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Griffin, J.
In 1974, while on strike against the Dow Chemical Company, 486 of Dow’s employees arranged with other employers to perform interim jobs which lasted, on the average, less than two days, for the purpose of qualifying for unemployment compensation. While the strike was still in progress and claims by the 486 employees for unemployment benefits were pending before the Michigan Employment Security Commission, the Legislature amended §29(8), the labor dispute disqualification provision of the Michigan Employment Security Act, and made clear that similarly situated claimants are ineligible. In this appeal, we are required to decide whether the statutory change is applicable to the 486 claims at issue in this case. Although reclamation of unemployment benefits awarded by the commission and already paid to these employees is now barred by limitations imposed by statute, we hold that 1974 PA 104 operates to preclude any charge against Dow’s rating account for benefits paid with respect to benefit weeks after the effective date of the amendment, June 9, 1974.
i
The facts are not in dispute. In accordance with the call of their union, United Steel Workers of America, afl-cio-clc, approximately 5,000 hourly workers struck Dow on March 18, 1974, in a dispute over wages and working conditions. During the strike period, which continued until September 9, 1974, none of the employees involved in this appeal resigned from their employment with Dow. Each claimant’s regular work with Dow remained available to him throughout the strike, and each striker retained certain pension rights and seniority status with Dow.
Many of the striking employees, including the 486 involved in this appeal, filed claims for unemployment compensation. Initially, the mesc issued determinations disqualifying all claimants from benefits by reason of §29(8) of the act, which at that time (March, 1974) provided:
An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by such labor dispute, in the establishment in which he is or was last employed, or to a labor dispute (other than a lockout) in active progress, or to shutdown or start-up operations caused by such labor dispute, in any other establishment within the United States which is functionally integrated with such establishment and is operated by the same employing unit. No individual shall be disqualified under this subsection 29(8) if he is not involved in such dispute.
Thereafter, upon the advice of their union, the 486 claimants involved in this appeal obtained short-term employment from other employers, and then filed again for unemployment benefits, contending that their brief interim employment had the effect of terminating the § 29(8) labor dispute disqualification.
It is undisputed that the nature and duration of the interim work performed by each of the claimants are accurately described in a summary of cases attached to Dow’s brief on appeal. The summary indicates that the average time worked by the claimants prior to June 9, 1974, the effective date of the amendment of § 29(8), was less than two days; in many instances, claimants worked for only a few hours. Although all of the claimants received remuneration for work performed, virtually none earned an amount equivalent to their unemployment compensation rate for the week.
As indicated above, while the Dow strike was in progress, the Legislature amended § 29(8) of the mesa and thereby added certain criteria to be applied in determining whether subsequent employment operates to terminate the labor dispute disqualification:
An individual’s disqualification imposed or imposable under this subsection shall be terminated by his performing services in employment with an employer in at least 2 consecutive weeks falling wholly within the period of his total or partial unemployment due to the labor dispute, and in addition by earning wages in each of those weeks in an amount equal to or in excess of his actual or potential weekly benefit rate with respect to those weeks based on his employment with the employer involved in the labor dispute.
Accordingly, under the amendment the labor dispute disqualification could be avoided only by working for another employer for at least two consecutive weeks and for wages for each such week equal to or in excess of the actual or potential weekly benefit rate provided by the mesa. Not a single one of the 486 claimants in the instant case fulfilled the requirements of the 1974 amendment either before or after June 9, 1974.
Nevertheless, the mesc determined that the interim employment of the 486 claimants operated to terminate the labor dispute disqualification in each case, that each of the 486 claimants was entitled to unemployment benefits, and that corresponding charges should be placed against Dow’s rating account. Dow unsuccessfully challenged each claim by appealing to the mesc Board of Review. The 486 cases were then consolidated in an appeal by Dow in the Midland Circuit Court, which affirmed the board’s decision, and its decision was thereafter affirmed by the Court of Appeals sub nom Dow Chemical Co v Curtis, 158 Mich App 347; 404 NW2d 737 (1987).
