and 1899 fixed a rate of assessment and provided that a member should pay the same rate of assessment so long as he remained continually in good standing. This provision did not exist at the time complainant became a member, unless its equivalent is found in the statute of 1869. It is there provided that the right to change the by-laws should exist, “except so far as they relate to the rights of the corporation, to assess their members, or the members of a particular class of such corporation, and except, also, so far as said by-laws affect the rights and benefits belonging to, or to be derived by the members of such corporation.” One of the powers incident to corporate existence, and implied in the absence of express restrictions, is the power to make bylaws for the government of the corporation. Under the law of its organization, this power of this corporation was restricted. The provision above recited, read in connection with the requirement that the terms and conditions of membership should be stated in the articles of association, must be construed to mean that the terms and conditions of membership so expressed should not be changed by the adoption or amendment of by-laws. In this view, the application and the certificate, supplemented by the laws of defendant, fixed complainant’s rate of assessment, and his agreement that the laws thereafter adopted should be the basis of the contract means those laws which the defendant had the right to adopt. But there was no such restriction in the law of 1893, under which defendant reincorporated, presumably with the consent of complainant, and the question arises whether such reincorporation, and the consent of members thereto, had any effect upon the terms and conditions of complainant’s contract. We are of opinion that after the lapse of 10 years it is too late for one who was a member when the reincorporation took place to insist that the certificates then in existence shall be treated otherwise than as if they had been issued by the defendant after such reincorporation, especially when the member is insisting that a provision of his contract, ultra vires, the powers of defendant under the act of 1869, is binding upon defendant because of increased powers given by the statute of 1893. Whether the changes with respect to assessments made in 1904, against which he protested, are within these powers, remains to be considered. We have no doubt that it was lawful, and no violation of contract rights, for defendant to increase the number of assessments to meet the demands arising from the death of members. There seems to be no good reason why fewer assessments, at a greater rate, should not be levied, so long as the increase in rates is proportional; young and old members, alike, contributing. Whether such action be a mere detail in management aimed at procuring for distribution the same sum of money in a different way, or intended to actually increase the contributions over present necessities for distribution and to accumulate a fund,' it may be, so long as it is proportional and reasonable, supported, as against a protesting member, by his agreement in his application to conform to and be governed by laws to be from time to time made by the representative governing body of the association. While courts are not agreed upon this proposition, we are inclined to the views expressed in Fullenwider v. Supreme Council Royal League, 180 Ill. 621; Messer v. Grand Lodge A. O. U. W. , 180 Mass. 321; Reynolds v. Supreme Council Royal Arcanum, 192 Mass. 150; Conner v. Supreme Commandery Golden Cross (Tenn.), 97 S. W. 306. We agree with the court below that the increased assessments are not, in view of the conditions disclosed, unreasonable. Whether they evidence a departure from the statute purpose and plan of existence of such association is a question not presented.
As to disability benefits. The complaint is that the plan of defendant has been modified in such manner that upon attaining the age of 70 years appellant may not receive' $200, annually, without payment of assessments. As to the assessments after attaining the age of 70 years, no provision exempting members from paying them existed when complainant became a member. Such a provision was adopted in 1895, and was subsequently repealed. The certificate contains no such provision, and the whole matter of assessments was one of management to be from time to time amended as the experience and necessities of defendant required. The claim of complainant is based upon an amendment to defendant’s laws made after he received his certificate. Manifestly, a member may not agree to the exercise of the power to amend and repeal by-laws until such time as an amendment suits him, and then insist upon the want of power to further amend or repeal. But we rest our decision upon the ground that complainant agreed to be bound by amendments to the laws affecting only the part of the endowment which he should receive and the conditions of continued membership reasonably imposed. No contract rights were violated. See cases hereinbefore cited, and, also, Wright v. Insurance Co., 193 U. S. 657.
The provision for paying some benefit to a member on his attaining the age of 70 years is, we think, affected by different considerations. It is an express promise, found in the certificate. It became effective, so far as power to make it is concerned, by the reincorporation of defendant. A reasonable construction of the contract, and the one we adopt, is that by the agreement complainant is not bound to submit to an elimination of the provision for old age benefits, but only to the reasonable fixing, by the laws, of the part of the endowment which he shall receive. That such a construction should be made, when it is reasonable, is held in Supreme Council Am. L. of H. v. Jordan, 117 Ga. 808; Russ v. Supreme Council Am. L. of H., 110 La. 588; Newhall v. Same, 181 Mass. 111; Langan v. Same, 174 N. Y. 266; Williams v. Same, 80 App. Div. (N. Y.) 402; Beach v. Supreme Tent K. of M., 177 N. Y. 100; Hale v. Equitable Aid Union, 168 Pa. 377; Gaut v. Supreme Council Am. L. of H., 107 Tenn. 603 (55 L. R. A. 465); Wuerfier v. Trustees, etc., Wisconsin Order of Druids, 116 Wis. 19. See, also, Knights Templars’, etc., Indemnity Co. v. Jarman, 187 U. S. 197. The determination of defendant to no longer engage in the business of furnishing benefits to members upon their reaching the age of 70 years does not necessarily relate to certificates outstanding when the change was made. The power of defendant to make such a law retroactively effective is not involved, and for this reason and others this case and Borgards v. Insurance Co., supra, and Chambers v. Supreme Tent K. of M., 200 Pa. 244, may be distinguished. The conclusion herein expressed is in agreement with that reached in the court below; but that court was of opinion that complainant had waived his right to now protest against the changes made in 1893, and again in 1901, relieving defendant of the obligations to pay anything upon the member reaching the age of 70 years. The court found the waiver in the following facts: The law of 1899 eliminated the provision as to benefits at age of 70 years. The law of 1901 eliminated old age as a cause of disability. Complainant without protest continued his membership and paid his assessments until July, 1904. Certain other changes were made which might be treated as compensating for rights withdrawn. We do not think these facts controlling of complainant’s rights. The law of 1904 contains the first demand upon him to agree that defendant’s construction of the effect of its earlier action shall bind him; that the amendment of 1899 applied to existing contracts. For the reasons given, we regard his protest against increase of rates unfounded, as is also his claim to be released from rate paying at age of 70 years. Subject to future reasonable regulations, his contract with defendant entitles him to receive, at the age of 70 years, a part of the sum mentioned in his certificate, not less than one-tenth part thereof, annually.
The decree of the circuit court is reversed, and a decree conforming with this opinion will be entered in this court. Complainant will recover costs of both courts.
McAlvay, C. J., and Grant, Blair, and Montgomery, JJ., concurred. | [
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Montgomery, J.
The plaintiff sued to recover for overtime while employed by the defendant as foreman in its freight sheds at Port Huron. The claim was for 1,110 hours overtime, made up of 425 hours during week days and 685 hours on Sunday. The plaintiff recovered pay for both items in full; but on motion for a new trial he was required to remit $65.07, being one-half the amount recovered for overtime for Sunday work; the court being of the opinion that the only definite basis upon which to figure the time employed on Sundays was the testimony of plaintiff that he put in at least five hours on each Sunday. The plaintiff remitted the amount, and defendant has brought error, claiming, first, that plaintiff is not entitled to recover any sum for overtime; and, second, that under no circumstances could he recover for the Sunday work. The facts are that the plaintiff had previously been employed by defendant as checker in the freight sheds at Port Huron; that while working as checker he received $1.40 a day for 10 hours a day, and was paid overtime for the time put in in excess of 10 hours a day. During his employment in the service for some 10 years he received each month from the pay car his check and signed the pay roll therefor. After his employment as foreman, as hereinafter stated, plaintiff continued to receive his pay monthly at the rate of $50 per month, but no payment for overtime. He signed vouchers, which at the head contained the following recital:
“Received from the Grand Trunk Railway System, the amount set opposite my name in the following list, in full of all demands for work during the regular and irregular working hours of said railway, up to and including the date of this pay roll.”
Plaintiff testified that in signing the pay roll he did not know that it contained this receipt; that he supposed that he signed for the $50 that he received; that he frequently mentioned his overtime to Mr. Waters, defendant’s agent at Port Huron, who assured him that it would be paid for.
The plaintiff’s testimony tended to show that, when he was employed as foreman, he made his contract with Mr. Waters that he should receive $50 per month and pay for overtime. Mr. Waters denies the agreement for overtime, and testified that he had no authority to enter into any contract with the plaintiff to pay for overtime. He also testified that the only persons having authority to make contracts for wages are the manager at Montreal, and the ■superintendent of the western division at Detroit. His testimony, properly construed, indicates that this limitation upon his power was a limitation upon the power to fix wages. It is undoubted that he made the contract with plaintiff, and a fair construction of his testimony shows that he had authority to hire and discharge men. In answer to the question, on cross-examination, “You do know that you hire and discharge such men as you wish to hire and discharge ?” he answered:
“I have got my pay roll staff to go by. I can discharge any of the men for cause. The superintendent discharges some of them. I see that the necessary mentó do the work are there.”
The question' is not so much as to what the actual authority of Mr. Waters was as what his apparent authority was. The circuit judge charged the jury:
“ It is not necessary that there shall be written authority in order to establish authority, but you must find some authority on the part of Mr. Waters, as indicated by his conduct and his duties here and his relation to the railroad company and his relation to the men under him. That is the way you will determine the question of authority and right.”
We think the testimony in the case justified this instruction, and that there was ample testimony of a holding out of Mr. Waters as authorized to make the contract in question. The circuit judge charged the jury as to the question of the pay roll as follows:
“ If you find that those conditions afford plaintiff a reasonable opportunity to see and know the purport and effect of these receipts, then the plaintiff cannot recover. In this connection you are to consider the conditions under which he signed. You are to determine whether the methods employed by the officers in charge of the car gave him a reasonable opportunity to know the statements at the head of the column. If you find that he had no such reasonable opportunity, then the receipt does not bind the plaintiff.”
We think, in view of the testimony of plaintiff that he from time to time spoke to Mr. Waters about his overtime, that it was a question for the jury as to whether he in fact understood that he was receiving payment in full each month.
Defendant’s counsel claim that the case falls within Bartlett v. Railway Co., 82 Mich. 658, and Davis v. Boat Works, 121 Mich. 261. "We think, however, that upon this branch the case is ruled by O’Boyle v. City of Detroit, 131 Mich. 15. In the present case the plaintiff showbd a distinct contract to be paid for his overtime. He showed that, while receiving his pay for regular hours during the period of employment, he distinctly called the attention of the agent, with whom his contract was made, at different times to the fact that his pay for overtime was being withheld, and was assured that he would receive the pay. In this respect the case closely resembles O’Boyle v. City of Detroit. We think it was a question for the jury as to whether the plaintiff waived or estopped himself from receiving pay for overtime.
Upon the question of the right to recover for the Sunday service, we are constrained to say that there is nothing in the record to show that the work rendered on Sunday was a work of necessity. In summing up the necessity for the Sunday work, the plaintiff testified as follows:
“Q. What would be the result, instead of. going down there Sunday and the. other men going down there Sunday, having to go down Monday morning and do their work that they did on Sunday on Monday morning before going to the other work ?
“A. The result would be that we would have to have more help to do it. Freight that would have to be handled on Monday would be stayed. It could not be handled. It could not be moved.”
It cannot be said that this presents a case of anything more than convenience. It was not a case of necessity. No freight was received at the sheds on Sunday, and none was delivered except perishable freight, and it was not disputed that another man was paid for attending to this freight. The work which Mr. Bidwell performed on Sundays was checking the shed for overfreight and short freight and performing clerical work. There is no doubt that this could have been done on Monday except for the fact that it might have required more help, as stated. The plaintiff is not entitled to recover for Sunday service under the rule laid down in Allen v. Duffie, 43 Mich. 1; Com. v. White, 190 Mass. 578 (5 L. R. A. [N. S.] 320).
A new trial must be granted, unless the plaintiff shall remit from the judgment the further sum of $65.07. The defendant will recover costs of this court.
McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred. | [
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Per Curiam.
The question for decision in this case is whether, in a prosecution for delivery of a controlled substance, the admission of testimony that five days before the delivery in question took place, the defendant made another delivery of a controlled substance to the same undercover agent was reversible error.
I
The charge against the defendant alleged that on August 3, 1974, he delivered a tinfoil pack containing a controlled substance, phencyclidine, to an undercover police agent, contrary to MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). The defendant was found guilty as charged after a jury trial. The Court of Appeals, in an unpublished per curiam opinion, affirmed.
The primary witness against the defendant was the police undercover agent, Alfonso Martinez. Martinez testified that on the morning of August 3, 1974, he visited the defendant in his apartment. The defendant asked him to follow him into the kitchen. Martinez did so and upon arrival in the kitchen the defendant asked Martinez if he could sell a gram of "Crystal T” (phencyclidine) for him. Martinez professed an initial reluctance but when pressed by the defendant to do a favor for him, Martinez agreed to sell the "Crystal T” for the defendant for $35. The packet containing the phencyclidine was turned over to the authorities and the instant prosecution resulted.
After the prosecutor had established the foregoing facts during the direct examination of Martinez, it became evident during the course of further direct examination that the prosecutor was going to inquire into the prior relationship between Martinez and the defendant. Defense counsel objected and a separate record was made; the prosecutor contended that the "prior acts” of the defendant with Martinez would be admissible under MCL 768.27; MSA 28.1050. Specifically, the prosecutor argued that testimony as to a prior delivery of a controlled substance by the defendant to Martinez would be admissible under the statute "[t]o show by lack of intent, mistake, scheme and design, and the intent of the defendant to deliver a controlled substance”. The trial court said that it would allow the testimony.
Thereafter, on direct examination of Martinez by the prosecutor, the following colloquy took place:
"Q. Did you have occasion to go to Robert Rustin’s apartment on July 29, 1974?
"A. Yes.
. "Q. Do you recall what time it was?
”A. It was at approximately 10:15, 10:20.
”Q. Did you go there?
"A. Yes, I did go there.
”Q. Was anybody there when you got to his apartment?
"A No, just me and Bob Rustin.
”Q. What did you do when you got there?
"A I purchased some controlled substance.”
II
We hold that under the circumstances of this case it was reversible error to admit the testimony of undercover agent Martinez with regard to the prior sale of a controlled substance to him by the defendant. There was no showing that the defendant had engaged in a particular scheme, plan or system with regard to the sale of controlled substances which would warrant introduction of evidence with regard to prior deliveries of controlled substances. Thus the situation is completely unlike that in People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), where we found no reversible error in permitting the introduction of evidence tending to show prior rapes on the part of the defendant.
Here, the trial court concluded that proof of a controlled substance sale by the defendant to the undercover agent five days before the transaction with which he was charged at trial was admissible because it tended to establish the defendant’s intent on the occasion in question. In People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), we upheld the admission of "similar acts” testimony because we concluded:
"The evidence of a repeated course of conduct tended to show the intent of defendants in doing the acts alleged and was therefore material and admissible under the statute.” 402 Mich 1, 13.
In Duncan, however, the defendants were charged with conspiracy to do a legal act in an illegal manner, MCL 750.157a; MSA 28.354(1), and solicitation of a bribe, MCL 750.505; MSA 28.773. The defense proffered in Duncan was that the defendants were responding to a scheme initiated by other individuals and that the defendants only went along with it so as to catch one of those individuals in a crime. Thus, the defendants’ intent in engaging in a certain course of conduct was clearly an issue.
By way of contrast, the defense in this case was that the defendant did not perform the act in question at all. The defendant denied selling undercover agent Martinez the phencyclidine, contending that an individual named "Randy” had done so. Thus, there can be no claim that the testimony concerning a prior controlled substance transaction was introduced to negate a claim on the part of the defendant that he did not know that the substance which he delivered was controlled nor did the defendant claim that the delivery of the controlled substance, although performed by him, was somehow done unintentionally. The defendant quite simply contended that he did not deliver the controlled substance. Thus we conclude that the reason for the admission of this evidence, namely, to establish the defendant’s intent on the occasion in question, was insufficient to warrant the introduction of this evidence at trial.
Finally, in People v Delgado, 404 Mich 76; 273 NW2d 395 (1978), we found no error in a case in which an undercover officer was permitted to testify that the defendant delivered heroin to him on two occasions, January 17 and 22, 1974. Defendant Delgado was specifically charged with delivery of heroin on January 22. The other delivery charge formed the basis of a separate prosecution. At Delgado’s trial for the January 22 delivery, the undercover agent testified as to the January 17 delivery. We found no error because the evidence established that the January 17 purchase of heroin was a condition precedent to the subsequent purchase of a greater quantity of heroin on January 22. We concluded:
"[T]he sale on the 17th and the sale on the 22nd were inextricably related, one to the other. Quite literally, the sale on the 22nd followed from the sale on the 17th, as does an effect follow from a cause. The jurors were entitled to have before them the facts concerning the sale of January 17 as an integral part of the events which were incidental to the January 22 sale.” 404 Mich 76, 84.
The only analogy which can be drawn between the situation in this case and that present in Delgado is that in each situation the two transactions were five days apart. There is absolutely no showing in this record that the two transactions were "inextricably related” and that the delivery of a controlled substance on August 3, 1974 followed from the sale on July 29, 1974 "as does an effect follow from a cause”. Therefore, the testimony concerning the prior transaction which was received in evidence in this case would not be admissible under Delgado.
The trial court, in its final instructions to the jury, gave a cautionary instruction. However, we conclude that under the facts of this case the cautionary instruction could not have eradicated the prejudice which emanated from the introduction of the testimony concerning a prior delivery of a controlled substance. We conclude that the practical effect of disclosing the prior controlled substance transaction to the jury was to raise the possibility that the jury might conclude that because the defendant had delivered a controlled substance on a prior occasion, he must have done it on the occasion for which he was charged.
Since we find that the defendant suffered prejudice due to the introduction of testimony concerning an alleged prior controlled substances transaction, we now, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, reverse the judgments of the Court of Appeals and of the circuit court and remand the case to the Genesee Circuit Court for a new trial.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCL 768.27; MSA 28.1050 provides:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
"During the course of the trial, as you know, reference has been made to another incident in which the defendant is said to have participated. You should understand the true significance of that. As a matter of fair play, a person is charged with a specific offense; the reason, I think, is rather obvious: it is to enable him to be able to know what he’s charged with. After all, he is the defendant, he’s got a right a [sic] know what they are claiming he did Wrong. When testimony is brought out as to other events, it is not expected that this in itself is intended to show that he was more likely to have committed the crime charged or that he had a disposition towards criminal conduct, or that he, in fact, had committed any crime at all. The law says this: the purpose of showing another matter related to the one at issue is, in any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act in question may be proved. Whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant; and that it is the only reason that the law permits testimony as to any other acts, to show motive, intent, the absence of mistake or accident on the part of the defendant, or a scheme, plan or system.” | [
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Rehearing denied. | [
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Per Curiam.
The plaintiff in this case was discharged from his position with the Michigan Department of Social Services due to alleged welfare fraud. Ultimately, criminal charges were filed against him in Federal court. However, the plaintiff was acquitted of all charges. He thereafter requested reinstatement to his former position, but his request was refused. The question for decision is whether the plaintiff’s duty to timely process an administrative appeal before the defendant Michi gan Civil Service Commission was tolled by virtue of the criminal investigation, charges, and trial which followed. We answer the question in the affirmative.
I
On or about September 24, 1975, the plaintiff Charles R. Gilliard was informed by his supervisor that he was being discharged for alleged involvement in welfare fraud. On September 25, 1975, he was sent a Western Union Mailgram from the Michigan Department of Social Services which confirmed the communication from his supervisor. At the time of the plaintiff’s termination, he was further notified that the matter was being referred to the United States Attorney’s office for possible criminal prosecution.
In April 1976, the plaintiff was indicted for alleged welfare fraud. A jury trial was held in September 1976 and on September 28, 1976, the plaintiff was acquitted of all charges. The following day, September 29, 1976, the plaintiff sought reinstatement to his former position with the Michigan Department of Social Services. However, the plaintiff was informed that his failure to file a timely grievance after his discharge in September 1975 barred review of his discharge. The civil service rule which governs this area is Grievance and Appeal Procedure for Employees in the State Civil Service, part I, § 5, which provided in relevant part:
"b. Grievances shall be presented within 10 weekdays of the employee becoming aware of the cause of the grievance. Civil Service Department staff decisions shall be appealable within 20 weekdays of notice to the employee.
"c. Late appeals at any step may be filed only upon showing of good cause for delay.
"d. Regardless of belated awareness of the cause of grievance or of good cause for late filing, no grievance shall be filed on events, nor relief be retroactive to events, which occurred more than 90 calendar days before the filing date; however, the department, hearing officer or arbitrator may accept grievances and grant retroactive relief of up to one year after occurrence if special extenuating circumstances are found.”
Since the plaintiff’s request for reinstatement was not made until one year and four days after his termination, it was the position of the defendants that his request for review of his discharge was barred.
Thereafter, the plaintiff filed a complaint in Ingham Circuit Court, seeking a writ of mandamus compelling the defendants to reinstate him to his former position. The plaintiff also asked for a declaratory judgment concerning his right to reinstatement or to a due process hearing. On August 31, 1977, the circuit court granted the defendants’ motion for summary judgment, finding that the complaint had failed to state a claim on which relief could be granted and that as a matter of law the defendants were entitled to judgment.
The Court of Appeals, in an unpublished per curiam opinion issued on June 12, 1978, affirmed.
II
The plaintiff argues that he is entitled either to automatic reinstatement to his prior position due to his acquittal of criminal charges or at least to a hearing with regard to his dismissal because the time limitations set forth in the Civil Service Grievance and Appeal Procedure were tolled while the criminal charges were pursued.
We are persuaded that the plaintiff is entitled to a hearing.
In Peden v United States, 206 Ct Cl 329, 338; 512 F2d 1099 (1975), the United States Court of Claims expounded on the relationship between civil administrative proceedings and criminal charges. The Court noted:
"We believe it has long been the practice to 'freeze’ civil proceedings when a criminal prosecution involving the same facts is warming up or under way.”
It is safe to conclude that in this case, at the point that the plaintiff’s employment was terminated, a criminal prosecution involving the same facts was at least "warming up”.
In Finfer v Caplin, 344 F2d 38 (CA 2, 1965), the United States Court of Appeals for the Second Circuit, while affirming on other grounds, dismissed the contentions of the Commissioner of Internal Revenue that the failure of an IRS agent (whose employment had been terminated for allegedly accepting a bribe from a taxpayer) to timely pursue administrative remedies in the face of criminal charges barred the agent’s post-acquittal request for reinstatement. In reaching this conclusion, the United States Court of Appeals outlined the considerations which militated against the conclusion urged by the Commissioner of Internal Revenue:
"Finfer’s reluctance to take prompt administrative action is quite understandable. Arrested on March 17, 1960 and indicted on March 31st, he had much more to worry about than the niceties of appeals from suspension and removal notices. His primary concern (and undoubtedly that of his counsel as well) was to protect himself from the criminal charges against him. It would have been contrary to sound defense strategy to enter upon a series of hearings or appeals before administrative agencies which would in all probability have called for Finfer’s own testimony, his version of the alleged bribe and an attempted refutation of witnesses which might have been produced by IRS. He was entitled to remain silent and to stand on his right to force the government to prove its case, if any, against him. For this reason, laches and failure to exhaust administrative remedies scarcely can be asserted under the circumstances here presented.
"The Commissioner argues that 'by not appealing appellant waived an opportunity to have his case reviewed on the merits by an impartial body.’ But no matter how impartial the body, an adverse determination on the merits, particularly if Finfer had testified, would not have helped his criminal case — in fact, it might have been highly detrimental. The Commissioner suggests that Finfer 'should have taken a prompt appeal to the Commission, applied for an extension of time, to avoid any possible prejudice to his pending criminal trial, and abided further developments.’ Possibly, in retrospect, this procedure might have been wise but what if an extension had not been granted and the appeal had been dismissed for want of prosecution? Would not such failure be urged as an abandonment of his remedies? Furthermore, there might be a real question as to whether 'due process is not observed if an accused person is subjected, without his consent, to an administrative hearing on a serious criminal charge that is pending against him.’ Silver v McCamey, 95 US App DC 318 [320]; 221 F2d 873, 874-875 (1955).” 344 F2d 38, 40.
We find the above-quoted reasoning persuasive. We hold that the time for processing the plaintiff’s grievance under the Civil Service Grievance and Appeal Procedure was tolled from the point of the plaintiff’s discharge until the acquittal on all criminal charges. The plaintiff was informed at the time of his discharge that the matter was being referred for possible criminal prosecution. Once investigation is begun with an eye toward potential criminal prosecution, the time for processing a grievance is tolled at least until the investigation is completed. If a criminal prosecution results, the tolling continues until the prosecution terminates. Here the prosecution terminated when the plaintiff was acquitted. Consequently, the plaintiff is entitled to a hearing with regard to his discharge.
Accordingly, we now, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, reverse the judgments of the Court of Appeals and of the Ingham Circuit Court and remand the case to the Michigan Civil Service Commission for proceedings consistent with this opinion. We retain no jurisdiction.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Plaintiff Charles Gilliard was joined in this suit by the Michigan State Employees Association. For purposes of this opinion, however, references to the "plaintiff” will pertain solely to Mr. Gilliard. | [
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] |
Rehearing denied.
Reported at 405 Mich 376. | [
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] |
Rehearing granted, limited to the issue of election of remedies. Briefs on this issue may be filed and served in conformity with GCR 1963, 857 and the appendix previously submitted lhay be supplemented to the extent deemed necessary. When briefing is completed, the clerk is directed to place this cause on the next available session calendar for argument and submission.
Ryan, J., would not limit the rehearing to the single issue of election of remedies but would also include the issue of res judicata.
Appeal dismissed 405 Mich 637. | [
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McAlvay, C. J.
Defendant is a Michigan corporation, located at Saginaw, engaged in the manufacture and sale of illuminating and fuel gas. Plaintiff, by his next friend, recovered a judgment for injuries received by the explosion of a drip wagon used by defendant in and about its business, which had been left upon a street of the city of Saginaw. This drip wagon consisted of a platform wagon upon which was a boiler, iron or steel tank, 7 feet long and 2£ feet in diameter, extending lengthwise and firmly fastened. On the front end of the wagon, and above the end of the tank, was a seat for the driver. On the top of the tank, 1|- feet back of the seat, was a vent-hole 1¿ inches in diameter, closed by the means of a metal plug which screwed into place. At the rear end of the tank was a pump, by means of which the drip or refuse from the sink pots along the gas mains was pumped into the tank. This drip wagon was used by defendant for this purpose. A rubber hose attached to the pump being fastened to the pipe from the drip pot, the drips were pumped into the tank, which when filled was driven to the Saginaw river and emptied. When the tank was being filled the vent was unstopped to allow the air to escape ; and when full, it was closed to prevent the drips from splashing out and running down the outside of the tank. This wagon was drawn by one horse. It was the proper and usual appliance for the purpose for which it was used. This work is necessary to keep the gas pipes free from water which may leak into, or become condensed in, the pipes, and also from an oily substance, known as ‘ ‘ hydrocarbons, ” which accumulates in them. In removing the drips a greater or less amount of illuminating gas would necessarily be taken into the tank. Vapors arising from the substances pumped out also are generated in the tank. Neither the gas nor the vapors are explosive in themselves, but when mixed with a proper proportion of air an explosive mixture is formed, and when this mixture is brought in contact with fire in any way an explosion will follow.
On July 7, 1904, an employé of defendant was engaged with this appliance in collecting these drips. When he quit work at night the tank was about one-third filled with drips. As was his custom he drove to the barn, near which the wagon was kept when not in use, intending to continue work the next day.. The wagon was left standing in the street near the curb, and the horse put in the bam of Blank & Baker, who cared for defendant’s horses and washed and oiled the wagons. The vent in the top of the tank was left open. Plaintiff, a boy 5£ years old, and a boy companion between 6 and 7 years old, were playing in this street, and after the drip wagon had been left there climbed upon it. Plaintiff climbing upon the seat in front, and the other boy upon one of the hind wheels. An employe of Blank & Baker saw them there, and went out, telling them to get off from the wagon. Plaintiff was too small to get down without assistance, and the man lifted him down and told both of them to keep off from the wagon. Within a few minutes after this man went back into the barn the two boys climbed back on the wagon, plaintiff getting up into the seat in front, and the other boy up the hind wheel and' on to the tank, sitting astride of it near the venthole. While they were in this position the tank exploded, the front end being blown out, and the plaintiff was thrown 20 to 25 feet into the air, and fell upon the pavement near the curb about 20 feet south of the wagon. The only evidence in the case as to the cause of the explosion was given by two women, witnesses for defendant, who were sitting in the doorway of a house a short distance south of the wagon, and another witness for defendant, a man on the sidewalk across the street. One of the women testified that she saw the larger boy when he was sitting on top of the tank light a match and drop it into the vent-hole. The man testified that he saw this boy lean over and look into the venthole; that he raised his hand up to the venthole, and as he did so the explosion occurred. The other woman testified substantially the same as the man. Both women testified that he was using matches on the street shortly before this occurrence. This boy denied that he had matches; or that he put any match in the venthole. Plaintiff was seriously injured. Besides severe bruises, his arm was broken, and it is claimed that a hernia resulted from the injuries. Defendant asks this court to reverse the judgment for several reasons. We will consider the assignments of error which defendant discusses.
The court allowed plaintiff to introduce in evidence an ordinance of the city of Saginaw to show that the drip wagon was left in the street in violation of its provisions. This is alleged as error, for the reason that the violation of the ordinance was not the direct or proximate cause of the injury to plaintiff. The ordinance prohibits leaving any wagons or vehicles in the public streets when not in actual use. It was material as bearing upon the question of the negligence of defendant. Flater v. Fey, 70 Mich. 644; Haines v. Failway, 129 Mich. 475; Binford v. Johnston, 82 Ind. 426. In the declaration the violation of the ordinance is not counted upon as ground for the action, but it alleges that under the terms of said ordinance, and under the law, it was the duty of defendant, when the wagon was not in use, to remove it from the public streets, and that defendant, disregarding the provisions of the ordinance and its said duty, negligently left its drip wagon in the public street. It was not error to allow this ordinance in evidence.
The next 23 assignments of error in their order and which are discussed, relate to questions allowed on the cross-examination of defendant’s' witnesses Jane Truckey and Eloda Dunn and the refusal to strike out the answers thereto. These were the witnesses who testified to the fact that plaintiff’s companion threw a lighted match into the venthole of the drip wagon. This was a cross-examination relative to the past history and character of these witnesses for chastity. Such examination, if allowable, was only material as bearing upon their credibility. The extent to which such examination should be permitted is a matter of discretion with the trial judge, with which this court will not interfere, unless there is clear abuse of such discretion. People v. Harrison, 93 Mich. 594; Knickerbocker v. Worthing, 138 Mich. 239, and cases cited. While this court might well say in this case, as was said in Beebe v. Knapp, 28 Mich. 72, that the court below would have wisely exercised its discretion in excluding some of this examination, yet, on account of the latitude of discretion allowed on cross-examination as to the past life and conduct of a witness, it cannot say as a matter of law that it was error to permit it.
Several errors are assigned upon cross-examination of defendant’s expert witness W. H. Barthold, a consulting engineer in the employment of defendant and other gas companies. The witness had testified at length as to the constituent parts of the drips pumped from the service pipes into the tank, as to the vapors it generated, as to the illuminating gas always pumped with it, as to the per cent, of air necessary to make the mixture explosive, and that these materials were always present in the tank, and with sufficient heat and air would always explode. The questions referred to with the answers and the objections were as follows:
“Q. When that tank was left in the street with horse detached the proper thing to have done would be to cover that vent in the top of the tank to prevent any possibility of matches or sparks or anything of that kind getting into it? (Objected to as incompetent. It is for the jury. Overruled. Exception.)
“Q. When it was one-third full from the drip pots under the pipes ? (We object to that as incompetent with the addition.)
“The Court: He may answer. (Exception for the defendant.)
“A. It should have been closed for the purpose of keeping out matches, yes. * * *
“Q. To leave it there to make it safe from an explosion which could blow it up, it should have been closed ? (Objected to as incompetent.)
“The Court: He may answer. (Exception for defend-
“ Q. That is right, isn’t it ?
“A. It should have been closed to keep out any foreign substances.
l‘Q. Which would explode it.. If it had been closed, even if it was one-third full of these gases and water, fire couldn’t have got in, and you wouldn’t have had any explosion, would you ? (Objected to as incompetent.)
“The Court: He may answer. (Exception for defendant.)
‘ ‘A. It could have got in by opening the vent.
‘ ‘ Q. But to have it absolutely safe when stored it should be put where the vent is covered up and free from fire and heat which would cause an explosion ?
“ Mr. Humphrey: I object to that as incompetent.
“The Court: He may answer. (Exception for defendant.)
“A. To make it absolutely safe we would have to lock it up so nobody could get at it.”
It is urged that these questions were incompetent and immaterial because: (-1) It was a question for the jury to determine whether sufficient precautions were taken to prevent fire from getting into the tank, and the answers of witness were merely opinions; (2) the questions were immaterial because there was no duty imposed upon defendant to make the tank absolutely safe.
We have given the objections in full from the record, and no objections were made on the ground of immateriality. All of these objections but one were too general, and those will not be considered. The objection at all specific is the first one — that it was incompetent on the ground that it was for the jury to determine. As before stated, this witness was an expert, and thoroughly acquainted with the explosive nature of the contents of this tank. He had testified at length, intelligently, and specifically upon these matters upon which he was being cross-examined. We think it was proper cross-examination, and also proper as showing the knowledge of the witness, with which defendant was chargeable, of the nature of the contents of the tank, and how it could be protected from explosion.
Defendant’s contention is that under the undisputed evidence in the case plaintiff was not entitled to recover, and the jury should have been so instructed; that from the proofs in the case it followed, as a matter of law: (1) That defendant was not guilty of any negligence which was the proximate cause of plaintiff’s injury; (2) that plaintiff was a trespasser. It is an undisputed fact in the case that the drip wagon was left in the public street by defendant’s agent, and that the venthole was uncovered. It is practically admitted that defendant is chargeable with knowledge of the contents of the tank and the conditions necessary to render them actively dangerous. It cannot be seriously claimed that this wagon was rightfully in the highway, nor that the facts show that it was guarded or protected while standing upon the highway. It is true one of the firm which owned the barn had warned these children to go away and not to play around there, and on this occasion one of the barn-men a few minutes before the injury had lifted the plaintiff down from the seat of the drip wagon, and told the boys to go away and keep off from it. The children had a right to play on the highway, and this wagon was easily accessible and attractive to them as they were lawfully playing upon the highway. We cannot hold that putting these children off from the wagon and warning them away and paying no further attention to them amounted to properly guarding and protecting this property. It was negligence on the part of the plaintiff to leave this wagon in this manner in the public highway.
It is contended that plaintiff in this case was a trespasser and cannot recover — citing Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310), and Kaumeier v. Railway, 116 Mich. 306 (40 L. R. A. 385). Ryan v. Towar, which holds that one is under no obligation of care toward a trespasser upon his land, is not, in our opinion, applicable to this case, where defendant negligently left this drip tank standing in a public highway. The following quotation from Wharton on Negligence (2d Ed.), § 112, is, in our judgment, applicable:
“ It is negligence to leave such an instrument on a place of public access, where persons are expected to be constantly passing and repassing, and where such persons are not required to be on their guard, or where children are accustomed to play; but it is not negligence to leave such an instrument in a private enclosure, which, from its very privacy, excludes the public, and puts on their guard all who enter.”
See, also, Busse v. Rogers, 120 Wis. 443 (64 L. R. A. 183). The Kaumeier Case is easily distinguished. Plaintiff was denied the right to recover there, not because she was a trespasser, but because there was no evidence of defendant’s negligence. In this case it is clear there was evidence of defendant’s negligence. The question is whether that negligence is the proximate cause of plaintiff’s injury. I am of the opinion that the correct rule by which this is to be determined is the first one stated in Skinn v. Reutter, 135 Mich. 57 (63 L. R. A. 743) :
“The wrongdoer is responsible for all consequences naturally resulting from his wrong, whether he could have’ anticipated those consequences or not.”
The question then is whether the injury to plaintiff was a natural — not an anticipated — consequence of defendant’s wrong. When a particular consequence results from, a wrong, it may be said that the wrong is the proximate cause of thát consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated a- cause. If such cause intervenes, it may be said that the wrong of the defendant is too remote to be made the basis of an action. It is in such case a condition, and not a cause. See Lewis v. Railway Co., 54 Mich. 55; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; McLane, Swift & Co. v. Elevator Co., 136 Mich. 664. What is there in this case intervening between defendant’s wrong and plaintiff’s injury which may be called a cause ? Nothing, unless it be the action of plaintiff’s companion, a child of tender years. It is true that the intervention of a responsible human agency has frequently been held to destroy the causal connection between a wrong and its consequences; but the intervening human agency in this case was irresponsible.
“Neither an idiot nor a maniac can be a juridical cause, and the same reasoning applies to persons so young and inexperienced as to be unable to exercise intelligent choice as to the subject-matter. ” Wharton on Negligence (3d Ed.), § 88.
It may also be said that the intervention of human agency — at any rate, unless that intervention is a wrongful intervention — does not exempt a wrongdoer for the consequences, where his wrong is one.imminently dangerous to human life, and we cannot say that the wrong in this case was not one imminently dangerous to humán life. Skinn v. Reutter, 135 Mich. 57; Thomas v. Winchester, 6 N. Y. 397. See, also, Harriman v. Railway Co., 45 Ohio St. 11, and cases cited; Binford v. Johnston, 82 Ind. 426; Fishburn v. Railway Co., 127 Iowa, 483, and cases cited.
It was not error to refuse the requests of defendant based upon its theories above indicated, nor to give the charge excepted to, which was in harmony with the views of this court herein expressed.
Another request of defendant was refused which defendant claims should have been given. This request eliminated the question of permanent injury, on the claimed ground that there was no evidence in the case to warrant it. We disagree with defendant upon this proposition. The evidence in the case upon that question warranted its submission to the jury.
The judgment is affirmed.
Carpenter, Montgomery, and Moore, JJ., concurred with McAlvay, C. J.
Montgomery, J.
I understand this case to present the question whether the owner of property, which in itself is likely to prove attractive to young children .and dangerous to them as well, and who leaves it in the public highway accessible to children liable to be induced into using it, where the only trespass which they commit is in the use of the thing itself, is liable for a resulting injury, or whether he may answer the claim of the child to whom injury has occurred by the statement that before such accident could have happened or injury have been inflicted the child must have been guilty of a technical trespass. It is thought that responsibility has been denied in such cases by Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310). I was so unfortunate as to disagree with the majority opinion in Ryan v. Towar. That circumstance in no way militates against the authority of the majority opinion in that case, and if this question is in fact ruled by that decision, it becomes my duty to bow with submission, and the first inquiry should be whether it is so ruled. It became necessary in Ryan v. Towar to deal with the previous decisions of this court, and the one the most nearly in point was Powers v. Harlow, 53 Mich. 507, which was not overruled by the majority opinion. In speaking of Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, Mr. Justice Hooker, in Ryan v. Towar, said:
“ It is noticeable that even the Lynch Case did not involve a trespass upon defendant’s close, though it did perhaps involve a trespass to personal property.”
Then, after discussing the case of Powers v. Harlow, the opinion, after quoting from the opinion in Powers v. Harlow, proceeds:
‘ ‘ The court then proceeded to show that the children were rightfully there by invitation, and that some caution was required in such a case. Clearly this does not adopt the rule of Railroad Co. v. Stout, 17 Wall. (U. S.) 657.”
Now, what was meant by the statement in Powers v. Harlow that the children were rightfully there by invitation ? In that case the father of the plaintiff by virtue of a lease of the lands from the defendant was held to have a right of way of necessity across the defendant’s farm. In going from the highway to the plaintiff’s home the evidence showed that he would pass within a distance of from 1 to 10 rods of a temporary shed in which had been left a box containing explosives. The plaintiff, who was something over eight years of age, went with his brother two years older to take his father’s dinner, and after working at destroying potato bugs for an hour or so moved about at his pleasure in the vicinity of his father’s work. The plaintiff looked into the shed, saw the box there partly uncovered, and from the sawdust took out one of the explosives. He was aware of no danger from handling it, and thought no harm in taking it from the open box. After a little he picked up a small stone, and, holding the explosive upon another stone, he struck it with the stone in one hand-, while holding it in the other, and with the third blow it exploded, tearing from his left hand the thumb and one finger. Now whatever may be said of the invitation of the child to cross these premises, it is manifest that no invitation was extended to enter this temporary shed or to meddle with the contents of this box. It is directly against the fact to say that they were invited to play with the contents of the box. No such invitation was any more to be implied than was an invitation to any child lawfully in the public street to enter upon the wagon in question in this case and engage in play.
It is noticeable that the duty imposed upon the defendant in the opinion of Chief Justice Cooley in that case is illustrated by the analogy between a child in a public highway, and one passing across the premises of another as licensee. He says:
“The moving about of the children upon the lands where they were at liberty to go, while they were not actually employed, was as much an incident to their being there as is the loitering or playing by children outside the traveled part of the highway as they go upon it to school or upon errands.”
And, in speaking of this shed, he said:
“In this case a shed in which a dangerous explosive was stored was left only partly inclosed, and its structure and location were such as naturally to invite the entrance of children either for play or for shelter from sun and rain. Children were rightfully near it, there was nothing in its appearance to warn them off, it was not fastened against their entrance, and there was nothing about it to indicate that they would do injury or be injured by going there. The box containing the explosives seems to have had more the appearance of a box discarded as of no value and with worthless refuse in it than of a box which it was of the very highest importance should be guarded with sedulous care.”
With these facts in the case, it was thought wise and found necessary for Chief Justice Cooley to rest his decision upon the doctrine, which he states as follows:
“ Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.”
The case of Ryan v. Towar refused to apply this rule, for the reason that the plaintiff in Ryan v. Towar was a trespasser upon defendant’s land. That was the distinction which must have been noted, for Powers v. Harlow is plainly authority that there is no such immunity to a defendant arising from a technical trespass upon the dangerous thing itself by a child who must be expected to act upon childish instincts and impulses. This step having been taken in Ryan v. Towar, the result of now holding that a trespass upon the property, which itself furnishes the invitation to a child of immature years, defeats recovery, would result in overruling by piecemeal the case of Powers v. Harlow, and remove the only basis for distinction recognized by both the majority and minority opinion in Ryan v. Towar. The case of Kaumeier v. Railway Co., 116 Mich. 306 (40 L. R. A. 385), is cited as authority for the proposition that a child who interferes with property in the street is a trespasser and' cannot recover. That case was a case of interference with a car standing upon the track of a street-railway company, and the concluding statement of the opinion was:
“ The defendant had just as much right to leave this car where it did as a farmer would have to leave his wagon or carriage upon his own side of the highway, and no one would have the right to move it, except upon the claim that it impeded public travel. The car being rightfully left where it was upon the track, and not being a thing dangerous in itself, the court should have directed the verdict in favor of the defendant.”
But the court in that case distinctly decline to consider and pass upon the doctrine of the Turntable Cases, as it was not deemed necessary. The case of O’Leary v. Telephone Co., 146 Mich. 243, was a case in which the court went as far as it was necessary to go for the purpose of deciding that case. It is not authority against the position which was asserted in Powers v. Harlow, and maintained in this opinion.
In Ryan v. Towar, in my dissenting opinion, I stated:
“My Brother Hooker seems to be of the opinion that even though the use made of property by its owner is likely to result in injury to young children, by attracting them to a dangerous use of the property, yet, if the property be located wholly upon one’s own land, so that the child must become a trespasser, in the technical sense, before he can receive injury from the property, the owner may leave it exposed, and will not be liable.”
It was in view of this statement that I said: “It is true that neither in Powers v. Harlow nor Keating v. Railroad Co., 97 Mich. 154, were the facts analogous to those in the present case, and for this reason the cases may be distinguished ”— a statement which I certainly should not have made had I not understood the opinion of Mr. Justice Hooker to rest upon the distinct proposition that there was involved in Ryan v. Towar the necessity for a trespass upon the private lands of the owner. It did not occur to me then, nor am I now convinced, that the rule laid down by Chief Justice Cooley that one who leaves exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, is bound to expect that that liberty will be taken, was meant to imply that no duty was owed by the owner of property thus exposed to guard against injury to a child lawfully within reach of such allurement or temptation, and that any claim might be answered by the statement that in doing the very thing which the defendant had wrongfully enticed the immature child into doing, the child was guilty of a trespass which would defeat recovery. Any such qualification óf the rule expressed by Chief Justice Cooley abrogates the rule entirely. In my opinion one who negligently or wrongfully leaves property at a place where children have a right to be, which property is of a character to invite or tempt the children to play upon it, cannot excuse his liability in the case of injury by the claim that the child is guilty of a trespass. The distinction between leaving such an instrument in a place of public access and leaving it within an inclosure to which children are not supposed to have access is pointed out in the opinion of Chief Justice McAlvay, and is supported by a quotation therein from Wharton on Negligence (2d Ed.), § 112.
The judgment should be affirmed.
McAlvay, C. J., and Carpenter and Moore, JJ., concurred with Montgomery, J.
Ostrander, J.
If defendant owed to plaintiff no duty to take care because plaintiff was, at the time he was injured a trespasser, it should be said, as matter of law, there can be no recovery in this case. If, under all the circumstances disclosed by the evidence, there may have been, notwithstanding the trespass of plaintiff, a duty owed and unperformed, then the case is one for a jury. It is now the settled law of this State (Hargreaves v. Deacon, 25 Mich. 1; Ryan v. Towar, 128 Mich. 463 [55 L. R. A. 310]; Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571) that a landowner owes no duty to a mere trespasser upon his land, whether he is adult or infant, excepting to refrain from inflicting willful injury. It would seem that there should be, logically, no different rule for the case of an infant trespassing upon land and an infant trespassing upon or meddling with personal property, unless there is, in one case or the other, and arising out of other circumstances, some duty to take care. Unless it can be said that in some cases and under some circumstances a duty to take care for an infant trespasser may rest upon the idea of immaturity, of inability to act responsibly, the child and the adult trespasser would, in the same case, it seems, be without remedy. Once it is admitted that a duty of the owner or the user of property to a child may spring from the fact that he is a child, the fact of childhood, and the traits, instincts, and judgments of children, must be taken into account in determining whether a duty has arisen and has been performed. And if the conditions arise in any case so that conduct may be at all measured, legally, by the fact that a child is involved or is likely to be involved with it, I see no reason for a rule that the measure shall not be used when the child is upon my land without right, and shall be used if he meddles with my property in the highway. The child does not increase in maturity, in ability to judge correctly, does not lose childish instincts and proclivities, temporarily, because he is upon the land of a private owner.
The opinions of this court in Powers v. Harlow, 53 Mich. 507, and in O’Leary v. Telephone Co., 146 Mich. 243, unquestionably recognize and give effect to the proposition that the duty of the owner of personal property to an intermeddler therewith may be measured, in some degree, by the youth of the intermeddler. They also contain a statement and an application of the idea that from the fact of infancy alone intermeddling is to be apprehended and to be, in some cases, provided for. In the opinion in Powers v. Harlow, it is said:
“ Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.”
The duty to take care was found, in that case, in the fact that an invitation had been given to the children to go upon the land. In the O’Leary Case evidence of the negligence of defendant was found, not in occupying the street with the apparatus nor in its use there by defendant, but in failing to observe a duty growing out of a condition immediately presented by the fact that children of tender years were present, were attracted to the apparatus, had been riding upon and handling the rope running through the pulley. The testimony upon this point is set out in the opinion. It was said to be for the jury to determine whether the duty existed, and, if it did, whether it was performed. In Kaumeier v. Railway Co., 116 Mich. 306 (40 L. R. A. 385), distinguished in the O’Leary Case, the rule of Ryan v. Towar was applied in a case where children meddled with a small flat car, left by a street-railway company, unblocked and without a brake, on a switch in the highway — a car which, when so left on other occasions, had been, to the knowledge of defendant’s agents, so played with and upon and pushed about by children of tender years. In the opinion in that case it is said, not only that the children were trespassers, but that—
“The defendant had just as much right to leave this car where it did as a farmer would have to leave his wagon or carriage upon his own side of the highway, and no one would have the right to move it, except upon the claim that it impeded public travel. The car being rightfully left where it was upon the track, and not being a, thing dangerous in itself, the court should have directed the verdict in favor of defendant. ”
The court could not have reached the conclusion, as it did, that there was no evidence of defendant’s negligence, except upon the theory that, under the circumstances of the case, no duty to take care for the playing, trespassing children existed. Undisturbed, the car was not a dangerous thing; in motion, it was dangerous. The rule to be deduced from the decision seems to be this — that if personal property, mischievous only when set in operation, is left at rest in the highway, and becomes mischievous and does damage because set in motion by a meddler, to whom the owner owes no duty of care, the owner is not liable to such meddler for any resulting injury, although he was an infant, and although the owner knew that infants had, and were again likely to, set the object in motion. It seems clear that if the wind or some force other than that of the injured meddler had set the car in motion, and if an infant, too young to be negligent, or an adult without negligence, had been hurt, the question of defendant’s negligence would have been sent to a jury.
In the case now before us, it is the theory of counsel for plaintiff that defendant ought reasonably to have apprehended that its apparatus, because of its peculiar construction and because it was easily accessible, would be meddled with by children, and that a child or children might be injured; that there was the consequent duty to take care, or to take better care than was taken, to prevent harm. It is the theory, in part, of counsel for defendant that the apparatus was not in itself dangerous, because mischievous only through singular means, the employment of which was not to be expected, and that it injured no one to whom defendant owed a duty. Testimony given tended to prove that the defendant’s wagon,, of peculiar construction, painted red, had a brake and seat in front, a platform and pump and hose at the rear, a pipe running into the top of the tank, an open vent in the top of the tank, a tool box on the side, not locked, containing wrenches, pipe, plugs, and washers. The tank was one-third or more full of material which, when properly mixed with air, is dangerous as an explosive when in contact with fire. The wagon as-it was constructed was proper and necessary for the use to which it was put by the defendant, was of a type in common use, and it does not appear that one had- before ever been exploded. It was not necessary, in the conduct of defendant’s business, to leave the wagon in the street or to leave it, with its contents, anywhere. They had been removed from the gas mains by pumping, and were usually, if not always, finally deposited in the river. The vent in the top of the tank was 1£ inches in diameter, and had been left open to permit the escape of such illuminating gas as was contained in the tank. The contents of the tank had been placed there during the afternoon, the wagon was brought directly from work, the horse put in a nearby barn for the night, and the wagon drawn up, along with other vehicles, within a few inches of the curb in a paved city street in a well built up and populated neighborhood. This at about 5:45 p. m. Within ten minutes after it was so left, two boys, one living close by, had been on the wagon, had been put off by a man employed (but not by defendant) at the barn, had again climbed onto it, the tank had been exploded, and plaintiff, who had trespassed only by climbing to and sitting upon the seat, and was not six years old, had been badly injured. Children had been in the habit of playing on the wagon. “We used to get up there and play band on the wagon.” That defendant had actual knowledge of these trespasses is not proved. Those in charge of the barn where defendant’s horse was boarded, and near which its wagon was left, did know that children played on the wagon. They did not know that the wagon contained, at any time, the explosive gases. The plaintiff would not have been injured if he had not been on the wagon. Eight jurors found, in answer to a special question, that the playmate of the injured lad exploded the tank with a lighted match. No other cause for the explosion is shown.
Defendant is chargeable with notice that if fire or a spark was communicated to the contents of this tank an explosion was probable. That it could have made it impossible to explode it by emptying it, and, perhaps, by properly filling all openings into the tank, is certain. It exercised a choice, and instead of requiring that the wagon be emptied, or be locked up in some building, left it exposed in the street, to the chances of the street. I am not inclined to hold that the conduct of defendant was so reckless that the acts of any person who should be injured are of no consequence; or that it was maintaining a public nuisance. The leaving of the wagon in the street in violation of a city ordinance was not negligence, because it was a breach of no duty owed to plaintiff. Flanagan v. Sanders, 138 Mich. 253; Stark v. Lighting Co., 141 Mich. 575 (1 L. R. A. [N. S.] 822).
We come, then, to the question whether defendant should reasonably have foreseen what did actually occur and so owed a duty to this child, although he was a trespasser, because he was a child and because children may be expected to climb upon wagons left in the street; and to the further question whether a jury or the court ought to determine if such a duty existed. I have reached the conclusion, having in mind the prévious decisions of this court, that it should be said, as matter of law, that neither the known nor reasonably to be apprehended circumstances imposed upon defendant any duty to take care of Or for trespassing- children. It cannot be said to arise out of the mere fact that children may meddle with property. And if this could be, in view of our decisions, said, it was not to be reasonably apprehended that a trespasser would explode this tank. There is no occasion to cite authorities. They may be found well collected in 5 Michigan Law Review, pp. 357-362. And see Edgington v. Railway Co., 116 Iowa, 410 (57 L. R. A. 561). The case at bar and Powers v. Harlow and O’Leary v. Telephone Co. are to be distinguished by the circumstance that in each of those cases a duty to take care existed notwithstanding the fault of the plaintiff. To affirm the judgment, we should have to extend the application of the principle of Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, beyond that originally intended to be given it.
The judgment should be reversed.
Hooker, J.
That the plaintiff was a trespasser upon the property of the defendant, at the time he was hurt, is not open to question. See Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310); Kaumeier v. Railway Co., 116 Mich. 313 (40 L. R. A. 385); O'Leary v. Telephone Co., 146 Mich. 243. He and another boy engaged in a common trespass, and as a result of, or coincident with, this trespass the explosion occurred. If, as the testimony indicates, and as eight of the jurors found, it was the result of intentional ignition by one of the boys, or if the ignition was occasioned by an unforeseen and highly improbable accident, the case is distinguishable from the case of O' Leary v. Telephone Co., supra. In that case Mr. Justice Blair said:
“ There is reasonable ground for distinction between a case where something is left in the highway, which can only injure a child by his meddling with it, and putting it into operation in the absence of the owner or person having it in charge, and a case like the present, when the owner is present operating the apparatus, and has actual notice that the children are attracted by the tackle, and will play with it unless prevented.”
That case is authority for the proposition that where one sets in motion, and leaves unattended and unguarded, a machine not usually to be found in the highways, and one likely to be noticed and meddled with by children, such person is negligent, and a young child, incapable of contributory negligence, will not be denied relief, because of his placing his hand upon a rope, whereby it was drawn into the machine and injured. It is not authority for the proposition that a trespasser, who is injured by reason of the setting in motion of a machine, or intentional igniting and thereby causing an explosion of gas, by himself or a trespassing companion, in the absence of the owner, may recover damages for his injury, upon the ground that it was the duty of the owner to anticipate such results from trespassing children. The farthest that any case' has gone in this State, aside from the O'Leary Case, which I have attempted to distinguish, is to hold that where a child is licensed to go upon land, he is not a trespasser, and that the owner owes it to such a person not to leave dynamite cartridges in a situation likely to attract his attention and arouse his curiosity. The case plainly intimates that had the child not been lawfully upon the premises, the holding would have been different.
In this case the child had a right in the highway, but it was not by reason of a license from this, defendant, as in the Harlow Case. There is no opportunity for the claim of an invitation to invade this wagon. On the contrary these children were expressly forbidden by a person in charge of the barn to climb upon the wagon. I am not prepared to say that there might not be a subjection of the public to hazards so great as to make an act transcend negligence and amount to wantonness. Leaving unattended a wagon load of dynamite might be such a case, and it is possible that the courts wquld hold that even a trespasser might recover in such a case, under the rule that a wanton injury of a trespasser is actionable. But this negligence cannot be said to be wanton. There was little reason to apprehend danger from this wagon. We may take judicial notice that it takes a flame, live coals, or red-hot metal to ignite a mixture of illuminating gas and air. It is demonstrated in our daily experience. Therefore, regardless of the question of negligence in leaving the wagon in the highway, the plaintiff’s trespass should preclude recovery, the case being plainly distinguishable from and consistent with the O'Leary Casej and this is true whether the explosion was caused by ignition from the match of plaintiff’s companion, or from some other cause not ascertainable. To hold otherwise is to extend the right of recovery beyond the O'Leary Case, and to disregard the rule of the case of Kaumeier v. Railway Co., supra.
We have settled the principle in this State that an owner of property owes no duty of care, except to avoid wanton or willful injury, to one who trespasses upon said property, that he is not required to anticipate and guard against a trespass, that there is a clear distinction between temptation and invitation, and that the ownership of an article which may attract children does not carry with it an obligation to guard it, lest trespassing children be injured through applying it to their own uses, and that in this respect there is no difference between adult and juvenile trespassers. That doctrine was deliberately adhered to and affirmed in Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310), which followed Hargreaves v. Deacon, 25 Mich. 1, whére a child of tender years fell into an unguarded and “ attractive ” cistern upon the defendant’s premises and was drowned. In that case this court did not overlook the humanitarian side of the question and said:
“ There is some danger in dealing with these questions of confounding legal obligations with those sentiments which are independent of the law and rest merely on grounds of feeling or moral considerations. We feel, usually, more indignation at wrongs done to children than at wrongs done to others. But the law has not usually given them" civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any special dealings with them, as parents, teachers, and employers, incur obligations appropriate to their relations and differing from those incurred towards others in proportion to the necessity of care and protection and the risk of injury. But those who have no such relations with them are not liable for negligence in carrying on their own business beyond what would be their liability to others, as well as children, who are equally free from blame.
“ff, for example, a grown person, coming upon the premises simply by the permission of the occupants, had fallen into this cistern without any negligence, by stepping where there was no apparent danger, he would in law have stood just where this child did. The injury might have happened, as in Fisher v. Thirkell, 21 Mich. 1, from the insecurity of an apparently safe covering. We have searched diligently, and perhaps a little anxiously, to find legal support for a distinction, but there is no foundation for any in law, and we think there is none in any reason which should govern the action of courts of justice.
‘ ‘ There is no difficulty at all in holding parties liable for any intentional mischief, however it may be covered up. If they prepare means of destruction for the malicious purpose of destroying life or inflicting injuries, there is no room for the application of the doctrine of negligence, and the act which they mean to bring about is none the less their act because brought about indirectly. If a pitfall is made with the intention of having human beings fall into it, or a spring gun is set for the purpose of destroying them, or poison is mingled with a spring, or with food, for any similar purpose, fatal results would make the act willful homicide as plainly as if one had been thrust into the pit, or shot, or poisoned directly. But where injury arises to a person from the neglect of one, in doing his lawful business in a lawful way, to provide against accident, the question arises at once whether he was under any legal obligation to look out for the protection of that particular person under those particular circumstances. For the law does not require such vigilance in all cases, or on behalf of all persons.”
The foregoing language from the pen of the late Mr. Justice Campbell was concurred in by such of his associates as participated in the hearing,
Mr. Justice Graves not sitting.
When Ryan v. Towar was decided, two members of the court were of the opinion that Hargreaves v. Deacon was not controlling, resting their opinion for authority upon the Turntable Gases, so called, and for reasons upon the proposition that a landowner does or should owe a duty to keep his premises safe against danger to trespassing children, who might be tempted to trespass, by alluring objects upon the premises. A majority of the court did not take that view, thinking it destructive of and an overruling of the principle of that case, for the very reasons stated so well by Mr. Justice Camp bell in Hargreaves v. Deacon, and while it is sometimes said that the rule of Ryan v. Towar was established by a majority of one judge only, that is not strictly true, for it merely followed and reaffirmed the broad principle that a trespasser, injured through and by reason of his trespass, could not recover damages against the owner whose property was trespassed upon, which had been the settled law of this State since the decision of Hargreaves v. Deacon in 1872, which doctrine has never been limited to trespasses on land. It has since been followed in the case of Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571, just such a case as Hargreaves v. Deacon, where a child had trespassed and been drowned in a cistern or reservoir. The former dissenting judges concurred with the majority in holding that the case was within the ruling in Ryan v. Towar. It might have been added to the opinion that the case was also on all fours with Hargreaves v. Deacon. There is no escape, therefore, from the fact that the rule of Hargreaves v. Deacon is the settled law of this State. The cases mentioned settle three things: (1) That a trespasser cannot recover for injuries due to his trespass; (2) that the rule applies equally to infants as to adults, regardless of the attractiveness of the premises, or things thereon, to children; (3) that the owner owes no duty to anticipate or guard against injuries to trespassers upon his property, whether adult or juvenile.
It is now said that all that these cases decide is that these things are the law where the trespass is upon land, because the trespasses were upon land in those cases, and therefore those cases are no impediment to holding one liable to a trespasser on personal property on the highway, and that what is said in those cases can have no legitimate weight in a case of that kind. Whether we are to understand that one who meddles with the property of another upon the highway is not to be considered a trespasser, or that a person though a trespasser, if he invades land of another, is not a trespasser when he climbs upon a wagon in the highway, or that a child is not a trespasser in such a case, though an adult would be, although both would be trespassers if they entered upon land of another, is not made clear. There is another alternative, viz., that while one does not owe a duty to a trespasser upon land he does to a trespasser upon the personal property in the highway, especially if, the property is attractive enough to induce a child to trespass, and it goes without saying that in every such case it must have been so attractive or the child would not have trespassed. Everybody knows that he who invades and injures personal property of another is a wrongdoer, and liable for the damages, although he be a child. The boy who blew up the gas wagon is liable as a wrongdoer, and would be, though it had been accidental, because he was trespassing. Whichever horn of the dilemma is taken, we find the three cases cited an obstacle to recovery. They all say thpt an owner of property owes no duty to guard a trespasser, and that the rule applies to juveniles as well as to adults, and all admit that adults cannot recover in such cases. The case of Ryan v. Towar, expressly, and of Hargreaves v. Deacon, impliedly and necessarily, repudiates the doctrine that the fact that the article trespassed upon is “attractive to children ” makes a difference, in the legal relations of the parties, if the injury is due to trespass. The consequences to this child would have been the same had this wagon stood across the walk upon private ground. It would have been just as attractive, and he would have been just as much, and no more, a trespasser upon the wagon. In our judgment, an attempt to discriminate between rights of a trespasser when the wagon is in the highway, and when it is on private ground, results in nothing more than a distinction without a difference. The judicial art of distinction is a dangerous weapon, and it is open to the danger of being greatly overworked, as is indicated in Hargreaves v. Deacon, as well as Ryan v. Towar. As we attempted to show in the latter case the reasons given for the distinction made by the Turntable Cases were many and divergent in principle, and they were similar chiefly in one respect, viz., the inability of each of them to fairly stand alone. The reason implied in the dissenting opinion appears to be that a temptation may be construed to be an invitation. We have supposed that we had authoritatively decided the contrary in Hargreaves v. Deacon, Ryan v. Towar, and Peninsular Trust Co. v. City of Grand Rapids, and we think that it will not be denied that we did, so far as any invitation to enter upon land is concerned. And it has been said that the doctrine of invitation relates to an entering upon or a user of land. Friedman v. Snare & Triest Co., 71 N. J. Law, 611 (70 L. R. A. 147). How that can be true, and yet be consistent with the idea that this gas wagon’s presence was an invitation to children to climb upon and blow it up, is not clear to us. But-if, as contended, Ryan v. Towar and Hargreaves v. Deacon go for naught as authority upon this question, we may be permitted to refer to their comment upon authorities which do, or at least to the authorities themselves. In the latter case Mr. Justice Campbell was evidently able to see an analogy between trespasses upon realty and trespassers on personal property, for he approves Mangan v. Atterton,L. R. I. Exch. 239, a case where one who publicly exposed a machine on market day was held not responsible where little boys meddled with it and one got his hand hurt. The Ryan Case was decided in 1901.
There have been many decisions of this question since, and we refer to a Virginia case, Pannill v. Railroad Co., 105 Va. 226 (4 L. R. A. [N. S.] 80). This was a turntable case and the authority of the Turntable Cases, so called, is denied. Of invitation the opinion says:
“ * The viciousness of the reasoning,’ said the court of appeals of New Jersey, in the case of Delaware, etc., R. Co. v. Reich, 61 N. J. Law, 635 (41 L. R. A. 831), in discussing this question, ‘which fixes liability upon the landowner because the child is attracted, lies in the assumption that what operates as a temptation to a person of immature mind is, in effect, an invitation, such an assumption is not warranted. As said by Mr. Justice Holmes (now a member of the Supreme Court of the United States) in Holbrook v. Aldrich, 168 Mass. 16 (36 L. R. A. 493):
“ ‘ “ Temptation is not always invitation. As the common law is understood by tbe most oompetent authorities, it does not excuse a trespass because there is a temptation to commit it, or hold property owners bound to contemplate the infraction of property rights because the temptation to untrained minds to infringe them might have been foreseen.” ’
“No landowner supposes for a moment that by growing fruit trees near the highway, or where boys are accustomed to play, however much they may be tempted to climb the trees and take his fruit, he is extending to them an invitation to do so, or that they would be any the Ipss trespassers if they did go into his orchard because of the temptation. No one believes that a landowner, as a matter of fact, whether a railroad company or a private individual, who makes changes on his own land in the course of a beneficial user, which changes are reasonable and lawful, but which are attractive to children, and may expose them to danger if they should yield to the attraction, is by that act alone inviting them upon his premises.
“This doctrine of constructive invitation is not sustained, as it seems to us, by the English cases cited to sustain it, and has been utterly rejected by the highest courts of New Hampshire, Massachusetts, New York, New Jersey, Rhode Island, Michigan, and West Virginia. In several other States it is limited in its operation to Turntable Cases. See Frost v. Railroad, 64 N. H. 220; Daniels v. Railroad Co., 154 Mass. 349 (13 L. R. A. 248); Walsh v. Railroad Co., 145 N. Y. 301 (27 L. R. A. 724); Delaware, etc., R. Co. v. Reich, 61 N. J. Law, 635 (41 L. R. A. 831); Uthermohlen v. Bogg’s Run Co., 50 W. Va. 457 (55 L. R. A. 911); Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310); Paolino v. McKendall, 24 R. I. 432 (60 L. R. A. 133); Dobbins v. Railway Co., 91 Tex. 60 (38 L. R. A. 573); Savannah, etc., R. Co. v. Beavers, 113 Ga. 398 (54 L. R. A. 314).
“The maxim ‘Sic utere tuo ut alienum non laedas’ has been quoted in some of the ‘ Turntable Cases,’ and relied on as affording a decisive reason, or ground, for establishing a duty upon the railway company, and as per se justifying a recovery .against it. There maybe more, but there is one conclusive answer to the argument based on that maxim, and that is that it refers only to acts of the landowner, the effects of which extend beyond the limits of his .property.
“In Deane v. Clayton, 7 Taunt. 489, Gibbs, C. J., said:
“ ‘ I know it is a rule of law that I must occupy my own so as to do no harm to others, but it is their legal rights only that I am bound not to disturb. Subject to this qualification, I may occupy or use my own as I please. It is the rights of others, and not their security against the consequences of [their] wrongs, that I am bound to regard.’
“ In Knight v. Abert, 6 Pa. 472, where an effort was made to apply the maxim to sustain an action by the owner of cattle, which had trespassed upon the lands of another, and had been injured by reason of the unsafe condition of the property, Chief Justice Gibson said:
“ ‘ A man must use his property so as not to incommode his neighbor; but the maxim extends only to neighbors who do not (uninvited) interfere with it, or enter upon it. * * * If it were not so, a proprietor could not sink a well or a saw pit, dig a ditch or a mill race, or open a stone quarry or a mine hole on his own land, except at the risk Of being made liable for consequential damage from it, which would be a most unreasonable restriction.’”
Of the reasons given for the rule of the Turntable Cases, the following is apropos:
‘ ‘ Upon neither of the grounds relied on do we think that the common law makes it the duty of a landowner to have his premises in a safe condition for the uninvited entry of adults or children, nor to take affirmative measures to keep them off of his premises or to protect them after entry; and this view is strengthened by the fact that so many of the courts which have adopted the doctrine of the ‘ Turntable Cases,’ restrict it as far as possible to turntables, and refuse to follow it to its natural and logical consequences. For if it be a rule of the common law that a landowner, who, in the reasonable and lawful use of his property, makes changes thereon which have the double effect of attracting young children to the land and at the same time exposing them to serious danger, is guilty of negligence, unless he exercises reasonable care for their safety, either in keeping them off the land, or in protecting them after their entry thereon, the rule would apply, not only to railroad companies and their turntables, but to all landowners who, in the use of their land, maintain upon it dangerous machinery or conditions which present a like attractiveness and temptation to children. The common law applies alike to all landowners under like conditions, and it would be an anomaly to hold that a doctrine or rule of the common law which had its origin before there was either railroads or turntables applies only to railroad companies in the use of their lands upon which they have dangerous machinery. While the courts should and do extend the application of the common law to the new conditions of advancing civilization, they may not create a new principle, or abrogate a known one. If new conditions cannot be properly met by the application of existing laws, the supplying of the needed laws is the province of the legislature, and not of the judicial department of the government. Connelly v. Telegraph Co., 100 Va. 59 (56 L. R. A. 663). The legislature can change the common law as far as may be necessary to regulate the use of turntables and other dangerous appliances, and leave untouched the common-law rights of the ordinary landed proprietor.”
This is language pertinent to a recent article upon this subject. See 5 Michigan Law Review, p. 359. The author says :
“Some courts have given one answer and some the other. Let us first consider some cases which absolve the owner from any liability. They are grounded upon the proposition that a man in the use and enjoyment of his land is under no obligation to exercise any care to avoid injury to a trespasser. Put in the form of a syllogism, it is thisAll trespassers assume all risks except that of willful injury. These children are trespassers. Therefore, they assume all risks except of willful injury. It looks logical. It is beautifully simple. But it is also brutally cruel. * * *
“ Some courts have based their holdings in favor of the child, on the ground that a thing attractive to him is an implied invitation, and he thereby ceases to be a trespasser. But this is at best a fiction, for ‘ temptation is not invitation,’ and fiction has been overworked in the common law, and is entitled to be, and should be, retired. We prefer to put the infant’s right to recover on the broad ground that the owner of property is under a legal duty to exercise reasonable care to avoid an injury to a trespasser of tender years, where such injury was foreseeable. This duty need not be onerous. It is a fact at once start ling and incontrovertible, that in almost all the cases the injury could have been prevented by slight care and at a trifling expense. We are not satisfied with those courts that say that any such duty upon the property owner can be imposed only by the legislature, for the r'eason that such statement is' not true. That it is not true is shown by the fact that the majority of courts have reached an opposite conclusion, and they are sustained in such conclusion by the fact that all admit who know what is meant by the common law, viz., that it is not crystallized,but is vital, and owes its present importance, if not its existence, to its adaptability to new conditions.”
At one and the same time the writer disapproves such reasons as the courts have been able to give for departing from the well-settled rule, which he calls “fictions of the law,” which he admits “have been overworked,” and “should be retired,” and prefers to substitute a reason that under a legal duty which the law has not hitherto imposed upon him the owner should be required “ to exercise reasonable care to avoid an injury to a trespasser of tender years when such injury was foreseeable.” The Virginia court is clearly right in saying that the courts should leave this to the legislature. Mr. Justice Buchanan continues:
“The court of appeals of New Jersey, in refusing to follow the doctrine of the ‘ Turntable Cases,’ said that the doctrine would require a similar rule to be applied to all owners and occupiers of land in respect to any structure, machinery, or implement maintained by them, which presented a like attractiveness and furnished a like temptation to children. -
“ 'He who erects a tower capable of being climbed, and maintains thereon a windmill to pump water; * * * he who leaves his mowing machine, or dangerous agricultural implements in his field; * * * he who maintains a pond in which boys may swim in summer, or on which they may skate in winter — would seem to be amenable to this rule of duty. Climbing, playing at work, swimming, and skating are attractions almost irresistible to children, and any landowner or occupier may well believe that such attractions will lead young children into danger. Many other cases of like character might be imagined. In all of them the doctrine of the '‘Turntable Cases,” if correct, would charge the landowner * * * with the duty of taking ordinary care to preserve young children thus tempted on his land from harm. The fact that the doctrine extends to such a variety of cases, and to cases in respect to which the idea of such a duty is novel and startling, raises a strong suspicion of the correctness of the doctrine, and leads us to question it.’ Turess v. Railroad Co., 61 N. J. Law, 314. * * *
“ The supreme court of Minnesota, which was one of the first to give its adherence to the turntable doctrine (Keffe v. Railway Co., 21 Minn. 207), in the subsequent case of Stendal v. Boyd, 73 Minn. 53 (42 L. R. A. 288), through its Chief Justice said:
" ‘ The doctrine of the Turntable Cases is án exception to the rule of nonliability of a landowner for accidents from visible causes to trespassers on his premises. If the exception is to be extended to this case [a dangerous excavation filled with water on a city lot, in which a little boy had been drowned], then the rule of nonliability as to trespassers must be abrogated as to children, and every owner of property must, at his peril, make his premises child-proof. ’ ’'
He concludes his opinion with a quotation from a Texas case, where the turntable rule is said to prevail:
“ ‘ The difficulty,’ ” he said, “ ‘ about those cases [Turntable Gases] is that they either impose upon owners of property a duty not before imposed by law, or they leave to a jury to find legal negligence in cases where there is no legal duty to exercise care. In these cases the courts, yielding to the hardships of individual instances where owners have been guilty of moral, though not legal, wrongs in permitting attractive and dangerous turntables and water holes to remain unguarded on their premises in populous cities, to the destruction of little children, have passed beyond the safe and ancient landmarks of the common law and assumed legislative functions in imposing a duty where none existed.’ Dobbins v. Railway Co., 91 Tex. 60 (38 L. R. A. 573).”
A note to this case states that the doctrine of the Turntable Cases has been very generally disapproved as to everything except “ Turntable Gases ” — citing cases from Texas, Georgia, Wisconsin, New Jersey, California, Montana, and Minnesota, most of which (especially Minnesota) have followed the Stout Case as to turntables.
The question of “landholders’ liability to children” has received exhaustive consideration in the learned essay of Jeremiah Smith in 11 Harvard Law Review at pages 349 and 434, in which he clearly shows the fallacy from the standpoint of authority, of the holding in the Turntable Cases, and from the standpoint of reason the unjust consequences of the Turntable Cases. On page 448 he cites a long list of cases refusing to extend the rule to other dangerous situations. Of the general duty of society to act as “wet nurse” to children in general he says:
“The child, it is said, is incapable of protecting itself; and hence it is eloquently contended that the law must impose the duty of protection upon landowners. The apparent assumption is that all the children in the world are mere waifs and strays, and that the duty of caring for them must be imposed upon the landowners because the law can find no one else to bear the burden. The fact is that the vast majority of children have protectors appointed alike by nature and by law, viz., their parents who have legal power to control their actions, and whose moral duty to keep their children from entering upon dangerous premises is generally regarded as at least equal to the moral obligation of the landowner to fence them out. If the child, upon entering on the premises, is hurt by the ‘ active negligence ’ of the owner in bringing force to bear upon him, it may well be that the negligence of the parent in failing to restrain the child’s entrance does not bar the child’s recovery for the force thus brought to bear upon him after his entrance. But it is going far beyond this to say that the child can recover for harm sustained by him through the condition of the premises without the immediate intervention of any human agency save his own. When a child wakes up in the morning in his father’s house the duty of providing a safe playground for him during the day rests upon his parents. Is this duty shifted from the parent to private landowners because the child chances to escape from the parent’s care ? If those who brought the child into the world are unable, by reason of poverty, to provide him a playground, this may afford an argument for the passage of a statute imposing that duty upon the municipality, in which case each landowner would have to contribute his proportion of the expense. But this is quite another thing from assessing upon a single unfortunate landowner the entire damage arising from the want of such a playground.
‘ ‘ Even if it be conceded that the child cannot maintain a civil action against his parents to recover damages for their neglect to guard him from harm, still the parental duty, created by nature, and certainly recognized to some extent by law, cannot be ignored in determining whether to impose a legally enforceable duty upon landowners to keep their premises in safe condition for the entrance of uninvited children. If it be urged that children are so largely guided by sudden impulse that it is impossible for parents always effectually to protect them, two answers may be made: First, the parents can, in fact, protect the children in the great majority of instances; second, if the duty is so impossible of performance that it would be a hardship to impose it upon the parents, it seems unfair to impose it upon the landowner, whose knowledge of the characteristics of any particular child cannot be equal to that possessed by its parents. It is hardly too much to say that the doctrines enumerated in some cases, if carried to their logical conclusion, ‘ would charge the duty of the protection of children upon every member of the community except their parents.’”
Continuing, he shows not only the injustice but the hazards of such a rule, which were pointed out in the majority opinion of Ryan v. Towar, and have been thought important enough to mention by nearly every judge who has written an opinion upon the subject denying the rule of the Turntable Gases.
“ It is the policy of the law not to expose certain classes of persons, or their acts and conduct in certain situations, to the harrowing uncertainty and vexation of litigation. In a certain sense, it is true, as was said by Mr. Justice Holmes, that the use of one’s own land is conduct ‘ of the most highly privileged kind.’ We have seen that there are various cases of user causing damage beyond the borders of the land'where the majority of courts refuse the sufferer permission to litigate even the question of the owner’s motives. Are there not at least equal reasons for refusing permission to'litigate the questions of attractiveness and prevention in the class of cases now under consideration ?
“ It is true that a judge may sometimes rule that there is no evidence upon which the case can go to a jury. But if the qualified liability contended for is once admitted and is consistently applied, a judge can seldom withhold the plaintiff’s case from the consideration of the jury. A question of fact, not of law, would generally be involved, and there would be a remarkable absence of definite tests.
“ What object is not attractive to children ? And how seldom can it be said that the attraction is not fraught with danger ?
“ ‘ The average boy,’ said Mr. Justice Mitchell, ' can make a plaything out of almost anything, and then so use it as to expose himself to danger.’ Twist v. Railroad Co., 39 Minn. 167.
“ Under this test, almost anything is attractive and dangerous which a jury may think fit to call so.
“ What definite age can be named as the time when young children cease to be guided by instinct and become capable of self-protection ? How is the court to effectually restrain the tendency of the jury to attribute the conduct of all children to their childish instincts? No doubt a nonsuit can occasionally be ordered, or a verdict set aside as against evidence. But in the greater number of cases it will be found impossible to prevent these questions of childish instinct or capacity from going to the jury, and almost equally impossible to disregard their verdict.
“What standard of care can be adopted that will not practically result in juries holding landowners to the responsibility of insurers ? If the court simply instruct that the requirement is ‘reasonable care,’ then it is likely that ‘reasonable’ in the opinion of the jury will connote a super-human amount of energy and foresight. And the effect will not be substantially different if the court give a fuller explanation of the term. If it be once conceded that a duty rests on the landowner to use care to keep children off his property, or to protect them while there from dangers arising from the usual condition of the premises, then it would be absurd to require of him so small an amount of care as would be unlikely to serve the end aimed at. If he is held to be under any duty in this regard, it is not likely to be set lower than this — viz., a duty to use such an amount of care, to use such precautions, as will render it improbable that harm will result to children attempting to enter upon his premises. But this would in truth require in many cases precautionary measures which could not be carried out save at an expense, or in a manner, practically prohibitive of all beneficial user.
“ ‘ To hold that every piece of ground which contains some place or some thing that might be dangerous to children must be so fenced that children can enter only by what is practically a mode of siege would be to lay an intolerable- burden on proprietors.’ Ross v. Keith, 16 Scotch Sess. Cas. (4th Ser.) 89.
“Yet will any less efficacious method be regarded as affording reasonable probability that no child catastrophe will occur ? It must be remembered that a jury will not reach this question unless they have already found that the premises were attractive and dangerous to children. Assuming the attractiveness and the danger, and assuming that the proprietor is under a duty to use care to guard children against this danger, can that duty be performed to the satisfaction of a jury save by making his ground ‘practically impregnable’ to children, in other words, ‘ child-proof ? ’ But would not this, in many instances, compel the total cessation of profitable user? Take the case of an artificial pond, the creation of which, was a practical necessity for manufacturing purposes, or to store water for stock or irrigation:
“ ‘A pond cannot be rendered inaccessible to boys by any ordinary means. Certainly no ordinary fence around the lot upon which a pond is situated would answer the purpose; and, therefore, to make it safe, it must either be filled or drained, or, in other words, destroyed.’ Peters v. Bowman, 115 Cal. 355.
“Furthermore, the counsel for the plaintiff will urge that the very occurrence of the accident is in itself decisive evidence that reasonable care was not used to prevent it; and this application of the res ipsa loquitur doctrine, though an overstatement and discountenanced by the judge, is likely to carry controlling weight in the deliberations of the juryroom.
“Suppose even that the judge goes still further (much further, indeed, it is believed, than judges have generally gone), and tells the jury that, in determining what is reasonable care, they should take into account, not only the desirability of preserving innocent children from harm, but also the desirability of making beneficial use of land. How much weight will the jury allow to the latter consideration when put into competition with the former in a concrete case appealing to their sympathies ? How much consideration will they give to the general impolicy of hampering the use of land with troublesome and expensive restrictions when they have before them a maimed child, or the mourning relatives of a deceased infant ?
“Where the existence of a legal duty is once admitted, the danger that a jury will be too swift to find a breach of it does not afford a sufficient reason for abrogating the duty. But when the question under discussion is whether a duty should be held to exist, whether in a particular class of cases the law ought to impose a duty, and when the case is confessedly on the border line, and other strong reasons can be given against establishing the duty, then the probability that the rule contended for would often be misapplied by juries may well be given great and even decisive weight in influencing courts against the establishment of the alleged duty. Notable instances where the court frankly admitted itself to be influenced by the consideration that practical injustice would frequently result from the recognition of an alleged doctrine are to be found in the late decision of the New York court of appeals in Mitchell v. Railway Co., 151 N. Y. 107 (34 L. R. A. 781), and in the still more recent decision of the Massachusetts supreme court in Spade v. Railroad Co., 168 Mass. 286, where Mr. Justice Allen said:
“‘It would seem, therefore, that the real reason for refusing damages sustained from mere fright * * * probably rests on the ground that in practice it is impossible satisfactorily to administer any other rule. * * * But, as the law is a practical science, having to do with the affairs of life, any rule is unwise if, in its general application, it will not, as a usual result, serve the purposes of justice.’”
See, also, Sullivan v. Huidekoper, 27 App. D. C. 154 (5 L. R. A. [N. S.] 263); where the District of Columbia court of appeals disapproves the doctrine of the Turntable Cases, and refuses to extend the principle to analogous cases, though admittedly bound by it in Turntable Cases.
We have discussed Ryan v. Towar, and supported it with recent decisions and reasoning of judges,'because we consider the Turntable Cases to be radically wrong in principle, and erroneous in their reasoning, and for the more important reason that they are an entering wedge for the broad rule relied on in this case. If they are sound, the analogy that they bear to this case would justify plaintiff’s claim in a proper case; if they are wrong, the analogy fails, and this case is then left to stand upon Hargreaves v. Deacon, and Ryan v. Towar, so far as analogy to trespassers upon land have any bearing, and such cases 'as may be produced of injuries to trespassers on highways. There is at least this analogy, i. e., that one who meddles with property on a highway where its owner has a right to have it is a wrong-doer, liable for all damages resulting from his trespass, and, if an adult, concededly without redress if he get hurt, unless, perhaps, it may be, in the cases of discovered negligence, willful or wanton injury. There is also a plain distinction between cases where a person innocent of trespass or meddling is the passive sufferer from an active agency belonging to another, and a case where the agency is passive and the injury is due to the wrongful activity of the injured person. The case of Kaumeier already cited is one of the latter kind, while that of O’Leary is made to turn on this distinction.
We quote from the case of Friedman v. Snare & Triest Co., 71 N. J. Law, 606 (70 L. R. A. 147), which we consider directly in point on this case. Incidentally it recognizes the infirmity of the Turntable■ Cases, and the application to this question of those cases, denying their authority. Some iron girders were left in the highway carelessly piled, so that when a small child made a playground of them one fell upon her and injured her. After recognizing the right to indict one who creates a nuisance by obstructing the street, and the right of one damnified by the nuisance, while in the exercise of his rights in the street, to maintain a private action, the court said: 1
“But this refers only to parties injured while using the street as a street, and not to those whose injuries arise from their attempted use of the obstructing materials for their own purposes, whether of pleasure, convenience, or profit. For the building materials themselves do not in any sense become public property by being allowed to remain in the street. And neither a traveler, nor an idler, nor even a playful child, can gain rights against the landowner, or against his agent who stands in his rights, by using such building materials as a resting place or playground.”
The learned judge continues:
“ In the absence of circumstances denoting invitation, one thus using the private property of another for his own purposes may be either a licensee or a mere trespasser, depending upon circumstances. In neither case is there any duty incumbent upon the proprietor to make his property safe for such use. Aside from the notion that temptation is equivalent to invitation (with which we cannot concur), there is nothing in the mere existence of building materials as an obstruction in the street that denotes an invitation to the passerby or to the idler or playful child to use the materials for his own. purposes. The doctrine of invitation relates to the entry upon or the user of lands. The very fact that materials piled upon the ground constitute a hindrance to travel negatives 'the idea of invitation in the ordinary sense.” •
Of the fetich “ attractiveness to children ” it was said:
“ The case for the plaintiff rests upon the theory that since these girders were so arranged as to be attractive to children, and since the injured child, with her companions, was using them as a place for play, or as a resting place during or after play, the proprietors of the premises, or the defendants, upon whom as independent contractors the matter had been devolved, owed a duty to the children to so arrange the girders as to render them safe for their use. With this view we do not agree.
“No doubt where a duty exists to take care with respect to the safety of children of tender years, their very age must be taken into account, so that what might be reasonable care with respect to the safety of adults, who are capable, to some extent, of looking out for themselves, might not be reasonable care with respect to children. But in the present case ' the very question is whether any duty existed, and we are not able to see that the age of the child is pertinent upon this inquiry. That the party injured in this case was less than five years of age did not at all tend to give her any property interest or right of user in the defendant’s girders. Whether she used them as licensee or as trespasser, in either case there was no duty upon the owner to exercise active care with respect to her safety.”
The circumstance of attractiveness is given its proper force in connection with the question of contributory negligence.
‘ ‘ The fact that a dangerous place or object is attractive to children of tender years is legitimately significant where the question of their own want of care is raised. But there are fundamental, and, as we think, insuperable, difficulties standing in the way of adopting the rule that the mere attractiveness of private property gives to tbe person attracted rights against the owner. One difficulty is that the rule pro tanto ignores the distinction between meum and teum. And on what principle is it to be limited to cases of trespass ? Why does it not apply equally to the conversion of personal property, or even to larceny ? If those who temporarily and for limited purposes convert the private property of their neighbors to their own use are to be not only excused but justified, where by reason of their tender years they were tempted to the trespass, and at the same time are to have rights of action against the true owners for the failure to exercise care about rendering the property suitable for their use, why may not those who under similar temptation convert the property of others wholly to their own use be likewise justified, and instead of a right of action gain a complete title to the property by simply appropriating it ? ”
Other cases have made this application of attractiveness and it is a proper one under our decisions on the subject of contributory negligence of children. Here a court was found who deemed it proper to consider and refer to the probable consequences the rule contended for (and the Virginia court has done the same), which we took occasion to do in Ryan v. Towar, and sharing our fears of the consequences of a departure from established legal landmarks:
“ Another and a very practical difficulty that confronts the attempt to lay down any legal rule that depends for its limitations upon the attractiveness of objects to children of tender years lies in the extreme improbability that any man, however prudent, will be able to foresee what may or may not be attractive to children. Certainly if a pile of steel girders, each weighing 1,000 pounds, deposited in the street, as the girders in the present case were deposited, must be foreseen by a prudent man to be attractive to children, we are unable to say what object may not be thus attractive.
“ These are the views which we entertain after a careful consideration of the question at issue in this case after most learned and able arguments by counsel on both sides, and a review of numerous reported decisions touching more or less closely upon the point.”
It will be noticed that it is a case that can fairly be said to have decided every point that we have in the present case against the contention of plaintiff’s counsel and in accordance with Ryan v. Towar.
A discussion of this case would not be complete without considering its view of the English cases. In Ryan v. Towar we said that the first case cited as a precedent—
“Was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. In that dase it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured, could maintain an action against the owner. The case seems to have gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but later English cases are in conflict with that case, if it necessarily involved it. ”
Upon this case the following comment is made.
“ So far as the report of the case shows, however, the latter ground was not relied upon, and the motion for new trial was rested solely on the ground that the plaintiff’s injury arose in part from his own fault and in part from the fault of his playmate. Curiously enough, the existence of a duty to the playing children, whose breach would constitute actionable negligence, was not made the subject of argument. It appears clearly that no question was raised before the court upon this point. Defendant’s negligence having been conceded by counsel, the remarks of Chief Justice Lord Denman are hardly to be treated as a considered judgment upon that question. The only controverted point that seems to have been determined was that, although the plaintiff’s own act co-operated to produce his injury, he was not for that reason debarred from recovering compensation in respect of defendant’s negligence, and this because of the plaintiff’s tender years.”
The court adds:
“It js safe to say, therefore, that so far as Lynch v. Nurdin is relied upon in support of the present action it has been distinctly discountenanced, if not necessarily overruled, by the later English decisions.. It is true it was relied upon by our suprem'e court in Danbeck v. Traction Co., 57 N. J. Law, 463. But that was the case of a child injured while riding as a gratuitous passenger upon a railway car, having entered it upon the invitation of the conductor, and furnishes no support for the present action.”
Lynch v. Nurdin is not in point, and the majority opinion in Ryan v. Towar, does not say that it is,.but says the contrary. It is in the dissenting opinion, if in either, that this claim is to be found.
As to Clark v. Chambers, L. R. 3 Q. B. Div. 327, which the dissenting opinion in Ryan v. Towar cites as disapproving Mangan v. Atterton, the New Jersey case shows that it was not disapproved so far as any point in-' volved in this case or Ryan v. Towar is concerned. Of the doctrine of the Turntable Cases the court says:
“We deem it unnecessary to rehearse at length the decisions cited by counsel for the plaintiff from the courts of some of our sister States affirming, as is claimed, the general principle upon which the present plaintiff’s right of action is based. Many, if not most of those decisions, depend, fundamentally, upon the same notion that in many States, and in the Supreme Court of the United States, has been given effect in the so-called ‘ Turntable Cases,’ which will be found collated in 29 Am. & Eng. Enc. Law (2d Ed.), p. 32. That is, that a landowner who maintains .upon his own premises, for his own purposes, that which is alluring or tempting to little children, is held to a duty of exercising care with respect to their safety, in anticipation of the probability that they may be tempted to make usé of his property for purposes of play. This doctrine has been repudiated in this State by the cases of Turess v. Railroad Co., 61 N. J. Law, 314, decided by the supreme court, and Delaware, etc., R. Co.v. Reich, 61 N. J. Law, 635 (41 L. R. A. 831), decided by this court. The rule laid down in these cases is, as we think, wholly inconsistent with the asserted liability of the present defendant. That rule draws a clear distinction between temptation and invitation, and is to the effect that those who enter upon private property for their own purposes without invitation, but as trespassers or licensees, do so at their own peril, so far as any right on their part to call for active care on the part of the property owner for their welfare is concerned, and that although the injured party be an infant of tender years, and for that reason less able to care for its own safety, and more susceptible to the attractions that private property affords for purposes of play, this circumstance does not create a duty where none otherwise would exist. It is true that in our Turntable Cases the attractive objects were not within the limits of the public highway, but it is likewise true that in the present case, as already pointed out, while the building materials were within the street, they were deposited there, as private property, for lawful purposes by the defendant, in the exercise of the lándowner’s rights in that behalf. And although the representatives of the ¡public might complain of the occupancy of a portion of the street by building materials if unreasonably prolonged, or if the materials were insecurely placed, and although any one lawfully using the street as such might have an action if specially injured by collision with the materials, or by their fall, if they were negligently left in an insecure position, we cannot see that these circumstances confer rights upon one who is using the building materials as the injured child in the present case was doing.”