The mesc and the courts below refused to apply the 1974 amendment retrospectively. The Court of Appeals stated:
The June 9, 1974, amendment to the statute added a higher standard that a claimant must satisfy in order to terminate the labor dispute disqualification. . . . Applying 1974 PA 104 retroactively to claimants who undertook interim employment prior to June 9, 1974, and who could have shown a termination of the labor dispute disqualification under then-existing 1974 PA 11, would have the effect of diminishing their rights to unemployment benefits. Consequently, the general rule in favor of giving retroactive application to remedial statutes is not applicable. Only a clear statement of legislative intent should justify giving retroactive application to this statute. [Id., pp 357-358.]
Refusing also to apply the amendment to determine benefit eligibility for the weeks after June 9, 1974, the Court of Appeals stated:
Finally, Dow contends that, since eligibility must be determined weekly, mesc erred as a matter of law in failing to redetermine each claimant’s eligibility for the weeks commencing June 9, 1974, the effective date of the statutory amendment. Again, we disagree. [Id., p 359.]
On appeal in this Court, Dow again argues that the amendment should be applied to the 486 claims, and that the mesc and the courts below erred as a matter of law in holding to the contrary. Dow maintains that because none of the 486 claimants met the criteria set forth in the 1974 amendment, they were ineligible for any unemployment benefits. In the alternative, Dow argues that the 1974 amendment should determine benefit eligibility for the weeks following its effective date, June 9, 1974.
Unemployment benefits already paid to these claimants cannot now be reclaimed because of a statutory bar. MCL 421.62(a); MSA 17.566(a). However, our decision will determine whether, and to what extent, Dow’s rating account should be charged, pursuant to § 20(a) of the mesa,* 12**** with approximately $1,500,000 paid out for the 486 claims, a charge that imposes a continuing burden on Dow’s account.
For reasons set forth below, we conclude that 1974 PA 104 governs eligibility with respect to benefit weeks after June 9, 1974, its effective date.
II
1974 PA 104 was enacted to restore the viability of the § 29(8) labor dispute disqualification in the wake of this Court’s interpretation of that section in the context of a 1959 strike. In Great Lakes Steel Corp v Employment Security Comm, 381 Mich 249; 161 NW2d 14 (1968), employees of Great Lakes Steel were involved in a lengthy strike. Some of the employees obtained interim employment during the strike with other employers, from which they were laid off after having worked only "a few days to several weeks.” Id., p 251.
The Great Lakes Court interpreted then § 29 to mean that interim employment of even a very short duration was sufficient to terminate the labor dispute disqualification. The Court held that the only standard to be applied with regard to such interim employment was that the claimants be "employees” of "interim employing units.” Great Lakes, supra, p 254. As indicated by the collection of cases annotated in 61 ALR3d 766,* * the majority of jurisdictions, even in the absence of statutory criteria, have insisted that a labor dispute disqualification is not terminated unless the new employment is undertaken in good faith and the former employment is severed. See, e.g., Mark Hopkins, Inc v California Employment Comm, 24 Cal 2d 744, 748-749; 151 P2d 229 (1944). The rationale for imposition of such standards is obvious:
To do otherwise would open the door to unlim ited abuse. It would permit a striker to obtain any sort of temporary work and when it was terminated to apply for benefits for the loss of the temporary job even though the work stoppage [against the struck employer] still continued. [Alin v Alaska Employment Security Comm, 17 Alas 607, 615 (1958).]
As the instant case well demonstrates, failure by the Great Lakes Court to interpret § 29 so as to require "bona fide” employment opened the door to artful dodging of the labor dispute disqualification. The mesc itself recognized this deficiency and urged adoption of criteria to measure the nature and extent of services required to terminate the labor dispute disqualification. Thereafter, the Legislature enacted 1974 PA 104 which amended §29(8) to supply objective criteria for evaluating the substantiality of "interim employment.”
In the absence of any clear indication from the Legislature that retrospective operation was intended, and for reasons set forth below, we conclude that the mesc properly charged Dow’s rating account for benefits paid to these employees with respect to benefit weeks prior to the effective date of the amendment. We also hold that 1974 PA 104 precludes any charge against Dow’s rating account for benefits paid to these employees with respect to benefit weeks after the effective date of the amendment.
MCL 421.32(d); MSA 17.534(d), provides:
The issuance of each benefit check shall be considered a determination by the commission that the claimant receiving the checking [sic] was covered during the compensable period, and eligible and qualiñed for benefits. [Emphasis supplied.]