Of Hughes v. Macfie, 2 Hurlst. & C. 744, it is said:
“Defendants were occupants of a warehouse adjoining the street, with a cellar opening in the street, protected by a wooden lid. Their workmen, in order to lower casks into the cellar, had raised the lid and rested it against the wall, nearly upright. One of the plaintiffs, a child of seven years of age, was. playing in the street with other children, when the other plaintiff, a child of five, climbed upon the lid, and in jumping down pulled it over, to the injury of the two plaintiffs. The court denied the right of recovery to the child who had caused the lid to fall. Chief Baron Pollock saying:
‘“We think the fact of the plaintiff being of tender years majres no difference. His touching the flap was for no lawful purpose, and if he could maintain the action he could equally do so if the flap had been placed inside defendant’s premises within sight and reach of the child. As far as the child’s act is concerned, he had no more right to touch this flap for the purpose for which he did touch it than he would have had if it had been inside of the defendant’s premises. Cases were referred to, supposed to he in favor of the plaintiff. We think none are decisive of this case, and no case establishes a principle opposed to our view, which is that the non-suit was right.’
“As to the other action, in which Abbott was plaintiff, it was held that if he was playing with Hughes, so as to be a joint actor with him, he could not maintain his action; but if not, he could, as his injuries would then be the result of the joint negligence of Hughes and the defendant. In the argument Lynch v. Nurdin was cited as express authority that in the case of an infant of tender years the circumstance that he was a trespasser and contributed to the mischief by his own act, will not necessarily preclude the maintenance of the action, and it was attempted to be shown that the authority of that case stood unimpeached by later decisions. Chief Baron Pollock made no more specific reference to Lynch v. Nurdin than is above quoted, but the present decision was manifestly inconsistent therewith.”
We are of the opinion that it cannot be denied that these boys were trespassers when they climbed on this wagon as an adult would have been, and that the one who applied the match, at least, is liable for any damage he may have done to the gas company. It seems incongruous that he should at the same time have a cause of action for damages against the gas company for not preventing his trespass. Such a right must rest upon the presence of some element that exempts a trespasser from the general rule that he cannot recover. Wanton or willful negligence, such as misconduct after discovered negligence or danger, might be sufficient, as we have already said, but we know of no other exception but that established in the O'Leary Case, if that should be so considered, which does not cover this case, as it was expressly made to turn upon the act of the owner in setting dangerous machinery in motion in the highway and leaving it with knowledge that children were present and had been meddling with it. This case was wanting in the particular upon which the O'Leary Case was rested. Mr. Justice Blair said:
‘ ‘ Plaintiff’s mere technical trespass [a trespass nevertheless] did not set in motion, as in the cases cited, the agencies which caused his injury. Those agencies were brought into operation and controlled by defendant’s employes. .There is reasonable ground for distinction between a case where something is left in the highway which can only injure a child by his meddling with it and putting it into operation in the absence of the owner or person having it in charge, and a case like the present, where the owner is present operating the apparatus and has actual notice that the children are attracted by the tackle and will play with it unless prevented.”
And it is said that the testimony showed that there was discovered negligence in that case, a witness testifying that he saw the children “ on the rope,” thus raising the question of discovered negligence under.circumstances which in the opinion of a majority of the court made a question for the jury. '
To hold that the defendant is liable in the present case is, in our opinion, either to “ disregard the danger of confounding legal obligations with those sentiments which are independent of the law, which rests (as Judge Campbell said) merely on grounds of feeling or moral considerations,” Hargreaves v. Deacon, 25 Mich. 3, or to say that while these should not be disregarded in a case where the trespass is on land, they should be where the trespass is upon personal property. Everyone must take some chances of injury in life, or mankind must assume the burden of looking after his fellows to the exclusion of himself, to the extent of anticipating and guarding against all sorts of unlawful intermeddling. Parents have the duty primarily of looking after children, and society has a right to expect that it will be performed and to act accordingly.
The judgment should be reversed, and no new trial ordered.
Grant, J., concurred with Hooker, J. | [
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Hooker, J.
The plaintiff, a railroad company, was incorporated by a special act of the legislature of Michigan, approved March 28, 1846, entitled “ An act to authorize the sale of the Central Railroad (then owned by the State) and to incorporate the Michigan Central Railroad Company.” Act No. 42, Laws 1846. The thirty-sixth section of the act was as follows:
“ The State may, at any time after the first day of January, eighteen hundred and sixty-seven, purchase, and take from said company, said' railroad, and all the property, effects and assets of said company, and said railroad and the appurtenances thereof, and all the estate, property, effects and assets of said company (subject to all existing mortgages or other liens thereon on account of loans, the proceeds of which shall have been invested in the said road and other works of said company) shall fully and forever vest in and become the estate, property and effects of the State, to all intents and purposes, so soon, and whenever after the day aforesaid, the State shall pay, or cause to be paid to said company, the value of the entire stock of, and shares in said company, at the market value of such stock or shares, and ten per cent, in addition to such market value of said stock or shares; * * * and thereupon the corporate powers and franchises of said company shall wholly cease, and the rights and franchises vested, or which may vest in said company under or by virtue of this act, shall not in any manner be prejudiced or affected save as herein provided, or by judicial proceedings, or by a repurchase of said railroad, to be made by the State in manner aforesaid.”
The thirty-ninth section of the act was as follows:
“ The State reserves the right, at any time after thirty years from the passage of this act, by a vote of two-thirds of each branch of the legislature, to alter, amend or repeal the same: Provided, That said company shall be compensated by the State for all damages sustained by reason of such alteration, amendment or repeal.”
At its session held in October, 1900 (Act No. 2, Pub. Acts 1900), the legislature passed an act reading as follows:
“ Section 1. That act number forty-two of the session laws of eighteen hundred forty-six, entitled ‘ An act to authorize the sale of the Central Railroad, and to incorporate the Michigan Central Railroad Company,’ approved March 28, eighteen hundred and forty-six, and all acts amendatory thereto, be and the same are hereby repealed, said repeal to take effect and be in force from and after the thirty-first day of December, nineteen hundred one: Provided, That the right to institute proceedings against the State for the determination of the damages, if any, which it may sustain by reason of such repeal is hereby reserved to said 'Michigan Central Railroad Company. And further Provided, That the right of said company to receive compensation from the State on account of this repeal shall not be prejudiced by the voluntary surrender of its charter and its reorganization prior to said thirty-first day of December, nineteen hundred one, under the provisions of section six thousand two hundred and twenty-five, Compiled Laws of eighteen hundred and ninety - seven.”
And by an act approved on the same day as the foregoing (Act No. 4, Pub. Acts 1900) the following became the law of the State:
“ Section 1. Whenever the charter of any railroad company organized, created, or existing under and by virtue of the provisions of any special act enacted prior to eighteen fifty, which provides that the State shall make compensation for the damages sustained in case of repeal, shall be withdrawn or revoked by the repeal of such special act, such railroad company may,, within one year from and after the date that such repeal shall go into effect, and not thereafter, institute an action of trespass on the case against the State of Michigan, in the circuit court for the county of Ingham, Kent, or Wayne, for the recovery of any damages which it has sustained, and to which it is entitled by reason of such repeal of such special charier, if any damages be sustained. Process shall be served upon the governor, and the case shall proceed in accordance with, and be governed in all respects by, the law and practice governing similar actions between individuals in this State.
“Sec. 2. Upon final judgment being rendered, the same may, upon application by such railroad company, be certified by the clerk, and under the seal of the court in which the same is entered or to which the same has been appealed or removed, to the auditor general; and he shall thereupon issue his warrant for one-third of said judgment with accrued interest; and during the next following year he shall issue his warrant for another one-third of said judgment with accrued interest; and during the next following year he shall issue his warrant for the balance of said judgment, with accrued interest; unless provision for earlier payments, or an immediate satisfaction of said judgment shall be made by the legislature. Said warrants shall be paid by the State treasurer to the railroad company entitled thereto or to its assigns out of the general fund. The auditor general shall add to and incorporate the amount paid each year on account of said judgment in the next succeeding State tax, and the money collected therefrom' shall be placed to the credit of the general fund to reimburse it for the moneys thus paid.
“ Sec. 3. All acts and parts of acts in any way inconsistent with the provisions of this act are hereby repealed.”
We understand defendant’s main contention to be that the reservation of the right to purchase within 30 years implied an intent to divest the State of the right to amend, alter, or repeal this statute for that period;' that otherwise section 39 was unnecessary; further, that this legislation could not have the effect of depriving the State of the right to condemn this property, and all rights in or connected with it, under its power of eminent domain, which right existed as well during the 30-year period as afterward ; further, that inasmuch as the exercise of the power of eminent domain would or might have the effect of depriving the plaintiff of its tangible property, and all rights attaching to or growing out of it, for compensation, and that section 39, in authorizing amendments, alterations, and repeals upon the same terms, was wholly useless, unless we say, as it is contended that we should therefore say, that its object, or at least its effect, was to provide for a condemnation by repeal, upon better terms for the State, than the rules relating to eminent domain would permit under that procedure. ■ Or, in the language of the brief:
“A fair interpretation of the act must proceed upon the theory that the State intended, by its reservation, to reserve to itself a substantial right. If the State must pay for the franchises destroyed in the exercise of its right to repeal, the right intended to be reserved had, we submit, no substantial value. The reservation of the right to repeal was, in that case, wholly useless, because the State could have deprived plaintiff of its franchises by paying for them in the exercise of its eminent domain.”
By the terms of a contract, valid when made, the State conferred upon the Michigan Central Railroad Company, for a valuable consideration duly paid, corporate existence, and power and authority to acquire, own, and use property in a way not given to private persons, and granted to it a railroad theretofore existing, owned by the State. This was a grant in perpetuity, unless such right was modified or restricted in the act'itself. It was so modified and restricted in important particulars. The natural inference to be drawn from sections 36 and 39 is that the State intended to assure to the railroad company immunity from interference with its rights, subject to a reserved right of repurchase by the State upon specified terms, if acted upon within 30 years, and, if not, then to a conditional' right of alteration, amendment, or repeal thereafter; one of the conditions being compensation by the State for “all damages sustained thereby.” We are of the opinion that there is nothing ambiguous in the law, and that, if construed according to the common and approved usage of the language adopted, as required by 1 Comp. Laws, § 50, it can have no other meaning than that hereinbefore suggested.
We are asked to say that, inasmuch as it is a rule of law that a legislature cannot deprive its successors of the right to exercise the power of eminent domain, we must assume that it did not intend to do so, and therefore the provision of section 39 was unnecessary, unless it is to be construed as a limitation upon the measure of damages which the State would be required to pay, had its right to amend, alter, or repeal been left to rest on the power of eminent domain, and that it was for this reason that section 39 was made to specifically provide that after 30 years the State might alter, amend, or repeal the charter. We understand that the interpretation of statutes involves an effort to ascertain the actual intent of the legislature, and whatever limitations there may be upon the method, and however much rules of construction may generally be an aid, if the actual intent clearly appears, the courts will not be justified in saying that a different, and clearly inconsistent, intent must be found. This accords with the rule that the intention of the legislature, when discovered, must prevail, any existing rule of construction to the contrary notwithstanding. Brown v. Barry, 3 Dall. (U. S.) 367, approved in Endlich on Interpretation of Statutes, § 365. See, also, §§ 72, 295, 339.
We are not certain that these sections would not justify the conclusion that the. legislature intended to place the contract made thereby beyond its interference through eminent domain, and to substitute in its stead an equally effective right provided for by the contract, on similar, though not identical, terms as to compensation, and we need not express an opinion on the validity of such action. We think such an inference much more reasonable than that suggested by counsel for the State. But, whether they should be so construed or not, we find abundant reasons for saying that the alternative contended for does not follow.
The plain language of the statute is that, in case of amendment, alteration, or repeal, compensation to the extent of all damages sustained shall be made by the State. That damage for loss of franchises is within this language does not seem to be questioned.
The nature of the transaction indicates that both par-' ties intended such compensation, and, if they did, that settles what the statute means; and, while possibly it did not cut off the State’s already existing power, it did not give it a contract right to accomplish the divestiture of property for a reduced compensation, in the face of the agreement to pay all damages contained in the statute.
If the claim that the legislature cannot divest the State of its right to exercise its power of eminent domain has the support of the authorities, and if any legislation whereby private property or franchises are divested, upon provision being made for compensation, must be assumed to be done in furtherance of the public welfare, and therefore done under the power of eminent domain, still the contract rights reserved in this act may have been considered valuable rights, and therefore consistent with an intent to pay the damage agreed upon. We think that they were so considered, and the terms upon which they were to be exercised are plainly stipulated.
It is significant that during the long period that has elapsed since that contract was made, and in the agitation that the subject has undergone, and throughout the discussions, legislative and otherwise, that have accompanied attempts to have the State avail itself of the reserved contract rights, it seems never to have occurred to any one, or at least to have been suggested by any one, that this legislation was not what it appeared on its face, but was, on the contrary, merely a covert method of securing a right to obtain the property for less than it was really worth, and less than would have to be paid for it if taken under the right of eminent domain — an unnecessary piece of strategy until the Constitution of 1850 put it out of the power of the legislature (if it previously had such power —see 3 Current Law, p. 1190) to arbitrarily and conclusively determine the necessity for taking under the power of eminent domain, unless assent' to the provision was necessary as an inducement to the company to accept the law. We are of the opinion that the legislature at least supposed that it was reserving some valid and tangible right, and that it honestly meant, to attach valid conditions to its exercise. Having satisfied ourselves that the intended meaning of the words “all damages” was all damages, and not a part of the damage only, the construction to be given is obvious.
We understand that the contention is not made that, in the absence of any express reservation, the compensation required for the condemning and taking away all of the rights of a corporation is the value of the tangible property, divested of the right to use or to sell the property as a unit to some one who may use it. Should we be mistaken in our understanding, we should then feel constrained to say that such is not the law. The cases cited by counsel for the State appear to support the contrary rule. In the case of Detroit Citizens’ St. Ry. Co. v. Common Council of Detroit, 125 Mich. 673, the subject of the value of franchises was discussed at length. It has a bearing on this case, so far, at least, as to sustain the suggestion that exceptional privileges may be valuable, and may go far to enhance the value of tangible property.
This discussion naturally leads up to the question of the measure of damages. Of that we need only say that we do not discuss it, for the reason that it is unnecessary to a determination of the question before us; neither has the discussion covered all of its possible features.
As to the other points raised upon the sufficiency of the declaration, we think the case of State v. Wayne Circuit Judges (Mich.), 104 N. W. 637 (official report withheld pending rehearing), should be considered decisive of them, if, indeed, the making of the application then reviewed should not be held to amount to a waiver of them, if not conclusive upon the question of the sufficiency of the declaration — questions which we neither consider nor determine, as counsel have not discussed them.
We conclude that the order of the learned circuit judge was right, and it is therefore affirmed.
Carpenter and Montgomery, JJ., concurred with Hooker, J. | [
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Ostrander, J.
Plaintiff was permitted by the charge of the court to recover only for injuries to her feelings. The jury returned a verdict in her favor for $216, for which sum judgment was entered. Defendant has brought the case here. Defendant published an article which, after stating that a certain boarding house kept by plaintiff had been consumed by fire, that the inmates who were mostly women escaped with nothing but their night clothing, continued as follows:
“ This is the second.time the old house has been visited by fire in the past few months. The place has borne for some time a rather bad reputation, although Chief of Police Swart says the officials have been unable to procure evidence enough against the inmates to warrant making arrests.”
These and other statements in the article are charged as meaning that the place was a house of prostitution and the plaintiff the keeper of such a house. The court, in terms not criticised by counsel, left it to the jury to determine the import of the article and its truth or falsity.
Certain errors are assigned and argued upon rulings admitting and excluding testimony. They require no discussion. Counsel for plaintiff to some extent argued his case in the form of questions to and answers from the witness Yigeant; but as it is obvious that, if the witness was otherwise truthful, the argument was sound, and, if untruthful, unsound, defendant was not prejudiced. In respect to the other rulings no error was committed.
It is contended that certain requests to charge should have been given. As the charge which was given is understood, these requests became immaterial. (1) There was no reason for advising the jury to specify in the verdict the amount awarded for injury to feelings because, and counsel concede this, the jury were limited to a verdict for injuries to feelings. (2) It was unnecessary and would have been misleading to instruct the jury, as requested, that, if the house had no worse a reputation after than it had before the publication of this article, plaintiff could not recover. Business was not resumed in the house., No recovery for loss of reputation of the house or to business or profits or property was permitted. (3, 4) These requests relate to the reputation and character of plaintiff before and after the publication, and the words “reputation” and “bad character” are used without qualification. It is evident the jury found that the import of the article was to charge that plaintiff was keeper of a house of ill fame. A woman might have a bad reputation and a bad character, neither of which would be changed by such a publication, and yet be entitled to substantial damages for injuries to her feelings resulting from the publication. The verdict does not indicate that the jury were insensible to such proper considerations as the evidence presented.
We find none of the errors well assigned, and the judgment is affirmed.
McAlvay, O. J., and Carpenter, Grant, and Blair, JJ., concurred. | [
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Montgomery, J.
The defendant is a dealer in secondhand articles, and owns a building in the city of Hillsdale. The lower portion consists of two rooms, one occupied by defendant and the other usually rented. In April, 1904, Mr. Judson D. Chappell, who was engaged in the manufacture and sale of harness, etc., and in whose employment the plaintiff was engaged, had negotiations with defendant relative to leasing the portion of the first story not used by defendant in his business. Plaintiff was present and took part in these negotiations. As a result of the negotiations, Chappell and plaintiff moved in. Plaintiff packed some of his belongings in a large box which was taken to an upper floor and stored away. Later on the defendant was found making use of the box to store oats in and plaintiff’s goods had disappeared. This action was brought to recover the,value of plaintiff’s property. A special finding of facts was made. Defendant excepted to the finding, and on error the only question presented which calls for discussion is whether there was any testimony tending to show that defendant was, as to plaintiff’s property, a bailee for hire.
Defendant’s contention is that the defendant rented the room in the first story of" the building to Chappell, and that the permission to store the boxes in the second story was a mere accommodation.
Plaintiff’s counsel, on the other hand, contends that the agreement to store these boxes was a part of the consideration for the leasing, and that defendant assumed the obligation of a bailee for hire;
The testimony offered by plaintiff was as follows: Mr. Judson D. Chappell testified:
‘ ‘ I was present and had a conversation with Mr. Salomon in regard to occupying this room down there by Mr. Henry. Mr. Henry and I had a talk with Mr. Salomon concerning the building that we rented down there, and it was understood and agreed that a partition should be put in and screen doors furnished. We also talked about the terms of rental, and the fact that there was not room enough in the building to store the boxes and other things. We wanted to get them out of the way, and I understood that we were to have room enough upstairs to store Mr. Henry’s boxes, and that they would be cared for, and I supposed it was a part of the consideration for the lease; and the fact that he agreed to store the boxes and furnish room below was one of the inducements that led to the taking of the room.”
Mr. Henry testifies:
“ Mr. Chappell and I went to see Mose about the room, and he said we could have it. I was at that time over to the Mosher house, and he wanted me to go over and look at the rooms. I thought they were pretty small, and asked him if he couldn’t store some things in the boxes upstairs. Some of my best boxes. He said, ‘Yes.’ I unpacked the big box first. I had a lot of moth balls in there. I shook and left them in the box, and put my bundles in. I had my Grand Army suit in, and a quilt and a pair of pants. I put a rug in there, some rope, and burlap; and he said: ‘You can store the big box up there, and the crate with the machine. I can’t do business and have all of them boxes up there.’ ‘ Well,’ I says, ‘ the agreement was, Mose, that you was to store the boxes.’ I didn’t say all the boxes. He agreed to store and take care of the big box and the machine crate right over the part which I was under. That was done for the purpose of making more room below. * * * After he took charge of the box. and my things, and told me he would take care of them I rested easy, supposing they would be all right and cared for, and they would if he had left them alone. I afterwards learned that he had put oats in the box.”
J. H. Pierson says:
“After we had packed up the box Mr. Salomon rolled it into his part, took it onto his elevator and took it upstairs, and put it back in the corner of the building where he said it would be out of his way. I know nothing about any arrangement or agreement to store the box. I didn’t hear any talk about it. He told me where he was going to put the box, and said it would be all right, and out of his way over there.”
This testimony was evidently construed by the circuit judge as establishing the fact that defendant as a' part of the agreement for renting the store building agreed to store the boxes in question. We think it was open to this construction. The defendant, according to this testimony, acted upon the agreement and himself took charge of the box and directed the placing of it. The finding had support, and is as binding upon this court as a verdict of a jury would be.
The judgment is affirmed.
McAlvay, C. J., and. Ostrander, Hooker, and Moore, JJ., concurred. | [
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Carpenter, J.
Defendant published a libel charging that plaintiff burned or caused to be burned his buildings for the purpose of securing the insurance upon them, and for the purpose of defrauding the company insuring them. Plaintiff brought this action to recover damages. The issue was submitted to a jury, who found a verdict for plaintiff and assessed his damages as follows: $150 for damages to feelings; $626 for damages to reputation. The trial court decided that the law did not entitle plaintiff to damages for injury to reputation, and directed judgment to be entered only for the $150, which the jury had found as damages to plaintiff’s feelings.
Plaintiff insists that this decision was erroneous, and asks us to reverse said judgment. The question for our determination is this, viz.: Does the law entitle plaintiff to damages for a reputation injured by the publication of a libel ? This depends upon the proper construction of section 1, Act No. 216, Pub. Acts 1895 (3 Comp. Laws, § 10423). That section reads:
“That in suits brought for the recovery of damages for libel or slander in this State, the plaintiff shall be entitled to recover only such actual damages as he may have suffered in respect to his property, business, trade, profession, occupation or feelings.”
In McGee v. Baumgartner, 121 Mich. 287, we held that this statute did not prohibit recovery of damages for injury to reputation, saying that, if it did, “the act in this respect is clearly unconstitutional.” And upon this reasoning a judgment awarding damages for a reputation injured by the publication of a libel was affirmed. If this decision is authoritative, it controls this case, and compels us to say that plaintiff was entitled to a judgment for the full amount of the jury’s verdict. It is urged, however, that the authority of McGee v. Baumgartner is destroyed by the decisions of Derham v. Derham, 123 Mich. 451, and Line v. Spies, 139 Mich. 484. Line v. Spies has no application. There in a slander suit the trial court permitted the jury to give damages for injury to the plaintiff’s reputation and profession. This court held this action erroneous, because there was no evidence of injury to plaintiff’s profession. In Derham v. Derham the trial court, in charging the jury, limited the damages to a plaintiff injured by the publication of a libel to what “ she may have suffered in respect to her feelingsand this court held that such limitation was correct. The effect of this ruling was to prevent the recovery of damages for injury to plaintiff’s reputation, but this point was not called to the attention of the court by the briefs of counsel ; neither did it receive any consideration in the opinion of the court, nor was the case of McGee v. Baumgartner referred to, either in the opinion of the court or in the briefs of counsel.
The utmost that defendant can claim for Derham v. Derham is this: That, if this court had there considered and affirmed the proposition decided in McGee v. Baumgartner, it would have reached a different conclusion:
“That proposition was not, however, considered. It was not even presented, and decisions are not binding authorities, as precedents, upon propositions which should have been, but which were not, considered. Atwood v. Mayor, etc., of Sault Ste. Marie, 141 Mich. 295.” Moinet v. Burnham, Stoepel & Co., 143 Mich. 489.
The authority of McGee v. Baumgartner is not therefore destroyed by the decision of Derham v. Derham. We conclude, therefore, that McGee v. Baumgartner is an authoritative exposition of the law of this State; that section 10423, 3 Comp. Laws, construed, as it should be, in harmony with the Constitution, entitles plaintiff to damages for injury to his reputation.
The judgment should be reversed and the record remanded, with directions to the trial judge to enter a judgment for the full amount of the damages assessed by the jury, unless for some reasons not disclosed by this record he determines that a new trial should be awarded.
McAlvay, C. J., and Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
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Carpenter, J.
This suit was instituted in justice’s court. There plaintiff recovered. It was appealed to the circuit court, and tried by jury, and there, too, plaintiff recovered. The dispute in this court relates only to certain items in plaintiff’s account, viz., the number and price of certain trees sold and delivered to defendant, and an item of $10 paid for installing a telephone.
Defendant contends that the trial court erred in permitting plaintiff, in testifying to the number of trees and the prices charged therefor, to refresh his memory by looking at a copy which he himself had made from a book of original entries. It is to be inferred from his testimony that the inspection of this copy did actually refresh plaintiff’s memory. The ruling under consideration was not erroneous. 1 Wigmore on Evidence, § 760; 1 Greenleaf on Evidence (16th Ed.), § 439c; Cameron v. Blackman, 39 Mich. 108; Hudnutt v. Comstock, 50 Mich. 596.
Other complaints are made of rulings admitting testimony. Some of these complaints are based upon a misapprehension of the record, and others are answered by elementary principles of law. They do not demand discussion..
Plaintiff agreed, in the contract by which he sold the fruit trees', that they should be “ delivered in a healthy condition.” The testimony of plaintiff tended to prove that the trees were healthy when they were delivered to defendant. The testimony of defendant was that the trees “ were dry, and looked dead,” and that some of them did afterwards die. The trial court charged the jury:
“ It devolves upon her [defendant] to show that £he trees were not healthy; that is, unless the evidence is strong [stronger] on her side that they were unhealthy, you will find that they were healthy. As to the number of trees, the burden of proof is upon Mr. Smith; and unless his evidence is stronger than hers in regard to the number of trees, you will take her statement rather than his.”
Defendant contends that this charge was erroneous. We dispose of some of her objections when we say that it is quite obvious to us that the jury would understand that in using the word “strong” the trial court intended to say “stronger,” and they would understand the charge as if that word had been used, so that the effect of the charge is to impose upon the defendant the burden of proving that the trees were unhealthy. Had defendant never accepted these trees, this charge would have been erroneous. It would then have been an “essential part of plaintiff’s case to prove that the goods tendered complied with the contract.” McCall Co. v. Jacobson, 139 Mich. 455; Simons v. Paper Co., 77 Mich. 185; Stahelin v. Sowle, 87 Mich. 124. But in this case the defendant had accepted these trees, and most of them did comply with the contract. Under these circumstances we think the burden rested upon her to prove that the trees so accepted did not comply with the contract. In Stahelin v. Sowle, supra, it was said by Chief Justice Champlin, speaking for the court:
“The burden of showing sufficient cause to warrant him in rescinding the contract was upon the defendant.”
We therefore think that there was no error in the portion of the charge under consideration.
Defendant’s complaint respecting the item of $10 for installing a telephone is — as pointed out in plaintiff’s brief— based upon an improper construction of plaintiff’s testimony. Any further discussion of that complaint would serve no useful purpose.
The judgment is affirmed.
Grant, Blair, Montgomery, and Ostrander, JJ., concurred. | [
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MoAlvay, J.
In this case complainant, claiming to be entitled to one-half of the net profits arising out of the sale of certain pine timber and land situated in Ontonagon county, by virtue of a certain agreement made and entered into between the parties to this suit in the year 1895, filed his bill of complaint against defendants, asking for an accounting therefor. He is a resident of Muskegon county. The case was heard before the circuit court for Muskegon county, in chancery, and a decree was rendered therein granting complainant the relief asked. Upon the appeal of defendants to this court the determination of the questions raised depends upon the facts which the evidence in the case shows have been established. There was a sharp dispute between the principal parties upon the material facts involved. To discuss the evidence, together with questions of the credibility of witnesses, and corroborating facts and circumstances in support of testimony, will be of no benefit to the profession. We therefore state the facts we have found after a careful examination of all the testimony.
The record establishes that complainant, an experienced land looker, having learned of a certain tract of pine timber land belonging to one Josiah E. Just, of Ionia, and having theretofore examined and estimated the same, brought his information, with the estimates, to the attention of defendants, who were engaged in the lumber business in Ontonagon county, under the firm name of John McRae & Co., and who desired to purchase timber of the kind growing upon said land, and made and entered into a verbal agreement with them through Donald McRae, one of the defendants, that they would have the lands examined, and, if found satisfactory, they would furnish the money to buy them, and would divide equally with complainant the profits arising from the transaction. By agreement complainant obtained an option in writing for the purchase of said lands from the owner for $5,000, running long enough to permit an examination of the lands by defendants. This option, together with the estimates complainant had and descriptions of the land, were turned over to defendants. Defendant Donald McRae thought the land should be bought for $4,000, and it was agreed that further correspondence with Mr. Just should be continued by defendants. Complainant on November 22, 1895, so wrote to Mr. Just, inclosing a letter of same date from defendants showing their estimate, the situation of the land, and their objections to the price. Complainant explained the relation of the parties to the deal, and that defendants were furnishing the money. Several letters passed between defendants and Mr. Just in relation to the matter, and, finally, on January 16, 1896, a contract in writing was entered into between them for the purchase of this land for the sum of $4,000, tobe paid part in cash, and the balance in notes. In consideration of payment of cash in full, this was reduced to $3,950, and on February 24, 1896, a warranty deed of these lands was made by Just and wife to Patrick A. Ducey, in which it was stated:
‘ ‘ This deed is given in accordance with and in fulfillment of a contract made the 16th day of January, 1896, between Josiah E. Just, of the first part, and John McRae, Dan McRae, and Peter McArthur, composing the firm of John McRae & Company, of the second part.”
Complainant had no knowledge of this deed, and never consented to it. Donald McRae in January or February, 1896, told complainant that they had bought the land for $4,000. Complainant then asked for a letter showing his interest. Mr. McRae denied that he had any interest, and said they were obliged to take another party into the deal.
In March of the same year complainant proposed to Donald McRae to settle this dispute upon the payment to him by defendants of $50 in cash, and a receipt in full for his account on defendants’ books for $30 borrowed money and interest, making $31.45. This proposition was accepted, and defendant Donald McRae paid him $15, stating that he would pay the balance of the $50 at any time after the following day. On the second day complainant went to the office and asked for the balance, which was refused; McRae claiming the agreement was that complainant was to be paid $50 in settlement of his claim, the account to be included in that amount. Complainant then withdrew his offer of settlement, and stated that he would try to collect all that was corning to him. The timber was sold for $7,000 in September, 1896, realizing a profit of $3,050, less expenses. Complainant instituted this suit in February, 1899.
The principal question of law raised by defendants in the case is,* that the compromise agreement between the parties constituted a full and complete settlement; that a new contract was substituted for the old one, and was partially executed by the payment of $15 which complainant has retained; and that complainant cannot rescind the new agreement, retain the benefits, and bring suit upon the original contract. In matters of accord and satisfaction, there is a well-defined and easily recognized distinction between two classes of agreements:
1. Where the agreement of the creditor is to accept the performance of the debtor’s new promise or agreement in satisfaction of the demand.
2. Where such promise or agreement itself, based upon sufficient consideration, is accepted in satisfaction of the demand. 2 Chitty on Contracts (11th Am. Ed.), p. 1124.
And in this class of cases it must clearly appear that the intention of the party was to accept such promise, and not the performance, in satisfaction of the original demand. In the first class of cases the accord must be fully executed to bar an action on the original demand. 1 Cyc. p. 312, and cases cited. In the second class the original demand is extinguished, and cannot be the foundation of an action. 1 Cyc. p. 336, and cases cited. Some of the cases cited by defendants recognize this distinction. Sioux City Stock-Yards Co. v. Packing Co., 110 Iowa, 396.
The facts as found by us bring this case within the first class. Complainant agreed to accept the debtors’ performance of the agreement in satisfaction of his demand. Complainant was ready to carry out the agreement, and defendants refused to perform their part. Complainant had a right to rescind the contract and bring his action on the original agreement. That complainant retained the $15 paid by defendants is not disputed. In the first class of cases above mentioned part execution of the accord does not extinguish the original demand. Defendants on the accounting were properly given the benefit of the amount paid. Brunswick, etc., R. Co. v. Clem, 80 Ga. 534; Campbell v. Hurd, 74 Hun (N. Y.), 235.
The contract established by complainant was one usual in the business in which the parties were engaged, and enforceable in a court of equity. Petrie v. Torrent, 88 Mich. 43, and cases cited.
The relation of Mr. Ducey to the defendants is one which cannot affect complainant’s rights in the premises. Complainant was in no way connected with him in the transaction. His agreement was with the defendants alone. If they have advisedly or mistakenly turned over some of the profits of this deal to Mr. Ducey, they have done so at their own risk. Complainant was not guilty of laches in bringing this suit, nor has he made a mistake in his remedy.
The decree of the circuit court is affirmed, with costs to complainant.
Carpenter, Blair, Hooker, and Moore, JJ., concurred. | [
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Sherwood, J.
The plaintiff is located in Philadelphia. Its business, among other things, is the sale of commercial whiting. It is not a manufacturer. The defendant is a cprporation in Detroit. Its business is the manufacture of white lead, zinc, putty and similar articles. This action was brought by plaintiff to recover for three hundred barrels of commercial whiting sold to defendant. The contract for the same is in writing, and contained in several letters passed between the parties, in pursuance of which the goods were shipped to defendant on the 31st of August, and 4th and 14th of September, 1882; the purchase price thereof, less freight, being $530.07. The goods were received by defendant at Detroit in due time, — -the first shipment of one hundred and eighty barrels on the 9th of September after ,tlie order was given. The best commercial whiting was ordered, and the plaintiff claims the best was sent, and the proofs tend to show such was the fact, and that plaintiff sold but the one quality.
The defendant commenced using the whiting as soon as it arrived, working up two barrels the first day, and from three to four barrels per day until it had used up forty-two barrels, and sold the same out to its customers, who made complaints to defendant very soon after they received the putty manufactured from the whiting. The defendant had in June previous had some of plaintiff’s whiting, as the testimony tended to show, and had asked for a rebate on account of its inferior quality. ' September 21, 1882, defendant wrote to plaintiff : “ It [tlic whiting] is full of sand and grit, and we are constantly having trouble and complaints about the poor putty made from it, and upon adulterating for commercial putty it is well nigh worthless. It bids fair to ruin our putty trade. Don’t think -we can make any use of it. What are you going to do about it ?” To which letter plaintiff replied, September 30, 1882, that this was the same whiting it was shipping throughout the West, with no complaints; that it did not think commercial whiting would stand adulteration, but was satisfied that when ground with linseed oil alone it makes good putty; that it made only one grade of commercial whiting, and that upon further examination it would run all right. On the same day, September 30th, defendant wrote plaintiff: “ On the 21st inst. we wrote you about the quality of the whiting you shipped us, and about the trouble we were having with it. If we do not hear from you by October 10th we will store the remaining whiting at your expense and risk.” November 24th defendant wrote plaintiff that the whiting was “ miserable stuff,” and it had stored two hundred and fifty-eight barrels of it in a storage warehouse, where storage and insurance were running against it, and that they enclosed a bill of the two hundred and fifty-eight barrels and the freight paid on three hundred barrels.
The defendant stored the whiting on the 14th day of November, but did not notify the plaintiff until the last-mentioned letter was mailed, to which the plaintiff replied: “You received our best commercial whiting. We do not quote other than commercial whiting, which was our quotation to you, and from the fact of your having received and used the same goods before, should have posted you as to the grade and quality. We cannot agree with you as to its being miserable stuff, and shall hold you to the payment of the bill as invoiced.” There is no question but that the defendant’s order was for the “ best commercial whiting,” but it does not appear that there vTas any particular quality or grade known by that designation.
The plaintiff’s claim, as itemized under the declaration, was as follows:
Aug. 31. 180 bbls. commercial whiting, 25c. each, $ 15 00 71,312 lbs. net, @ 56c. per 100 lbs, - - 399 35
Sept. 1. 60 bbls. commercial whiting, 25c. each, 15 00 27,811 lbs. net, @ 56c. per 100 lbs, - 155 91
Sept. 11. 60 bbls. commercial whiting, 25c. each, 15 00 23,815 lbs. net, @ 56c. per Í00 lbs, - 133 53
$763 79
Less freight' - 233 72
$530 07
The defendant’s plea was the general issue, with notice of special defense, claiming damages (1) for payment of freight, $233.72; (2) cost of cartage, storage and insurance, $100;. (3) loss of marble dust and oil used with the whiting in the attempt to manufacture putty, $100; (1) injury to the trade of the defendant by reason of the use of said whiting into putty, $1000; (5) difference in price of four cents per hundred by reason of market sale of class of whiting contracted for at the time.
The cause was tried in the Superior Court, before Judge Chipman, by jury, and the defendant recovered the sum of $509.21. Plaintiff asks a review of the case here, and assigns thirty-two errors, the most of which relate to the rulings of the court in receiving or rejecting testimony.
I have examined the correspondence between these parties-with care, as well as the other testimony in the case. From these it appears that commercial whiting is an article well known in trade, and that some qualities or grades are better than others, owing to the difference in the quality of the chalk used. This fact seems to have been well understood by the plaintiff. -It is referred to in the plaintiff’s letter of September 30th, which says: “¥e make only one grade of commercial whiting, and are just as careful as possible to get it as near as we can. Sometimes chalk varies in quality, which will cause a difference.” When the defendant commenced the treaty for the goods, Mr. Kogers, manager for the Detroit company, wrote: “ Please quote us 300 to 500 barrels best commercial whiting, delivered in Detroit.” Three days thereafter the plaintiff answered: “ We are pleased to quote you delivered at Detroit 300 to 500 barrels comrl. whiting, at 50 cts. per 100 pounds; bbls. 25 cts. each.” This letter was answered by defendant, in which-Mr. lingers says: “'‘You may enter our order for 300 barrels of your ' best commercial whiting on the terms named in yours of the 18th inst., and ship it as soon as convenient.” It was upon this correspondence that the plaintiff forwarded the goods now claimed for.
It seems very clear, I think, that the undertaking on the part of the plaintiff was to deliver at Detroit to the defendant three hundred barrels of the best commercial whiting, at fifty-six cents per one lnmdred pounds, and twenty-five cents per barrel. The court substantially so charged the jury, and, I think, correctly.
Having ascertained the true construction of the plaintiff’s undertaking, the next question was, had the defendant performed his contract; and, if not, was there anything done or omitted by defendant excusing or waiving such performance? Considerable testimony was taken to ascertain the quality of the whiting delivered, and a large number of exceptions were taken to the rulings of the court admitting the testimony upon this point, and tending to show the qualifications of the witnesses or want of knowledge to speak upon the subject; also tending to show the purposes for which commercial whiting is used. Of this character were the various questions raised and rulings made and excepted to, in the plaintiff’s assignments of error numbered one, two> three, four, six, seven, eight, nine, ten, thirteen, nineteen, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six and twenty-seven. No error, however, is discovered in any of these rulings prejudicial to the plaintiff, and it is not important that they should be considered in detail. Neither was any error committed in any of the charges given by the court, or in the refusals to charge.
It was insisted that no question could be made but that the plaintiff was entitled to recover for the barrels; that the contract price for those'was separate from that of the whiting. The whiting was the article desired by defendant. The barrels became a necessity in malting the transportation and delivery, and were of no consequence to the defendant except in the use made of them in connection with the goods purchased. They were in fact a part of the goods, and if the defendant could not be made liable for the whiting it could not. be for the barrels.
Ve fail to discover any error in the rulings or charge of the court on the subject of damages. It was the defendant’s duty to receive and take charge of the goods when they arrived in Detroit, and he had a right to expect that they would be of the quality ordered; and if the plaintiff failed to furnish the article purchased by the defendant, and promised by plaintiff to be the best commercial whiting, but did furnish an inferior quality, and ship and deliver the same to the defendant at Detroit, as and for the goods promised, without notifying the defendant of the inferior quality of the goods, the plaintiff would be liable, unless the defendant chose to keep the goods, for all necessary charges and expenses in testing the article until defendant found .out the ‘ difference in quality, and in addition thereto all other necessary, legitimate and approximate damages it sustained, arising directly from the failure of the plaintiff to redeem its promise as to the character of the article delivered. This would include all those expenses incurred in the means taken and things done which would be expected of any careful, prudent business man engaged in the trade under like circumstances. Insurance, freight, cartage and storage paid upon the goods were proper items of damage, and it was not improper to introduce evidence containing the footings of these items as claimed by the defendant. The fifteenth, sixteenth, seventeenth, twentieth and twenty-first assignments of error, all relating to these subjects, cannot, therefore, be sustained.
I think the following from the charge of Judge Chipman states the law correctly: “ If you, find for the defendants, I think they are entitled to what, under the undisputed testi mo’ny in the case, the cartage, freight and storage amount to; together with the difference in price — in the market price— between what they purchased this whiting for, and what other whiting cost them at that time.”
""There was no error in admitting the exhibits offered in the case. They contained the contract between the parties upon which both relied, and were indicative of the understanding of the parties, and explanatory of the course pursued by each, and furnish reasons rebutting the presumptions claimed by plaintiff’s counsel. Plaintiff offered to show by the deposition of Mr. Geoñey, a member of the plaintiff company, that no guaranty of the quality of the whiting was given. This was objected to, upon the ground that the contract of sale was in writing, and that the writing contained the only evidence admissible upon that subject. The court so ruled, and we see no error in the ruling.
All that was objectionable referred to in the eighteenth assignment of error was fully remedied and removed in the charge of the court given in the paragraph above quoted.
It is claimed the court should have allowed the plaintiff to recover for the value of the forty-two barrels used or sold by defendant in testing the article before he found out its inferiority. Had this been done, simple justice would have required the allowance to the defendant of the damages it sustained in the use it made of the plaintiff’s goods in testing the quality, and this, according to the undisputed testimony, was at least $1000, so that it clearly appears the plaintiff has not been injured by the action of the court upon this point complained of. Certainly' the defendant derived no benefit from the amount used.
The article appears to have been, however, one which must be used before its quality can be ascertained. It was not apparent upon examination, and in such case it is the right of the defendant to make use of so much thereof as, under all the circumstances, may become actually necessary for that purpose, without liability for the value of the same if it fails in the test.to fulfil the plaintiff’s contract. The charge of the court submitted this part of the case fairly to the jury in the following paragraph thereof:
“ The question arises whether the goods were of such a character that, upon being received by the defendants, they could determine whether the goods were in accordance with the contract or not. If they were such goods that any one could determine by mere inspection of them, the mere sight of them would determine their character, then there would be no difficulty in this-case whatever — there would be nothing to leave to you ; and if you find they were such goods, then your verdict must be for the plaintiff. But the contention of the defendant is that they are not such goods; that they are of such a character that it is impossible, without actually trying them in the process of manufacture, to determine what kind of goods they are; that the question whether they are the kind of goods ordered at all, or whether they are the quality of goods that were ordered, can only be determined by the process of actual use. Now, yon have heard the testimony upon that point, and you are to determine where the truth lies ; whether that is so, or whether it is not so. If that is so, then the mere acceptance of- the goods would not constitute an acceptance, and the defendants would have the right under the law to go a step further and to try to make experiment as to the quality of the goods, and as to whether they were such as fulfilled the contract which had been made between the parties. Now, in regard to this matter of trial, it must be reasonable; it must be such a trial as under all the circumstances of the case tire subject-matter — that is, the goods — rendered necessary. The party cannot go on under the guise of making an experiment for an unreasonable length of time, or use an unreasonable quantity of the goods. The party must act with promptitude, and that promptitude must be reasonable in view of all the circumstances of the ease. What would be reasonable promptitude in one case would not be promptitude at all in another case ; so that in this case, as in other like cases, your duty will be to determine as to the degree of diligence the defendants used in ascertaining whether this article was the article they had contracted for, and as to whether the quantity which they used was such as did not go beyond a reasonable amount for the purposes of experiment. There, were three hundred barrels in all. A certain number of barrels were used; was there too much used ? Was the experiment continued so long as to amount to an acceptance of the goods l — as to amount to an actual entering into a use of the goods? All these aré questions for you to determine, and you must determine them by the testimony in the case. Now, in regard to the degree of promptitude. If you find that the goods were not up to the mark; if you find that the experiments and the use were such as yon would assume to be reasonable — then the next question is, what did the defendants do in regard to the goods ? It is claimed by them in testimony, and I think virtually admitted, that they stored the goods and notified the plaintiff that the goods were stored and subject to their order, and that was done shortly after or about the time, as I understand it, that these experiments, as they claim they ■were, ceased. Now, as I say, they must act promptly. They could pot retain the goods for any great length of time after they knew that the goods were bad, and yet, by writing a letter of that kind, absolve themselves from paying for the goods. Neither could they continue their experiments too long, or use too great a quantity in their experiment.” Benjamin on Sales, § 655 et seq.
On a review of the whole case — and it is all before us— we find no error in the rulings or charge of the court, and
The judgment should be affirmed.
Cooley, C. J. and Campbell, J. concurred. | [
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Sherwood, J.
This case is an appeal from an order made by the circuit court in chancery for the county of Kent, allowing an execution to issue for the collection of a deficiency arising upon a sale made.of mortgaged premises under a decree of foreclosure. The proceedings in the case to decree were before ns at'the October term, 1884, and were by this Court duly affirmed. The mortgage was given for -the purchase money of the incumbered property, which was conveyed to the defendant by complainant by full covenant warranty deed, the consideration being $21,000. The defendant in the foreclosure suit answered the complainant’s bill, and filed a cross-bill, praying that the purchase of the property and sale thereof to the defendant might be set aside or rescinded on the grounds — -first, that the defendant’s purchase of the property was made under duress ; second, that the title to the mortgaged premises at the time of the purchase was defective. The circuit court made the usual decree on foreclosure and dismissed the cross-bill, and decreed that the defendant was personally liable for the entire amount due upon the mortgage and notes, and that he should be required to pay the deficiency which, as reported by the commissioner making sale under the decree, amounted at that time to the sum of $11,091.43. The sale was duly confirmed by the circuit court.
The petition for the order appealed from was based upon the prior proceedings in the case, which show that no objections or exceptions to said sale or to said report were ever taken, and that the order of confirmation became absolute, and no cause was ever shown to the contrary. The defendant appeared and made answer to the complainant’s petition for the order in question, and claims therein his right to make the following defenses: first, that the mortgaged premises are misdescribed in his deed thereof executed by complainant to him; second, that at the time said deed was made they were subject to an easement, it being an alley across a portion thereof, which had been acquired by user; third, that the complainant in fact had no title, but was merely a mortgagee in possession, with his mortgage debt paid by the receipt of rents and profits; fourth, that the rear part of the premises were vacant, and possession thereof was not given to the defendant, but was in the constructive possession of other persons having a paramount title. Thedefendant further claims that such being the situation of the title when he purchased the mortgaged property 'and received his deed therefor and gave tbe mortgage, the covenants of the complainant’s deed were broken as soon as the same was delivered, and inasmuch as the proceedings to enforce payment of a deficiency after a foreclosure and sale of the land are substantially a substitute for an action at law for the same purpose, justice and equity alike require that he should be permitted to make the defense he now claims, and especially should he be allowed so to do in this case, as the deficiency arose in consequence of the defects claimed in the title; the property selling for less than half its actual value.
The circuit judge overruled the defense offered, and directed that execution issue for the amount found due and unsatisfied upon the decree. This direction was proper, and must be sustained. The defenses now set up to defeat the relief prayed in the complainant’s petition were urged on the hearing when the original decree in this ease was made, and again in this Court on the appeal, and were overruled, and they cannot be renewed on this petition. This Court held that if defendant had any claim upon the covenants in his deed, he should be left to his suit thereon, and we see no occasion for holding differently now. Haldane v. Sweet 55 Mich. 196. All the defenses now urged existed before the suit in this case was commenced, and were known to the defendant and set out in his cross-bill. If the claims now made were available in reduction of the complainant’s demands, he should have secured their application before decree. The decree necessarily involved the determination of the amount due on the notes and mortgage and must be regarded as a final adjudication of that matter. Hazen v. Reed 30 Mich. 331; Wales v. Lyon 2 Mich. 276. In this class of eases, where the defendant contests the right of complainant to an execution, “ the grounds of contest must not be inconsistent with the decree, but must be such as recognize the decree and go to its discharge.” Those only can be urged which have arisen after confirmation of the sales. Ransom v. Sutherland 46 Mich. 489.
■ The order made by the circuit judge must be affirmed with costs.
The other Justices concurred. | [
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] |
Carpenter, J.
This is an action of ejectment. Plaintiff’s title is derived from a deed executed under the State tax homestead law. This deed was prima facie evidence of title (Act No. 211, Pub. Acts 1905), and there was no evidence of any irregularity in the proceedings leading to its execution. Defendant Kennedy was the former owner of the land. The other two defendants were tenants of defendant Kennedy. These tenants occupied the land at the time the auditor general and the commissioner of the State land office determined that it was homestead land. Verdict and judgment passed for plaintiff. We are asked to reverse that judgment
Appellants in their brief argue several questions not presented in the record. Such questions we cannot consider. Under the practice prevailing in this court, we reverse judgments of the circuit court only for the errors shown by the record and complained of in appellant’s brief. In other words, the question of law upon which appellant relies must be presented in the record and argued in his brief. Under this rule, there is but one question in this case for our consideration, and that arises from the contention of defendants that section 127 of the general tax law (Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899), is unconstitutional. That section makes it the duty of the auditor general and commissioner of the State land office to determine when State tax lands shall become State tax homestead lands. Such determination is conclusive unless assailed in the manner pointed out in the statute within six months. In making said determination, said officials must determine, and they are authorized to determine, whether or not the land is occupied; and in the case at bar they determined — and, defendants contend, erroneously determined — that it was unoccupied. We have heretofore decided that the decision of these officers “could not be overturned by a parol showing that it [the land] was not * * * abandoned.” Semer v. Auditor General, 133 Mich. 569. But for the first time we are called upon to consider the claim that the statute is unconstitutional, upon the ground that the making of said determination' is a judicial act which, under the Constitution of this State, must be performed by a court. This argument rests, and must rest, upon the assumption that the former landowner has some rights which are affected by the determination. This assumption is unfounded. The former landowner has no such rights, because before the determination all his rights had been acquired by the State. After the expiration of his right to redeem from a regularly conducted sale at which the State has purchased — and that is the case with the land in question — it (the State) owns and can dispose of the land as it pleases; and this is true, though the former owner of the land continues in possession, for he is in possession without the right of possession. The determination in question was therefore a mere classification of lands owned by the State. It was in no sense a judicial act.
In reaching the foregoing conclusion, we have considered and denied the proposition that the title of the State which would otherwise be absolute (see Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444; Hickey v. Rutledge, 136 Mich. 128) is lessened or impaired by Act No. 229 of the Public Acts of 1897. This act, which is superseded by Act No. 236 of the Public Acts of 1903, gave owners the right of redemption when the State sells State tax lands under the general tax laws. It has been urged that the legislature, by passing said Act No. 229, intended to convert the title of the State theretofore absolute into a lien analogous to that of a mortgage, and, consequently, to give the original owner of the land an equity of redemption of which he cannot be summarily deprived. I think it a conclusive answer to this argument to point out that at the time Act No. 229 of the Public Acts of 1897 was passed the act under consideration in this case, viz., the act providing for the sale of State tax lands for homesteads, was already upon the statute books. It is clear, and I think it will be conceded, that the legislature did not intend by enacting said Act No. 229 to affect the disposition of State tax lands under the State tax homestead law. At the time Act No. 229 took effect, the State tax lands were then of two classes: First, those which might be sold for homesteads under the State tax homestead law; second, those which might be sold to purchasers under the general tax laws. In enacting said law, the legislature did not intend that the land in the first class should be subject to redemption in the hands of a purchaser from the State, but it did intend that land in the second class should be subject to said redemption. Whether a particular description of land belonged to the one or the other of these two classes manifestly could not be determined prior to its sale or classification. Until sold under the general tax laws, any particular description of land might become tax homestead land. It follows, therefore, that the legislature did not intend to lessen the State’s title in State tax lands generally. It intended merely to give owners the right to redeem after the State tax lands formerly owned by them were sold by the State to private purchasers under the general tax laws. We can and should give full effect to this intent without depriving the State of the right which the legislature clearly intended it should have of disposing of its land under the State tax homestead law, and also, I submit, of disposing of it in any other constitutional way the legislature might afterwards adopt. It is undoubtedly true that said Act No. 229 has the effect of giving to the former owner of the State tax lands a title which formerly he did not possess. See Adkin v. Pillen, 136 Mich. 682. But this title does not come into existence until the sale described in said act has been made. That, it seems to me, was the legislative intent, and I see no difficulty in giving it effect. It may be said that a sale under the general tax laws transfers all the title of the State; part of the title so transferred passes to the purchaser, and part to the original owner of the land, his mortgagee or grantee. I shall not undertake to give a technical name to each of these different titles. We can give effect to the legislative intent without performing that undertaking.
Said section 127 provides that the determination heretofore mentioned shall be conclusive unless it is assailed by suit within six months. As applied to this case, this provision required the defendant in possession to commence suit against an adverse title. This circumstance does not, in my judgment, render the provision unconstitutional under the principle recognized and applied in O’Connor v. Carpenter, 144 Mich. 240. That principle is this:
“One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time specified to test the validity of the claim which the latter asserts, but takes no steps to enforce.” Cooley on Constitutional Limitations (6th Ed.), p. 449.
That principle preserves the rights of the one in possession. 'It applies only where he has rights. In this case defendant in possession had no rights, and therefore the principle has no application. A contrary holding would, in my judgment, require us to say that Semer v. Auditor General, 133 Mich. 569, and Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204, were erroneously decided. It is true, as pointed out by Justice Ostrander, that under our tax law the former owner in possession of State tax lands may, because Ms land is determined to be State tax homestead land, be deprived of acquiring the right to redeem which his neighbor similarly situated does acquire. This discrimination was authorized by the legislature. It may be unjust.' If so, the legislature, and the legislature alone,, can give relief. It is not unconstitutional.
I think the judgment should be affirmed.
McAlvay, C. J., and Grant, Blair, Montgomery, Hooker, and Moore, JJ., concurred with Carpenter, J. . | [
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Rehearing denied.
Reported ante, p 1. | [
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The complaint for superintending control filed by plaintiff is denied. The motion for stay of proceedings becomes moot thereby and is denied. | [
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Rehearing denied. | [
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Per Curiam.
These defendants were jointly tried for the murder of Shane Davis. The jury found them guilty of murder in the first degree. The theory of the prosecution was that defendant James Lester shot and killed Shane Davis while James’ brothers Frederick and Joe Lester aided and abetted James in that effort. The theory of the defense was that the gun which was being carried by James Lester accidentally discharged during the course of a struggle between James Lester and Shane Davis.
The single issue before this Court is the propriety of the trial court’s refusal to give a requested instruction to the jury on the defense theory that the homicide was accidental. The Court of Appeals, in finding no error on this point, concluded that the instructions which the trial court did give to the jury clearly informed them that the burden of proof rests with the prosecution to show that the killing was intentional or that it was due to reckless disregard for the safety of others and that such an instruction "in essence” embodied the requested instruction on accident. 78 Mich App 21; 259 NW2d 370 (1977).
While the trial court’s instruction with regard to the burden of proof and the requisite intent were correct, we hold that a proper instruction on the defense theory of accidental homicide should also have been given.
In his opening statement to the jury, defendant James Lester’s attorney indicated that it was the position of the defense that the gun discharged accidentally when Shane Davis threw his arms up. Evidence was adduced at trial to support this theory. This position was repeated in defense counsel’s closing argument. Defense counsel for Joe and Frederick Lester requested the trial court to give the jury the following instruction:
"A defense of accidental killing has been raised in this case. Such a defense of accidental killing to a prosecution for homicide denies that the killing was intentional, but does not throw upon or shift to the accused the burden of proving that the homicide occurred by accident or misadventure. It is the general rule that where the defense of accidental killing is set up, the burden rests upon the prosecution to show that the killing was willful and intentional, or that it was due to the reckless disregard for the safety of others.”
After the instructions to the jury were completed, counsel for James Lester indicated to the trial court that he wished that the court had given the jury a more complete definition of the defense of accidental killing. The trial court responded that it thought the instructions as given were sufficient.
A trial court is not obligated to give verbatim a requested jury instruction on the theory of the case, whether requested by the prosecution or the defense, including a defendant’s theory of accidental killing, even if the instruction is an accurate statement of the theory if, in the court’s judgment, the language of the instruction requested, taken as a whole, is confusing, inarticulate, inartfully organized, or simply difficult to understand.
However, when as here the defense theory is accidental homicide, the defense requests an instruction on the theory, and there is evidence to support the theory, the trial court must properly instruct the jury on the defense theory. People v Hoskins, 403 Mich 95; 267 NW2d 417 (1978). The failure to do so in this case mandates reversal.
Accordingly, we reverse the defendants’ convictions of murder in the first degree and remand to the Third Judicial Circuit Court for a new trial.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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The clerk is directed to place the instant matter on the June calendar for argument and submission to the Court. The parties shall print the briefs already submitted. GCR 1963, 857. The printed briefs shall be submitted on or before May 15, 1979. | [
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On order of the Court, it appearing that pursuant to remand in Shavers v Attorney General, 402 Mich 554, 634-636 (1978), on February 13, 1979 the trial court issued an order dismissing the complaints on the two issues remanded without prejudice to subsequent consideration in any appropriate proceeding, this Court no longer retains jurisdiction over the two issues remanded and the parties may proceed accordingly. | [
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Hooker, J.
The complainant filed a bill in chancery against several defendants in the circuit court for the county of Genesee on the 3d day of January, 1907. On January 28, 1907, an application for a change of venue was made under the statute. Act No. 309, Pub. Acts 1905. This was denied and the petition dismissed, and the order is before us on application for mandamus.
Issue was joined by answer filed on behalf of four resident defendants upon January 26, 1907. Process had not at that time been served upon the nonresident defendants. It does not appear that any action had been taken to obtain jurisdiction of them by a substituted service, though the opinion filed by the circuit judge states that he is “advised that proceedings for substituted service have been or soon will'be instituted to bring in ” the two nonresident defendants. The record fails to show what the return day of the subpoena was, or whether the subpoena had been returned before the application was made. Objection to granting the order was made upon the ground that the application was premature, it being claimed by counsel, as it was afterwards held by the court, that the statute does not authorize a change of venue until the cause is at issue as to all parties. Section 10 makes compulsory (upon a prescribed showing) the change of venue “ of any civil action pending, etc., * * * and direct the issue to be tried in the circuit court of another county, etc.” After the act became operative the Supreme Court prescribed the practice under it by Circuit Court Rule No. 58. See 137 Mich, xxxvii. The rule is as follows:
“Motion for change of venue in any civil cause shall be entered, and notice of hearing served within 10 days after the cause shall be at issue, unless the moving party shall make it appear to the satisfaction of the court that the facts upon which the application is based have come to his knowledge after the time above limited, and within 10 days previous to such deferred application, and that said party has been diligent in ascertaining the facts upon which said action is based. In causes pending and at issue when this rule shall take effect, said motion shall be entered within 20 days therefrom: Provided, That a deferred application may be made upon complying with the terms above prescribed.”
There is force in the suggestion of the learned circuit judge appearing in his opinion that the change of venue and transfer of a cause before.the appearance or lawful default of a defendant would subject such defendant to the danger of being defaulted for want of a seasonable appearance in the proper court. There could be little reason for an application for a change of venue before an issue of fact or law should be joined, for the case could then be heard only upon default. And we are of the opinion, therefore, that a court should not be asked to change the venue by a defendant who has not made an issue. And as chancery causes are not in condition for hearing, until all defendants over whom the court has obtained jurisdiction have either tendered an issue or been defaulted (see Chancery Rule 13), we think that an application made within 10 days after the filing of the last plea, answer, or demurrer, or expiration of the period for the entry of defaults, would be seasonable under the rule. We do not mean to be understood that an earlier application made by a defendant who had previously joined issue would be fatally premature. On the contrary we are of the opinion that it would not be, though the circuit judge ought to, or at least might in his discretion, defer the making of an order until the time when the case should be at issue, or default entered as to all defendants over whom jurisdiction had been acquired.
In this instance the cause was at issue as to all defendants who had been brought in, and the defendants who had joined issue may have had no means of knowing whether jurisdiction over the others would ever be acquired. We think this application should not be held to have been unauthorized, and unless there was some reason to believe that other parties should or would be brought in, the order should have been made. The record shows that the circuit judge was advised that steps had been or were to be taken to acquire jurisdiction over the nonresident defendants, and it does not appear that complainant was chargeable with laches. He was justified therefore in declining to make an order changing the venue at that time, but he should not have dismissed the petition as prematurely made. The writ must issue requiring the vacation of the order made, but we cannot require an order changing the venue upon this record, for the reasons given.
The writ will issue as indicated.
McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred. | [
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Per Curiam.
William D. Haynes has been reprimanded by the State Bar Grievance Board for the manner in which he handled money he received from American Airlines as a result of his representation of Mrs. Eleanor Robinson in a workers’ disability compensation claim against American Airlines. He appeals, and we affirm.
Mr. Haynes and counsel for American Airlines negotiated a redemption agreement for Mrs. Rob inson’s claim. In accordance with the agreement, American Airlines issued the following checks:
1) one dated May 30, 1975, payable to Mr. Haynes for $2,055, representing his attorney fee;
2) one dated June 11, 1975, payable to Mrs. Robinson for $11,445, representing her benefits;
3) two dated June 11, 1975, payable to specific medical care providers; and
4) one dated June 11, 1975, payable to the firm of Haynes and Donnelly for $752.35.
Mr. Haynes testified that this last check, at issue here, was deposited in his firm’s escrow account and the money eventually was transferred to the firm’s general account. The $752.35 was to be distributed as follows:
1) $302.35 to Kirwood General Hospital, on Mrs. Robinson’s behalf;
2) $50 to Mrs. Robinson, to reimburse her for money she paid directly to Kirwood; and
3) $400 to Dr. Oscar Mitchell, to pay for his services to Mrs. Robinson.
The firm of Haynes and Donnelly paid Kirwood $302.35 on August 15, 1975. Mrs. Robinson claimed that the remainder should be paid directly to her since she had paid Dr. Mitchell, her personal physician. When the matter was not resolved, she complained to the State Bar Grievance Board on March 11, 1976.
The controversy continued. Finally, on May 4, 1976, Mr. Haynes sent Mrs. Robinson a check for $50 and on June 21, 1976, Dr. Mitchell one for $400. As to the $50, Mr. Haynes explained, "I thought she was paid and she wasn’t.” He testified he had never received a bill from Dr. Mitchell. He first inquired on March 24, 1976, and then by telephone the two agreed with Mr. Haynes’ suggestion that $400 settle Mrs. Robinson’s complete bill with him. He acknowledged that this occurred after he knew Mrs. Robinson claimed she owed Dr. Mitchell nothing. Dr. Mitchell valued his services to Mrs. Robinson at $2,000, but because she was a personal friend he had expected only $600. He never billed her, although he acknowledged she may have paid for some office calls: "I considered her to be a personal friend and if I hadn’t received the money at all, I wouldn’t have raised any Cain about it.”
Counsel for American Airlines testified that if the amount to be paid health care providers could have been reduced by Mrs. Robinson’s attorney, the amount by which they were reduced would go to the client-
Mr. Haynes was charged with violating Code of Professional Responsibility and Canons, DR 9-102(B)(4):
"(B) A lawyer shall:
"(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”
The record shows a delay of one year in the payment of the $50 admittedly owed to Mrs. Robinson. She was entitled to the $400 as well, either to reimburse her for money paid to Dr. Mitchell as she claimed or to pay any claim the doctor had against her, the physician-patient relationship and the amount allegedly owing Dr. Mitchell here being personal and unrelated to Mr. Haynes’ professional services for Mrs. Robinson. On this record, Mr Haynes’ 1976 payments were not "prompt”.
We find no error in the record before the board and affirm. Costs to the Grievance Administrator.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Fitzgerald, J.
In these separate criminal cases, which we consolidated for appeal, both defendants were charged with and convicted of multiple counts of criminal sexual conduct in the first degree arising from single acts of sexual penetration.
The threshold question is one of statutory interpretation: When the Legislature enacted the first-degree criminal sexual conduct statute, MCL 750.520b; MSA 28.788(2), did it intend that a single sexual penetration, accompanied by more than one of the statute’s enumerated special circumstances, result in multiple criminal charges for purposes of trial, conviction, and sentencing? We answer this question in the negative. Therefore, we find it unnecessary to address the issue of whether the constitutional prohibitions against double jeopardy would be violated by a multiple conviction of criminal sexual conduct based upon one sexual act.
I
Defendant Willie Johnson, Jr., was tried on an information charging him with four counts of first-degree criminal sexual conduct and one count of armed robbery. The trial record indicates that on October 11, 1975, complainant and her husband and their guest drove to Detroit from London, Ontario, to visit relatives. In the vicinity of Ethel’s Bar on the east side of Detroit, complainant was threatened with a gun, beaten into submission, and robbed and raped by defendant Willie Johnson and an accomplice. It appears from the record that during this criminal activity, complainant’s husband was in the back seat of another car sleeping off the effects of a day-long drinking spree, and the couple’s guest was confined by the culprits in the back seat of the car in which the rape and robbery occurred. Complainant testified that after defendant Willie Johnson had severely beaten her on the face, the accomplice got into the car, and she was driven to a more secluded spot where she was first raped by the accomplice and then raped by Willie Johnson. Seminal stains of the same blood type as appellant’s and seminal stains of a different type were later found on both the clothing of complainant and Willie Johnson. When defendant Willie Johnson was apprehended soon after the commission of the crimes, blood of the same type as the victim’s was found on his clothing.
Willie Johnson was charged with the following counts:
1) Sexual penetration with another "under circumstances involving the commission of any other felony”. MCL 750.520b(l)(c); MSA 28.788(2)(l)(c).
2) Sexual penetration with another by force while "aided or abetted by 1 or more other per sons”. MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii).
3) Sexual penetration with another while "armed with, a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon”. MCL 750.520b(l)(e); MSA 28.788(2)(l)(e).
4) Sexual penetration with another by force causing personal injury to the victim. MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).
5) Robbery armed. MCL 750.529; MSA 28.797.
The trial court instructed the jury that defendant Willie Johnson could be found guilty or not guilty on any or all of the five separate offenses with which he was charged. The jury found defendant guilty of counts 2 and 4, but were unable to reach a verdict on the remaining counts.
Defendant Richard Johnson was charged in a three-count information with two counts of first-degree criminal sexual conduct and one count armed robbery. It appears from the record that the charges against Richard Johnson arose from a rape and armed robbery of a woman at a newspaper substation in Detroit on July 11, 1975. Defendant entered the substation around closing time and indicated that he had a gun by holding his hand under his jacket. He then raped the complainant, took the money out of her purse, and drove away in her car. On February 18, 1976, defendant Richard Johnson pled guilty as charged to the following counts:
1) Sexual penetration with another while "armed with a weapon or any article used or fashioned in a manner to lead the victim to rea sonably believe it to be a weapon”. MCL 750.520b(l)(e); MSA 28.788(2)(l)(e).
2) Sexual penetration with another "under cir-pumstances involving the commission of any other felony”. MCL 750.520b(l)(c); MSA 28.788(2)(l)(c).
3) Robbery armed. MCL 750.529; MSA 28.797.
On appeal both defendants argued that it was improper to charge, convict, and sentence them for multiple counts of first-degree criminal sexual conduct because there was evidence of only a single pexual penetration.
On April 19, 1977, the Court of Appeals panel which heard defendant Willie Johnson’s case unanimously accepted defendant’s argument and vacated Willie Johnson’s conviction on count 4 and affirmed the remaining conviction on count 2. 75 Mich App 221; 255 NW2d 207 (1977). The panel held that it was not the intent of the Legislature that a defendant be convicted of multiple counts of first-degree criminal sexual conduct when there yms only a single sexual penetration.
However, the Court of Appeals panel which heard defendant Richard Johnson’s case disagreed, and on May 10, 1977, that panel granted the prosecution’s motion to affirm.
While we are without the benefit of the Court of Appeals analysis in the case of Richard Johnson, a different panel of the Court of Appeals subsequently held that it was the intent of the Legislature to allow for multiple convictions of first-degree criminal sexual conduct where there was only a single sexual penetration and that such multiple qonvictions are not violative of constitutional prohibitions against double jeopardy. People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977).
In view of the conflicting opinions of the Court of Appeals on this issue, we granted leave to appeal in the instant cases to determine the scope of criminal liability under MCL 750.520b; MSA 28.788(2). 402 Mich 826-827 (1977).
II
With the enactment of the criminal sexual conduct statute, 1974 PA 266, the Legislature replaced a variety of obsolescent statutory provisions relating to sexually assaultive crimes with a unified statute more reflective of contemporary understanding of the nature of criminal sexual conduct and the interests of modern society. The "new” statute represents an effort to clarify definitions relating to criminal sexual conduct and to delineate precisely the conduct proscribed. In recognition that some forms of criminal sexual conduct are more heinous than others, the Legislature set forth in the statute four degrees of criminal sexual conduct which are distinguished in their severity by the nature of the conduct (penetration or contact) and the circumstances under which the conduct occurs.
In the instant cases, defendants were both charged with and convicted of multiple counts of first-degree criminal sexual conduct, contrary to MCL 750.520b; MSA 28.788(2). The statute in question provides as follows:
"(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
"(a) That other person is under 13 years of age.
"(b) The other person is at least 13 but less than 16 years of age and the actor is a member of the same household as the victim, the actor is related to the victim by blood or affinity to the fourth degree to the victim, or the actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
"(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
"(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
"(i) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.
"(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in subdivision (f)(i) to (v).
"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:
"(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
"(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
"(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, 'to retaliate’ includes threats of physical punishment, kidnapping, or extortion.
"(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.
"(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
"(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless.
"(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years.”
The prosecution maintains that when the Legislature enacted the criminal sexual conduct statute, it intended that a single sexual penetration, accompanied by more than one of the circumstances enumerated in MCL 750.520b; MSA 28.788(2), result in multiple criminal charges for purposes of trial, conviction, and sentencing. To support this contention, the prosecution points to the inadequacies of the "old” rape statute, MCL 750.520; MSA 28.788, and the dissatisfaction with that statute expressed by a number of groups which proposed a revision of the statutes relating to sexually assaul-tive crimes. The legislative history behind 1974 PA 266 appears to have also led the panel of the Court of Appeals which decided People v Nelson, supra, to reach the same conclusion as to the scope of MCL 750.520b; MSA 28.788(2):
"In light of the fact that the Legislature was responding to a public demand for tightening up of the criminal laws regarding sexual violence, we are constrained to conclude that, in general, the legislative purpose of the new criminal sexual conduct statute was to strengthen, not weaken, within constitutional strictures, the criminal law describing unlawful sexual conduct. Consistent with that legislative purpose is an interpretation that each listed special circumstance is the basis for a separate offense and conviction.” 79 Mich App 303, 319.
We disagree with this conclusion. Indeed, we find nothing in the language of 1974 PA 266 or its legislative history to support the argument that a single act of sexual penetration might result in multiple convictions. The mere fact that the Legislature sought to strengthen the laws against sexual violence does not lead ineluctably to the conclusion that the Legislature intended multiple convictions under MCL 750.520b; MSA 28.788(2) where a single act of sexual penetration is accompanied by more than one of the enumerated circumstances.
We conclude that it was the intent of the Legislature to delineate precisely the scope of MCL 750.520b; MSA 28.788(2) by providing that when a séxual penetration is accompanied by any of the aggravating circumstances enumerated in the statute, such penetration constitutes criminal sexual conduct in the first degree. It appears from the face of the statute that the gravamen of MCL 750.520b; MSA 28.788(2) is sexual penetration accomplished under any of the enumerated circumstances. We agree with the analysis of the Court of Appeals in People v Willie Johnson, supra:
"We do not perceive any legislative intent, however, that proof of one or more of these aggravating circumstances could transform one criminal sexual act into many. Although the statute is not explicitly phrased in the alternative, we are of the opinion that the Legisla* ture intended that the various aggravating circum* stances be alternative ways of proving criminal sexual conduct in the first degree. Canons of strict construction and the rule of lenity, in any event, would require that result in the absence of a clear legislative intent to the contrary.” 75 Mich App 221, 226-227.
The fact that a sexual penetration happens to be accompanied by more than one of the aggravating circumstances enumerated in the statute may well ease the burden upon the prosecution in attaining a conviction under MCL 750.520b; MSA 28.788(2), but it may give rise to only one criminal charge for purposes of trial, conviction, and sentencing.
In view of the foregoing, we affirm the Court of Appeals in the case of Willie Johnson. In the case of Richard Johnson, we reverse the order of the Court of Appeals granting the prosecution’s motion to affirm. Defendant Richard Johnson’s con* viction on count 2 is hereby vacated, and the remaining convictions are affirmed.
Coleman, C.J., and Kavanagh, Williams, Levin, Ryan, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J.
The following sections of the Michigan Penal Code, 1931 PA 328, were repealed by 1974 PA 266: MCL 750.85; MSA 28.280 (assault with intent to commit rape, sodomy, or gross indecency); MCL 750.333; MSA 28.565 (incest); MCL 750.336; MSA 28.568 (indecent liberties with a child under 16); MCL 750.339; MSA 28.571 (females debauching males under 15); MCL 750.340; MSA 28.572 (males debauching males under 15); MCL 750.341; MSA 28.573 (ravishment of a female patient in an institution for the insane); MCL 750.342; MSA 28.574 (carnal knowledge of a female ward by guardian); and MCL 750.520; MSA 28.788 (carnal knowledge).
While the clarification of terminology in 1974 PA 266 relating to sexual assaults has undoubtedly been of assistance in the prosecution of such crimes, it has been the statute’s evidentiary provisions which have been heralded as removing the major obstacles in the reporting and prosecuting of sexual assaults. See MCL 750.520h; MSA 28.788(8) (testimony of victim need not be corroborated); MCL 750.520Í; MSA 28.788(9) (victim need not resist actor); MCL 750.520j; MSA 28.788(10) (limits use of victim’s past sexual conduct to prove a fact at issue).
This does not preclude a prosecutor from listing in an information each of the aggravating circumstances enumerated in the statute which may happen to accompany a single sexual penetration of contact; nor does it preclude a prosecutor from arguing the separate circumstantial bases upon which a jury can return a verdict of either guilty or not guilty of one count of criminal sexual conduct in the first degree. | [
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] |
Carpenter, J.
Defendant Bellows has for several years been engaged in rafting logs down Betsey river, in Benzie county, in this State. In order to do this, he found it necessary to dam the river and to release water therefrom in a flood. This water has inundated the land of complainants, who are husband and wife, situated on the banks of the river about 10 miles below defendant’s dam. In the circuit court a decree was made enjoining defendant from further inundating complainants’ land. Defendant appeals.
It is clear that complainants have a grievance, but it does not follow that they are entitled to an injunction. The testimony proves that the only injury 'sustained by them is pecuniary in its character and small in amount; that defendant has made an investment of considerable magnitude, which will be rendered valueless if the injunction is permitted to stand; that he is entirely willing to compensate complainants for their pecuniary loss; that the rafting operations on the river have been carried on for several years substantially as they are now carried on; and that during this time complainants never indicated that they sustained an injury which would not be adequately compensated by damages. Indeed, it appears that at one time they accepted compensation for a similar injury from defendant’s grantor, who built the dam in question. Under these circumstances, we think under the rule laid down in Fox v. Holcomb, 32 Mich. 494, Hall v. Rood, 40 Mich. 46, and Blake v. Cornwell, 65 Mich. 467, that an award of damages afford complainants adequate relief, and that a court of equity should not enjoin defendant from carrying on his rafting operations.
Upon defendant executing a bond in the penal sum of $1,000, with sureties approved by the circuit judge or by the clerk of this court, conditioned upon his paying whatever judgments may be rendered against him for past or future flooding of complainants’ land, the decree appealed from will be reversed and the bill dismissed. This, of course, will be without prejudice to the right of complainants to prosecute their suits for damages. Complainants will recover the costs of the circuit court and defendant the costs of this court.
McAlvay, C. J., and Grant, Blair, and Ostrander, JJ., concurred. | [
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] |
Moore, J.
Appellant is the owner of a residence property situated on the northeast corner of Front street and St. Joseph avenue, in the village of Trenton.
The dedication clause in the plat contained the following language:
“To vest the fee of such parcels of land as are herein named, or intended to be for public uses, in said county, in trust, and for the purposes and uses therein named, expressed or intended, and for no other use or purpose whatever.”
■ Complainant is the owner of lots 97, 98, 119, 120, situated on the northeast corner of Front street and St. Joseph avenue, her property having a frontage of 132 feet on Front street and running back parallel with and alongside of St. Joseph avenue to the channel bank of the Detroit river, a distance of from 350 to 500 feet.
On or about May 22, 1896, the .village council and water commissioners caused to be erected in the center of St. Joseph avenue, east of Front street, and between 100 and 150 feet from the channel bank of the river, a building 30 feet wide east and west, by 32 feet long north and south, which has since been used for a pumping station in connection with the village waterworks. No legal proceedings were taken by complainant, or in her behalf, to restrain or enjoin the erection of this plant. Since the erection and operation of this pumping station complainant and other residents in that neighborhood claim to have suffered great inconvenience and annoyance from the large volumes of smoke and soot emitted from its smokestack, and the noises of a large steam whistle blown each day. On the 12th of November, 1902, the defendant awarded a contract for the erection of, and afterwards proceeded to erect, a frame building with a stone foundation (a dupli cate of the then existing pumping station) in St. Joseph avenue, immediately adjoining the pumping station on the north, and between the pumping station and complainant’s property. This building, when completed, was to be 12 feet high, 32 feet long north and south, and 30 feet east and west, parallel with complainant’s lot line, and leaving between £ to 2i feet between the building and complainant’s south fence. This building was to be used for the installation' and operation of an electric lighting plant.
Complainant thereupon filed her bill of complaint to enjoin such proposed erection, claiming that the village had no right to use the street in such a manner, and praying that defendant be compelled to remove, not only that portion of the new structure which had already been put in, but also the pumping station.
The trial court held that, although the pumping station might have been regarded as a nuisance in its inception, and if application had been made in due season to enjoin it he would have enjoined the original erection, nevertheless the complainant, having allowed so long a time to elapse, is not entitled to an injunction entirely prohibiting the erection of the building. He ordered the smoke and noise nuisance to be abated; and, while he enjoined the erection of the building next to complainant’s property where it was originally proposed to build it, he permitted it to be erected on the eastern, or river, side of the pumping station, still occupying as great an additional part of the street as first planned.
The case is brought here by appeal. Counsel do not ask to have the decree refusing to enjoin the village from operating its pumping station reversed, but ask this court to grant an injunction against the new obstruction in the street.
The following statements of the law have been made:
“ Municipal corporations, notwithstanding their broad and comprehensive powers, have no right, unless authorized by the legislature, to alienate their streets or devote them to the uses inconsistent with the rights of the genera] public and the abutting land owners.” 24 Am. & Eng. Enc. Law (1st Ed.), p. 47, and cases cited.
“Whether the fee of the street or a mere easement is vested in the municipality, it holds it in trust for the public for the ordinary and necessary purposes to which the streets of a city are usually subjected.” 27 Am. & Eng. Enc. Law (2d Ed.), p. 149, and cases cited.
“ The municipality holds the streets, and power to regulate and control them, in trust for the public, and cannot put them'to any use inconsistent with street purposes. * * * Thus cities have no right to use their streets for the erection of municipal buildings or works, and it has been held that placing a stand pipe in a public street, the fee of which was in the municipality, was an unlawful use of the street.” 27 Am. & Eng. Enc. Law (2d Ed.), pp. 150, 151, and cases cited.
See, also, Barrows v. City of Sycamore, 150 Ill. 588 (25 L. R. A. 535); Davis v. City of Appleton, 109 Wis. 580; Pettit v. Town of Grand Junction, 119 Iowa, 352; Mayor, etc., of Savannah v. Wilson, 49 Ga. 476; Rutherford v. Taylor, 38 Mo. 315; Glasgow v. City of St. Louis, 87 Mo. 678.
The village had no right to make the use of the street it attempted to do. Since this bill was filed, the village has ignored the effort of complainant to assert her rights, and has completed the building, and we are. now urged to affirm the decree of the court below. The action of the village was taken at its peril, and it should not be permitted to profit by its own wrong.
The decree is reversed, and one will be entered here requiring the removal of the electric lighting plant, with costs of both courts.
Grant, Blair, Montgomery, and Hooker, JJ., concurred. | [
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] |
Moore, J.
This case was commenced in justice’s court. The plaintiff declared orally on all the common counts in assumpsit, and also on a certain promissory note filed in said cause, of which the following is a copy:
“$82.00.
“ Town Salem, State, Michigan.
“ Date Dec. 12, 1908.
‘ ‘ One hundred and twenty days after date, for value received, we, or either of us, promise to pay to Acme Food Co. (not inc.) or order, eighty-two dollars at Acme Food Co.’s office, Chicago, 111., with interest after maturity until paid.
(Signed) “ F. J. Tousey.”
And claimed damages of $300 or under. The bill of particulars under the common counts is for the goods sold and delivered by the plaintiff to the defendant at his request mentioned in a paper annexed to the note. After a motion was made and disposition made of it, the defendant pleaded the general issue, gave notice in detail of the circumstances under which plaintiff obtained the paper mentioned in its declaration, and denied under oath the making of the note mentioned in the declaration. After , trial in justice’s court the case was appealed to the circuit court, where it was tried by a jury which returned a verdict in favor of defendant. After judgment was rendered upon the verdict, a motion was made for a new trial for a number of reasons, the most important of which were that the judge should have directed a verdict in favor of plaintiff; that plaintiff was taken by surprise in the testimony offered by defendant, which testimony it could now refute if given a new trial; and—
“Because the defendant offered in testimony a certain writing, signed by him, among other things stating: ‘I would like to have you hold the note until fall.’ The plaintiff did hold said note, as requested by defendant, and did nothing towards its enforcement or collection; and that if defendant had any defense to said note or ground for complaint he thereby waived it, and if any alteration, change, raising, or forging had taken place respecting thereto defendant condoned the same and was thereby estopped to set up such defense, and therefore, in this respect, verdict should have been directed for plaintiff for $90.64, the amount of the note.”
In his charge to the jury the judge instructed them, among other things, as follows:
“ The plaintiff has offered in evidence a certain contract in writing signed by the defendant. If from the evidence in this case you find that the defendant signed this contract and delivered it to the plaintiff as it now appears, that no material change has been made in said contract since its execution, that the defendant signed it fully understanding its meaning and import, and that no fraud whatever has been practiced upon the defendant; and if you further find from the evidence that the plaintiff has fully complied with its part of the contract, that it duly shipped the goods to the defendant and furnished a man to assist the defendant as therein agreed upon, then the plaintiff is entitled to a verdict in this case, and your verdict should be for the sum of $90.64.
“ On the other hand, if you find from the evidence that this contract has been materially changed since its delivery without the knowledge or authority of the defendant, that a blank note has been filled so as to convert a mere blank into a promissory note, such change would defeat all right to recover upon said contract, and if you so find the fact to be from the evidence your verdict should be for the defendant.
‘ ‘ The defendant is bound by his written agreement, unless some fraud has been committed upon him. In ,the absence of fraud the defendant cannot enlarge or prove any different agreement than the one into which he entered in writing. When parties have entered into a written agreement, they .are bound by it, and no other or different contract can be proven, unless some fraud has been committed in the making of such contract.
“ If this contract is just as it was when executed by the defendant, and he fully understood it, then the defendant cannot now escape its terms and consequences; and, if the plaintiff has done its part, then the defendant must do his part and pay this debt.”
The trial judge overruled the motion for a new trial. In doing so he gave, among others, the following reasons:
“An examination of the charge to the jury in this cause will show upon what theories this case was tried.
‘ ‘ It was the contention of the defendant that he never signed the contract upon which this suit is based; that his contract when signed contained no note or other promise to pay; that the contract had been materially changed since its execution, and the liability of the defendant enlarged and altered; that such alterations and changes had destroyed the validity of the written contract. It was upon this theory that the defendant was allowed to show that a blank note had been filled since the execution and delivery of the contract, and that a fraud had thus been practiced upon him.
“ It was in support of this contention that the defendant was allowed to show what the real contract was between the plaintiff and him.
“ If this blank note had remained unfilled, the contract as written and the contract as claimed by defendant would have been consistent, one with the other. No one could seriously claim that the defendant could contradict his written contract, and no testimony was admitted upon any such theory.
“All of the propositions which were submitted to the jury made a recovery by the defendant contingent upon the finding that the contract had been altered and changed since its execution.
4 4 It seems to me that the case was fairly tried and fairly submitted, and that there are no good grounds for a new trial. The claims of an estoppel and of a surprise in testimony do not seem to me to justify very serious consideration. ”
The case is brought here by writ of error.
The important question urged by counsel is whether defendant should have been allowed to show by oral testimony what occurred when the paper mentioned in the declaration was executed. We quote from the brief of counsel:
‘ ‘ It has been difficult for us to understand how it was legally possible to successfully urge the defense appearing by this record; indeed, we are not yet able to. We say, and most emphatically insist, that the well-understood rule that oral, contemporaneous testimony of contracts or alleged contracts is inadmissible to alter, contradict, or vary written undertakings, has been seriously violated in this case. Of this general well-defined rule the profession is not now in dispute. It has been put long ago to every stress and strain that legal minds could suggest, and the courts have opinionated to full limits. We do not believe any good will come to our client or to the court in citing this array of authority. There is no conflict in authority. And one case from our own court ought to be as sufficient as a hundred. To this proposition we are about constrained to cite but the one case. We almost regard it presuming upon the court to do otherwise respecting that well-understood rule. We refer to the case of Kulenkamp v. Groff, 71 Mich. 675 (1 L. R. A. 594). That has become somewhat noted as an authority on the principles involved, not only by this court, but by many other courts throughout the United States, if frequent citation of it is any criterion. This court has cited it approvingly, at least a dozen times since its rendition, to differentiate the rule when involved in the case at hand to support the principle asserted, or to defend the rule when seemingly assailed. It is given distinction in 1 L. R. A., at page 594, in Am. & Eng. Enc. Law, and by text-book writers or commentators. We accept it now as the authority on the question here presented. We invoke the principles it enunciates, and none other; and, if it does not rule for plaintiff, then we frankly admit that there are no cases that do.”
We think counsel have misconceived the effect of the case they cite. A reference to it will show there was no pretense that defendant Groff did not sign the note sued upon. He testified that he made the note, but claims it was orally agreed that he should not be required to pay it; and the court say:
“As far as the claim of fraud is concerned, it is not ten able. The signature of Groff was not procured by false pretenses, by the statement of any fact as existing which did not exist, but upon false promises which have not been performed. It is no more nor less than the nonperformance of an oral agreement made at the time the note was signed, and which oral agreement was totally at variance with the terms of the written contract as set forth in the note. This cannot be considered such a fraud as would nullify the note.”
While the court held that the oral testimony was inadmissible to contradict the terms of the note which it is conceded Mr. Groff signed, it also held the evidence was admissible to show no consideration for the promise made in the note. In the case at bar, defendant not only claimed there was no consideration passed to him, but he also claimed that he never gave the note upon which suit was brought. The paper sued upon appears in about the middle of a printed blank, the first part of which as filled in is a request to plaintiff to “ please ship to F. J. Tousey, Salem, Michigan,” certain foods amounting to $82. Upon the margin of this portion of the paper is written “ salesman to assist guaranteed.” Then follows the note mentioned in the declaration, which the defendant says he never executed, and which before it was filled out appeared as follows:
«C & “Town................ State................
“Date...........................190...... “............days after date, for value received, I, we, or either of us, promise to pay to Acme Food Co., (not Inc.), or order............Dollars, at Acme Food Co.’s office, Chicago, 111., with interest after maturity until paid.
Then follows an agreement of considerable length signed by Acme Food Company. An inspection of the original paper will show the trial judge was quite right in saying:
“If this blank had remained unfilled, the contractas written and the contract as claimed by defendant would have been consistent one with the other.”
The remaining question demanding attention is whether defendant is estopped from making a defense, because in a certain writing signed by him occurs the sentence. ‘ ‘ I would like to have you hold the note until fall.” There is a dispute as to whether this was written in response to a communication from plaintiff dated February 5,1904, and which plaintiff says should have been dated February 5, 1905, or whether it was a reply to a communication without date in which plaintiff says:
“We take this means of bringing to your notice that your order placed for $82 worth of Acme Food will become due April 12, 1904.”
In the letter written by the defendant where the phrase occurs the defendant calls attention to the fact that he has not sold a single pound of the food, and closed his communication as follows:
“ Your agent did not come to me to canvass until late in the season, and when he did come the roads were in a deplorable condition, consequently I did not deem it advisable to make any effort to canvass for orders. I trust that this explanation will meet with your approval, and that you will co-operate with me, thereby giving me a chance to further your interests as well as my own. When I gave the order to Mr. Brock, he told me he would be here in a few days to help me sell the goods, saying he had a sister living in my township, and he •would surely come as he desired to see his sister.”
We do not think it can be said that defendant is es-topped from denying liability.
Judgment is affirmed.
McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred. | [
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] |
Hooker, J.
The defendant has appealed from a judgment for damages, rendered in a negligence case, in favor of the plaintiff. The latter was riding, with others, upon spring seats placed in a wagon box, upon a bob sled, and was thrown out by the upsetting of the same just after crossing defendant’s railroad track, which crossed'the highway at an angle somewhat acute. The cause of the upsetting is not conclusively shown. Plaintiff’s theory is that it was due to the failure of defendant to maintain crossing planks higher than the rails, by reason of which one of the runners of the rear bob clung to the rail after the other runner had left it, thereby causing the sled to slue and upset, and throw the occupants, including plaintiff, down the bank, which she claims to have been dangerously near, by reason of the narrowness of the highway, and an unnecessary turn therein at the edge of the track. There was evidence tending to show that the highway was as much as 16, and as little as 8 or 10, feet wide east of the track, that before the railroad was built the road was practically level, and that, when it constructed the railroad, defendant built the approach from 6 to 12 feet high for the purpose of a crossing, and that it had not been widened or changed since; also that at the time of the accident the planks upon the crossing were half an inch or more lower than the east rail, which is admittedly the one involved in the accident, whatever theory should prevail as to its cause.