Section 32(d) authorizes employers to request "a redetermination as to the eligibility or qualification as to that period and a determination as to later weeks and benefits still unpaid as are affected by the protest.” Upon receipt of the challenge to benefits, the mesc
shall investigate and redetermine whether the claimant is eligible and qualified as to that period. If, upon the redetermination, the claimant is found ineligible or not qualified, the commission shall investigate and determine whether the claimant obtained benefits, for 1 or more preceding weeks within the series of consecutive weeks which includes the week covered by the redetermination, improperly as the result of administrative error ....
Under § 32a(2), MCL 421.32a(2); MSA 17.534(1)(2), redetermination is authorized for any "good cause” shown. The mesc is required to review a timely protested "determination” and issue a "redetermination.” MCL 421.32a(l); MSA 17.534(1)(1).
Unemployment benefits are a matter of statutory grace. MCL 421.57; MSA 17.561. The mesa is so structured that if the law changes or if facts change an interested party has the right to demand that eligibility or qualification, or both, be determined anew. See §§28, 29 and 32 of mesa; Roman Cleanser Co v Murphy, 386 Mich 698, 705; 194 NW2d 704 (1972); Talley v Unemployment Compensation Div of Industrial Accident Bd, 63 Idaho 644; 124 P2d 784 (1942). In the instant case, Dow, pursuant to § 32(d), timely protested the eligibility and qualification of each employee-claimant for each week of the strike. Although some filed claims for benefits on the basis of interim employment prior to June 9, 1974, and checks were issued prior to that date, the initial determinations did not constitute final adjudications of the rights to unemployment benefits. Claims made for benefit weeks after June 9, 1974, were controlled by the new criteria set forth in the amendment.
We conclude that 1974 PA 104 governs benefit eligibility for the benefit weeks following its effective date, and charges to Dow’s rating account for benefits paid with respect to benefit weeks after June 9, 1974, are precluded in light of the fact that none of the employee-claimants met the new criteria for terminating the labor dispute disqualification.
Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the mesc for entry of an order consistent with, this opinion.
Riley, C.J., and Levin and Brickley, JJ., concurred with Griffin, J.
1974 PA 104.
MCL 421.1 et seq.; MSA 17.501 et seq.
MCL 421.62(a); MSA 17.566(a) precludes recovery of improperly paid benefits from an individual more than three years after the date of receipt, except under circumstances that are not applicable.
MCL 421.20(a); MSA 17.521(a).
For example, one employee worked at a concrete business owned by his sister for eight hours at $3.10 per hour, hanging a door; another employee was hired by his brother-in-law to work as a gas station attendant for less than two days at $2.00 per hour; yet another striker accepted five hours of work fixing a fence for his brother-in-law at his restaurant. Other "interim employment” by the claimants included unloading a box car for a few hours for a total wage of $23.50, stacking carpet for one day, unloading paneling for a total earning of $16.50, and working for $2.00 per hour for one day at a club at which the claimant was a member.
1974 PA 104.
MCL 421.20(a); MSA 17.521(a).
The effective date of the amendment is explained in another portion of the act:
(1) If this 1974 amendatory act is given immediate effect, the effective date of this amendatory act shall be the first day of the calendar week containing the thirtieth day after it is approved by the governor or becomes law without his approval.
(2) An individual who has a current and unexhausted benefit year on the effective date as provided in subsection (1) shall have his weekly benefit rate and the maximum amount of benefits recomputed in accordance with this amendatory act with respect to any week of unemployment beginning on or after that date on that portion of his benefit rights not exhausted prior to that date but his weekly benefit rate and maximum amount of benefits established and not exhausted prior to the aforementioned effective date shall not be subject to reduction or elimination by the recomputation. [MCL 421.66; MSA 17.569(16).]
The mesc determined the effective date of 1974 PA 104 to be June 9,1974.
See anno: Unemployment compensation: Labor dispute disqualiñcation as applicable to striking employee who is laid off subsequent employment during strike period, 61 ALR3d 766.