The defendant claims that the planks were not lower than said rail, that the highway was in a condition reasonably safe and fit for travel, and that neither a defect in the planking, nor the condition of the highway, caused the sled to upset, but that the cause of the accident was the dropping of the short tongue connecting the two bobs, through the failure of the bolt attaching the short tongue qnd reach together, after which the short tongue struck against the east rail, and caused the front of the rear bob to lift up and overturn the sled, the fright of the horses contributing thereto. There was evidence supporting this theory, and, were the question one for us to decide, we should think that it was supported by the weight of the testimony. On the other hand, there was evidence that the planking was not maintained in compliance with the law, and it is by no means certain that, had it been in proper condition, the short tongue would not have passed safely over the rail, by reason of a want of opportunity for it to get under the ball of the rail, as it is called. Therefore it was not error for the circuit judge to refuse to instruct the jury to render a verdict for the defendant, nor did he err in declining to instruct them that, in case the accident was so caused, they must find for the defendant upon the ground that the defect in the planking was not the proximate cause of the injury. White v. Township of Riley, 113 Mich. 300; Shaw v. Township of Saline, 113 Mich. 342; Gage v. Railroad Co., 105 Mich. 335; Simons v. Township of Casco, 105 Mich, 591.
The answers to the questions submitted to the jury exclude the inference that the jury may have found that the falling of the tongue caused the accident. They expressly say that it did not occur by reason of the tongue coming in contact with the rail, and that it “would * * * have occurred although the end of the tongue had not fallen to the ground.” There being evidence that the plank were below the tops of the rails, from which it is inferable that the runner dragged upon the rail (which might have been a cause of the accident), it was not error to leave the question of the sufficieñcy of the crossing in this respect to the jury. The undisputed evidence shows that the sleigh was not overturned by reason of the narrowness of the highway at that point. It is clear that it occurred close to the track. Not only is there much evidence that its width at that point exceeded fourteen feet, and none that it was less at that point, but there is none indicating that the runner ran over the edge of the slope, while it is clearly shown that the box lay on top of the roadway upon its side after the sled was upset.
Defendant’s eighteenth request was as follows:
“The undisputed evidence in this case shows that the sleigh in which plaintiff was riding was not upset because of any narrowness of the roadbed on defendant’s right of way. The question in the case as to the width of the roadbed .is of no importance, and the jury should not find a verdict in favor of plaintiff and against defendant because of the narrowness of the said roadbed.”
Had the first sentence of this request stood alone, it should have been given, but the second sentence should not have been; for, while the narrowness of the way at that point can be said not to have caused the upsetting of the sled, plaintiff’s injuries may have resulted from it, and therefore the question of the width of the road was ' of some importance, unless we shall say that a width of fourteen feet was sufficient, which we cannot do; the question being one for the jury. The circuit judge charged the jury that:
“You are also instructed, gentlemen, that it- was the duty of this defendant, when it built the road across the public highway, to restore the highway to its former condition, as near as might be; that it was defendant’s duty to put and keep plank each side of the rails of its railroad, and also between the rails, in a good condition, and one-half inch above the rails. Further, you are instructed that, in constructing and maintaining this crossing so that it should be reasonably safe for public travel, the defendant is not obliged to anticipate that some one might come over that crossing with a bob sleigh, with a short tongue dragging upon the ground, and that such short tongue might catch in one of its rails and upset the sleigh, and therefore defendant would not be negligent because it did not anticipate such an occurrence. * * *
“And it is for you to say whether or not this crossing was in reasonable repair, so that it was reasonably safe for public travel, on the 15th day of January, 1905, and, if not in reasonable repair, whether or not such want of reasonable repair caused this accident. If it was in reasonable repair, then plaintiff would not be entitled to recover. Or if it was not in reasonable repair, but such want of reasonable repair did not cause the sleigh to upset and produce the accident, then plaintiff would not be entitled to recover. But if it was not in reasonable re-' pair, and such want of reasonable repair did cause this sleigh to upset and produce the accident, then plaintiff would be entitled to recover, if she and her driver were not guilty of any negligence which contributed to this injury.”
These instructions stated the duty of the defendant as to the restoration of the highway in the language of the' statute, and its maintenance in accordance with the rule stated in Maltby v. Railway Co., 52 Mich. 108, and Jeffrey v. Railroad Co., 108 Mich. 223 (31 L. R. A. 170). Counsel now contend that this rule would require the railroad to build the approach as wide as the highway. ■ That involves a construction of the statute which he did not suggest or request. The restoration required was limited by the words £ £ as near as may be, ” and it was thus stated. The jury would naturally understand from that language that a strict reproduction of pre-existing conditions was not required by the statute, and, if more specific instruction was desired, counsel should have so informed the trial judge. Many objections were made to the reception and exclusion of testimony. We have examined these, and find nothing that requires a further allusion to them than to say that they should not be considered a sufficient cause for reversal.
We are asked to reverse the cause for the reason that a new trial was denied, upon the ground that the verdict was contrary to the evidence. We have practically covered this question by what has been said.
The judgment is affirmed.
McAlvay, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred. | [
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Coleman, C.J.
The two subject cases were consolidated in the Court of Appeals because both involve cable television and the meaning of the term "public utility” as that term is used in certain constitutional and statutory provisions.
We granted leave in White v City of Ann Arbor to resolve the issue of whether a city ordinance which authorized the granting of a cable television franchise was unconstitutional under Const 1963, art 7, § 25 because the franchise was (1) not revocable at the will of the city nor (2) approved by three-fifths of the electors. We hold that § 25 does not apply to cable television franchises.
We granted leave in White v Detroit Edison to determine whether a cable television franchise can utilize Detroit Edison poles on property designated as a "public utility easement” pursuant to the Subdivision Control Act of 1967, MCL 560.190; MSA 26.430(190), to gain access to its subscribers in the subdivision. We hold that it can.
Initially, it should be noted that although both of these cases involve cable television and the term "public utility”, the provisions in issue in each case are different. Const 1963, art 7, § 25 is a constitutional provision concerning the distribution of political power in municipal governments. The Subdivision Control Act of 1967, on the other hand, is a statutory enactment regulating the recording and development of lands and subdivisions. (Other statutes regulating services for different purposes employ divergent definitions and terms.) Each provision and definition is directed to a different problem and was drafted with a different goal to be achieved.
However, this Court’s duty is similar in both cases. The primary and fundamental rule of constitutional or statutory construction is that the Court’s duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute. See General Motors Corp v Erves (On Rehearing), 399 Mich 241, 255; 249 NW2d 41 (1976) (opinion by Coleman, J.). Using these well recognized rules of construction and understanding that the provisions in question were directed to different areas of concern, we examine those provisions at issue herein.
I
The plaintiff in each case is the same resident and taxpayer of the City of Ann Arbor (City). The City entered into a contract with Michigan CATV Associates (CATV) for a specific term of years subject to certain provisions. The cable television enterprise in turn entered into a contract with Detroit Edison Company to string its cable on the poles owned and previously implanted by Detroit Edison. Some of these poles are placed in a public utility easement which runs across plaintiffs property.
II
White v City of Ann Arbor
Plaintiff brought suit seeking a declaratory judgment which would hold that a city ordinance which authorized the granting of a cable television franchise was unconstitutional because it did not state that the franchise was (1) revocable at the will of the city, or (2) provide for approval of the franchise by three-fifths of the city electors.
The trial court granted plaintiffs motion for summary judgment, holding that a cable television system franchise is a public utility franchise within the provisions of § 25. The Court of Appeals affirmed, White v Ann Arbor, 80 Mich App 346; 263 NW2d 367 (1977). Defendant appeals, claiming that the Court of Appeals erred in holding that the requirements of § 25 apply to cable television franchises.
Const 1963, art 7, § 25 provides:
"No city or village shall acquire any public utility furnishing light, heat or power, or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless the proposition shall first have been approved by three-fifths of the electors voting thereon. No city or village may sell any public utility unless the proposition shall first have been approved by a majority of the electors voting thereon, or a greater number if the charter shall so provide.”
A
On appeal, defendant argues that cable television is not a public utility in the general sense of the word.
Because of definitional variations appearing in the statutes and lack of specific definition in the Constitution, and because it is not necessary to reach such a definition for the purposes of this opinion, we do not address that issue.
The dispositive question addressed is the claim of the City that the requirements of Const 1963, art 7, § 25 were not intended by the drafters to apply to cable television franchises, but only to "any public utility furnishing light, heat or power”.
Mr. White argues, to the contrary, that the language of § 25 refers to "any public utility franchise” and that this should be construed to mean any and alb public utility franchises, so it should not be limited to those relating to the preceding words "any public utility furnishing light, heat or power”. Necessarily, he maintains that cable television is a public utility.
In Holland v Clerk of Garden City, 299 Mich 465; 300 NW 777 (1941), the Court held that a sewage treatment system was not a public utility within the provisions of Const 1908, art 8, § 23 and § 25, the latter being the predecessor to the present Const 1963, art 7, § 25. See, also, Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99; 43 NW2d 77 (1950). Section 23 provided that "any city * * * may acquire, own and operate * * * public utilities for supplying water, light, heat, power and transportation”. Section 25 provided:
"Nor shall any city or village acquire any public utility or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless such proposition shall have first received the affirmative vote of 3/5 of the electors * * *.”
In Holland, supra, the Court interpreted the term "public utility” so that it did not encompass every public utility but, rather, so that it applied only to utilities supplying water, light, heat, power and transportation as specified in § 23. The reason for this construction was that the functions listed in Const 1908, art 8, § 23 were definite and were described as public utilities.
Thus, when Const 1963, art 7, § 25 was drafted, the phrase "any public utility” had already been authoritatively construed by the Court to mean utilities supplying water, light, heat, power or transportation. Presumably the delegates to the Constitutional Convention were aware of this construction. In Richardson v Secretary of State, 381 Mich 304, 311; 160 NW2d 883 (1968), the Court discussed rules of constitutional interpretation and stated:
" 'Where a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of its previous construction, and courts will feel bound to adhere to it.’ 16 CJS, Constitutional Law, § 35, pp 114-115.”
There is nothing to indicate that the delegates to the 1961 Convention intended other than to incorporate a limited Holland- type definition of public utilities into § 25. There is nothing to indicate that the 1961 delegates attempted to expand the Holland construction or apply it broadly to include privately funded franchises providing services unrelated to light, heat or power. To the contrary, the drafters carefully considered the Holland construction when drafting the new § 25 and reduced the enumerated utilities subject to its requirements by inserting the phrase "furnishing light, heat or power” after the phrase "any public utility”.
As this Court did in Holland, supra, 470-471, we adhere to the standard set forth in Pfeiffer v Board of Education of Detroit, 118 Mich 560, 564; 77 NW 250 (1898):
" 'In determining this question, we should endeavor to place ourselves in the position of the framers of the Constitution, and ascertain what was meant at the time * * * 9
This construction is supported in relevant part by the Convention Comment to Const 1963, art 7, § 25. The comment states:
"This is a revision of Sec 25, Article VIII, of the present [1908] constitution. Language in the first sentence relating to the elective franchise has been transferred to Article II, and provisions concerning credit are now covered in another section of this Article.
"The words 'furnishing light, heat or power’ are added to the second sentence to define the power of municipalities to acquire utilities. The three-ñfths majority required for purchase of a utility is continued because such purchase implies commitment to a large investment of public funds and should not be lightly undertaken. The municipality should have sound assurance that the utility will be supported by its citizens.” (Emphasis added.) 2 Official Record, Constitutional Convention 1961, p 3393.
Further, there is no indication that the convention delegates intended to restrict further the right of municipalities to grant franchises. Support for this conclusion can also be found in Const 1963, art 7, § 34 which states:
"The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed, in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.”
B
This limited definition of the term public utilities as it is used in § 25 is supported by considerations of public policy.
The construction advanced by plaintiff might unduly hinder the municipalities’ ability to attract and grant franchises. Making franchises revocable at the will of the city would substantially increase the risks for those contemplating making large private investments in such projects. In some cases, this risk would be so great as to deter or effectually prohibit entrepreneurs from making these investments. This risk of uncertainty is especially significant in sensitive areas such as broadcasting where public sentiment is susceptible to great fluctuations and could easily turn against a franchisee as a result of an error on its part, because of a controversial production or because an editorial comment was not to the liking of some. Revocation at will also raises the possibility of a First Amendment challenge.
On the other hand, requiring an election for all unspecified privately funded services to the public, including cable television, not only would place a burden on the community but could prohibitively increase the start-up risks and costs or unduly delay the preparatory steps necessary for any such franchisee to begin operations. With some sound reasoning, amici argue that cable television enterprises would be discouraged from starting or expanding in Michigan and that the enterprises already present could hold void franchises after making large private investments if the provisions of § 25 are held to apply to cable television franchises.
Historically, cities and franchisees have relied on Holland. The cities, by granting franchises for cable television systems for terms of years, and the franchisees, by investing millions of dollars and extensive service, have relied on what was believed to be a settled construction of the provisions of § 25. These cities, their residents and franchisees could stand to lose valuable services and unknown millions of dollars should we find plaintiff’s arguments to prevail and abandon the settled construction.
c
Importantly, this construction of Const 1963, art 7, § 25 allows the Legislature sufficient flexibility in attempting to resolve the issues of public concern. In the past, the Legislature has set up procedures for municipalities to follow in acquiring public utilities and improvements and for granting public service franchises not explicitly mentioned in Const 1963, art 7, § 25. However, in the absence of any statutory procedures regulating the granting of cable television franchises, the duly authorized legislative body in the municipality may, within the constitutional and statutory limits on its authority, provide for these franchises. The provisions of Const 1963, art 7, § 22 and § 34 support this construction of § 25.
D
In summary, we hold that the provisions of Const 1963, art 7, § 25 do not apply to the granting of cable television franchises so as to require that any franchise which is not revocable at the will of the city be approved by three-fifths of the electors. The provisions in § 25 were derived from the provisions of Const 1908, art 8, § 25. Those provisions were construed in Holland as applying only to the services listed in Const 1908, art 8, § 23. When the Constitution of 1963 was drafted, the delegates were presumably aware of the Holland construction and they incorporated a similar limited definition into the new § 25.
The concerns advanced by plaintiff are not sufficient to justify departing from the settled construction of the phrase "any public utility” in § 25 given Holland, supra, and incorporated in part in Const 1963, art 7, § 25. Accordingly, we hold that the phrase "any public utility” as used in Const 1963, art 7, § 25 refers to the enumerated utilities only. It does not encompass cable television franchises.
Ill
White v Detroit Edison
A
Plaintiff sought damages for trespass by CATV and for an accounting from Detroit Edison for all monies paid to it by CATV for the use of the poles in question. These claims were based on the theory that CATV had no right to utilize property designated as a public utility easement and that it had trespassed on plaintiff’s property by stringing aerial wires from poles owned by Detroit Edison which were implanted in land designated as a public utility easement pursuant to the Subdivision Control Act of 1967, MCL 560.101 et seq.; MSA 26.430(101) et seq. The trial court granted defendants’ motion for summary judgment holding that cable television is a public utility as that term is defined and applied in MCL 560.102(1); MSA 26.430(102)0) and that CATV was entitled to use the poles under contract with Detroit Edison. The Court of Appeals affirmed and plaintiff applied for leave to appeal. Leave to appeal was granted and appeal limited to the issue of whether a cable television system is a "public utility” within the meaning of the Subdivision Control Act of 1967. We affirm.
B
MCL 560.102(1); MSA 26.430(102)0) defines a public utility:
" 'Public utility’ means all persons, firms, corporations, copartnerships or municipal or other public authority providing gas, electricity, water, steam, telephone, sewer or other services of a similar nature.”
Cable television is not one of the services listed in subdivision (1). Therefore, it can be a public utility for the purposes of the Subdivision Control Act only if it is an "other service of a similar nature” to one of those listed in the act. In interpreting this provision, this Court’s duty is to construe it in such a manner as to carry out the intention of the Legislature. The most basic requirement of legislative intent requires that the words be read in light of the general purposes sought to be accomplished, General Motors Corp v Erves, supra. Some of the purposes underlying the Subdivision Control Act and listed in its preamble include: "to further the orderly layout and use of land” and "to provide for proper ingress and egress to lots”, 1967 PA 288. The statute in question defines services which require the laying of pipes, implanting of poles and stringing of wires.
The key to resolving whether cable television is a public utility within the meaning of the act is the word "similar”. A generally accepted definition of the word "similar” is stated in Fletcher v Interstate Chemical Co, 94 NJL 332, 334; 110 A 709 (1920), see also 17 ALR 94:
"The word 'similar’ is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness, to some other thing, and not to mean identical in form and substance, although in some cases 'similar’ may mean 'identical’ or 'exactly alike’ ”.
This interpretation has been adopted in Michigan. See Thomas v Consumers Power Co, 58 Mich App 486, 494; 228 NW2d 786 (1975), rev’d on other grounds, 394 Mich 459; 231 NW2d 653 (1975). Of the services mentioned in subdivision (1), cable television has the greatest similarity to telephone service. In the instant case, we need not address the issue of whether cable television service is the same as telephone service. Instead, we consider whether cable television is a similar service for purposes of carrying out the objectives of the statute.
Certainly differences do exist between the services offered by cable television and telephones. Telephone service usually provides for the two-way transmission of articulate speech between any two or more terminal points in the system. Cable television, in its present state of technological development and implementation, does not currently provide these services. However, cable television service does have informative and communicative aspects and potentials. Also, the medium used to transmit these services is very similar to that used in providing telephone service. It is for these reasons that cable television has been analogized to telephone service. In Re New York Telephone Co, 34 PUR3d 115 (NY PSC, 1960), the commission stated:
"It is quite apparent that principles common to telephony and telegraphy, i.e., transmission of intelligence via electrical impulse, will be employed in the transmission of television signals and associated audio signals over the channels to be provided by the telephone company.
"Similarly, the telephone company by offering channels to an antenna company is offering to provide a communication service — a variety of telephony or telegraphy — and nothing else.
"The mere fact that at this stage of the development of this form of picture and sound transmission special coaxial cable and other special equipment must be installed in order to provide this particular service does not militate against the conclusion that the telephone company is providing telephone or telegraph service.” (Emphasis added.)
Although cable television service is not identical to telephone service, we conclude that it is a "similar service” within the meaning of the Subdivision Control Act.
This construction of the Subdivision Control Act is consistent with the purposes underlying the act. It allows purveyors of such services an ingress to and access to lots which might not otherwise be accessible in order to provide useful and desirable services. It also provides for an orderly layout of the required facilities in these areas so as not to require the utilization of unneeded, and sometimes unsightly, poles, cables and wires.
Accordingly, we hold that cable television is a "public utility” as that term is defined for the purposes stated in the Subdivision Control Act of 1967.
Reverse in White v City of Ann Arbor. Affirm in White v Detroit Edison.
No costs, this being a public question.
Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Coleman, C.J.
See fn 2, infra.
The problem of how to define "public utility” has puzzled the Legislature and the courts for at least a century. Constitutional writers and legislatures have included different activities within the term. This is understandable if we consider the term as it is applied to specific objectives of the various laws.
For example, in contrast to the Subdivision Control Act, note also the act governing the obstruction of and encroachment on highways, MCL 247.171 et seq.; MSA 9.251 et seq., particularly MCL 247.183-247.185; MSA 9.263-9.265. By a 1972 amendment, the words "and cable television companies” were added after the words "public utility companies”. The statute reads: "[tjelegraph, telephone, power, and other public utility companies, and cable television companies”. (Emphasis added.) The Legislature specifically designated cable television as something other than a public utility which was required to obtain the consent of á governmental unit to place poles, string wires, etc. in public areas.
See also MCL 460.111 et seq.; MSA 22.84(1) et seq., which controls the assessment of the costs of regulating public utilities. Cable television is not regulated by the Michigan Public Service Commission.
On the other hand, see MCL 460.701 et seq.; MSA 22.190(1) et seq., which was enacted to protect underground facilities during construction activities. For the purposes of those regulations a potpourri of activities, including cable television facilities, are included within the definition of "public utility”.
The issue of whether cable television service is a public utility for constitutional due process purposes, see 6 Michigan Law and Practice, Constitutional Law, §§ 245-246, pp 204-206, was argued by both parties. However, we do not need to address this issue to resolve this case. The provisions of § 25 do not apply to all public utilities but rather they apply only to the utilities enumerated in § 25. Since the utilities mentioned do not include cable television, the provisions of § 25 do not apply to cable television.
Const 1908, art 8, § 23 provided:
"Subject to the provisions of this constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; and may also sell and deliver heat, power and light without its- corporate ’ limits to an amount not to exceed 25 per cent of that furnished by it within the corporate limits, and may also sell and deliver water outside of its corporate limits in such amount as may be determined by the legislative body of the city or village; and may operate transportation lines without the municipality within such limits as may be prescribed by law: Provided, That the right to own or operate transportation facilities shall not extend to any city or village of less than 25,000 inhabitants.”
The drafters of the Constitution of 1963 in apparent recognition of Holland provided for sewage disposal in § 24 which has to do with "public service facilities”. The Convention Comment notes that sewage disposal is therein recognized as a public service facility. 2 Official Record, Constitutional Convention 1961, p 3393.
One reason these utilities were specifically mentioned in Const 1963, art 7, § 25, was that the provisions of Const 1908, art 8, § 23 (which, in part, listed the utilities concerned and which was relied on in Holland) were scattered in the 1963 Constitution. Since the applicable services were no longer described as public utilities in § 23, the phrase "furnishing light, heat or power” was inserted in § 25. The applicable utilities were also reduced in number. A memorandum dated March 21, 1962, to the Chairman of the Committee on Style and Drafting from four members of the Committee on Local Government recommended that the word "water” be deleted from the phrase "any public utility furnishing water, light, heat and power”. This recommendation was made on the basis that the committee only intended that § 25 restate the 1908 practices. Accordingly, the word "water” was deleted from § 25. | [
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Rehearing denied. | [
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] |
Rehearing denied.
Coleman, C.J., and Kavanagh and Levin, JJ., would remand this cause to the Court of Appeals to consider issues not addressed by that Court in its opinion. | [
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Per Curiam.
On July 30, 1978 the State Bar Grievance Board filed an order affirming the findings of fact, conclusions and order of discipline filed by. Wayne County Hearing Panel No. 9 on March 28, 1978 finding the appellant guilty of misconduct and ordering that he be suspended from the practice of law for a period of 90 days.
The appellant filed an appeal with our Court from this determination of the State Bar Griev- anee Board. The Court has considered the appellant’s briefs on appeal and the determination of the State Bar Grievance Board and finds support for some but not all of its conclusions.
The record reveals that the appellant agreed to represent a client on a contingent-fee basis in a medical malpractice dispute. The client made several inquiries about the progress of the law suit. Appellant, without determining the status of his file on this matter, made numerous representations to the client that a complaint had been filed. Ño complaint was ever filed and the statute of limitations ran. The appellant does not dispute the facts. The record supports the determination of Wayne County Hearing Panel No. 9 that the appellant violated Code of Professional Responsibility and Canons, DR 7-10KA), DR 1-102(A)(5) and State Bar Rule 15, § 2(4). We agree with appellant that the record does not support the determination that appellant violated DR 1-102(A)(6).
Appellant argues he was denied due process because he was never served with a copy of the client’s complaint in the mandamus action the client filed against the Grievance Board to compel a formal hearing on the client’s complaint.
Appellant was an interested party and could have answered the complaint had he desired. He was invited to do so by the clerk of this Court, but did not avail himself of the opportunity. The order of this Court directing a formal hearing did not affect appellant’s rights. He was served with a formal complaint setting forth all the charges against him. He filed an answer and was awarded a hearing.
The discipline imposed by the Grievance. Board is not excessive under the circumstances of this case. The 90-day suspension from the practice of law is warranted.
Affirmed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
"(A) A lawyer shall not intentionally:
"(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
"(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
"(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).”
"(A) A lawyer shall not:
"(5) Engage in conduct that is prejudicial to the administration of justice.”
"The following acts or omissions * * * shall constitute misconduct
"(4) Conduct that violates the standards or rules of ethics or professional responsibility adopted from time to time by the Supreme Court of this State.” | [
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Williams, J.
Leave to appeal was granted to determine whether a worker who suffered a work-related hand injury is entitled to compensation under the following circumstances: (1) the worker obtained a redemption for a subsequent cancer claim; (2) the worker after the hand injury but prior to the discovery of her cancer was given favored work at wages equal to or higher than her wages prior to the hand injury; and (3) an operation resulting from the cancer made the worker more sensitive to the pollutants in her place of work and hence unable to continue to work and earn wages at her previous favored work.
We hold as follows: (1) the redemption both in fact and legally was not related to a work injury. Hence, there is no duplication between it and the workers’ compensation for the hand injury which was work-related. Consequently, the redemption does not affect the worker’s right to compensation. (2) So long as a worker is receiving wages at favored work equal to or higher than his or her wages prior to injury, the worker is not entitled to compensation. The receipt of wages for favored work, however, does not establish a wage-earning capacity and hence does not modify the right to compensation for a prior injury when favored work is no longer available. (3) A supervening event, not chargeable to the worker, which makes it impossible for the worker to continue his or her previous favored work does not preclude the payment of compensation for a prior injury. We, therefore, hold that there is no legal basis on which to preclude payment of the plaintiffs compensation in this case.
The WCAB and the Court of Appeals are reversed.
I. Facts
Plaintiff Lydia Powell commenced work for de fendant, Casco Nelmor Corporation (hereinafter employer), in October, 1966. In March, 1967, plaintiff was operating an automatic loader buffing device when a piece of stock flew off and struck her at the base of her left thumb. Powell was unable to work for a two-month period while she received treatments for her injury; during this period plaintiff was paid workers’ compensation benefits by defendant Bituminous Fire & Marine Insurance Company (hereinafter insurer).
Plaintiff was advised to have surgery but did not do so at that time and returned to work in June, 1967. Because of an inability to open her left hand after the injury, plaintiff could no longer mount parts as required in the buffing job, and she was therefore put to work on a burring wheel.
The deburring job required that plaintiff press the frame of a car mirror against a solid grinding wheel. This process caused pain in plaintiff’s left wrist which required her to compensate by pressing harder with her right hand. As a consequence, by November, 1967, plaintiff was suffering from both pain and swelling in the area of her right thumb and was unable to continue work on the deburring wheel. Dr. Richard Hall, whose office had treated plaintiff since 1967, indicated in his deposition that plaintiff was suffering from De Quervain’s disease in her left hand and "trigger” thumb in her right.
Plaintiff underwent surgery on her right hand and did not return to work for a period of three or four months during which time she was paid workers’ compensation benefits by the insurer.
Plaintiff returned to work in March, 1968, and was assigned to a "bagging” job which necessitated minimal strain to her hands. The Workers’ Compensation Appeal Board (hereinafter WCAB) found the "bagging” job to be favored work.
In September, 1968, plaintiff consulted another physician, Dr. Reid. At this time plaintiff consented to have the necessary surgery on her left hand. During this latter period of unemployment, the insurer paid medical expenses but plaintiff received no workers’ compensation disability benefits.
Plaintiff returned to work in January, 1969. She first performed a typing job, but eventually returned to her bagging duties at which she continued until the termination of her employment.
During the period in which plaintiff performed favored work, her employer would periodically try her at the burring wheel. After a few hours, however, this activity caused plaintiff pain and could not be continued.
At no time during her performance of favored work did plaintiff suffer a decrease in hourly pay; in fact, she received periodic raises over that period.
Plaintiff continued in favored work until 1971 when she began to have throat trouble. The malady was diagnosed as cancer of the larynx and in August, 1971, plaintiff underwent a laryngectomy performed by Dr. Donald Bolstad. In December, 1971, plaintiff underwent a subsequent surgical procedure to correct a narrowing of her trachea and thereby facilitate breathing.
Plaintiff returned to favored work after her laryngectomy, but terminated her employment in April, 1972, and has not worked since that date. Plaintiff ceased work because of irritation to her throat occasioned by dust and fumes at defendant employer’s plant. As explained during the deposition of Dr. Janette D. Sherman, the reason for the irritation was that plaintiff, who now breathes through an opening in her neck, no longer has the filtering process of a normal person, thereby permitting the introduction of "a higher dose of pollutants directly into the tracheobronchial tree”. Dr. Sherman noted that plaintiffs work environment exposed her to dust, metal particles, solvents, smoke, buffing compounds and products of combustion. Dr. Raymond J. Barrett, testifying on behalf of defendant insurer, did not think plaintiff was disabled from doing the packing job, but admitted she might be "uncomfortable in such an atmosphere” if she is coughing when around dust or smoke. Dr. Donald Bolstad, who performed plaintiff’s surgery, recommended that plaintiff work only in areas free from such fumes.
In December, 1971, plaintiff filed a claim for workers’ compensation asserting that the chemical fumes and dusty conditions at defendant’s plant had caused plaintiffs throat cancer. The claim was resolved, with approval of the administrative law judge, by a redemption agreement entered into by plaintiff and two insurance companies which provided insurance for defendant employer subsequent to that provided by the instant defendant insurer. The agreement to redeem liability states in part:
"A dispute exists as to whether plaintiff suffers from any accidental personal injury or any occupational disease or disability attributable to her employment. Rather than litigate the issues, the outcome of which is uncertain, it is the desire of the parties to redeem any and all liability * *
The order of redemption is dated August 28, 1973.
Prior to redemption of the cancer claim, however, plaintiff had filed an amended petition alleging the work-related injury to her hand and thumb. This latter claim was heard before an administrative law judge on April 16, 1974, and a decision was entered finding plaintiff to have sustained a total disability and ordering defendant to pay plaintiff $60 per week.
Defendant insurer appealed this award claiming that plaintiff’s hand condition was an occupational disease thereby rendering liable the insurer as of plaintiff’s last day of work rather than the instant defendant insurer.
The WCAB disagreed with defendant, finding that:
"plaintiff’s present condition stems solely from the events of 1967 — the March 16 incident involving her left wrist, and the occupational aggravation of her right thumb by causes and conditions of her employment through Novembér 15, 1967. No later work contributed or aggravated in any way, we find.
"Plaintiff is thus partially disabled in the field of common labor, and any benefits due her are due from defendant-appellant, Bituminous Casualty.”
The WCAB went on to find, however, that despite her disability, plaintiff was entitled to no benefits,
"While she remains partially disabled * * * an event intervened in no way imputable to the employer, and the law * * * directs that we award only those benefits to which plaintiff was entitled prior to the larynx cancer interrupted [sic] her work career — in this case, none.”
Plaintiff appealed to the Court of Appeals which affirmed in an unpublished per curiam opinion dated September 13, 1977. That Court found that the WCAB had erred as a matter of law in concluding that plaintiff’s cancer would itself alter her right to benefits, but nonetheless upheld the result of the WCAB.
Plaintiff filed application for leave to appeal to this Court and leave was granted March 9, 1978.
II. Cancer Redemption Does Not Overlap Hand Injury Compensation
The first question on which this Court granted leave to appeal relates to whether there is an overlap on the cancer claim and compensation for the prior hand injury. That question reads: "(1) whether plaintiff’s redemption of liability on her claim that she was disabled as a result of an occupational disease precludes her recovery on a claim of partial disability stemming from her 1967 injury”. We find it does not.
Our conclusion is based upon both the facts surrounding this particular redemption agreement and certain legal principles applicable to all redemption agreements.
First, redemption of one claim does not generally operate to cancel rights on separate claims even though the separate claims existed prior to the date of the redemption. Herrala v Jones & Laughlin Steel Corp, 43 Mich App 154; 203 NW2d 752 (1972).
Second, under the language of the redemption agreement, the cancer was specifically not conceded to relate to "any accidental personal injury or any occupational disease or disability attributable to her employment”. Since the redemption does not legally constitute an admission of liability for a work-related disability, MCL 418.835; MSA 17.237(835), the redemption cannot factually or legally overlap or duplicate compensation for a prior work-related disability. Furthermore, the practicalities of the matter are in accord with this finding; all but $1,100 of the $7,500 redemption award was specifically earmarked for hospital, medical, surgical or legal services in connection with the cancer.
On review of the record and the law, it is apparent that there exists no overlap or duplication of compensation and redemption. As a consequence, there is no reason why the redemption of the subsequent cancer claim should preclude recovery on the prior work-related hand injury.
III. Effect of Post-Hand-Injury Work History and Subsequent Disabling Cancer
As framed in our order granting leave to appeal, the second limited issue reads: "(2) given the Workmen’s Compensation Appeal Board’s finding of partial disability from her 1967 injury, what effect did plaintiff’s post-injury work history and the subsequently disabling cancer have on her right to benefits”. This second issue breaks down into two subquestions. The first subquestion is whether plaintiff’s entitlement to workers’ compensation is adversely impacted by the fact that, after her hand injury, plaintiff was given favored work and received wages equal to or greater than those received before the hand injury. The second subquestion is whether plaintiff’s entitlement to workers’ compensation is affected by the fact that, while employed at favored work, plaintiff contracted cancer, required an operation, and was no longer able to continue with her previous favored work.
A. Post-Hand-Injury Employment and Wages
We first turn our attention to the subquestion of whether plaintiff’s post-hand-injury work and the wages she received therefor adversely impact her present right to benefits. The WCAB answered this question against the plaintiff:
’’[PJlaintiff after becoming partially disabled, worked at favored duty for well over three years without incident until a supervening event occurred, and at no wage loss (she testified deburring and packing paid the same rate).
"In such situations, the Court of Appeals (Dalton v Candler-Rusche, Inc, 65 Mich [App] 282 [237 NW2d 290 (1975)]), has most recently directed that our consideration of the wages plaintiff was able to earn post-injury and pre-supervening event is an appropriate measuring device in computing beneñts (if any) that are due. Accordingly, on plaintiffs own testimony, she was making no less (actually more) in 1972 than in 1967, and was at that later date entitled to no partial compensation payments.” (Emphasis added.)
The Court of Appeals upheld the WCAB concluding as follows:
"In the case at bar, the amount of plaintiffs post-injury, pre-cancer earnings, and her subsequent, intervening disability do not preclude plaintiff from ever receiving compensation for her hand injuries. Her post-injury wages, however, do establish an earning capacity which presumably continues. Plaintiff carries the burden of proving that, because of her hand injuries, her present earning ability is lower than her pre-injury, wage-earning capacity. As plaintiff offered no such proof, the board properly denied benefits.” (Emphasis added.)
We cannot agree.
There is no dispute that the performance of post-injury work at no wage loss precludes payment of disability benefits while that work continues. This result is statutorily directed by MCL 412.11; MSA 17.161 which limits benefits as follows:
"The compensation payable, when added to his wage earning capacity after the injury in the same or an other employment, shall not exceed his average weekly earnings at the time of such injury.”
This provision was added to the workers’ compensation act in 1927 to specifically preclude benefits in the event that an injured employee was working at another job subsequent to the worker’s injury which paid comparable or higher wages. Lynch v Briggs Manufacturing Co, 329 Mich 168, 171-172; 45 NW2d 20 (1950); see Geis v Packard Motor Car Co, 214 Mich 646; 185 NW 916 (1921). Under this provision, the employer is permitted to deduct (or set off) from compensation payable the employee’s wages or wage-earning capacity after the injury. Lynch, supra, p 172. However, a post-injury wage-earning capacity is established only if a claimant has accepted regular employment with ordinary conditions of permanency. Markey v SS Peter & Paul’s Parish, 281 Mich 292, 299-300; 274 NW 797 (1937); MacDonald v Great Lakes Steel Corp, 274 Mich 701; 265 NW 776 (1936).
Contrary to the employer’s assertions, plaintiff herein did not receive such regular employment. Rather, plaintiff’s post-hand-injury employment was factually determined by the WCAB to constitute "favored work”, and favored work does not establish a wage-earning capacity, Evans v United States Rubber Co, 379 Mich 457, 465; 152 NW2d 641 (1967); Lynch, supra, p 172; Tury v General Motors Corp, 80 Mich App 379, 385; 264 NW2d 2 (1978), lv den 402 Mich 908 (1978).
This being the law, we find the Court of Appeals erred in two respects under the instant facts. First, while that Court correctly noted that "plaintiffs post-injury, pre-cancer earnings * * * do not preclude plaintiff from ever receiving compensation for her hand injuries”, error is demonstrated in its subsequent and patently contradictory statement that plaintiffs "post-injury wages, however, do establish an earning capacity which presumably continues”. Such a presumption would only arise from work which establishes an earning capacity. Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 426; 145 NW2d 40 (1966). It is inconsistent to conclude, on the one hand, that favored work does not establish a wage-earning capacity while holding, on the other, that wages earned in the course of favored work do establish a wage-earning capacity, Evans, supra, p 465. Such a finding neither comports with logic nor the rationale behind the rule, see footnote 8, supra
The second error we find in the Court of Appeals opinion is the gratuitous and incorrect statement that:
"Her post-injury wages, however, do establish an earning capacity which presumably continues. Plaintiff carries the burden of proving that because of her hand injuries, her present ability is lower than her pre-in-jury, wage-earning capacity. As plaintiff offered no such proof, the board properly denied benefits.”
This statement is replete with errors of law. In the first place it is based on the erroneous legal assumption that "[h]er post-injury wages * * * establish an earning capacity”. As we have just discussed, insofar as plaintiff’s post-injury wages were received for favored work, those wages legally could not "establish an earning capacity”. Since there was no legal post-injury wage-earning capacity there could be no such assumption and, therefore, no continuation of the presumption.
Second, in the present context, it is legally and factually incorrect to conclude that "[pjlaintiff carries the burden of proving that because of her hand injuries, her present ability is lower than her pre-injury, wage-earning capacity”. The fact of the matter is that plaintiff had already met her burden of proof.
In Michigan "disability” is defined as the "inability to perform the work claimant was doing when injured”. 2 Larson, Workmen’s Compensation Law, § 57.53, p 10-129; see, e.g., Allen v National Twist Drill & Tool Co, 324 Mich 660, 663; 37 NW2d 664 (1949); Parling v Motor Wheel Corp, 324 Mich 420; 37 NW2d 159 (1949). The fact that the WCAB found plaintiff to be "disabled” unequivocally established that plaintiff had met her burden of proof as to being disabled; she was unable to perform her pre-hand-injury work.
Third, the statement "[a]s plaintiff offered no such proof [of wage-earning capacity], the board properly denied benefits” is erroneous for several reasons. As indicated, plaintiff had properly offered proofs establishing that she was disabled. The burden of proof as to an injured employee’s right to compensation in this jurisdiction is fundamentally satisfied by the same proofs offered to establish disability.
" 'The test of an injured employee’s right to compensation is his inability by reason of the accident to work and earn wages in the employment at which he was engaged when injured. ’ Levanen v Seneca Copper Corp, 227 Mich 592, 601 [199 NW 652 (1924)].” (Emphasis added.) Siebert v Northport Point Cottage Owners’ Association, 378 Mich 661, 674; 148 NW2d 790 (1967).
The WCAB accepted and found as a matter of fact that plaintiff was capable of performing only favored work. This finding conclusively established that plaintiff had met her burden of proof as to the right of compensation; she was unable "to work and earn wages in the employment at which [she] was engaged when injured”. Siebert, supra. Because no post-injury wage-earning capacity was established, plaintiff was not faced with a burden to overcome the corollary presumption of continued wage-earning capacity. Therefore, the only remaining burden was on defendants to prove that plaintiff still had a wage-earning capacity. See Hood v Wyandotte Oil & Fat Co, 272 Mich 190, 193; 261 NW 295 (1935); 2 Larson, Workmen’s Compensation Law, § 57.51, p 10-122.
Fourth, neither the WCAB nor the Court of Appeals in this case appeared to fully grasp three fundamental legal propositions underlying and controlling this case. The first, and perhaps most important, is that the WCAB in finding that plaintiff was capable of performing only favored work had conclusively established plaintiffs disability and right to compensation. Significantly, this right persists unless cut off by a legal bar. The second legal proposition is that only wages from regular employment create a bar; wages from favored work, when actually paid, toll the right to compensation but when no longer paid neither toll nor bar compensation. The third legal proposition is that inability to continue favored work, where that inability arises from a supervening event for which the worker is not responsible, does not create a legal bar.
We note that neither the WCAB nor the Court of Appeals shared this Court’s express concern about the possible bar of an overlapping cancer redemption. Nonetheless, we have shown that there is in both law and fact no overlap or duplication here that might bar plaintiff’s entitlement to compensation.
In sum, the fundamental posture of this case is that: (1) plaintiff has established her right to compensation for the work-related hand injury and (2) that right is neither barred by her subsequent favored work wages nor her later inability to continue such favored work because a supervening event not in her control. Further, the redemption of a legally non-work-connected cancer does not duplicate the compensation for a work-connected injury. Therefore, a right to compensation was established and no bar exists to preclude that right.
B. Post-Hand-Injury Cancer
The final subquestion under the second limited issue is, "what effect did plaintiff’s * * * subsequently disabling cancer have on her right to benefits”. The answer is that the "subsequently disabling cancer” had no effect whatsoever on plaintiffs right to compensation for her prior hand injury. The case of Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950), is directly on point.
In Lynch as in the instant case, plaintiff was injured at work in a factory, received total compensation for a period and then returned to favored work at his skilled rate of pay. Thereafter, plaintiff was struck and injured by an automobile while standing in a street car safety zone. Plaintiff was disabled from continuing his favored work.
Defendant in Lynch appealed a grant of compensation, averring "that Lynch was not entitled to compensation because his present loss of earnings is due to a disability unassociated with his employment”, 329 Mich 168, 171; defendant in the instant case similarly argues that since the non-work-related cancer disability has prevented plaintiff from continuing her favored work, her benefits should be barred.
This Court in Lynch held:
"Lynch [plaintiff] at the time of hearing was not physically capable of performing the favored work. He was prevented from doing so by events not under his control. Yet he was still totally disabled in his skilled employment because of his occupational injury of 1946. Supervening events, stopping his favored work and not attributable to him, will not defeat his compensation as a skilled employee.” (Emphasis added.) Lynch, supra, 172.
See also Hansel v Chrysler Corp, 58 Mich App 173; 227 NW2d 276 (1975); Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973).
Because the above rules are well established, it is difficult to understand the contrary relevance ascribed to the intervening event by the WCAB. The WCAB stated:
"While she remains partially disabled * * * an event intervened in no way imputable to the employer, and the law * * * directs that we award only those benefits to which plaintiff was entitled prior to the larynx cancer interrupted [sic] her work career — in this case, none.”
The Court of Appeals, however, found the WCAB had erred as to its above finding and stated:
"An independent, intervening event, which follows a personal injury arising out of and in the course of employment, does not alone justify the denial, suspen sion, reduction, or increase of disability benefits for a continuing work-related injury. In the present case, plaintiff’s throat cancer itself would not alter her right to collect workers’ disability benefits if her hand injuries in fact diminished her wage-earning capacity.” (Emphasis added.)
We agree with this statement of the Court of Appeals and specifically find that plaintiffs post-hand-injury cancer does not adversely impact plaintiffs present right to benefits.
IV. Conclusion
It is uncontested that plaintiff is currently disabled from employment due to her 1967 hand injury. None of the post-hand-injury occurrences presently before this Court adversely impact her right to benefits therefor.
Reversed and remanded to the WCAB. Costs to appellant.
Kavanagh, Levin, and Blair Moody, Jr., JJ., concurred with Williams, J.
Because of the 1967 injury date, the 1912 act, MCL 411.1 et seq.; MSA 17.141 et seq., is the proper statutory authority in the instant case. That act was repealed and replaced by the 1969 act, MCL 418.101 et seq.; MSA 17.237(101) et seq. Citation to the prior act will be made when statutory authority directly impacts the 1967 hand injury in the instant decision.
The fact that the redemption precludes an imputation of work-relatedness is obliquely referred to in the WCAB decision as follows:
"While the claim was made that said [hand] condition was also work-related, that claim has been rendered moot by the redemption above-noted.”
The parties entered into the redemption agreement in 1973, after the effective date of the new statute which therefore applies to that agreement.
According to the findings of fact of the WCAB, the insurance companies who participated in the redemption agreement did not insure the defendant employer when plaintiff’s hand injury occurred and were therefore not liable for any compensation due as a result of the hand injury.
Even when an employee suffers two injuries and both are found to be work-related, a redemption of one does not preclude payment of benefits for the other as long as payment is not made for the same temporal period of disability. Herrala v Jones & Laughlin Steel Corp, 43 Mich App 154; 203 NW2d 752 (1972). See also Harrison v Lakey Foundry Co, 361 Mich 677; 106 NW2d 521 (1960).
Defendant in fact admits the correctness of this rule as it relates to the case at bar and states in its brief before this Court:
"Defendant-appellee is prepared to acknowledge that Lydia Powell’s 1973 redemption of liability for occupational disease purposes does not, in and of itself, preclude recovery on her claim of partial disability from the 1967 injury so long as such partial disability is determined to be from a specific injury or single event.” (Emphasis in original.) Defendant-Appellant’s Brief, pp 3-4.
Defendant’s only related assertion is that plaintiffs hand disability is an occupational disease for which benefits should be paid by the insurance company "on the risk on Lydia Powell’s last day worked * * Defendant-Appellant’s Brief, p 4.
As quoted above, the WCAB specifically found that plaintiff’s hand disability stems solely from events in 1967 when defendant insurer and not another insurance company was "on the risk”. Because there is evidence in the record to support this finding of fact, Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978), we do not consider defendant’s assertion further.
MCL 412.11; MSA 17.161 is now MCL 418.371; MSA 17.237(371).
It is irrelevant that the bagging job performed by plaintiff after her hand injury was not "manufactured” for her particular incapacity but was one regularly performed by other employees as long as she could not perform according to her prior skills. Evans v United States Rubber Co, 379 Mich 457, 465; 152 NW2d 641 (1967).
The rationale for looking to the nature of the post-injury employment rather than simply to the amount of post-injury earnings was discussed in Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 423; 145 NW2d 40 (1966):
"Presumably and actually, an employee can be injured, disabled to a degree, and yet suffer no weekly wage loss because he is shown to be able to earn an amount equal to or greater than that which he was earning at the time of his injury. In many instances from the highest motives of desire to rehabilitate the employee and restore him as a wage-earning member of society, some employers have retained injured employees in new jobs within their capacity to perform. It is not difficult to perceive, however, that ah ill-intentioned employer desirous of avoiding compensation payments could rehire an injured and disabled employee, establish his capacity to earn as much or more than before his injury and terminate his employment. Then, if the bare elements of proof of what the employee was paid were construed as establishing his 'earning capacity’ the whole purpose of the act would be vitiated.” (Emphasis added.)
The authorities cited by the employer, Pulley v Detroit Engineering & Machine Co, supra; MacDonald v Great Lakes Steel Corp, 274 Mich 701; 265 NW 776 (1936); Dalton v Candler-Rusche, Inc, 65 Mich App 282; 237 NW2d 290 (1975), are inapposite. There was no specific finding of fact in any of those cases that the post-injury employment was "favored work”.
The result can be different, of course, in a case in which a plaintiff is physically able to perform favored work and has refused. See Lynch, supra, p 172; Hope v Welch Grape Juice Co, 46 Mich App 128, 129; 207 NW2d 476 (1973).
The WCAB cited Dunavant v General Motors Corp, 325 Mich 482; 38 NW2d 912 (1949), and Dalton v Candler-Rusche, Inc, 65 Mich App 282; 237 NW2d 290 (1975), for the proposition that when an event intervenes which is not the fault of the employer, only those benefits due prior to that event are awardable. The WCAB went on to hold that because no benefits were due prior to plaintiff’s cancer (since she was performing favored work at no wage loss), plaintiff was entitled to no benefits now.
In Dunavant, an employee injured his hand, performed favored work and later suffered a recurrent pulmonary tuberculosis which totally prevented his further employment. Plaintiff Dunavant had been receiving compensation for his hand injury during his favored work and sought an increase because his non-work-related tuberculosis totally disabled him. This Court found he was entitled to no such increase.
This Court in Lynch, supra, did not find the holding in Dunavant to obviate the necessity of the payment of benefits. While Dunavant is somewhat distinguishable, it is not completely so and to the extent it is inconsistent with our present opinion it is hereby overruled.
Dalton is inapplicable to the instant case for the reason discussed in footnote 9, supra.
We note one further point. The extent of a claimant’s disability is again a question of fact to be decided in the administrative rather than judicial arena. 3 Larson, Workmen’s Compensation Law, § 80.20.
The WCAB herein expressly affirmed the findings of fact of the Administrative Law Judge but set aside the award of benefits "as a matter of law”. At the same time, however, the WCAB ignored the prior finding of fact of the Administrative Law Judge that disability was total by its labeling of plaintiffs disability as partial.
There is nothing in the opinion of the WCAB explaining the basis for this reversal of the initial factual finding. To the extent that it was premised on plaintiffs post-hand-injury ability to perform favored work, however, that finding was erroneously based on a legally impermissible consideration. Allen v National Twist Drill & Tool Co, 324 Mich 660, 663; 37 NW2d 664 (1949).
We reiterate that disability is measured by ability to perform the work in which a claimant was engaged when the injury occurred. If a post-injury wage-earning capacity is established, this is certainly a consideration in determining both the present amount of compensation due as well as the concomitant extent of disability. See MacDonald v Great Lakes Steel Corp, 274 Mich 701; 265 NW 776 (1936), as compared with MacDonald v Great Lakes Steel Corp, 268 Mich 591; 256 NW 558 (1934).
Favored work, however, is not an appropriate consideration in that determination, Allen, supra. Favored work is only properly considered during its actual performance as a set-off under MCL 412.11; MSA 17.161. | [
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] |
Rehearing denied. | [
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Rehearing denied.
Levin, J., would grant rehearing to consider those issues as to which leave to appeal was granted by this Court but not addressed by it in its opinion on the case. | [
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Per Curiam.
The defendant asks us to decide whether the trial judge in a criminal sexual assault case erred in allowing testimony under the excited utterance exception to the hearsay rule by the complainant’s boyfriend as to what complainant told him about the alleged assault 12 hours after the assault.
I
The complainant met the defendant at a party at the home of mutual friends. They had met before, but were only slightly acquainted.
At about midnight the complainant accepted the defendant’s offer of a ride home, as did two other persons at the party. The defendant dropped off the other two, but did not take the complainant directly home, in spite of her request that he dó so. After driving around for awhile, the complainant became fearful. The defendant then stopped in a rural area. The two eventually engaged in sexual intercourse; the complainant claimed it was against her will and accomplished by physical force while the defendant claimed it was by mutual consent. After the intercourse, the defendant drove the complainant to her home.
The defendant was charged with first-degree criminal sexual conduct. MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). He was convicted as charged after a nonjury trial.
II
The complainant’s boyfriend was called as a prosecution witness. He testified that he saw the complainant the day after the event when she arrived at a friend’s apartment between noon and 1 p.m. Thus, by the boyfriend’s account, this conversation occurred about 12 hours after the episode with the defendant.
Before any testimony about what the complainant told her boyfriend, defense counsel objected. The prosecutor responded that anything she told her boyfriend would be admissible under the excited utterance exception to the hearsay rule. The trial judge instructed the prosecutor that before he would admit testimony about the complainant’s statements to her boyfriend, a better foundation on which to claim the exception would have to be made.
The witness testified that when his girlfriend showed up at the apartment she was upset and "crying a little bit”. She first acted as if she didn’t want to talk about what was troubling her, but then in response to his questions told him what happened the night before.
Defense counsel again objected to any testimony about specific statements made by the complainant to her boyfriend. After further argument the trial judge ruled that he would allow the testimony, but he reserved any ruling on whether he would actually consider the testimony in his capacity as fact finder.
The testimony of the boyfriend corroborated the complainant’s version of the episode with the defendant.
After this testimony the trial judge ruled that he would "receive and accept the story or narrative related by [the complainant] to Mr. Jackson [the boyfriend]”. He found the statement to be a spontaneous or excited utterance and that the time lapse between the startling event and the complainant’s recitation to her boyfriend did not preclude the testimony. Because the complainant’s trial testimony was essentially similar to what the boyfriend said she told him the day after the incident, the judge concluded that the statement was not contrived or the product of reflection.
Ill
Otherwise objectionable hearsay testimony may be admissible if it amounts to an excited utterance. An excited utterance is defined as:
"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” MRE 803(2).
To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion. People v Cunningham, 398 Mich 514, 519; 248 NW2d 166 (1976), citing Rogers v Saginaw B C R Co, 187 Mich 490, 493-494; 153 NW 784 (1915).
IV
Based on the facts in the record, we hold that the statement of the complainant to her boyfriend did not meet the second criterion in that it was not made before there was time to contrive and misrepresent. The 12- to 20-hour lapse between event and statement was enough time for consideration of self-interest. There is no plausible explanation for the delay which would excuse the delay and permit an extension of the excited utterance exception to the hearsay rule to these facts.
On these facts it was error to allow the hearsay testimony of the boyfriend. The error cannot be said to have been harmless in this nonjury trial because, as in most criminal sexual assault cases, the testimony concerning the event was one-to-one, complainant versus defendant. Any corroborating evidence on either side could tip the scales. In addition, the trial judge strongly suggested in ruling on the question of admissibility that the testimony of the boyfriend made the complainant’s testimony more credible; the scales were tipped in favor of the prosecution.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the defendant’s conviction and remand this case for new trial.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
The complainant testified that she did not see her bpyfriend until the evening of the next day, about 20 hours after the episode with the defendant.
The boyfriend said she related the story over a 4-1/2 hour period and that she cried for about an hour of that time.
While the Michigan Rules of Evidence were not in effect when this case was tried, this definition is not a departure from the law as it existed in 1976.
Startling enough to produce nervous excitement and to render the utterance spontaneous and unreflecting.
The boyfriend was not even the first person the complainant claimed to have told of the event. She testified that the morning after she told her nursing instructor about it. The instructor was not called as a witness.
By her own testimony the complainant admitted that in the interval between the alleged rape and her conversation with her boyfriend she had spoken to a number of persons and gone to school (she was a nursing student). | [
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Per Curiam.
The issue before us is whether there is sufficient evidence in the record to support the conclusion of the Court of Appeals that a unilateral mistake was committed by the bidding contractor, Smith Engineers and Contractors, which supports the position that the contractor should have been relieved from the obligation to enter into a contract with the plaintiff at the bid price. The trial judge concluded, after a nonjury trial, that there was no proof or credible evidence of a material mistake. Our review of the record leads us to the same conclusion and we therefore reverse the Court of Appeals and reinstate the judgment of the trial court in favor of the plaintiff.
I
In 1972 the plaintiff, Clinton County Department of Public Works, advertised for bids to complete a sanitary sewer project in DeWitt Township. Bid bonds were required to accompany the bids. Thirteen bids were received and opened on March 30, 1972. The bid of Smith Engineers and Contractors was lowest of the 13 bids, in the total amount of $1,825,555. The next lowest bid was $550,797 higher than Smith’s bid. The highest bid of the 13 was in excess of $3,500,000.
On at least two occasions before the DPW met to act on the bids, Smith alleged error in his bid. However, he never informed the board or anyone else connected with the project of the nature of the claimed error or the specific amount. He did not seek to withdraw the bid but hinted strongly that he wanted to renegotiate the amount of the contract. No specific amount at which he would renegotiate the bid was ever disclosed by Smith.
On April 6, 1972, the DPW voted to accept Smith’s bid. Smith was present at the meeting and did not indicate whether he would accept the contract pursuant to the DPW’s vote. On April 13, 1972, Smith, by letter from his lawyer, advised the DPW of his intent to withdraw and rescind his bid. As a result, the DPW was forced to accept the second lowest bid and the township was required to issue additional bonds to finance the increased cost.
Smith died in May of 1972, before this lawsuit was started. It was not until after the litigation commenced that the amount and nature of the claimed error in Smith’s bid was disclosed by affidavit of Smith’s superintendent.
After a nonjury trial on October 12, 1976, the trial judge issued an opinion in favor of the plaintiff and against the defendants in the amount of the bid bond which was 5% of the total bid, approximately $91,000. The Court of Appeals reversed on the grounds that a court in equity will grant a contractor relief from a bid where there has been a unilateral mistake in the bid as a result of a clerical error or inadvertence, and there has not been gross or willful negligence by the contractor. Clinton County v American Bank & Trust Co, 83 Mich App 259; 268 NW2d 367 (1978).
II
The DPW now seeks leave to appeal. Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.
Ill
The opinion of the Court of Appeals assumes the existence of a unilateral mistake by the contractor in computing its bid. On that assumption, the Court ruled that Smith should have been relieved from the obligation to enter into a contract at the bid price, leaving the plaintiff with various options, including acceptance of the second highest bid. Fraser Public Schools Dist v Kolon, 35 Mich App 441; 193 NW2d 64 (1971), lv den 386 Mich 768 (1971); Kutsche v Ford, 222 Mich 442; 192 NW 714 (1923); Puget Sound Painters, Inc v Washington, 45 Wash 2d 819; 278 P2d 302 (1954).
Had the assumption of the Court of Appeals of the existence of a unilateral mistake been correct, then it is arguable that the result reversing the holding of the trial court would also have been correct. However, the trier of fact determined from the evidence that no mistake had been made. We cannot say that this determination was clearly erroneous or that a preponderance of the evidence shows otherwise.
The trial judge carefully analyzed the testimony and determined that no mistake had been made, saying at two different points in his opinion that he found "no proof or credible evidence of a material mistake”. It should be noted that Smith’s bid was in excess of one-half million dollars less than the next lowest bid but it was only approximately $90,000 less than the estimate of the project’s engineer for the completion of the work under the contract. In analyzing the testimony, the trial court came to the conclusion that Smith had not made an error, but, realizing the amount of the gap between his bid and the next highest bid, sought to renegotiate his contract in bad faith for more money while still being the lowest bidder. Under these circumstances, the cases cited by the Court of Appeals and by the defendants on appeal are not applicable.
The trial court held that the credible evidence showed that Smith did not desire to withdraw his bid until he learned that he could not increase the amount of the bid through renegotiation. He never disclosed the nature or amount of the claimed mistake and the court determined that Smith was deceitful in his dealings with the DPW and found support in the record for the proposition that Smith was not honest in his assertion of a mistake and wanted only to renegotiate the amount of the contract.
There was, therefore, a clear finding by the trial court that there was no mistake by Smith. Because the record supports such finding, we do not overturn it on appeal. GCR 1963, 517.1.
The judgment of the trial court is reinstated; costs are awarded to the plaintiff.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Grant, J.
{after stating the facts).
The liability of the defendant is based upon 3 Comp. Laws, § 12014, which reads as follows: , .
“ That in all prosecutions for any crime or misdemeanor, when the prosecution is at the instance of a-private person, and not of some public officer or of the grand jury, such person shall give security for costs, and if the defendant or prisoner be discharged on examination by such magistrate, or acquitted on trial, or a nolle prosequi be entered on the indictment by order of the court before which it may be pending, the prosecutor shall pay all costs which shall have accrued to the court, sheriff, constable and jury, and upon proceedings had upon such complaint, execution shall issue for the collection of such costs as in civil cases, as well against the surety as against the prosecutor, unless the magistrate or, court before whom the complaint is made or trial is had, shall certify in his minutes that there was probable cause for the making of such complaint.”
This statute was enacted in 1849 (Act No. 77, Laws of 1849). In 1883 (Act No. 108, Pub. Acts 1883) the legislature enacted—
"That it shall not be lawful hereafter for justices of the peace to issue warrants in any criminal cases, except in cases not cognizable by justices of the peace, or breach of the peace committed in the presence of the officer making the arrest, until an order in writing allowing the same is filed with such justice, and signed by the prosecuting attorney for the county, or unless security for cost shall have been filed with said justice: Provided,” etc. 1 Comp Laws, § 1061.
The proviso is unimportant.
It is held in People v. Griswold, 64 Mich. 722, that the failure to file security for costs, even in cases cognizable by justices of the peace, was no concern of the respondent, that the act did not limit or curtail the jurisdiction of justices of the peace, and that the people through their representative, the prosecuting attorney, might approve the prosecution, though no security were given. It is held in Sunderlin v. Board of Sup’rs of Ionia Co., 119 Mich. 535, and Hutchinson v. Board of Sup’rs of Ionia Co., 130 Mich. 62, that justices of the peace, by failure to comply with the statute, were subject to a loss of fees. By these provisions of the statute the public are sufficiently protected against liability for the costs of suits which are improvidently started and prosecuted at the instance of private individuals. •
The crime charged by the defendant was a serious one. Counsel for plaintiff did not offer to show that the prosecution was not authorized by the prosecuting attorney. Counsel for defendant in their brief state that the prose; cution was authorized by him, but there is no evidence of it. If the defendant made a truthful statement of all the facts to the prosecuting attorney, and he advised and authorized the prosecution, the defendant would not be liable in an action for malicious prosecution or false imprisonment. The same rule ought certainly to exempt him from the payment of costs, where he has acted in good faith, has not been asked to give security for costs, and the prosecuting attorney has waived it. Are prosecuting attorneys prohibited to entertain proceedings based upon the complaints of private citizens unless they will give security for costs ? Undoubtedly the law contemplates that police officers, in all those crimes which affect the public-welfare shall, upon the receipt of information, investigate, lay the results of their investigation before the prosecuting attorney and the magistrate, and themselves make the complaints if the prosecuting attorney directs them. The law neither requires nor prohibits a private individual to make complaints. In the absence of official action, the prosecuting attorney and the magistrate may determine whether the facts disclosed are sufficient to justify the making of a complaint, and may authorize the private citizen to make it. Where the private citizen has done this, acting under the advice or assent of the prosecuting attorney, he is not liable for the costs.
If, however, I am wrong in the above conclusion, I think it entirely clear that the statute does not make the complaining party liable for the costs where no security has been given. The action of the circuit judge in certifying that there was probable cause for the making of the complaint applies only where the complaining witness has given security. The statute provides for a summary disposition of the question of costs and the entry of judgment, and that execution upon that judgment shall issue against the complainant and his surety. The statute does not say that the complaining party shall be liable without security, or that the court may make the certificate in his minutes where no security has been given. It does say that he shall be liable when he has given security.
Two other important questions are presented by the record; but this disposal of the case renders it unnecessary to discuss them. •
Judgment affirmed.
McAlvay, C. J., and Carpenter, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
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McAlvay, C. J.
This is an appeal from a judgment of the circuit court for Kalkaska county dismissing an appeal from an allowance of the claim of plaintiff by the commissioners on claims against the estate of Polly Collar, deceased, of which estate Irving M. Clark is administrator. When the informal call of the docket was made in the circuit court, both parties appeared by their attorneys and announced themselves ready for trial, and both stated that no jury was desired. When the case was reached in its order, the attorney for plaintiff orally made a motion to dismiss the appeal for the reasons: (1) That no certified copy of the order of the probate court allowing the appeal had been filed in the court. (2) That no certified copy of the order of the allowance of the claim by the commissioners had been filed in the court, as required by section 9390, 3 Comp. Laws. No notice of this motion had been given; nor does the record show that any previous intimation was given that it would be made. The motion was argued on both sides and granted by the court, and the appeal was dismissed. Defendant excepted to the ruling of the court. The usual stay of proceedings was granted to allow a review in this court of the action of the trial court. An application for a writ of mandamus to set aside the order of the court was made to this court and denied, upon the ground that the proper remedy was by writ of error. The case is now before us upon such writ.
Appellant urges that, under the rules and practice of the circuit court (Circuit Court Rule 19), he was entitled to notice of the motion to dismiss the appeal, and that the court erred in hearing and granting such oral motion. Three of his assignments of error are based upon this contention. This was a special motion to dismiss the appeal, and appellant was entitled to the notice provided by Circuit Court Rule 19 before it could be brought on to be heard. He twice called the attention of the court to the fact that no notice had been given, and asked the court to be allowed to have the report of the commissioners on claims to be at once certified, if the court held it to be necessary. The record does not show that he waived the right to the usual notice under the rule. While, upon the argument, brought up suddenly without notice, his attorney appears to have been mistaken as to the necessity of having this report certified to the court, and may. have had such view of the statute in mind when the appeal was taken, the record indicates that before the argument closed he appreciated his error. The reason of the rule is to prevent surprise and to allow reasonable time to prepare for a hearing. Plaintiff had noticed the case for trial, and on the call of the docket had announced himself ready for trial, and when the case was called made this motion to dismiss, which the rule requires should be heard only after four days’ notice. The court was in error in hearing the motion without notice. '
"We hold that it was necessary to file the certified copy of the report of the commissioners on claims; that being the record of the allowance appealed from. In Snyder v. Washtenaw Circuit Judge, 80 Mich. 511, this court said:
“We are disposed to give statutes allowing appeals liberal construction. * * * With this purpose we shall hold that an appeal properly claimed, perfected, and allowed in the probate court ought not to be dismissed for a failure to file the record in the circuit court within the 30 days, provided the same should be filed before the motion to dismiss is actually heard.”
In the case at bar no motion has yet been properly before the court for hearing.
Plaintiff contends that no order was ever made by the probate court allowing the appeal. The order made by the probate court conformed wdth the requirements of the statute. It does not state that the appeal is allowed, but is certified by the probate judge as the order of the probate court allowing the appeal.
“It has come to be known as the order allowing the appeal, and in practice the order usually in terms allows the appeal, although, technically speaking, it cannot be disallowed if the statutory requirements are complied with.” 2 Stevens on Michigan Practice, § 376.
The allowance of an appeal does not depend on the probate judge, but is a right fixed by statute. There is no occasion to obtain an order allowing an appeal. Fox v. Wayne Probate Judge, 48 Mich. 643.
The order in this case was sufficient, and a certified copy thereof had been filed.
The judgment dismissing the appeal is reversed, with costs, and the cause is remanded to the circuit court for further proceedings.
Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). The instructions were right. This court has never held that an overruling necessity may not excuse entrance to a saloon on Sunday. It has expressly determined that the proprietor must, at his peril, .see that no necessity exists for keeping the same open by carrying on any other business therein which would require the doors to be open or for persons to enter therein. People v. Waldvogel, 49 Mich. 337; People v. Blake, 52 Mich. 566; People v. Cummerford, 58 Mich. 328; People v. Schottey, 116 Mich. 1; People v. Kriesel, 136 Mich. 80; People v. Crowley, 90 Mich. 366; People v. James, 100 Mich. 522; People v. Bowkus, 109 Mich. 360.
The conviction is affirmed.
McAlvay, O. J., and Montgomery, Hooker, and Moore, JJ., concurred. | [
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] |
Ostrander, J.
Complainant Nicholas De Vries owned 40 acres of land, which cost him in 1894 $2,200, and upon which he placed a mortgage of $1,500. The farm was rented, complainant and his family living upon other land. In December, 1901, complainant agreed to sell the land at the price of $2,350, the intending purchaser, however, declining finally to take it; not because the price was too great, but for other reasons. In December, 1901, Nicholas was adjudged insane, and was sent to the asylum for the insane at Kalamazoo. There is testimony supporting the idea that his mental affliction may be ascribed to his feeling that he was not prospering financially, and that the failure to make the contemplated sale of this land increased his disorder. In August, 1902, he went home; but he was returned to the asylum in about 30 days, and there remainéd until August 29, 1904. While so temporarily at his home, and on August 23, 1902, he, his wife joining him therein, entered into a written contract with defendant James R. Crofoot to sell him this 40 acres of land for the sum of $2,350. He was to pay $50 down, $800 on or before the 24th of the succeeding March, with interest at 3 per cent, per annum, and the interest upon the mortgage from date of the contract, and a deed subject to the mortgage was to be executed by the vendors and possession given to the vendee Crofoot on or before said March 24, 1903. The 50-dollar payment was made. In April, 1903, Crofoot, the vendee in the land contract, who had gone into possession of the land, petitioned the probate court for an order for specific performance of the' contract. This order was refused upon the ground that the vendor had not been discharged from the asylum as cured at the time he entered into the contract. Thereupon a son of complainant, who was a practicing physician in Grand Rapids, who was, to some extent, advising his mother and his sister and brothers, who testifies that it was his opinion that the land should be disposed of, that the contract price was a fair one, and “ I wanted my father to live up to the contract made with Crofoot even if he was insane,” undertook to have the contract performed .by certain proceedings in probate court under the provisions of chapter 244, 3 Comp. Laws, as amended in 1899 (Act No. 2.36) and 1903 (Act No. 207). Upon his petition a guardian was appointed. The guardian petitioned for leave to sell the land and invest the proceeds at interest. Leave was granted, and the land was sold at private sale to Crofoot for $850. He made some minor improvements upon the land, and in February, 1904, sold the property to defendants De Kleine for $3,400, which sum was paid in full. Nicholas, who testifies that he has no recollection of the circumstance of executing the land contract and knew nothing about any of the other proceedings until after his discharge from the asylum, seeks to set aside said contract, the guardian’s deed, the quitclaim deed which his wife executed under circumstances to be related, and the deed from Crofoot and his wife to the other defendants. He asks for an accounting of rents and profits of the land, and for repayment of certain money paid out by his wife, Henrietta. There is also the prayer for other and further relief.
Defendant Crofoot was cognizant of the purpose of the proceedings which resulted in securing for him the guardian’s deed. He understood that complainant’s son proposed to secure him the land at the contract price. The representations made by the son, added to the fact that other members of complainant’s family were either passive or, apparently, assenting, had the effect of rendering all that was done by the guardian perfunctory. Except for the purpose of making the sale, there was occasion for, and there would have been, no guardian. The guardian did not assume and did not propose to assume the duties and the responsibilities, generally, of a trustee of the property of an insane person. He did not seek for purchasers of the land. He exercised no volition so far as. determining, as guardian, whether it was for the interest of his ward that the property be sold. Complainant’s family was in no difficulty. The son testifies:
“At the time I made this petition it was about six months after the property was sold by my father. He was in the insane asylum, and I did it to clear up the contract he had made six months previous to that time. My mother and brothers on the farm were not hard up. They did not need any help from me or anybody else, and that is the reason I took pay from my mother for expenses down here. I thought she was better able to pay than I was to pay my own expenses. * * * I did this service for Crofoot because I thought it was the best way out of the condition things were in. I did not know there was nearly $1,000 worth of personal property there when I made the petition, but I knew there was enough to run the farm successfully. I knew they had money enough to live on, and that they had means to support themselves and care for themselves.”
It is due the son to say that he states his opinion to be that his father was competent to enter into the land contract. But insanity immediately previous and immediately subsequent to the act is established. There is no other evidence of a lucid interval. See 13 Cyc. pp. 573, 752; 22 Cyc. p. 1115. Defendant Crofoot, however, testified that he made the contract, although he knew Nicholas was insane at the time.
Assuming that the record of the proceedings which were taken is, upon its face, regular, it remains that the statute purpose was not the real purpose of those proceedings, and that the real purpose was known to defendant Crofoot. The facts brought to the attention of the probate judge and upon which he acted were not, all of them, true. The petition for appointment of a guardian made by UilkeDe Vries sets out that the estimated value of personal estate of his father is $200, and of his real estate $2,250 or thereabouts, subject to a mortgage of $1,500. The petition of the guardian' sets out that “the income from said estate in its present condition will not exceed the sum of $10,” that the value of the personal estate of his ward which had come to his hands was $215. His inventory described the personal estate as one horse, another horse, three cows, four yearlings, and these were valued by appraisers at $215. In fact, the guardian knew nothing whatever about the matter except as informed by Uilke DeVries. No one pretends that there was a true inventory and appraisement of the personal property, or that the real estate produced so small an income. It is explained by one of the appraisers tnat what they were doing was finding out what property there was in 1901 instead of in 1903. It appears, also, that the real estate was really valued by the appraisers*- subject to the mortgage, at the sum of $1,000, but that it was considered that the dower interest of the widow was worth $150, and so $150 was deducted. It is a fair inference that the $50 paid upon the land contract must have been considered in order to appraise the real estate at $800, as was done. Defendant Crofoot did not pay the guardian $850, the upset price to be obtained at private sale. He paid but $800, and obtained credit for the $50 paid on the contract. He paid, also, 3 per cent, interest upon the $800 and the interest on the mortgage after the date of the contract, as in the contract he agreed to do. He obtained from complainant’s wife, without consideration, a quitclaim deed of the land upon the representation that she, having signed the land contract, had obligated herself thereby to convey her interest in the land. Various expenses of the proceeding, upwards of $30 in amount, were paid by Henrietta. The mortgage, which was not d.ue, has not been paid, although Crofoot has procured it to be assigned by the mortgagee and is carrying it at a rate of interest lower than, by its terms, it bears.
It is said for defendant Crofoot that the evidence warrants no conclusion other than that the parties were acting in good faith, there was no desire or intention to defraud' the complainant, the land sold for all that it was worth, the price which the owner himself fixed was obtained, the whole matter was, in fact, in his interest, and resulted beneficially to him. In this connection we are told that the increased value of the land is due to the fact that an electric railway passed this farm at some time after the contract to sell was made by complainant and before the sale was made by Crofoot to the other defendants. We assume that the road was projected before it was built, and that the fact would have affected the action of a guardian who was conserving the estate of his ward. Whatever the intention of the parties to the proceedings may have been, the purpose and the result was. to enforce in 1903 a land contract made in 1902 by an insane man, and to divest him of his estate upon the terms of that contract. This contract was in any event voidable. Wolcott v. Insurance Co., 137 Mich. 309. It has been avoided if, as we assume, complainant is now sane. His sanity is not questioned in the record. He has not accepted the proceeds of the sale of his land. In the proceedings taken there was lacking, also, the essential elements of official supervision, exercise of official judgment, the moral responsibility of official, fiduciary action. Complainant was not, in fact, represented in the proceedings. No one can say with certainty what sum a guardian charged with that duty could have secured for the land. It is a reasonable conclusion from the evidence that a larger sum could have been secured. We are inclined to the opinion that some care was taken to so value the land that a private sale could be made, under a statute which permits such a sale when the interest of the estate in the land does not exceed, as valued, $1,000. We acquit the son and all others concerned in the probate proceedings of profiting out of what was done. Nevertheless, in equity, if not at law, a fraud was perpetrdted, and a court of equity will treat the entire proceeding as invalid. Encking v. Simmons, 28 Wis. 272; Helbreg v. Schumann, 150 Ill. 12; 1 Story on Equity Jurisprudence (13th Ed.), § 227; Tong v. Marvin, 26 Mich. 35. It is the general rule of law that—
“A legal wrong is committed whenever a man is dispossessed of his property against his will; and, if he de mands his property back, and does not see fit to name a compensation for it, it is clear that nobody else can name one for him. He cannot be forced to submit to a sale at other people’s estimates of value.” Tong v. Marvin, supra.
‘“A sale may have been conducted legally in all its process and forms, and yet the purchaser may have been guilty of fraud, or may hold the property as a trustee. In this case the complainants rely upon no irregularity of proceeding, upon no absence of form. The forms of law were scrupulously observed.’ * * * Jackson v. Ludeling, 21 Wall. (U. S.) 616.
‘ ‘ Had the question of .fraud been before the probate court in any of these proceedings, and had the complainant been apprised of them, the case might have been different. This court would not try over again a case already tried, nor permit the complainant to litigate matters which he had notice of and which he had an opportunity to litigate in the probate proceedings.” Bradley, J., in Johnson v. Waters, 111 U. S. 668, 669.
See, also, Encking v. Simmons, supra. The rule thus stated is applicable here. Such a sale will always be set aside if it is for the benefit of the person non compos mentis where injustice will not be thereby done, or where the parties can be placed in statu quo. And if defendant Crofoot were now the owner of this property, such would be the disposition made of the case.
It is not claimed that the record of the proceedings is infirm, or that it carried to defendants De Kdeine notice of improper or fraudulent conduct. It is claimed that certain circumstances of the manner of their purchase from Crofoot and of their subsequent actions furnish grounds for the inference that they are chargeable with notice of what was sought to be and wás accomplished. Without denying the power of the court to compel them to restore the property and to look to Crofoot for indemnity, we are of opinion that substantial equity can be otherwise done, and therefore as to them we affirm the decree. But the defendant James R. Crofoot should not be permitted to profit by the transaction. We treat him as vendee in a void land contract, who has succeeded in enforcing it, to his profit, against the will and the interest of the vendor. He occupies, in equity, the position of a trustee of the land and of the proceeds thereof. The proceeds are $3,400 as of date March 5, 1904. From this sum will be deducted $2,350 (the money in the hands of the guardian to be paid to complainant), and $125, the value of the improvements Crofoot placed on the premises. The balance, which is $925, with interest at the rate of 5 per cent, per annum from March 5, 1904, he will pay to complainants, with costs of both courts.
The decree below, as to defendants Crofoot, is reversed, and a decree will be entered in this court in conformity with this opinion. As all defendants joined in the answer to the bill of complaint, and have appeared by the same counsel, no costs of the appeal will be awarded to defendants De Kleine.
Blair, Montgomery, Hooker, and Moore, JJ., concurred. | [
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] |
Grant, J.
(after stating the facts).
No defense was made in the court below. It is conceded that the mortgagor was in default, and that the amounts due on the two mortgages are correct. Counsel for the appellant, the William Reid Company, insists that the decree should be reversed and the cross-bill dismissed, and the cross-complainant be relegated to its decree of foreclosure and sale in its original case, and be decreed to take steps to sell at once. No such claim was set up in the answer or made upon the hearing in the court below. It cannot, therefore, be made in the appellate court. Miller v. Walker, 141 Mich. 433. If, however, the point were properly made, it could not be sustained. It is not in the power of the mortgagor to say when the mortgagee under his decree shall sell. Neither is it in the power of the courts. In this case it was most equitable and just to all parties that the sale under the decree of the Window Glass Company should await the foreclosure of the prior mortgage. It was entitled to a sale of parcel A first. The owner of the land was not prejudiced thereby.
Reversal is asked because of the short period between the decree and the sale. Counsel for the appellant contends that 11 days was not a reasonable time allowed for redemption before sale, citing Detroit Savings Bank v. Truesdail, 38 Mich. 430, and Fifth Nat. Bank v. Pierce, 117 Mich. 376. Since those decisions were rendered, the legislature, by Act No. 200, Public Acts 1899, required that the lands should not be sold within six months after the filing of a bill of foreclosure, and giving the mortgagor that time within which to redeem. Those decisions, therefore, have no application now. The claim, however, is without merit, for the appellant, defendant, and its grantor had had ample time to redeem before the decree was rendered. The land is not worth the amounts due under the mortgages. Under such circumstances we cannot hold that the time fixed by the decree was unreasonable.
The decree is affirmed, with costs.
McAlvay, C. J., and Blair, Ostrander, and. Hooker, JJ., concurred. | [
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Montgomery, J.
(after stating the facts). In this court it is contended that the circuit judge erred in refusing to strike out the testimony of witnesses stating their opinions as to the amount of damages resulting from the washing and caving away of the land. This' motion was made at the close of all the testimony and after the testimony questioned had been received without objection, and the witnesses had departed. The measure of damages had been stated in the presence of the jury to be the deterioration of the value of the farm by reason of the negligent acts of defendant. We cannot doubt that the court, the witnesses, and counsel all understood that this was precisely what the witness was attempting to state; and, while it may be conceded that the form of question propounded was objectionable if timely objection had been made, we do not think this slip for which defendant’s counsel was equally responsible with plaintiffs worked any injury to defendant. See Zabel v. Telephone Co., 127 Mich. 402.
It is next urged that a new trial should have been granted because the joining of demands for which plaintiffs were not entitled to recover with that upon which they did recover resulted in prejudicing the jury unduly and in a verdict which was unjust. We do not think this a legal ground for a new trial. The plaintiffs had a right to join several demands for different torts, and to attempt a recovery on each in good faith.
It is also insisted that the circuit judge should have granted a new trial on the ground that the damages allowed were excessive. We feel constrained to hold that this contention should prevail. It is true there is a basis in the testimony of the plaintiffs’ witnesses for a larger verdict than that given, but it is not understandable how such figures could be made. The circuit judge distinctly limited the plaintiffs to damages already accrued. There was no tangible testimony of any damage other than the loss of the land and inconvenience in farming such as lay within the 15-foot strip across the plaintiffs’ farm. If it be assumed that it was made necessary to remove the fence, the expense of doing so might be added. We think the statement of defendant’s witness that double the value of the land taken would be sufficient compensation was sufficiently liberal, and on this basis a verdict of $250 would have covered the extreme value.
The judgment will be reversed and a new trial ordered, unless the plaintiffs shall remit the sum of $200 within 30 days. On filing such remittitur, the judgment will stand affirmed, except that defendant will recover costs in this court as upon a reversal.
McAlvay, O. J., and Ostrander, Hooker, and Moore, JJ., concurred | [
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Champlin, J.
This is a general demurrer for want of equity to a bill of complaint filed by the complainant against the defendant to abate a private nuisance. The material allegations of the bill are that the complainant is the owner of lot 15, in block 10 of Bostwick and Co.’s addition to the city of Grand Bapids, except a strip six feet in width, front and rear, off from north of said lot; that her lot is forty-four feet in width, fronting on Sheldon street, and constitutes her homestead; that defendant owns the land next to and adjoining her land on the north; that a line fence marks the boundaries of their respective lands; that defendant commenced the erection of a barn upon his premises so near the line that she feared the cornice would project over upon her premisos; that she made inquiries of defendant as to whether he intended to construct a cornice over her premises, but could obtain no information from him as to his intentions; that she warned him that he must not so construct his barn as to cause any part of it to project over her premises. Nevertheless defendant built his barn near the line, and constructed a cornice which projects over her premises a distance of sixteen inches at the west end, and six inches at the east end, and covers a distance of twenty-one feet in length; that the cornice is built, upon a gable of the barn, and at the eaves is about fifteen feet above the ground, and the peak is abont twenty-eight feet above the ground ; that the projection of said cornice over-the line of said lot, as herein set forth, materially and permanently injures her said property; that it would prevent the use of a portion of her said land for the purposes of a residence; that it very materially injures the looks of her homestead, and would very much depreciate the market value thereof, and render it unsalable; that, having but a limited amount of land, such an unjust appropriation is an irreparable injury to her homestead, and the evident intent, as your oratrix verily 'believes, of the said Robert B. Woodcock, in wrongfully infringing upon her rights in this regard, is to ultimately encroach still further upon her premises, as he has given out and insisted that he owns three feet in width off from the north side of your oratrix’s said land, which he intends, as your oratrix has been informed and believes, to recover unjustly from her. And your oratrix further shows, and charges the fáet upon her best judgment and belief, that if said projection is permitted to remain, her said homestead will be thereby depreciated in its market value, and in value, considering the injury in its looks and convenience in the use and enjoyment of her said property, at least $500.
The defendant claims that the bill states no case for equitable relief — -first, because it appears by the bill that there is a dispute about the boundary; and second, complainant has an adequate and complete remedy at law, in an action of trespass or trespass upon the case, an’d because the injury does not appear to be irreparable, since she states the depreciation in the market value of her homestead will be at least $500, and it is not alleged that defendant is pecuniarily irresponsible and unable to respond in damages at least to that amount.
A general demurrer challenges the equity of the case made by the bill, and must be overruled if a case for equitable relief is set out, however imperfectly. Glidden v. Norvell 44 Mich. 206; Hoffman v. Ross 25 Mich. 175; Clark v. Davis Har. Ch. 227. The bill stages a case for equitable relief. The continued invasion of complainant’s rights of property by the maintenance of the projection of the cornice over her north line, constituting a permanent injury to and depreciation of her property, addresses itself to and calls in exercise the equitable jurisdiction of the court. No remedy at law is adequate, owing to the uncertainty of the measure of damages to afford complete compensation. In one sense it is taking from complainant her property without condemnation and without due process of law. No person can be permitted to reach out and appropriate the property of another, and secure to himself the adverse enjoyment and use thereof, which, in a few years, will ripen into an absolute ownership by adverse possession.
How. Stat. ch. 273, provides a remedy, where the plaintiff prevails in an action on the case for a private nuisance, for the abatement of the same. It is quite evident that there may be cases where the present injury would be so inconsiderable to the mind of a jury that, although the nuisance complained of might be of the most annoying kind, they might fail to give the.plaintiff a verdict for damages. This statute does not take away the jurisdiction of a court of equity; but affords a concurrent remedy ; and we can see no good reason for turning the complainant out of a court having full and complete jurisdiction to seek her remedy in a court having not greater but more limited power to afford complete and adequate relief. Fraedrich v. Fliette 25 N. W. Rep. 28: 63 Wis. ; Denner v. Chicago, Milwaukee & St. Paul Ry. Co. 57 Wis. 218.
The statement that the depreciation of her property will be at least $500 does not deprive the party of relief in a court of equity. The object of the pleader in making the averment was doubtless to show that the injury exceeded $100. We do not feel called upon to say, upon this record, whether an averment of the kind is necessary in cases of nuisance, nor that a suit in equity must fail if the proofs should disclose that the damage was less than $100.
Irreparable injury, in the sense in which it is used in con fei’ring jurisdiction upon courts of equity, does not mean that the injury complained of is incapable of being measured by a pecuniary standard; nor does it appear from the face of the bill that the injury complained of, for which relief is sought, is a question of a disputed boundary between the parties. The bill states with certainty and particularity the boundary line between her and the defendant, and her ownership in fee of the land south of such boundary. Her averment that she believes that defendant intends ultimately to encroach still further upon her premises, and stating as the basis for such belief that defendant has given out and insisted that he owns three feet in width off of the north side of her land which he intends unjustly to recover from her, is not such a statement of a dispnte about a boundary as would deprive the court of jurisdiction. The defendant urges that he has a right to have his title to the three feet, which he insists he owns, and which is in the possession of the complainant, tried by a jury. This suit does not deprive him of that right. The courts of law are open, and the remedy by ejectment is ample, and he is the only party who can bring the action.
The decree of the court below is affirmed with costs. The record will be remanded, with leave for defendant to answer in twenty days .on complying with the order of the court below as to payment of costs.
The other Justices concurred. | [
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Morse, C. J.
August 13th, 1883, the plaintiff, who is the wife of defendant, brought replevin for a large amount of personal property, including “ about sixteen acres of wheat in stacks, about eight acres of corn in stacks, and about eighty bushels of corn in the crib.” It appears that in February, 1871, the defendant, who was living upon a farm belonging to his wife, by a written assignment transferred all his personal property to plaintiff, except a clover-huller and horse-power. March 14th, 1871, he also executed to her a bill of sale, transferring to her an engine, belts and trucks, twenty acres of growing wheat, and a mowing-machine and one reaper. Both of these instruments were received in evL dence. The plaintiff testified in her own behalf, and several other witnesses gave evidence of statements made by defendant to the effect that his wife owned all the property on the place; all of them, excepting two, testifying to conversations from 1871 up to 1881, and not later. Nimrod Munsey testified that in the fall of 1882 defendant told him that all the property belonged to his wife; and Jeremiah White, a son of the parties, gave evidence that he had often heard his father say that all the personal property on the place belonged to his wife. “ Heard him say so recently.” The defendant offered no testimony, and before the case went to the jury a few articles were admitted to belong to him, and the jury so found as to them, but rendered a verdict for the plaintiff for the balance of the property.
The defendant’s counsel asked the court to instruct the jury that the plaintiff must identify the property and show that she was the owner of it at the time she brought her suit. This instruction was evidently aimed at .the items of corn and wheat stated in the declaration, as near the close of the-charge of the court the defendant’s attorney said : “ We ask for the wheat and corn.” The court replied : “It is for the jury to say.”
Defendants Counsel. “ There is nothing to show that she-owned the wheat or corn.”
The Court. “If they [the jury] find any property that belongs to him [defendant] under this testimony, then they will give him a judgment for the amount. It is for them to-say what the testimony was, and not the court.”
The defendant excepted to this charge of the court and his refusal to state to the jury that there was no testimony-tending to show that the corn and wheat belonged to the plaintiff, and assigns error in the submitting of the question whether she owned the wheat and corn to them.
We think the circuit judge should have instructed the jury to find a verdict for the value of the wheat and corn for the defendant, he having waived a return of the property. There-is an utter absence of any testimony in relation to the ownership of this portion of the property. Indeed, it is not mentioned by any of the witnesses, not even the plaintiff herself.. As the evidence showed all the property in defendant’s possession at the time of the serving of the writ, he was entitled to judgment for the wheat and com, as against the plaintiff, who showed no right to it. There was no evidence even as-to its being raised on her place.
Defendant also objected to any further evidence being-given in the case, after it was shown she was the wife of defendant, upon the theory that the wife could not maintainreplevin against her husband. The fact appeared that before'- and at the time of suing out her writ she was living separate- and apart from defendant, and that before bringing the suit. she made a demand for the property. We have no doubts as to her right to maintain this action.
For the error in submitting the ownership of the corn and wheat to the jury the judgment of the court below is Reversed with costs and a new trial granted.
The other J ustices concurred. | [
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] |
Champlin, J.
Plaintiff is a corporation organized under the laws of Michigan for manufacturing purposes. Its principal office for the transaction of business is located in the city of Detroit. It is the owner of large quantities of pine, located on the Manistique river and its tributaries. It neither owns nor hires a mill to manufacture its logs into ■lumber. Its operations consist in cutting logs and running them down the Manistique river to Manistique, where they are manufactured into lumber under the following contract:
“Detroit, Mich., May 19th, 1883.
Mr. Abijah Weston, President of the Weston Lurriber Co. and the Chicago Lumbering Co., Present — Dear Sir : As we have heretofore talked, we submit the following as an agreement between your'eompany hereinbefore named, and the Manistique Lumbering Company, concerning the booming and sawing of logs, and piling of lumber from the same, for the said Manistique Lumbering Company.
The Manistique Lumbering Company are to deliver the logs in the jam, the head of which shall be designated by your company, to the Manistique river, and your company are to take the logs from such jam and saw them into lumber in a merchantable, workmanlike manner, and pile same on your docks in a convenient place for shipping, at $3 per thousand feet, board measure. Your company is to have the mill culls for the saw bill, or we to have them and pay the saw bill, at our option; said lumber to be cross-piled in proper form for seasoning and to save the'same from staining. The amount to be cut per year to bo thirty million, or whatever of said amount we may deliver as aforesaid during 1883, and about forty millions during 1884, and from forty to fifty million feet per annum thereafter, while the timber of the Manistique Lumbering Company on the Manistique river and its tributaries lasts, as the Manistique Lumbering Company may elect; but they shall give your companies written notice in September of each year of the amount they propose to furnish for the following year, said notice to be mailed to the "Weston Lumber Co., at Manistique, Mich. Of course, should you be prevented by reason of fire or other unavoidable accidents from cutting so much, we shall not expect your companies to saw beyond their capacity. Payment for sawing to be made in two. months from the end of the month in which the sawing is done.
If this is in accordance with the understanding of our agreement heretofore made, please acknowledge the receipt of this letter at your convenience, and we will consider the contract for sawing closed.
The $3 per thousand feet saw bill before mentioned to cover costs of piling lumber, use of dock, and all other charges upon said lumber. The Manistique Lumbering Co. to take said lumber from the piles hereinbefore mentioned.