Commentary submitted by the mesc to the Legislature in connection with SB 741, 1974 PA 104, dated March 15, 1974, included the following:
"In Great Lakes Steel Corporation v Michigan Employment Security Commission (1968), 381 Mich 249, the Supreme Court of Michigan held that a claimant shall be deemed to have terminated a labor dispute disqualification imposed under Section 29(8) by performing services subsequent to the beginning of the labor dispute in employment for remuneration with an employer.
"The Court however made no finding as to what amount of remuneration must be received by the claimant in order to terminate the labor dispute disqualification. However, it appears that in the Great Lakes Steel case that all of the individuals worked with the interim employees [sic] from several days to several weeks and that the amount of remuneration that the individuals received was at least equal to the amount that would have been the individual’s benefit rate in such week of interim employment if he had been eligible and qualified in all respects.
"It is therefore recommended that Section 29(8) be amended to provide that a labor dispute disqualification be terminated if an individual performs services in employment with an employer in at least two consecutive weeks falling wholly within the period of his total or partial unemployment due to the labor dispute and if in addition he earns wages in each of such weeks in an amount equal to or in excess of his actual or potential weekly benefit rate with respect to such weeks based on [sic] his employment with the employer involved in the labor dispute.” | [
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Cooley, J.
The bill in this case was filed to set aside a'Statutory foreclosure of a mortgage. The facts important to its decision are the following: In May, 1873, George Carley, the husband of complainant, conveyed to defendant a farm in Benton township, subject to the payment by defendant of a mortgage thereon for two thousand dollars. It is conceded that by accepting this conveyance defendant became personally liable for the payment of the mortgage under the decision of this court in Crawford v. Edwards, 33 Mich., 359. The farm was also subject at this time to another mortgage for $945 given by George Carley and complainant, and covering besides this, certain property in St. Joseph owned by complainant. The latter mortgage was given for the debt of George Carley, and Mrs. Carley, in respect to her lands covered by it, was entitled to all the rights of a surety. Carley’s deed to the defendant made no exception in respect to the last-mentioned mortgage, and as the deed was one of warranty, defendant was entitled to protection from Carley as against it, but he had no corresponding right as against complainant, who, though she joined in the deed conveying it, could not be liable upon the covenants. Hovey v. Smith, 22 Mich., 170, 172.
From this statement it appears that the farm was the first fund for the satisfaction of the mortgage for $945, and that complainant had a right to insist that it be first sold for that purpose. We also think, that her release of her contingent right of dower in the farm to defendant, gave ■ her a right to insist for her own protection upon his performance of his undertaking to pay off the mortgage of $2,000. It is true that if he did that, and was then obliged to pay the mortgage of $945 also, he wbuld have a claim against George Carley for the sum last mentioned, but this fact could not affect the equities of complainant. He put himself, by his purchase, in a position which exposed him to that risk.
"While this was the position of the parties, the owner of the smaller mortgage proceeded to foreclose it under the power of sale, but instead of selling the farm first as he should have done, he sold complainant’s property first, and it was bought by defendant for the amount due and costs. As between complainant and defendant this was a wrongful sale, and defendant acquired no rights thereby except the right to the mortgage. But as he became owner of the mortgage while also owning the land from which it should be satisfied, the purchase should be deemed a payment and satisfaction if the farm was sufficient for the purpose.
That the farm was sufficient for the purpose clearly appears: indeed the preponderance of evidence is that the value was considerably more than both mortgages.
The decree appealed from set aside the deed on the foreclosure, and it must be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
A writ of error must be sued out within two years after judgment, and a party cannot prolong the time by moving to vacate the judgment, although considerable delay is made before the motion is decided. To hold otherwise would be to 'defeat the statute and enable any one to gain time by sham proceedings. The terms of the statute are obligatory on the court. | [
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Per Curiam.
Mandamus is sought to compel the court •below to set aside the service of process as insufficient.