Yours, very truly,
Tiie Manistique Lumbering Co.,
[Signed] By B. A. Alger, President.”
“Detroit, Mich., June 1, 1883.
The Manistique Dtmibering Go., Detroit, Mieh. — Gentlemen: Your letter of the 19tb ult., addressed to the Weston Lumber Co. and the Chicago Lumbering Co., concerning sawing for the Manistique Lumbering Co., has been received and duly considered.
The Weston Lumber Co. accepts the proposition for sawing as named by yon, reserving the right to manufacture into shingles such of the Manistique Lumbering Co.’s logs as may be deemed, in their judgment, the most profitable to do, and will charge therefor their regular rate per thousand feet for manufacturing the same.
The Weston Lumber Company, [Signed] By Abijaii Weston, President.”
The lumber was placed in piles upon the dock, and marked with plaintiff’s name, and remained there for the purpose of becoming seasoned, which took from three months to a year, according to circumstances. The Manistique Lumber ing Company had no lumber-yard in Detroit, and paid no taxes in Wayne county. The Weston Lumber Company is a corporation engaged in the manufacture of lumber, and its mill is located on the west side of the Manistique river, near its mouth, in the township of Hiawatha. It has extensive piers and dockage facilities situated in that town. The Chicago Lumbering Company is also a corporation owning and operating a saw-mill located in the township of Manistique, near the mouth of the river of that name, and it likewise has extensive piers and docking facilities on the east side of the river. This company has an office for the transaction of its business, situated in the township of Manistique.
Mr. James McCaul testified that he was a stockholder, director and secretary of the plaintiff company, and that all the business of the corporation is directed from Detroit; that the buying of supplies, directing of the operations in the woods, and the selling of the lumber are attended to in Detroit ; that all the business of the company is done there; that contracts for the sale of lumber are made there; and after the contracts are made for the delivery of the lumber, it is taken away ; the corporation plaintiff delivers it to vessels; that, as it happened, all plaintiff’s contracts for sale of lumber have been made to A. Weston & Sons, of' Tona■wanda, New York. Their vessels, the Tonawanda Barge Line, have, in most cases, taken the lumber. That when plaintiff makes a sale of lumber in its Detroit office, it notifies the Weston Lumber Company of that fact; that no written notice ever has been sent, but informally, giving the quantity that has to be shipped. At the last sale the representative, Mr. Mercereau, was present in the office, and he was notified that the lumber was sold to A. Weston & Sons. This witness also testified that the Manistique Lumbering Company had no other place in the State where it stored its lumber; that the Weston Lumber Company make reports to the Detroit office of shipments.
John Mercereau testified that he had resided in Manistique nine years, and is the only local director of the Manistique Lumbering Company in the county; that he made reports to the office in Detroit of shipments of lumber made by him under the direction of the office in Detroit; that he also made a like report to A. Weston & Sons. They were made from the shipments, as it was measured onto the vessel. The scaler in the yard makes the measurements, and the books from which the scales are kept are in the office. This witness was tire secretary and treasurer of the Weston Lumber Company, and the treasurer of the Chicago Lumbering Company, and a director of both companies. Aside from being the secretary and treasurer of the Weston Lumber Company, he had charge of the office work. He further testified that when he received notices from Detroit of lumber to be shipped he merely filed them in his office as reference for the price that the lumber is sold for, and that was all. He never notified anybody to cany out these orders and directions he received. The means whereby they were carried out were that A. Weston & Sons ordered the lumber as they wanted, “and we filled their orders.” They send' their orders to the Chicago Lumbering Company usually, and the superintendent of that company attends to the shipping of the luihber. He has charge of shipping all the lumber manufactured at the mills. It appears from the testimony of this witness that the Chicago Lumbering Company keeps an account of all the sawing done at each of the mills, as well its own as the two mills belonging to the Weston Lumber Company, and also the expense of tallying, and the amount of lumber shipped at Manistique sold by the plaintiff, the amount of lumber piled in the different piles, and the quantity, when known. Everything is entered upon the books of the Chicago Lumbering Company, and from these books the reports are made to the plaintiff at Detroit, monthly; and at the end of the year the expense of tallying is settled up. A. Weston & Sons notify and direct the Chicago Lumbering Company from Tonawanda the kind and dimension, as well as quantity, they desire shipped at Manistique of the lumber purchased from plaintiff, and this company fills the order from plaintiff’s lumber on the dock, it enters the shipment upon its books, and sends plaintiff a copy thereof, and another copy to A. Weston & Sons.
The witness, William H. Iiill, who was the superintendent of the Chicago Lumbering Company, gives a very clear and distinct statement of the mode of operations at the mills, and the piling and shipment of lumber. He says that he has'charge of shipping the lumber belonging to the Manistique Lumbering Company cut at the mills of the other two companies; that he receives his directions as to shipping principally from A. Weston & Sons of Tonawanda — sometimes by letter and sometimes verbally from Mr. Weston, when at Manistique — and he ships according to those orders ; that the lumber is stacked up for seasoning before shipment. The average time would be three months, if before navigation closes; after that it would be six, nine months, or a year. That which is made in the latter part of the season remains over until the next shipping season.
It is an admitted fact in this case that the plaintiff had quite a large amount of lumber and logs in the township of Manistique, upon which a tax of $2317.74 had been assessed for the year 1884, and by virtue of the tax-roll and warrant, the defendant, as township treasurer, had seized the lumber replevied in this case ; that plaintiff refused to pay the tax, claiming that it was not liable to be taxed upon said logs and lumber.
The statute (Act No. 9, Sess. Laws 1882) under which the property of plaintiff was assessed, reads as follows :
“ Sec. 10. All personal property, except as hereinafter provided, shall be assessed to the owner in the township of which ho is an inhabitant, on the second Monday of April of the year for which the assessment is made.
Sec. 11. The excepted cases referred to in the preceding section are as follows, viz.: First. All goods and chattels situate in some township other than where the owner resides shall be assessed in the town where situate, and not elsewhere if the owner or person having control thereof hires or occupies a store, mill, place for sale of property, shop, office, mine,, farm, storage, manufactory or warehouse therein, for use in connection with such goods and chattels.”
Another section provides that all corporations not paying a specific tax shall be assessed the same as natural persons, and their residence shall be deemed to be where their principal office for the transaction of business in this State is located.
The defendant claims that the personal property of the plaintiff which was assessed in the township of Manistique was properly and legally assessable there, and not elsewhere, for three reasons, specified in the statute above quoted, namely:
First. It hires and occupies a place for the storage of its lumber in Manistique township. ■
Second. It has a place for sale of property in that township ; and
Third. The plaintiff, or person having control of its personalty, has an office in the township of Manistique.
The contract for sawing the logs which plaintiff runs down the Manistique river, and for piling the lumber on the docks, and the testimony relative to the disposition of the lumber so piled, strongly impresses me with the correctness of the first position taken. In the first place, in regard to the logs, which constituted a portion of the property assessed. They had reached their destination when delivered into the store booms of the Weston Lumber Company. They were then in control of the Weston Lumber Company, to be manufactured under the contract, and it occupied these booms as a place of storage, and used it as such in connection with the logs. I think, while these logs were stored in the booms of the Weston Lumber Company, they were legally assessable as the personal property of the plaintiff in that town. Of course, it is understood that I allude to such logs as were delivered to the Weston Lumber Company, and were stored in its booms, at the time the law requires property to be assessed for taxation, in the township of Manistique. As to the lumber there piled on the docks, the case is much clearer in favor of the legality of the assessment. By express stipulation between the parties to the contract, “ the $3 per thousand feet saw bill, before mentioned, to cover costs of piling lumber, use of dock, aud all other charges upon said lumber; the Manisticpie Lumbering Company to take said lumber from the piles hereinbefore mentioned.” Here, by the contemplation and intent of the parties, the lumber was to be stored upon the dock where piled, and compensation for the use of the dock for that purpose was included in the three dollars called the saw bill. It was piled upon the dock, and was to remain there until seasoned and fitted for market, precisely the same as it would be had plaintiffs rented or occupied a distinct and separate mill-yard for the same purpose. They sold the whole cut of their logs to A. Weston & Sons, of Tonawanda, but plaintiffs were to deliver the lumber to them at Manisticpie, on board their vessels, and from these piles. Weston & Sons directed as to the manufacture of the lumber, and they selected from the lumber so piled the kind and particular lumber to be delivered, under orders which they drew as they desired, in just the same manner as they would in making purchases from any other lumber-yard. The law required the supervisor to assess all property to the owner on the second Monday of April of the year in which the assessment is made. The proofs showed that lumber not sufficiently seasoned for shipment at the close of navigation was stored in piles on the docks until the next season of navigation opened. The lumber, therefore, which the supervisor found to assess had been upon the docks at least six months. During all the time it'remained on the docks the title and possession of the lumber remained in the plaintiffs. It did not pass to A. Weston & Sons until delivery on board their vessels. The Chicago Lumbering Company acted for the plaintiffs in making such delivery. It received the orders from A. Weston & Sons; caused the lumber to be shipped according to those orders, at plaintiff’s expense; furnished to plaintiffs and to A. Weston & Sons a bill of lading or statement, showing the quality, kind and price. It entered every transaction upon its books, which were the recognized source of information to all parties concerned in the lumbering business at that point. The number of the piles of lumber, and the time when each was capped or completed, was made and kept, in form of a chart, by the Chicago Lumbering Company. In all these things the Chicago Lumbering Company •acted as the agent of the Manistique Lumbering Company.
The facts appearing in the record are abundant to show that the Chicago Lumbering Company was the agent of the Manistique Lumbering Company, and, aside from making contracts for sawing and sale of lumber, its business was carried on through its agent at Manistique. This portion of its business was local in its character, and permanent in duration, so long as the business is or shall be carried on under existing arrangements.
These facts plainly distinguish this case from the former decisions of this Court, which are relied upon by the counsel for the plaintiff as sustaining its claim that the assessment upon which the tax was levied was illegal; and calls for a decision contrary to those. By so holding, no injustice is done to the corporation plaintiff. It is not denied that it owned the property assessed. Neither is any claim made that its property was overvalued. It was assessable therefor either at Detroit or Manistique; and it was not assessed in Detroit. We refrain from passing at this time upon the “question as to whether this is the appropriate or even permissible remedy under the statute regulating the action of replevin, as no point is made upon it, and the parties have stated in their stipulation that it is their desire to litigate only the question of the liability of the plaintiff to be taxed in said township upon logs and lumber.
Dnder the facts disclosed in the record we hold that the plaintiff is liable for the tax assessed in the township of Manistique, and therefore
llevei’se the judgment of the circuit court, and order a new trial.
Campbell, C. J. and Morse, J. concurred. Sherwood, J. concurred in the result. | [
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] |
Campbell, J.
In this case plaintiff recovered against defendant for injuries alleged to have resulted from negligence in not properly removing snow in the street, whereby plaintiff’s horse was thrown down, and damage occurred to him. The principal questions not supposed to be covered by the decision in Bowen v. Detroit City Ry. Co. 54 Mich. 496, relate to the form of the declaration, and to refusal to charge as requested.
The testimony tended to show that the fall of plaintiff’s horse, which was attached to a sleigh running on two sets of bobs, was caused by a sudden jolting upon a ridge between the rails and the existence of a slippery bank on 'which he was moving outside of the rails, so that it might have been open to some question whether the ridge between the rails was the only cause of his being thrown down.
Upon the trial the testimony proceeded on both sides without objection so as to fully explain all the facts bearing upon the manner and cause of the injury. Had objection been made for variance, it is clear that no one could have been taken by surprise by the testimony, and an amendment would have been allowed as a matter of course. But we do not think the declaration is open to the criticism made. It very plainly describes the snow banks as “along and very near to said street railway track, and between the double tracks thereof,” and it also states that as the sleigh struck the ridge between the tracks, the horse slipped on the steep and ■slippery bank, piled, etc., “along and near said street railway track,” etc. This distinguishes between the two places, — one where the sleigh struck, and the other which the horse had reached and on which he slipped and fell, and a similar distinction is kept up in the further recitals. We think there was no variance.
The other main objection is that the court did not give the following charge when requested:
“ If the defendant, in cleaning from its tracks the snow, threw it to the sides with scrapers, and, after putting it there, promptly leveled the same off, then the fact that such a disposition of the snow raised the general level of the carriage or sleigh track above the level of the street railway would not make the act of the company in so disposing of the snow unlawful, improper or unreasonable.”
We do not think the court could have so charged as a question of law. It is quite possible for such a disposition of the snow, outside of the depression in which the track would thus bo placed, to make it absolutely unsafe to cross the track or to travel in security beside it. As it was decided in Bowen's Case, we think that any disposition made of the snow must be made with due reference to the rights of travel upon the highway, and that the request which the court refused left this qualification out of view.
Upon the remainder of the case we have been unable to discover that the rulings upon the trial were not in full accordance with our former decision, or that there was any failure to do what was proper in dealing ufith the law and facts, or in any of the holdings. We do not think it necessaiy to rediscuss these questions.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, C. J.
The action in this case was instituted to recover damages for the death of the plaintiff’s intestate, caused, as is claimed, by a bridge being out of repair on a highway in the defendant township. It was brought under the statute of 1818 (Sess. L. p. 31), as amended in 1873. (Pub. Acts p. 127; How. Stat. §§ 8313, 8311), which is a general statute, and in its first section provides that “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwith standing the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” The plaintiff recovered judgment in the court below, and the defendant alleges error.
One error assigned goes to the whole ground of action. The action for causing death by wrongful act, etc., is purely statutory, there being none at the common law, and the defense contend that the statute of 1848, upon which the suit is based, has no application to cases of this nature. When that act was passed townships were not liable for injuries occurring in consequence of defects in their bridges: that liability was created by subsequent statutes. Commissioners v. Martin 4 Mich. 557; Leoni v. Taylor 20 Mich. 148; Medina v. Perkins 48 Mich. 67. Under the subsequent statutes the person injured may recover damages, but it is not. expressly provided that his representative may recover in case of his death. His representative can therefore recover, if at all, only through the application .to the case of the statute of 1848. But this, it is said, can only be done by very liberal construction of that statute, which, being in derogation of the common law, is to be strictly rather than liberally construed. Such is the argument.
But the statute of 1848 is in the strictest sense a remedial statute, and as such it should receive not a strict, but a favor, able construction. It was passed to remedy a great defect in the law, whereby, through the very severity of the injury which a party’s negligence or misbehavior had caused, he in many cases escaped responsibility altogether, though these were exactly the cases in which he ought with most certainty to be held chargeable. But a liberal construction of the statute is not necessary to make it applicable in these cases, for we have only to apply it according to its plain language and intent, and it reaches them beyond question. It is general, and applies “ whenever ” a death has been caused under circumstances which would have given a cause of action had the person survived. It was not made for cases which might arise under the law as it then was, but it was enacted to establish a general and very wholesome rule, as applicable to causes of action that might arise under subsequent remedial statutes as to those arising under the common law or under statutes then existing. The trial judge was right in overruling this defense.
In making out her cause of action the plaintiff called Anna Merkle as a witness, who testified that she was then— December, 1S81 — sixteen years of age; that on July 5,18S1, she went with her father, the intestate, to Owosso in a lumber wagon with two horses after a grist; that the road led across the bridge over the Maple river in Bennington; that in crossing that bridge the witness noticed the planks being broken and movable, and that they rattled when the horses went over them; one plank was warped and lifted up on the west side of the bridge. The horses were a gentle team and went over safely. It was in returning that the injury occurred, and the witness described it as follows : The horses “ walked onto the bridge and walked up to the plank ; they stepped onto the plank with their front feet, and the nigh horse noticed something wrong, and he turned his head to the right and stepped onto it with his back feet and got caught, and he made one jerk and pushed the wagon sideways, and he went off sideways, and I heard something crack and fall onto the bridge. The tongue fell onto the bridge, and after that fell the wagon turned towards the west and ran down the bank and then turned right upside down. I jumped out into the road just before the wagon turned over. The tongue was down at that time and the horses were trying to get loose from the wagon, and they did get loose from the wagon and ran away. Nothing was broken about the wagon. I noticed before I went home that the whiffletree on the nigh side was broken. I ran across the bridge for help, but did not stay to look at it. I noticed then that the plank was turned over and another one laid across. The plank was on the west side of the bridge, running right across, and another one turned towards the north, so it was out of place then. My father fell onto a pile of stones, and was injured very badly, and was not able to walk.” He died some four weeks after the injury.
The plaintiff also produced William Hume as a witness, who testified that on July 5, 1881, he was called as a physician to see Mr. Merkle at Mrs. Cook’s house, twenty or thirty rods from the bridge; that he found him in quite a good deal of agony, and on examination found that he had received asevere injury to the back and in the region of the kidneys. Witness made up his mind then that Merkle was seriously injured internally and would probably not recover. He asked Merkle to narrate “how the accident occurred, and he said that when he was driving over the bridge, as the horses got upon the plank, he said it was bowing, that both ends had over the end a 2xé scantling that laid along the edge to hold the plank down. He said, as the right horse stepped upon that plank, the other end flew up — or the off horse — and scared one of the horses and he jumped, and as he jumped he made a severe lunge and the plank raised up under him and the whiffletree broke and the tongue came down, so it just struck the last plank on the bridge and that threw the tongue to the right and the horses ran and the tongue ran into the ground and he was thrown on a pile of stones and he didn’t know anything more until he found himself in Mrs. Cook’s.”
This evidence was received under exception by the defense, and its reception is one of the errors now relied upon. For the plaintiff it is claimed that these statements of the intestate were admissible as part of the res gestas, and several cases are referred to as authority.
One of these cases is Insurance Co. v. Mosley 8 Wall. 397. In that case the question at issue was whether the decedent had died in consequence of an accidental falling down stairs in the night. His widow was permitted to testify that he got up in the night and went down stairs; that when he came back he said he had fallen down the back stairs and almost killed himself ; that he had hit and hurt the back of his head in falling, and he comjflained of his head and appeared faint and vomited. She was up with him all night, and he appeared in great pain. These declarations were held to be properly thus proved, on the ground that they were of •the nature of res gestee, and substantially contemporaneous-with the main fact in issue.
Jordan v. Commonwealth 25 Grat. 943, is another of the-cases relied upon. There the question was one of identity of parties who had robbed a woman. The prosecution was allowed to prove that within a few minutes of the robbery the woman gave a description of the robbers to the witness, and that the-latter pursued after the parties and caught the respondent,, who corresponded to the description which had been given to him of one of the robbers. It was very properly held that what the woman thus promptly said was part of the res gestae. Similar to this in the promptitude with which the declarations followed the criminal act is People v. Vernon 35 Cal. 49, where they were also held admissible. Burns v. State 61 Ga. 192, is to the same effect, but it appeal’s to have been decided upon a section of the Code.
In the case of Waldele v. Railroad Co. 29 Hun 35, the time which had elapsed after an alleged injury by .a railroad train was twenty or'twenty-five minutes, and a witness was-permitted to testify that the party told him he got hit; that-there was a long train, and he stood waiting for it to go, and an engine followed and struck him. This case may be considered authority for admitting the declarations of Merldethat his injury had come from an accident at the bridge, but. it scarcely goes further.
The cases of Driscoll v. People 47 Mich. 415; Stewart v. Brown 48 Mich. 383; People v. Simpson 48 Mich. 474; and Brownell v. Railroad Co. 47 Mo. 239, are scarcely relevant, to this. They were well decided, whether this case should be ruled one way or the other.
In this case the point chiefly in dispute was whether at the time the bridge was out of repair. There was strong-evidence both ways, and it was very important to the plaintiff that she should corroborate as much as possible the evidence-of the young daughter. It was for this purpose rather than to show the general fact of injury and the time and place, that the declarations of Merkle were important. But these declarations were not made on the spot and spontaneously , they were not strictly -or even substantially contemporaneous; but they were made after he had been taken to Mrs. •Cook’s and a physician had been sent for and procured. They were then made as a narrative of a past event. One very .good reason for excluding such narratives is that the party has had time to deliberate and shape them in his own interest, and may be under strong temptation to do so. They are therefore subject to all the suspicions which attend declarations made by a party in his own interest at any time.
The case of O'Connor v. Railroad Co. 27 Minn. 173, which was also relied upon, is much like that of Sisson v. Railroad Co. 14 Mich. 497, and was decided, so far as this point is concerned, in the same way. It has no relevancy, as we think, here.
In this case, after Merkle had been injured by an accident at the bridge, as it is not disputed that he was, it was for his interest, if he could do so, to fix the responsibility for the injury upon the township. To do this, he must show the bridge to have been out of repair ; and it is not necessary to infer a dishonest purpose in his mind to render his evidence unreliable. All questions of doubt under such circumstances would naturally be looked upon with a biased mind, .and the longer the time allowed for deliberation, the greater would be the danger that the utterances would be unreliable. But after such lapse of time as appeared in this case, the ■declarations cannot with any propriety be considered part of the res gestae any more than if made the next day or the ■next year. The affair was all over when Merkle had been taken to Mrs. Cook’s; he had been removed from the scene ■of injury; the surroundings were all changed; the time for exclamation or outcry was passed, and nothing for the present remained to be done but to care for the injured man, leaving investigation into the cause of injury to some more favorable time in the future. The statements made by Merkle to his physician were proper enough as between man and man, but they had no legal value and were therefore erroneously admitted.
The defense, in attempting to meet the case of the plain tiff as to the bridge being out of repair, called Conrad Dench as a witness and proved by him that he crossed the bridge within the thirty days preceding the time of injury. He was then aslced, “ Did you notice the planking ?” and replied, When I went across, it was all right.” The answer on motion was stricken out. . The ruling is now supported in argument on the grounds — -first, that the answer was not responsive to. the question; and second, it was an expression of opinion, and for that reason not proper. The objection that an answer is not responsive, is one to be made by the party who puts the question; not by his antagonist. If the answer is in itself proper evidence, the party who is examining the witness has a right to take and retain it' if he chooses to do so. His doing this merely saves him the trouble of putting another question to draw it out. But in this case it is only on a technical construction that the answer could be held not responsive. The witness was fairly notified by the question put that the purpose was to prove by him the condition of the planking as he found it, and he answered at once that the planking was all right. And in so far as this answer can be considered the expression of an opinion, we do not think the cases of Stange v. Wilson 17 Mich. 342, Ryerson v. Abington 102 Mass. 526, and Kelley v. Fond du Lac 31 Wis. 179, which are cited in support of the ruling, are in point. The first two certainly are not, and the third only decides that witnesses who are not experts cannot be allowed to testify to their opinions whether a certain bridge is or is not safe for travel. That was not the question to which Dench was called. One side affirmed, and the other denied, that a certain plank was warped loose, liable to tip up when a horse trod upon it, etc. When Detach, called as a witness on this controversy, said ££ The planking was all right,” no reasonable man could have understood him as meaning that a loose plank, liable to tip up when trodden upon, was safe or right, but the obvious meaning of his answer was that the flanking was right in the sense of not being thus warped, loose, etc., and if any one thought the reply uncertain and ambiguous, the true meaning should have been made clear by further questions and answers, instead of striking this answer out.
The submission of the case to the jury seems in the main to have been careful and accurate, but doubtless by inadvertence the judge apparently put upon the defense a burden which belonged to the plaintiff when he told the jury that “ the fright of the team is no defense to this action unless you find it was caused by something else than the defect in the bridge.” ’ The important question was whether the defect in the bridge caused the fright; the affirmative fact on that point was to be shown, not the negative. And the affirmative was upon the plaintiff.
Many other errors are assigned and have been examiñed; but we have discussed those we sustain and find none of the others of sufficient interest to require an extension of the opinion. •
A new trial must be ordered.
Campbell and Sherwood, JJ. concurred. | [
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Champlin, J.
Plaintiff was engaged in the insurance business which was carried on by her husband as her agent, lie informed her that her business required more money, and she being the owner of three promissory notes for $750, each made by Robbins and Murray, payable to her order, placed them in the hands of her husband to sell to Mr. Seligman, the defendant, and get the money on them. lie sold the notes to defendant, June 6, 1881, and in the sale he allowed defendant to retain out of the purchase price, and apply upon an indebtedness due from the husband to defendant, the sum of $400. The plaintiff claims that this was contrary to her instructions, and she brought this suit to recover from defendant the sum which she claims was misappropriated.
The testimony is all returned. It shows clearly and without contradiction that William McBain acted as plaintiff’s agent in disposing of the notes, and that his authority was limited to selling them, for money. It also shows a total want of authority of the agent to apply any portion of the proceeds to his individual indebtedness to defendant. The disputed point in the case turned upon the question -whether defendant had or was bound to take notice that William McBain was the agent of his wdfe in disposing of the notes, and whether he had authority to apply the $400 to the payment of his individual indebtedness.
The defendant, against plaintiff’s objection, introduced in evidence a written contract entered into between him and AYilliam McBain, dated the 23d day of March, 1881, which recited that “McBain is indebted to defendant at this date in the amount of $1559.95, and is desirous of paying the same in the following manner, and which defendant accepts, when completed and carried out, for all insurance which the said Seligman has, or is interested in, that is now carried or hereafter to be carried in the office of McBain. The said McBain agrees to carry the same, and to put in the best of insurance companies all said insurance that said Seligman may desire, together with any and all other insurance he may solicit from others, and allow said Seligman one-third of amount of premiums on all said insurance, which is to apply on the old indebtedness before mentioned. And the said Seligman further agrees to make the rates of said insurance as low as another responsible agency in equally good companies; and further to allow the said Seligman interest at the rate of seven per cent, per annum on all amounts due him until the time of final payment; said amounts of one-third of the premiums to be indorsed on the said old indebtedness. And the said Seligman hereby agrees to give the said McBain insurance as heretofore mentioned, to cancel said obligation of McBain to Seligman, provided the rates and companies are satisfactory, and the said McBain remains continuously as now in the insurance business. The aforesaid indebtedness is for endorsements on a Stewart paper, for which judgment has been rendered in favor of Seligman.”
No attempt was made to connect the plaintiff with this contract. The indebtedness mentioned therein had been standing some two years, and was the individual indebtedness of William McBain. It was entirely irrelevant to the issue between the parties, and its admission was erroneous. The court instructed the jury that “ this contract was made by Mr. McBain in reference to the insurance business, although the business had been purchased by his wife from the parties who were previously agents. Mr. McBain was the agent, and of course was authorized to make contracts in reference to insurance. This contract, in the view of the court, appears as a charge on that business. He was bound by that contract to do Mr. Seligman’s insurance, all the insurance he might bring into that office, and to take right out of the money, or some of the money, at least, that belonged to the company, — that is, one-third of the premiums, — and it was to be credited on this paper. That was a charge on the business which a man naturally would like to be relieved of, and it required capital to carry it on, also ; and in the view of the court, he needing capital in the business, I think relieving himself of this charge on the business to the extent of $400, by having that amount indorsed on the paper, was a legitimate use of the money, in view of his statement what his wife authorized him to do with it. I don’t think she could have called him to account for misappropriating it; the effect being to relieve the insurance business of a charge such as is mentioned in this paper to the extent of $400. Therefore, there being no dispute about the testimony, Mr. McBain being the only one who states what his wife directed him to do with the notes, in that view of the case, he having made, in the judgment of the court, a legitimate use of the money, in view of the instructions given him by his wife, your verdict should be for the defendant in this case.”
This instruction was erroneous. There is no doubt that Mr. McBain would naturally like to be relieved of the indebtedness, but he had no authority to charge the business of the plaintiff with his. individual indebtedness, without some evidence to show that she assented to it. But even if the contract constituted a charge upon the business, the $400 in question was not received for premiums in the insurance business, and had no connection whatever with the contract. The notes appear to have been endorsed by William McBain as agent, and it therefore appears upon the face of the papers that the person who negotiated the sale was acting in the capacity of agent, and this was notice to defendant that Mi'. McBain was not the owner of the notes, and put him upon inquiry of the authority of IVIcBain to act. The ownership of the paper discounted or sold to Mr. Seligman, and the nature and extent of the authority of the agent in selling it, were legitimate subjects of inquiry, and were' questions of fact which ought to have been submitted to the jury.
The judgment is reversed and a new trial ordered
The other Justices concurred. | [
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Champlin, J.
This suit is brought by Mr. Sines against the superintendents of the poor of Wayne county, to recover damages for not having been retained in their employment for the remainder of the year, commencing October 1, 1SS2, after February 1,1SS3. His declaration contains two special counts.
In the first he alleges that the defendants promised and agreed with him that if he would undertake to perform the duties of keeper of the Wayne county almshouse, and would cause his wife to perform the duties of matron of the same, from the first day of October, 1882, to the first day of October, 1883, they would pay him $800 when requested, and would furnish him during the year house-rent and board for himself and wife, and keep and board for his horse, in consideration of which he agreed to perform the duties of keeper, and to have his wife perform the duties of matron ; and they entered upon and performed said duties up to February 1, 1883, and were willing to continue, but the defendants on that day, without just cause or provocation, refused further to allow them to perform such duties, or to pay him for their further services, or to furnish house-rent and board for himself and wife, or to keep and board his horse, whereby he has been deprived of profits, etc., and was compelled to remain wholly out of business for eight months, although he diligently sought to again get into business and employment, and to procure employment for his wife, and was put to great trouble and expense in and about procuring a house suitable to live in, and in keeping and boarding his horse.
The second count avers the promise to be to pay him what his services would be reasonably worth, and to furnish house and board for himself and wife, and keep and board for his horse. No question arises under the second special count, or under the common counts, which were also added to the declaration. The plea was the general issue.
On the trial the plaintiff testified in his own behalf that he had been in the employ of the defendants, commencing February 1, 1875, and was their clerk from that time until August 18, 1877, and understood their manner of doing business during that time ; he entered into negotiations with and made a contract with the board; that lie was employed in August, 1877, to take charge of the almshouse as keeper; that he was to have $800 per year, and the keeper’s house was to be furnished to live in, and he was to have his living. The plaintiff then read in evidence, from the defendants’ record, the following resolutions:
“ Wayne County, November 10th, 1880.
At a session of the superintendents of the poor: — present: Messrs. M. Dunn, J. Guthardt, and J. C. McDonald: — the undersigned, superintendents of the poor, have this day elected C. W. Sines as keeper of the Wayne county almshouse, for the year ending 1881, at a salary of eight hundred dollars per year.
Wayne County Almshouse, January 4th, 1882.
Resolved, by the board of superintendents of the poor in and for Wayne county, at one of their regular sessions, held at .their office at the almshouse in said county on the 4th day of January, 1882, that C. W. Sines and wife, the present keeper and matron, be, and they are hereby, reappointed keeper and matron of said almshouse for and until the first day of October, 18S2, at the rate of eight hundred dollars per annum.”
[Signed, the three superintendents.]
The plaintiff further testified that during the year preceding the resolution of January 4,1882, he did the duties of keeper, and his wife the duties of matron, and received $800 a year, and had the house and living, and had the keeping of a horse, together with his care and grooming ; that the contracts were always made with him, and no contracts were made with his wife; that the fiscal year and his services by contract ended on September 30th; that just prior to the expiration of the year, he made inquiry of the president of the superintendents as to whether they desired him to remain another year; that he wanted to know, as his houses were both occupied, and lie wished to know, on account of letting his farm the next year; and if they did not want him another year, he wanted to leave when his time was out. The president informed him that he would bring the matter before the board, and in the mean time that he should go on and perform his duties the same as before. Payments for his services had been made monthly, and defendant and wife continued to perform the duties of keeper and matrcs until in January, 1883, and the usual monthly payments for services were made, and nothing was done about terminating his employment until January 3,1883, when the following notice was served upon defendant, namely :
“Wayne County Almshouse, January 3rd, 1883.
Charles W. Sines: Take notice, that your-services as keeper and your wife as matron of the Wayne County Almshouse will not be required after the 1st day of 'February, 1883. You will therefore leave the premises, and deliver up the keys and possession of the county property belonging to said almshouse into the hands of the superintendents of the poor. They have this day appointed S. D. Curtis and his wife as keeper and matron of said Wayne County Almshouse in your stead. Daniel Siiannahan,
John J. Yrooman,
Superintendents of the Poor.”
Defendant continued in service until February 1,1883, and then delivered up the keys to the superintendents, under protest, and endeavored to find work elsewhere during the remaining eight months of the year, but only partially succeeded, having earned only $101 during the time. It will bo observed that no reason is stated in the notice for discharging defendant, and none was offered o'r proved upon the trial.
It is urged by defendants that the contract claimed by the plaintiff is void by reason of the Statute of Frauds ; that the talk with the president in September, to continue work until he had laid the matter before the board, was a contract not to be performed within a year. But this is an erroneous view of the testimony. The contract had been previously made for a year’s service, and under that contract defendant had gone on from year to year, and in such cases, if nothing is-said or done by either party at the end of the year to terminate it, but on the contrary, the person performing service is allowed to continue on without objection, the facts raise the presumption from which the jury hare found that both parties have assented to the contract continuing in force for another year. Tatterson v. Suffolk Manuf’g Co. 106 Mass. 56. The case of Tallon v. Grand Portage Copper Min. Co. 55 Mich. 147, as was said by us when the case was here on a former occasion, rules this case upon the point under consideration.
It is also claimed that the wife of plaintiff should have joined as plaintiff in the action. There is no merit in this point. She was not a party to the contract, and her earnings, whatever they were, as matron, belonged to the plaintiff. Harrington v. Gies 45 Mich. 374.
Upon the question of damages we discover no error in the record.
The judgment of the circuit court is affirmed.
The other Justiees concurred | [
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Carpenter, J.
September 7, 1904, defendant issued to plaintiff a policy insuring against loss by fire a certain dwelling house situated on the west shore of Green Bay, about 10 miles distant from the city of Menominee. The house burned November 16, 1904, and this suit is brought to recover for the loss.
Plaintiff obtained a verdict and judgment in the trial court. Defendant asks us to reverse that judgment upon three grounds. One of those grounds, viz., that the deed of the land upon which the house stood was not in plaintiff’s name, is based upon a breach of a representation contained in the application for said insurance. Defendant cannot rely upon a breach of such representation, because there was nothing in the notice attached to its plea, as required by Circuit Court Rule No. 7, subd. d, to indicate its intention to do so.
There remains for our consideration the contentions of defendant that a verdict should have been directed in its favor upon these two grounds: (1) That she did not own the land upon which the building stood; (2) that she did not occupy the house as her home. These contentions will be considered separately.
The ownership of the land. Plaintiff stated in her application for the insurance that she was the absolute owner of the property, and by. its terms the policy was “void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple.” The facts concerning said ownership are correctly stated by the learned trial judge as follows:
“In the year 1897 Charles Maas, the son of the plaintiff, being the owner of this entire property, gave [by parol] the same * * * to his mother. That she immediately went into possession and has made valuable improvements thereon * * * to the amount of more than a thousand dollars. That she has continued to own and occupy the premises in a general way — I am not speaking of the actual occupancy as a dwelling house, but to qwn the property — I may say, from that time down to this. She has paid the taxes thereon.”
.And the trial judge decided that plaintiff—
“Having received this * * * gift, * * * having gone into possession * * * and made these valuable improvements, that the full equitable title was vested in her, * * * and that her son held the legal title as her trustee, and therefore that her answer was correct when she said that she was the owner.”
Defendant urges that this conclusion was wrong for two reasons: (a) That the parol gift followed by possession and improvements did not vest in plaintiff the equitable title; (6) that plaintiff’s ownership of the equitable title would not comply with the representation and the policy; that these required plaintiff to possess the legal title. These objections are easily answered, (a) That a parol gift of land followed by possession and improvements makes the donee the equitable owner is settled by our own decisions. Potter v. Smith, 68 Mich. 212. See, also, Twiss v. George, 33 Mich. 253; Lamb v. Hinman, 46 Mich. 112; Welch v. Whelpley, 62 Mich. 15; Hawkes v. Slight, 110 Wis. 125; Frame v. Frame, 32 W. Va. 463 (5 L. R. A. 323). (b) That plaintiff’s ownership of the equitable title was a compliance with the representations and the agreement in the policy is also settled by our own decisions. Dupreau v. Insurance Co., 76 Mich. 615 (5 L. R. A. 671); Farmers’ Mut. Fire-Ins. Co. v. Fogelman, 35 Mich. 481. We therefore overrule the first contention of defendant.
We now consider the contention of defendant that the house was at the time of the fire, and had been for 10 days prior thereto, contrary to the provisions of the policy, vacant and unoccupied. Plaintiff contends that she was actually occupying the house at the time of the fire as a dwelling house. This issue of occupancy was submitted to the jury, who found for the plaintiff. Defend ant insists that there was no testimony to justify this verdict. The house was situated on a farm which plaintiff and her family themselves cultivated. They ha'd a home in the city of Menominee, at which, I think, it may truly be said plaintiff spent more than one-half of her time. The testimony shows, however, that she and other members of her family were at the farm much of the time, engaged in carrying on farming operations. One witness says they were there “a few days in every week. They slept there and ate there [in the house] during that time.” The house was furnished with beds, stoves, chairs, and tables for their accommodation, and plaintiff’s husband was in the house at the time the fire occurred. Plaintiff testified that she and her family regarded the house as their home. We think from this evidence that the jury might have inferred, as the learned trial judge decided, that plaintiff was residing in two houses, remaining “part of the time in one and part of the time in the other, and that both might be considered dwelling houses,” and that the question of her occupancy was therefore properly submitted to the jury.
The judgment is affirmed.
McAlvav, C. J., and Grant, Blair, and Ostrander, JJ., concurred. | [
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Ryan, J.
(to reverse). We granted leave in these consolidated cases to decide whether proof that numerous instances of accosting and soliciting for purposes of prostitution occurred at certain places is sufficient to sustain a finding that such places constitute a public nuisance subject to abatement under MCL 600.3801; MSA 27A.3801 (hereafter, abatement act). We hold that it is and reverse the Court of Appeals.
The pertinent facts of these proceedings can be found in Justice Kavanagh’s opinion. We write separately because we do not agree with his analysis of the law applicable to these cases.
Justice Kavanagh finds that this Court’s recent decision, State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), strictly limits the application of the abatement act to houses of prostitution, assignation or lewdness where sexual acts are committed. We do not agree, and read that decision as standing solely for the proposition that motion picture theatres may not be enjoined from showing obscene films under the abatement act.
MCL 600.3801; MSA 27A.3801 provides in pertinent part:
"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, * * * is hereby declared a nuisance and * * * shall be enjoined and abated as hereinafter provided, and as provided in the court rules. Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance.” (Emphasis supplied.)
The difficulty in interpreting the meaning of the statutory phrase, "lewdness, assignation or prostitution” as used in this act, and determining its applicability to the facts before us, stems from dictum in Diversiñed which states that this statute "* * *. was intended to apply to houses of prostitution * * *” and that lewdness and assignation are both synonymous with prostitution. We do not accept this dictum as controlling these cases.
Diversiñed involved an attempt to apply the abatement act to motion picture theatres showing obscene films. The opinion held that the statute was not intended to apply to motion picture theatres where sexual acts are not committed but are portrayed on the screen. In reaching that decision the Court reviewed decisions of other jurisdictions involving apparently similar statutes to determine whether "obscenity” fell within the purview of the statutory phrase "lewdness, assignation or prostitution”, and found it did not. In the course of its review, which appears to have focused primarily on whether obscenity is lewdness, the Court quoted an Illinois appellate court decision which stated that lewdness could not be equated with obscenity, but must be synonymous with prostitution, when the former term was found in a statute prohibiting the use of premises for the purpose of lewdness, assignation or prostitution. In addition, the Illinois court stated, after noting other possible, innocent definitions of assignation, that this term also was synonymous with prostitution.
We find that, in order to determine whether instances of accosting and soliciting for purposes of prostitution constitute prohibited conduct under MCL 600.3801; MSA 27A.3801, we must focus on the meaning of the statutory term "assignation”, rather than focusing on the term "lewdness” as Justice Kavanagh does, and determine whether assignation is synonymous with the statutory term "prostitution”.
In seeking to determine the definition of the statutory term "assignation”, we note that this Court has long recognized that the primary rule governing the interpretation of statutes is to ascertain and give effect to the intention of the Legislature and that in this process, "effect must be given, if possible, to every word, sentence and section”. Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221 (1922). Consequently, if the term "assignation” has a meaning distinct from the term "prostitution”, we must give effect to that meaning in order to effectuate the Legislature’s intention in enacting this statute.
Assignation is not statutorily defined, and a review of Michigan case law has disclosed no precedent which has finally and authoritatively defined that term. We read the definition of this term found in Diversified as dictum and hold it does not control the instant cases which do not involve the showing of obscene films but do involve conduct substantially connected with prostitution.
Because we find no statutory definition or controlling judicial definition of this term, we comply with the legislative directive to construe words used in statutes according to common and approved usage, and look to the common meaning of the term "assignation” to resolve the question before us.
Webster’s Third New International Dictionary Unabridged (1966 ed), p 132, defines assignation as "an appointment of time and place for a meeting [especially] for illicit sexual relations”.
The Random House Dictionary of the English Language: The Unabridged Edition (1969 ed), p 90, defines the term as "an appointment for a meeting, [especially] a lover’s secret rendezvous; a lover’s tryst”.
Finally, the term "assignation” is given the following definition, in 6A CJS, Assignation, p 582:
"The word is defined as meaning an appointment of time and place for meeting or interview; used chiefly of love interviews and now commonly in a bad sense.”
Consistent with these definitions, we find that the term assignation as used in the abatement act encompasses instances of accosting and soliciting for purposes of prostitution because such instances involve the making of an appointment for the purpose of prostitution. We find that limiting this definition to the making of an appointment for the purpose of prostitution is consistent with the apparent legislative intent to eliminate the use of property in connection with prostitution; avoids prohibiting innocent conduct which is of the nature of assignation; and is consistent with the rule of noscitur a sociis.
The judgment of the Court of Appeals is reversed and the decision of the trial court reinstated in each of these cases.
Coleman, C.J., and Williams and Fitzgerald, JJ., concurred with Ryan, J.
Kavanagh, J.
(for affirmance). The question in these consolidated cases is whether proof that soliciting and accosting occurred on the premises is sufficient to regulate a place as a public nuisance under the "red light abatement act”, MCL 600.3801; MSA 27A.3801. The trial court in each case held that it is, and the Court of Appeals reversed. We affirm the Court of Appeals.
Each cause was commenced upon a complaint filed by the Wayne County Prosecutor’s office. A lengthy trial was held in Levenburg. There was testimony that prostitutes frequented Anderson’s Gardens, a bar located in the City of Detroit, and solicited sexual acts to be performed elsewhere. The trial court made findings of fact that within 30 days prior to the filing of the complaint, soliciting and accosting had occurred on the premises. The court also found that during the period from January 1, 1971 to July 1, 1974, over 160 arrests for soliciting and accosting on the premises were made. Based on these findings, the trial court found Anderson’s Gardens to be a place used by prostitutes and used for the purpose of assignation, and thus subject to abatement under the statute, The court permanently enjoined the defendants from permitting the bar to be used for the purpose of assignation.
On appeal, the Court of Appeals reversed. The trial court’s interpretation of " 'assignation’ as including the making of an appointment for purposes of prostitution, and thus including the act of soliciting for prostitution” was held to be erroneous. 75 Mich App 90, 93; 254 NW2d 797 (1977). Relying on this Court’s opinion in State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), the Court held that the premises must be a house of prostitution in order for the abatement act to be applied properly, and a bar wherein no sexual acts for profit occur is not such a place.
Richmond involves an appeal from the trial court’s denial of defendant’s motion for summary judgment. The defendant argued in support of the motion that the Willis Show Bar, holder of a Class C liquor license, is not a "house of prostitution” as the term was used in Diversiñed', supra. The trial court rejected the argument, finding the act applicable to places where acts of soliciting and accosting occur. A majority of the Court of Appeals reversed, holding "the Willis Show Bar is not a house of prostitution”. 77 Mich App 41, 45; 257 NW2d 759 (1977).
In Diversiñed, supra, this Court addressed the scope of the abatement statute in the course of determining the question of whether the statute was intended to apply to motion picture theatres exhibiting obscene movies. Citing several decisions in other states, we found that the statute is " 'directed to the abatement of * * * houses of lewdness, assignation, or prostitution’ ”, and that the terms "lewdness, assignation, and prostitution” are synonymous. 396 Mich 248-249. Accordingly, we held that the abatement statute "was intended to apply to houses of prostitution and not motion picture theatres where sexual acts are not committed but are portrayed on the screen”. 396 Mich 246 (emphasis added).
Appellant now urges us to give a narrow reading to the Diversiñed opinion, and apply the abatement act to bars where sexual acts are not committed but are solicited for performance elsewhere. Two basic arguments are advanced in support. It is asserted that a "house of prostitution” is not limited to premises where sexual acts are committed. Rather, the term should be defined broadly and equated with the definition of a "disorderly house” found in People v Thrine, 218 Mich 687, 691; 188 NW 405 (1922):
" 'A disorderly house, in its restricted sense, is a house in which people abide, or to which they resort, disturbing the repose of the neighborhood; but in its more enlarged sense it includes bawdy-houses, common gaming-houses, and places of like character, to which people promiscuously resort for purposes injurious to the public morals, or health, or convenience, or safety. Nor is it essential that there be any disorder or disturbance in the sense that it disturbs the public peace or the quiet of the neighborhood. It is enough that the acts there done are contrary to law and subversive of public morals, and the result is the same whether the unlawful acts are denounced by the common law or by statute.’ ”
As is apparent from this definition, a house of prostitution, or bawdy-house, is a disorderly house, but not all disorderly houses are houses of prostitution. ”A house of prostitution is one in which a prostitute plies her trade”. 73 CJS, Prostitution, § 1, p 226. Prostitution, the trade of the prostitute, commonly refers to the performance of sexual acts for compensation. Soliciting and accosting and prostitution itself are different and distinct concepts, MCL 750.448; MSA 28.703. Recognizing the distinction customarily drawn, the Alabama Court of Criminal Appeals recently held a complaint alleging the defendant "did prostitute herself by making an offer to indiscriminate lewdness” did not charge prostitution, Holloway v Birmingham, 55 Ala App 568; 317 So 2d 535 (Ct Crim App, 1975), cert den 294 Ala 759; 317 So 2d 541 (1975). The Court stated, 55 Ala App 574:
"Here appellant made a solicitation to perform a natural and an unnatural sex act for a named sum of money. The proposition got no further than that. There was no bedroom affair, no disrobing, no touching of the bodies, no money paid, and no sexual activity. In short, the crime of prostitution was not committed.” (Emphasis added.)
We hold that in order to constitute a "house of prostitution” a place must be one in which sexual acts are committed for compensation. Premises where soliciting and accosting but no sexual acts occur are not houses of prostitution and cannot be closed pursuant to the abatement statute.
Appellant also argues that limiting the applicability of the abatement statute to houses of prostitution, and requiring that sexual acts occur on the premises, ignores the effect the Legislature intended to give the terms "lewdness” and "assignation”.
These terms are not defined in the statute. In Diversiñed we ascribed to those words a meaning we found "clear in light of the history and purpose of these [abatement] statutes”.. 396 Mich 250. Citing State, ex rel Murphy v Morley, 63 NM 267; 317 P2d 317 (1957), we said that the statutory term " lewdness’, applies only to acts of assignation or prostitution”. 396 Mich 248-249. Similarly, in accordance with the rule of noscitur a sociis, we read both "lewdness” and "assignation” as being synonymous with prostitution.
Appellant claims that, despite the definition in Diversified, "lewdness” cannot be wholly limited by the meaning of the term "prostitution”. Rather, lewdness should be given a meaning which comprehends the activity of soliciting and accosting. It is argued that solicitation is inextricably associated with prostitution and is a cognate activity to which the abatement statute should properly be applied.
We disagree, for we are satisfied that such argument misperceives the nature of "cognate” activities. The cognate activities which could properly be embraced would have to be sexual acts of some sort.
In Chicago v Geraci, 30 Ill App 699; 332 NE2d 487 (1975), an Illinois appellate court reached the question of whether a masturbatory massage parlor is a house of prostitution under the Illinois abatement statute. In determining that it was, the court assigned the following interpretation to the term "lewdness”, 30 Ill App 3d 704:
"Although traditionally the term 'lewdness’ is viewed as being broader than and including the term 'prostitution,’ (People v Lackaye, 348 Ill App 542; 109 NE2d 390 [1952]; opinion adopted by Illinois Supreme Court, 1 Ill 2d 618; 116 NE2d 359 [1953]) such terms refer to the same general class of activities which are normally associated with houses of prostitution (or whatever such establishments may be called). They are intended to designate and prohibit sex acts of whatever nature which are performed for money. ” (Emphasis added.)
Solicitation for purposes of prostitution is not covered under the rubric of "lewdness”, as it is not a sexpal act. At most, solicitation is the offer to perform a sexual act for compensation. Establishments used to solicit or offer to perform elsewhere the acts covered by the statute cannot be closed pursuant to it. See State ex rel Washtenaw County Prosecuting Attorney v Western Union Telegraph Co, 336 Mich 84; 57 NW2d 537 (1953).
In accordance with our opinion in Diversiñed, we hold that the abatement statute applies only to houses of prostitution, assignation or lewdness, as places where sexual acts are committed.
The Court of Appeals is affirmed.
Levin, J., concurred with Kavanagh, J.
We note that leave was granted in these cases for the limited purpose of deciding this issue. However, we acknowledge that a judgment for abatement in a prosecution of this nature cannot be rendered without a finding of knowledge of the accosting and soliciting on the part of the owners or operators of the place found to be a nuisance and their acquiescence in those activities.
Such a finding was made by the trial judge in the Levenburg case. No such finding has yet been made in the Richmond case because the trial has not yet taken place. The Richmond case is before us on an appeal from a denial of defendant’s motion for summary judgment.
396 Mich 244, 246; 240 NW2d 460 (1976).
396 Mich 244, 249; 240 NW2d 460 (1976).
396 Mich 244, 249; 240 NW2d 460 (1976), citing People v Goldman, 7 Ill App 3d 253; 287 NE2d 177, 178-179 (1972). Goldman involved an unsuccessful attempt to abate the display and dissemination of pornography and the promotion of a "Swingers Club” pursuant to a statute prohibiting the use of all buildings and places for the purposes of lewdness, assignation or prostitution. The opinion does not indicate that any accosting and soliciting occurred on the premises.
See People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 575; 17 NW2d 756 (1945), as cited in Diversified, 396 Mich 244, 248; 240 NW2d 460 (1976), where this Court acknowledged that one of the purposes of this statute is to effectively eliminate the use of property, real or personal, in connection with prostitution.
MCL 8.3a; MSA 2.212(1).
We note that this definition has been accepted by lower appellate courts in other jurisdictions.
In Garrison v Menendez, 158 So 2d 856, 859 (La App, 1963), writ refused 245 La 643; 160 So 2d 229 (1964), the court found that solicitation for prostitution was an activity included in the ordinarily understood dictionary definition of assignation.
In State v Baldino, 11 NJ Super 158; 78 A2d 95 (1951), the court noted, in dictum, that while defendant could not be convicted of maintaining a place for the purpose of prostitution when it was shown no illicit sexual acts were performed on his premises, he might have been indicted for maintaining a house of assignation due to the use of his establishment for facilitating of appointments for indulgence in illicit sexual intercourse.
Finally, the court in People v Bayside Land Co, 48 Cal App 257; 191 P 994 (1920), appeared to accept the trial court finding that no acts of prostitution or assignation were actually committed on certain premises where acts of sexual intercourse were solicited while finding these activities were still prohibited as falling within the term "lewdness”. Yet the court proceeded to use the term "assignation” in a manner that can only be. understood to be consistent with the meaning we give this term today when it said:
"It appears from the record that a party of some nine persons, among whom were the investigators from the office of the district attorney, were at the Tower Cafe (the premises involved in this suit) and while there made an assignation to repair to the other place
where rooms might be obtained, and where, as stated by one of the women, 'they could have a real party.’ Pursuant to the assignation made on the premises, they did go to the Seal Inn, and there rented rooms, and some of them indulged in lewd acts. Probably the court
admitted this testimony for the purpose of ascertaining whether or not the purpose of the assignation so made was consummated.” (Emphasis supplied.)
Noscitur a sociis is defined in Black’s Law Dictionary (4th ed), p 1209, to mean:
"It is known from its associates. * * * The meaning of a word is or may be known from the accompanying words.
"The doctrine means that general and specific words are associated with and take color from each other, restricting general words to sense analogous to less general.” (Citations omitted.)
The statute provides in part:
"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, * * * is hereby declared a nuisance and * * * shall be enjoined and abated as hereinafter provided, and as provided in the court rules.”
See People v Goldman, 7 Ill App 3d 253; 287 NE2d 177 (1972); State, ex rel Murphy v Morley, 63 NM 267; 317 P2d 317 (1957); State, ex rel Carroll v Gatter, 43 Wash 2d 153; 260 P2d 360 (1953); State, ex rel English v Fanning 97 Neb 224; 149 NW 413 (1914).
Appellant has not proceeded in either Levenburg or Richmond on the theory that these bars are nuisances under common law. See Attorney General, ex rel Optometry Board of Examiners v Peterson, 381 Mich 445; 164 NW2d 43 (1969); Dearborn National Ins Co v Comm’r of Ins, 329 Mich 107; 44 NW2d 892 (1950).
MCL 750.448; MSA 28.703 prohibits soliciting and accosting. It provides:
"Any person, male or female, 17 years of age or older, who shall accost, solicit or invite another in any public place, or in or from any building or vehicle, by word, gesture or any other means, to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor.” (Emphasis added.)
This definition of "lewdness” avoids the vagueness problems noted in Chicago v Cecola, 56 Ill App 3d 143, 148-149; 371 NE2d 955, 959 (1978):
"Upon initial inspection, the word 'lewdness’ appears to be vague and indefinite. In Miami Health Studios, Inc v Miami Beach, 353 F Supp 593 (SD Fla, 1972), the court found that a similar statute prohibiting the maintenance or operation of any place for the purpose of lewdness, assignation, or prostitution was constitutionally infirm as the language employed was too vague and indefinite, and failed to inform reasonable men as to what conduct was prohibited. However, in People v Goldman, 7 Ill App 3d 253; 287 NE2d 177 (1972), the Illinois appellate court observed that lewdness as used in the Illinois public nuisance act, which is quite similar to section 192-1 of the Municipal Code of Chicago, was in the disjunctive seriatim with the words 'prostitution and assignation,’ so that its meaning must be determined by looking to the words with which it is associated. The court concluded that the legislature must have intended 'lewdness’ to be interpreted as being synonymous with 'prostitution,’ and therefore held that the statute was not too vague. (Accord, Chicago v Geraci, 30 Ill App 3d 699; 332 NE2d 487 [1975].) In Geraci, the court adopted the same interpretation with respect to section 192-1 of the Municipal Code of Chicago. We agree with this interpretation.”
See, also, State ex rel Faches v NDD, Inc, 228 NW2d 191 (Iowa, 1975) (holding the term "lewdness”, undefined in the Iowa abatement statute, to be vague).
Appellant’s argument is based on the following language used by the court in Goldman, fn 2 supra, 255, and quoted in Diversiñed, 396 Mich 249:
" 'To fix purpose, we must read text in context and if a word is known by the company it keeps, then "lewdness” is synonymous with prostitution. This aid contemplates that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations, and give color and expression to each other. For example, an "assignation” could be an innocent appointment, a chaste tryst, or a rendezvous (even with destiny), at least those are meanings that can be so ascribed to it, but not here in its context with "lewdness” and "prostitution”. Thus "assignation”, a euphemism coined years ago. to protect the hypersensitive, is synonymous with "prostitution.” ’ ” | [
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] |
Defendant’s motion for bond pending appeal is considered, and it is ordered that the appeal bond posted by defendant in Oakland Circuit Court shall continue in effect until further order of this Court.
Case below, Court of Appeals No. 78-899, per curiam opinion of February 28, 1979. | [
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Rehearing denied. | [
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Fitzgerald, J.
Defendant was convicted by a jury of carrying a dangerous weapon, namely, a machete, in a motor vehicle contrary to MCL 750.227; MSA 28.424. The sole issue on appeal is whether MCL 750.227; MSA 28.424 proscribes the carrying of all pointed tools, utensils, or objects. W© answer this question in the negative and vacate defendant’s conviction.
I
On August 10, 1975, defendant was stopped by two police officers for running a red light in Dear-born Heights. According to the testimony of the police officers, defendant got out of his car after he was stopped and began talking with one of the officers. The other police officer walked over to defendant’s car to look inside, and saw about 8 to 10 inches of a rusty, black-handled machete protruding from under the driver’s seat. The machete was confiscated, and defendant was arrested for having it in his car.
Defendant, who was 18 years of age at the time of the trial, testified that he purchased the machete for $1.98 at a department store when he was 14 years old and that he had used it to throw at trees in his backyard for sport and to chop tree limbs. Defendant testified that on one occasion he placed the machete in the trunk of his car to take it to a friend’s farm to cut up trees. The machete remained in the trunk of defendant’s car for about eight months until one day, when defendant and some friends were at the beach, the machete was used to shorten a pair of trousers for swimming. Defendant explained:
"A. [The Defendant]: I went to the beach one day, me and some other guys, and one of my friends didn’t have any short pants, so we took the machete and cut off the long pants, to shorts, more or less; ripped them and cut them, because this machete wasn’t so sharp.
”Q. [Defense Attorney]: After that was done, where did you put the machete?
"A. [The Defendant]: Just underneath my front seat.”
It appears the machete remained under the front seat of defendant’s car until its discovery by the police on the day of defendant’s arrest.
The police officers who arrested defendant both testified at trial that upon being pulled over, and subsequently arrested, defendant exhibited no hostility towards them. Moreover, the record is totally barren of evidence which would indicate that defendant had any intention of using the machete as a weapon. In fact, in his opening statement the prosecutor told the jury:
"The people in this matter have accused Mr. Brown of carrying a machete, a dangerous weapon, in a motor vehicle. I caution you, we aré not accusing him of carrying this machete for any unlawful purpose. Only the fact that he was carrying it in a motor vehicle.”
The gist of the prosecutor’s case was that a machete could be used as a dangerous weapon and that defendant knew that it could be used as such.
On December 5, 1975, in his second trial for carrying a dangerous weapon in a motor vehicle, defendant was convicted by a jury as charged. The Court of Appeals, in a split decision, affirmed defendant’s conviction "with trepidation” on the basis of People v Smith, 393 Mich 432; 225 NW2d 165 (1975). 78 Mich App 439; 260 NW2d 125 (1977). On May 2, 1978, we granted plaintiffs application for leave to appeal in order to clarify the scope of MCL 750.227; MSA 28.424. 402 Mich 929 (1978).
II
The statute under which defendant was convicted reads, in pertinent part, as follows:
"Any person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, * * * whether concealed or otherwise in any vehicle operated or occupied by him * * * shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.” MCL 750.227; MSA 28.424.
The question before this Court is whether the machete found in defendant’s car was a "dangerous weapon” within the meaning of MCL 750.227; MSA 28.424. It is well settled that some instruments such as stilettos and brass knuckles are dangerous weapons per se, while other instruments are not dangerous weapons unless used in a manner intended to inflict serious injury or carried for such use. In People v Vaines, 310 Mich 500, 504-506; 17 NW2d 729 (1945), this Court stated the rule as follows:
"It is manifest that there are many articles or instruments, other than daggers, dirks and stilettos, which might properly come within the scope of the term 'dangerous weapon’ if they were used or carried for use as weapons. For example, pocket knives, razors, hammers, hatchets, wrenches, cutting tools, and other articles which are manufactured and generally used for peaceful and proper purposes, would fall within the category of dangerous weapons if used for or carried for the purpose of assault or defense. Whether or not such articles are dangerous weapons, within the meaning of that term as used in section 227, would depend upon the use which the carrier made of them. As said in People v Gogak, 205 Mich 260, 265 [171 NW 428 (1919)]: 'There are knives and knives, some dangerous and offensive and some not.’ In interpreting the words 'other dangerous weapon,’ as used in section 82 of the penal code relating to assault, Mr. Justice Wiest said in the case of People v Goolsby, 284 Mich 375, 378 [279 NW 867 (1938)]:
" 'Some weapons carry their dangerous character because so designed and are, when employed, per se, deadly, while other instrumentalities are not dangerous weapons unless turned to such purpose. The test as to the latter is whether the instrumentality was used as a weapon and, when so employed in an assault, dangerous. The character of a dangerous weapon attaches by adoption when the instrumentality is applied to use against another in furtherance of an assault. When the purpose is evidenced by act, and the instrumentality is adapted to accomplishment of the assault and capable of inflicting serious injury, then it is, when so employed, a dangerous weapon.’
"Daggers, dirks, stilettos, metallic knuckles, slung-shots, pistols, and similar articles, designed for the purpose of bodily assault or defense, are generally recognized as dangerous weapons per se. Other articles and instruments become dangerous weapons only when they are used or carried for use as weapons. Therefore, in a prosecution under section 227 it becomes a quesr tion of fact for court or jury determination as to whether or not such articles or instruments are used or carried for the purpose of use as weapons of assault or defense.”
In the instant case, a majority of the Court of Appeals found that the principles set forth in Vaines were rejected sub silentio by People v Smith, supra, Accordingly, the Court of Appeals, with admitted reluctance, affirmed defendant’s conviction notwithstanding the lack of evidence which would indicate that, defendant used the machete as a weapon or had any intention to use the machete as a weapon.
In People v Smith, which involved a prosecution for possession of a M-l rifle in a motor vehicle, this Court employed the rule of ejusdem generis to interpret the words "other dangerous weapon” in MCL 750.227; MSA 28.424:
"In construing statutes in an effort to ascertain and give effect to the legislative interest, courts are guided by a rule of construction known as 'ejusdem generis’.
"This is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated. See 73 Am Jur 2d, Statutes, § 214, pp 407-408.
"Thus here the phrase 'or other dangerous weapon except hunting knives adapted and carried as such’ following those specified types of stabbing weapons, under the rule would be limited to stabbing weapons. As to that part of the statute we see no intent to include firearms of any sort in the phrase 'other dangerous weapon.’” 393 Mich 432, 436.
We believe that in the case at bar, reliance upon Smith has been misplaced. In Smith, this Court did not find that an M-l rifle is not a dangerous weapon per se; we merely held that under the ejusdem generis rule of statutory construction, MCL 750.227; MSA 28.424 does not apply to an M-1 rifle. It appears that the source of confusion, which led a majority of the Court of Appeals to hold that MCL 750.227; MSA 28.424 imposes strict liability for the carrying of all pointed instruments which could be utilized as stabbing weapons, has its origin in the following dicta of Smith:
"The greater difficulty in prosecuting crimes proscribed under MCL 750.226 which does require proof of 'intent to use the [weapon] unlawfully’ in order to support a conviction does not, of course, escape us. It appears, however, that the Legislature was cognizant of the fact that to hold that rifles are included within the proscription of MCL 750.227 would be to subject most weekend hunters, for example, to potential felony prosecution under MCL 750.227 notwithstanding their lack of intent to unlawfully use their hunting rifles.” 393 Mich 432, 437-438.
Accordingly, we today reaffirm the principles set forth in People v Vaines and hold that where a defendant is charged with carrying a "dangerous weapon” contrary to MCL 750.227; MSA 28.424, the burden is on the prosecution to prove that the instrument carried by the defendant is a dangerous weapon per se or that the instrument was used, or intended for use, as a weapon for bodily assault or defense. The fact that a pointed instrument, such as a machete, has great potential as a dangerous weapon does not render it a dangerous weapon per se. Thus, in the instant case, mere proof that defendant knew that a machete could be used as a dangerous weapon does not support a conviction under MCL 750.227; MSA 28.424.
We reverse the Court of Appeals and vacate defendant’s conviction.
Coleman, C.J., and Kavanagh, Williams, Levin, Ryan, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J.
In response to the prosecutor’s questioning as to whether defendant had seen in war movies Filipinos "lob [sic] off Japanese heads with a machete”, defendant did admit that a machete could be used as a dangerous weapon.
In his first trial on October 31, 1975, the jury was unable to reach a verdict.
"Although we affirm defendant’s conviction based on Smith, supra, we do so with trepidation. Our hope is that the Supreme Court will supplant Smith with a reaffirmation of [People v Vaines, 310 Mich 500; 17 NW2d 729 (1945)]. Until then, the hapless citizen, brazen enough to carry a steak knife on a weekend picnic, must continue to fear the zealous enforcement of a dubiously analyzed statute.” 78 Mich App 439, 449-450. | [
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The questions certified are considered. Pursuant to GCR 1963, 797.2, the briefs and appendix in xerographic form are accepted, and the Court accepts the request to answer the two certified questions.
United States District Court, Eastern District of Michigan, Southern Division, Case No. 7-71985. | [
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The complaint for superintending control is dismissed because another adequate remedy, an appeal, is available to appellant. GCR 1963, 711.2, 711.4(b). This action is taken without prejudice to the filing, by appellant, of an application for leave to appeal. The petition for appointment of counsel is denied.
Gerald M. Lorence for plaintiff. | [
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Per Curiam.
We are asked to decide when the statute of limitations begins to run in a malpractice case involving an attorney’s inaction in failing to schedule a debt owed by this plaintiff in a petition for personal bankruptcy. The circuit court granted an accelerated judgment for the defendant after it found the statute of limitations had run. The Court of Appeals reversed and we affirm, finding the statute of limitations starts to run at the time the plaintiff is discharged in bankruptcy.
The plaintiff retained the defendant to file a personal bankruptcy in 1970. The original petition was filed in the bankruptcy court on March 17, 1971, and amended on April 19, 1971. Neither petition scheduled a debt owed by the plaintiff to the Michigan Motor Vehicle Accident Claims Fund. The plaintiff attempted several times to have the defendant schedule this debt, including the filing of a request for investigation with the State Bar Grievance Board on November 22, 1971. The plaintiff received his discharge in bankruptcy on September 25, 1972, but it did not include the debt to the Michigan Motor Vehicle Accident Claims Fund. This suit was filed December 26, 1973.
Both parties agree that the applicable statute of limitations is two years and that the accrual of the claim is governed by MCL 600.5838; MSA 27A.5838 before its amendment by 1975 PA 142. In dealing with the statute, in Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973), we held:
"[A]n action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.”
Applying this standard, the circuit court held the last date of service to be April 19, 1971 (when the bankruptcy petition was amended) and the date of the plaintiffs knowledge of the asserted malpractice to be November 22, 1971 (the date of filing the request for investigation with the State Bar Grievance Board). Consequently, it concluded the two years had expired.
The Court of Appeals concluded that when the negligence of an attorney consists of delay or inaction, a client’s cause of action accrues at the time when it can be said that the attorney has had a reasonable time to act but has failed to do so. The alleged malpractice accrued when the defendant failed to schedule the debt within a reasonable time after having been requested to do so by his client. The Court of Appeals held that whether the plaintiff could have discovered the asserted malpractice within the two-year limitation period is a question of fact to be decided by the trier of fact. Therefore the circuit court erred in ruling that the plaintiffs claim was barred by the statute of limitations on the basis of the present record.
We concur in the result reached by the Court of Appeals. We hold that the statute of limitations starts to run at the time the plaintiff was discharged in bankruptcy. Until then, the defendant could have petitioned the bankruptcy court to amend the petition, and the plaintiff would not have had a claim for malpractice.
Affirmed and remanded for proceedings consistent with this opinion.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCL 600.5805(3); MSA 27A.5805(3).
81 Mich App 705; 265 NW2d 797 (1978).
MCL 600.5805(3); MSA 27A.5805(3).
Anno: When Statute of Limitations Begins to Run Upon Action Against Attorney for Malpractice, 18 ALR3d 978, 1002-1005. | [
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Per Curiam.
The defendant has yet to be tried in Wayne Circuit Court on charges of first-degree criminal sexual conduct and armed robbery. Before trial, the defendant filed several motions with the circuit court, two of which form the basis of the prosecutor’s application for leave to appeal to this Court. Pursuant to defense motions, the circuit court ordered the complaining witness to undergo a psychiatric examination to be performed by a psychiatrist of the defendant’s choosing and further ordered the discovery of any and all records relative to the treatment of the complaining witness by her personal physician. The prosecutor argues here that the granting of these motions by the circuit court constituted an abuse of discretion.
When the prosecutor initially appealed to the Court of Appeals, that Court by order reversed the circuit court’s order. The defendant appealed to this Court, however, and we remanded the case to the Court of Appeals for further consideration. 402 Mich 930 (1978). The Court of Appeals then reinstated the circuit court’s order with instructions to review, in camera, the results of all psychiatric evaluations of the complaining witness to determine whether they would be admissible at the trial on the merits.
We are convinced that on the record before us the circuit court’s order compelling the complaining witness to submit to a psychiatric examination and further ordering discovery of the complaining witness’s past medical treatment for an alleged mental disorder constituted an abuse of discretion. A trial judge does indeed have discretion, in a criminal case, to order discovery. People v Johnson, 356 Mich 619; 97 NW2d 739 (1959); People v Maranian, 359 Mich 361; 102 NW2d 568 (1960). That discretion, however, is subject to review for abuse.
In this case, a hearing was held on the defense motions. Defense counsel argued, but did not substantiate his claims, that he was entitled to have his motions granted because the complaining witness is a "highly nervous person”; the alleged crimes had occurred more than two years before the date of the hearing; the complaining witness is mentally retarded; the accusation is "uncorroborated”; and the information was necessary to attack the complaining witness’s credibility. The circuit court, without elaboration, granted the motions.
We conclude that a criminal defendant desiring relief such as this defendant sought must more adequately demonstrate the need for the discovery he seeks. We will not speculate as to what factors would warrant providing that relief. Clearly, however, something more than the amorphous contentions advanced in this record must be supplied. In addition, we do not believe a defendant should be allowed to select the psychiatrist; if a court grants defendant’s motion, it should designate the psychiatrist.
Accordingly, since we have found an abuse of discretion, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the orders of the Court of Appeals and the circuit court and remand the case to the Wayne Circuit Court for further proceedings. The stay of proceedings entered by this Court on December 6, 1978 is vacated.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
The defendant, Samuel Till, was jointly tried with codefendant Frank Thompson. The two were alleged to have participated in a kidnap-murder with Ernest Browning, Larry Lester and Michael Champion. The victims, Luther McCoy and Clifford Riley, were kidnapped and taken to Thompson’s house. Phone calls were made to McCoy’s family demanding ransom, no ransom was received, and the hostages were taken to a vacant house and shot by Browning.
Mamie Mayes identified Till as a participant in the kidnapping. She stated on cross-examination that she identified him in a lineup and was impeached by evidence that she did not. In rebuttal, a photographic identification of Till, inadmissible under People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), because Till was in custody at the time of the photographic identification, was then admitted to rehabilitate Mayes. This was reversible error.
I
Mamie Mayes supplied some of the evidence linking Till with the crime. She testified that on the night of the kidnap-murder she heard a car stop outside her house. She looked out the window and saw a car with its motor running. A man got out of the car and waved toward the end of the street. She left the window to check her baby and when she returned another car was stopped near the first. Three men got out of the second car. Two of the men were forcing a third toward the first car. They had a gun to his head and his hands were fastened behind his back. They all drove off in the first car.
At trial, Mayes identified a photograph of the man with the gun at his head. Thompson’s counsel asked if she recognized anyone in the courtroom as one of the men in the car. She identified Till, but not Thompson. On cross-examination by Till’s counsel, she testified that she had been to show-ups and had identified Till. Till’s counsel clarified that it was a live show-up that he was asking about. Again she answered "yes”, she had identified Till. The only participant she claimed to have identified in a show-up was Till.
The "show-up attorney” on the day the lineups were conducted testified for the defense that Mayes participated in three lineups, . one with seven participants and two with six. Till did not participate in any of the three lineups. In the first lineup Mayes identified individual number 4. She said that numbers 5 and 7 looked like the man but "number 4 looks exactly like the one who was in the car”. She made no identification in the second lineup, and she identified one individual in the third lineup. Neither of the people she identified was Till or any other of the participants.
In rebuttal, the prosecution offered, over objection, the testimony of the officer who had conducted a photographic lineup in which Mayes identified Till and Browning. The photographic identification was conducted without the presence of counsel at a time when Till was in custody. The judge admitted the testimony as a prior consistent statement for the limited purpose of rehabilitating Mayes.
II
A
Testimony concerning the illegal photographic identification should not have been admitted. In Anderson, supra, this Court discussed the problems inherent in photographic identifications and held those identifications unacceptable when the defendant is in custody and thus available for a lineup and, in the rare and special circumstances when a photo identification is necessary, that the suspect is entitled to have an attorney present at the identification. The identification of Till violated this rule. It was, therefore, inadmissible in the people’s case in chief.
The people argue that the identification was nevertheless admissible on rebuttal. The people analogize to Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), where the defendant’s statement, inadmissible because it was obtained in violation of Miranda, was held admissible to impeach his statements on direct examination. Harris rested on the analysis that a defendant should not be permitted to perjure himself and then insulate his false statements behind an exclusionary rule. In Harris, the impeaching statement was obtained in violation of Miranda’s prophylactic rule which guards against unknowing waivers of Fifth Amendment rights without regard to whether the statement is voluntary. Harris made "no claim that the statements made to the police were coerced or involuntary”; the Court said that Miranda did not bar for all purposes evidence inadmissible in the case in chief "provided of course that the trustworthiness of the evidence satisfies legal standards”. 401 US 224.
In People v Reed, 393 Mich 342, 356; 224 NW2d 867 (1975), this Court recognized that distinction and held that "an involuntary confession because of its untrustworthy evidentiary value is not usable either as direct evidence or for impeachment purposes”. The Anderson rule excluding counsel-less photographic identifications of persons in custody is designed to protect against untrustworthy identification and is thus within the principle of Reed and unlike Harris.
B
The trial court admitted the identification as a prior consistent statement, not to be considered as evidence but merely to rehabilitate Mayes. The identification was not admissible on this basis.
Mayes testified that she identified Till in a lineup. Till’s witness proved that she did not and that, in fact, she identified other persons. The fact that she picked Till’s picture in a photographic identification does not show she identified Till in a live lineup and hence was not a consistent statement.
C
The people should not have been permitted to bring in the inadmissible photographic identification in rebuttal. The error was clearly not harmless. The only other evidence admissible against Till tending to link him to the crime was the testimony of an accomplice who had been granted immunity. That testimony would be cautiously examined by the jury. A disinterested witness’s identification of the defendant might well have been decisive. Consequently, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the defendant’s conviction and remand the case to Recorder’s Court for the City of Detroit and for a new trial.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). | [
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Defendant-appellee’s motion for equitable relief is considered, and it is denied because the Court is not persuaded that the relief requested should be granted. | [
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] |
Rehearing denied. | [
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] |
Blair, J.
Complainant filed the bill of complaint in this case to foreclose two mortgages of which he was the owner by assignment. The first mortgage was executed July 3, 1888, by the defendant Jan Malinowski and Florentyna, his wife, to secure the payment of a note for $700, of even date, given by Malinowski to M. G. and R. P. Clapp, payable, with interest at 7 per cent., July 3, 1892. The second mortgage was executed September 13, 1888, by and to the same parties, to secure payment of a note by Malinowski for $100, payable, with interest at 7 per cent., July 3, 1892. Prior to the execution of the second note and mortgage, and on July 30, 1888, Malinowski executed a quitclaim deed of the mortgaged property to his wife, Florentyna, for an expressed consideration of $700. Florentyna died September 14, 1892, leaving five children, one of whom has since died. The four surviving children, three of whom were minors, were joined with Jan Malinowski as defendants.
The two mortgages were on August 20, 1900, assigned by the Clapps to Andreas Koch, with a covenant that there was then due thereon $450 and interest from July 3, 1900. On January 2, 1903, Malinowski paid to Koch the principal and interest due on the mortgages, with the understanding that Koch would return the money to him on the mortgages, if he so desired, and Koch assigned the mortgages to Malinowski, with a covenant that there was $450 due thereon. On September 26, 1903, Malinowski assigned the mortgages to Koch with the same covenant, and Koch paid him $450. On January 19, 1905, Koch assigned the mortgages to the complainant, with a covenant that there was due thereon “four hundred and fifty dollars and intérest from March 26, 1904.”
The only question in the case which requires consideration is whether the effect of the transaction between Malinowski and Koch was to discharge the mortgages as a matter of law. We are satisfied, from the evidence and from the form of the transaction, that Malinowski did not intend to discharge the mortgages, and that the payment by him and taking the.assignment did not discharge the first mortgage. The effect of the quitclaim deed was to convey the mortgaged premises to Florentyna, subject to the mortgage. As between him and his wife, Malinowski was under no obligation to pay the debt, and, in order to protect himself against being required to pay it, he had a right to purchase the mortgage and compel the land to discharge the mortgage indebtedness.
“ When the estate was sold subject to the mortgage, the mortgage was left as a primary charge upon the land, although the grantee did not make herself personally liable for it by assuming it. The grantor, who was the maker of the mortgage note, was entitled to have the mortgaged property applied in payment of it. To protect her own interests, she might take an assignment of the mortgage and the debt, and enforce the mortgage by a foreclosure as effectually as if she was not the maker of the note.” Pratt v. Buckley, 175 Mass. 115.
As to the $100 mortgage, the situation is radically dif ferent. Mrs. Malinowski did not take the premises subject to this mortgage. • At the time this mortgage was executed she was the owner of the property, and mortgaged her separate property to secure the payment of her husband’s debt. As between her and her husband, he occupied the position of principal and she that of a surety. The mortgage was not the primary fund as between them; but the primary obligation rested upon the husband. It was the legal duty, therefore, of the husband to pay this mortgage, and his payment of the amount due upon it must be held to have discharged the mortgage ás a matter of law. The interest paid by Malinowski prior to the sale to complainant cannot avail complainant, since he can only recover upon what he purchased and seeks to enforce in his bill of complaint.
The minority of part of the defendants has no relevancy to any of the questions presented by this record. Complainant is entitled to a decree of foreclosure of the mortgage of July 3, 1888, upon which there is due the sum of $350 for principal and interest at 7. per cent, from March 26, 1904.
The decree will be modified as above indicated, and, as so modified, is affirmed, with costs of this court to defendants,
McAlvay, C. J., and Carpenter, Grant, and Ostrander, JJ., concurred. | [
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The Court
refused the order asked for. The highway commissioner has no authority to let jobs for which the statutes require sealed proposals, to persons who did not make such proposals, and at a time subsequent to the opening of the bids. Hannah v. Fife 27 Mich. 172; Mackenzie v. Baraga Township 39 Mich. 554. | [
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Grant, J.
(after stating the facts). By the judicature act of the Ontario legislative assembly of 1881, it was enacted:
“ The high court of justice and the court of appeal respectively, in the exercise of the jurisdiction vested in them by this act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely, or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever, as any of the parties thereto may appear to be entitled to, in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided.” 1 Rev. Stat. 1887, chap. 44, § 52, subd. 12.
The rules adopted by the Canadian court provide:
“ Every statement of .claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant, in his statement of defense. If the plaintiff’s claim be for discovery only the statement of claim shall show it. * * *
“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, and, without any amendment, judgment may be given against one or more of the defendants, according to their respective liabilities.”
The plaintiffs planted their suit in Canada under the above act and rules of pleading. They deliberately asked two remedies: (1) The rescission of the contract; and (2), if they were not entitled to rescission, damages for fraud alleged to have been practiced upon them by the agents of the corporation. The corporation through its officers, the appellees in this suit, specifically denied the fraud and misrepresentations, and asserted a counterclaim for the amount due under the contract, and asked judgment for that amount. All the issues that are now made were there deliberately made by the plaintiffs. AlPthe issues were decided against them. Not content with the decision of the trial court, they appealed to the appellate court, and in their statement of claim, which, under the practice in Canadian courts, they were required to make, they deliberately alleged error, both in the failure to grant the rescission of the contract, or, in the alternative, to give damages for the fraud, if they were denied rescission.
This, therefore, is not a case of mistaking a remedy. It is rather a case where the plaintiffs seek to try anew the same issues that were tried in the Canadian court. Where a litigant has chosen to proceed against the agents of a corporation for misconduct on their part and has been defeated, he is thereby barred from litigating the same cause of action against the principal. Emma Silver Mining Co. (Limited) v. Emma Silver Mining Co. of New York, 7 Fed. 401. It follows that a determination of the issue in a suit brought against the principal bars an action against the agents. Emery v. Fowler, 39 Me. 329.
After the affirmance of the judgment in the appellate court the plaintiffs'settled the entire controversy. They were relieved from the payment of a large part of the judgment against them, and reconveyed the property to the corporation. That settlement was made with and through the appellees, Anderson and Curry, as the duly authorized officers' of the corporation. McMath, who is charged with making the false representations as to value, was the accredited agent of the corporation to effect the sale.
We agree with the finding of the Canadian court that there was no false representation as to value. Plaintiffs bought the land for speculation. They bought during a “boom,” when values were at the highest point. They soon after contracted to sell some of the lots for $6,950. They were sold upon a contract, and, with the fall of the boom, prices went down, and most of the lots reverted to them. They would have realized a very large profit on these lots, in some cases 100 per cent.
It is not claimed that Anderson and Curry made any representations or authorized McMath to make any representations as to the value. The court was right in holding that the representations were simply expressions of opinion. Counsel for the plaintiffs seek to make the fraud in this case a deceit, and therefore claim that the corporation would not be liable in an action for deceit. The true test is: Was the fraud or deceit (the name is immaterial) practiced by the agent one for which the princi pal is liable ? If the agent acts within the scope of his authority and his principal accepts the benefits derived from the misrepresentations, the principal is liable, and both may be joined in the same action, or each may be sued separately.
In the case of Wilson v. Hotchkiss, 2 Ont. L. R. 261, the court says:
“ The case established is the ordinary one of principal and agent, and there is nothing to take it out of the general rule that the master or principal is answerable for every such wrong of his servant or agent, as is committed in the course of his service or for his master’s or principal’s benefit, or, to speak more accurately, for his master or principal, though no express command or privy be proved.”
See, also, Mackay v. Commercial Bank of New Brunswick, L. R. 5 P. C. 394; Citizens’ Life-Assurance Co. v. Brown, A. C. (1904) 428; Frankenburg v. Horseless Carriage Co., L. R. 44 Q. B. Div. 504; Ontario Industrial Loan & Investment Co. v. Lindsay, 4 Ont. R. 473; 10 Cyc. p. 1207; 2 Current Law, pp. 6008.
It follows that the entire issue in this case was settled against the plaintiffs by the judgment of the Canadian court, and is res adjudicata. It also follows that the settlement with the corporation was also a settlement with these defendants.
The judgment is affirmed.
McAlvay, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred. | [
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] |
Sherwood, J.
The defendants were trustees of the village of Grand Ledge, and a committee on streets therein. On the 3d day of September, 1883, they made the following contract with the plaintiff :
“This agreement, made this 3rd day of Sept., A. D. 1883, by and between H. A. Lyon, of Wacausta, Clinton county, Michigan, and Geo. W. Irish and Milo Campbell, trustees of the village of Grand Ledge, county of Eaton, state aforesaid.
Witnesseth that the said II. A. Lj'on, in consideration of the covenants hereinafter mentioned on the part of the parties of the second to be performed, doth agree to and with the said Geo. "W. Irish and Milo Campbell, trustees of the village of Grand Ledge, that he will, within thirty days from the date hereof, build and complete two wing-wails and one abutment at the south end of bridge across Grand river, in the village of Grand Ledge, Eaton county, Michigan, according to specifications hereto annexed, furnishing all material for the same.
And the said Geo. W. Irish and Milo Campbell, trustees of the village of Grand Ledge, county and state aforesaid, covenant and agree to pay to the said H. A. Lyon two hundred and ninety-five dollars, payments to be made as work progresses.
In witness whereof, we have hereunto set our hands and seals this 3rd day of September, A. D. 1S83.
II. A. Lyon. [l. s.]
Geo. W. Irish, Trustee, [l. s.] Milo Campbell.” [l. s.]
The plaintiff went on and performed the work mentioned in the contract, and now brings this suit to recover the balance due from the defendants. The cause was tried in the circuit court for the county of Eaton before his honor Judge Hooker, without a jury, who found the facts and rendered judgment thereon for the defendant, and the plaintiff appeals. He claims the findings do not support the judgment. The facts found are substantially as follows:
1st. On September 3, 1883, defendants were members of the common council of Grand Ledge, a municipal corporation by virtue of the laws of Michigan.
2nd. On that day they executed a writing with one II. A. Lyon, the brother of plaintiff, which writing was upon said trial marked Exhibit A [being the contract],
3rd. By the terms of said writing said Lyon was to build abutments for a bridge in Grand Ledge, and was to receive $295 in payment therefor. By the terms of the specifications, which were made a part of the contract, he was to receive payment as work progressed, subject to approval of the committee on streets of the village of Grand Ledge.
4th. Both parties understood that this was a contract between Lyon and the village, and both believed it a valid contract, binding upon said village.
5th. II. 'A. Lyon performed the labor contemplated by said contract.
6th. LI. A. Lyon received payment in part, to wit., the sum of $60, from the village.
7th. II. A. Lyon subsequently assigned said claim to his brother, the plaintiff.
8th. Payment has been refused by the village authorities and defendants before action brought.
Upon these findings the circuit judge found the law applicable thereto as follows:
1st. The village of Grand Ledge had no power to make or authorize such a contract, and is not bound.
2nd. The persons named as defendants, being officers of said village, acting bona fide and without concealment or fraud, are not personally bound upon said contract.
3rd. The defendants should have judgment of no cause of action, with costs.
It was unnecessary to pass upon the legal liability of the village; but under the testimony which would be necessary to support the finding of facts above stated, it is difficult to see why the village should not be both legally and equitably liable.
We think the other conclusions of law reached by the eourt are irresistible upon the facts found.
The judgment must be affirmed with costs.
Campbell and Champlin, JJ. concurred; Morse, C. J. did not sit. | [
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Montgomery, J.
This case was before the court at the October term, 1904. A judgment for th'e plaintiff was reversed, and a new trial ordered. Barnum v. Railway Co., 137 Mich. 580. The case has been retried, a verdict and judgment for plaintiff entered, and defendant again brings error. It is not deemed necessary to restate the facts at length. By reference to the report of the case in 137 Mich. 580, a full statement will be found accompanied by a map showing the scene of the accident.
It is now contended that no negligence is shown on the part of the defendant, that the decedent is shown to have been guilty of negligence, and that the court was in error in submitting either question as one of fact for the jury. It is also contended that there was error in the instructions as given. The further contention is made that the court was in error in refusing a new trial based on the ground that the verdict was clearly against the weight of testimony. In our former opinion it was clearly indicated that the facts were such as to bring the case within the rule of Breckenfelder v. Railway Co., 79 Mich. 563, as it relates to the question of the contributory negligence of plaintiff. See, also, Grenell v. Railroad Co., 124 Mich. 141, and Hintz v. Railroad Co., 140 Mich. 565. The facts appearing on the second trial have not weakened the case of the plaintiff in this respect.
As to the question of defendant’s negligence, the court on the former hearing, while implying that this was also a question for the jury, held that there was error in submitting the case to the jury. We are of the opinion that on this record the plaintiff made a case for the consideration of the jury as to the defendant’s negligence. Our view of this question can be best expressed by a consideration of the charge of the court and the facts as stated in the former opinion in connection with the assignment of error on the charge. The charge complained of was as follows:
• “You are instructed that you must not find defendant guilty of negligence from the mere fact that the locomotive was backing over Beach street crossing following the freight train. Safe railroading is often a matter of minutes, sometimes seconds, and it is not for juries or courts to determine what good or bad railroading requires from their own opinion, or from the fact that an accident has happened under certain conditions; but it is for you to determine, under all the circumstances, surroundings, and conditions as they existed at and near the crossing, the fact that the Pere Marquette Railroad was in close proximity, the fact that Saginaw street bridge was not in use for teams, the increase of travel, if any, over the Beach street crossing, and the amount of travel over the same, the fact that there were no flagman or gates at such crossing, the obstructions, if any, which may have obstructed the view of the track to the east of the crossing in respect to persons approaching the crossing from the north, the passing of the freight train, the following of the backing engine, its speed, and the proximity to the train, whether or not the brakeman was on the tender in position to signal the engineer in case of danger to persons making Beach street crossing, and, under all the other facts in the case, whether the defendant railroad was exercising such ordinary and reasonable care and caution as ordinary prudence would dictate in running its engine and tender,' backing the same, following the freight train that had just passed Beach street going in the same direction and on the same track. If you find that the defendant railroad was not exercising such ordinary and reasonable care and caution in its conduct as ordinary prudence would dictate, then I charge you that defendant railroad would be guilty of negligence, and plaintiff would be entitled to a judgment, if you find that such negligence of the railroad was the proximate cause of the injury, provided you further find that Mr. Nixon was exercising such ordinary and reasonable care and caution as an ordinarily prudent man would exercise under the same circumstances, surroundings, and conditions as you will find they appeared to him at that time.”
It will be seen that the elements left to the consideration of the jury were an obstruction of the view of the track in the direction from which this engine and tender were approaching, the absence of a flagman and gates, the passing of the freight train immediately before, and the absence of a lookout on the tender. With these elements all stated, it was left to the jury to say whether, under all the circumstances, there was negligence. There was testimony tending to show that each element stated existed in fact, and we are of the opinion that when all these circumstances are considered it was a proper question for the jury as to whether reasonable care was exercised by the defendant. It is quite possible that no one of these facts by itself would constitute, or even evidence, negligence, and yet when all are taken together a jury be fully justified in finding negligence. It is not ordinarily negligence to neglect to have a flagman at a crossing in the absence of an order from the commissioner of railroads, and yet circumstances of the particular case may be such that the absence of a flagman may be evidence of negligence. See Freeman v. Railway Co., 74 Mich. 86 (3 L. R. A. 594); Willet v. Railroad Co., 114 Mich. 411; Grenell v. Railroad Co., 124 Mich. 141; Grand Trunk R. Co. v. Ives, 144 U. S. 408; 2 Thompson on Negligence, § 1535. And so of the absence of a flagman or lookout at the rear of a car being backed across a way. Green v. Railway Co., 110 Mich. 648; Schindler v. Railway Co., 87 Mich. 400; 2 Thompson on Negligence, §§ 1571 and 1594.
On the former hearing it was held that it was error to charge the jury that the negligence of the defendant could be found from the mere fact that the engine followed the train immediately. It is insisted that the charge given on the last trial is open to the same objection. We do not so construe the charge. The circuit judge plainly instructed the jury in the language of our former opinion that negligence could not be found from the mere fact that the engine followed the train closely, and then added a statement of other elements of negligence which were to be considered in determining whether in such circumstances the company was exercising ordinary and reasonable care.
We think the case was a proper one for the jury, and was well submitted. We are not convinced that the court was in error in refusing a new trial.
No prejudicial error being found, the judgment is affirmed.
McAlvay, C. J., and Carpenter, Blair, Ostrander, and Moore, JJ., concurred with Montgomery, J. | [
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