The returns taken together show that service was made on the original defendant, whose executors make this application, when he was in his last illness, and a short time before his death, and that it was made under "directions of the plaintiff’s attorneys to serve it by laying a copy on his body while confined to his bed. The declaration was not shown or explained to the party, nor was the copy left on his bed put in his possession or brought to his comprehension; and the only inference to be drawn •from all the facts is that the defendant neither then nor at any time was capable of any such understanding. We think a service made under these circumstances can.not .be upheld. In the ordinary cases of infants or lunatics, no proceedings can be had without the appointment of a guardian. Here the party died before the time for appearing expired, and there was never during Lis lifetime a service made or a consciousness of any attempted service, which could render it proper to bind him. It would be an abuse of process to hold such proceedings lawful, and we think they should be set aside as wholly illegal.
We make no remarks upon the very singular separate affidavits of the officer making the return beyond the suggestion that their inconsistencies are very striking.
Mandamus granted. | [
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] |
Campbell, C. J.
In this case trover was brought by the original vendors of goods against a sheriff who had seized them on attachment before they had come into the purchaser’s possession. The purchaser made his bargain on the 19th of May, 1876; the goods were sent from New York on the 22d May, directed to the purchaser, one Christian Sternhagen, at East Saginaw, and arrived at that place on or before May 29th. On May 23d Sternhagen absconded and never came back. On the 24th his stock of goods was all taken on a chattel mortgage and his store closed.
On the 29th attachments were sued out. On the same day the railway company placed the goods in question in custody of Hehdrie & Co., a company engaged in the local delivery to persons in East Saginaw, and while in their possession the attachments were served. The sheriff paid the freight.
Sternhagen was insolvent when the bargain was made for the goods, and this was unknown to the vendors.
The only question raised on the record is whether dhe testimony was inconsistent with any right on which plaintiffs could possibly recover. We are not clear that this question is really presented in sufficient form. But as we think there was testimony enough to act upon, we shall not critically examine the question of practice. There should have been a request for a finding of facts.
The testimony in the record is consistent in the first place with the absence of any sale whatever. Although the record does not show with certainty that the purchase was made in East Saginaw, it has some tendency to show it, and the fact was admitted. If this was so —and it is at least a possible inference — then the sale was void under the statute of frauds, there being neither-writing, delivery, nor earnest money.
It is also consistent with and tends to prove a fraudulent sale, which the vendors had a right to rescind.
But we see no difficulty about the claim of stoppage in transitu. Hendrie & Co. seem to have been, and on this record it is enough that they may have been, intermediate carriers between the railway and consignee, just, as the railway was such a carrier between the New York carriers and East Saginaw. They had no employment or authority to act for Sternhagen, and their possession was not his possession. The goods were clearly in transit when they were taken.
As to the other questions concerning the sheriff’s advances and the value of the goods, they do not arise on the record.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
Robinson and Farwell brought an action of assumpsit against the city of Detroit to recover a balance which they claimed was due and owing them on account of materials furnished and work and labor done in paving a portion of Woodward avenue in said city.
It appeared from the testimony of Farwell, one of the plaintiffs, and was not disputed, that the materials were furnished and work and labor performed under a contract made between the city and Eobinson in 1875 and afterwards assigned to a -copartnership composed of plaintiffs. It farther appeared that the entire work and labor done and materials furnished under the contract amounted to the sum of $5,931.28; that all of this had been paid except the sum of $833.69, which had been withheld and was then in the city treasury.
On the part of the defendant it was claimed that the plaintiffs, claiming- to be licensees of Phillips and Stowe patent pavements, had sold the city the right to use the same during the year 1875 at sixteen cents per square yard for so much of the same or either as might be laid; that in accordance with the terms of the contract under which this work was done, the city was authorized to, and did retain sixteen cents per square yard to pay all royalty due on account of laying the pavement under the contract. The defendant farther claimed that the patent under which this pavement was laid was void for want of novelty; that the plaintiffs had previously sued the city to recover a large amount claimed to be due them for royalty, and that the amount claimed in .this case was also included in that, and that the claim in Ibis case had been presented to the council as a claim for royalty. The defendant farther claimed and offered to show that Stowe, the patentee, had served a notice upon the city, not to pay royalty to the plaintiffs, but to himself.
In rebuttal the plaintiffs offered in evidence the Phillips patent, a license to them from Phillips to lay this pavement and an abstract of title to the same which was admitted, and plaintiff Farwell then testified that the pavement laid, upon which this balance was claimed to be due, was laid under the Phillips patent, and this balance the plaintiffs claimed not as a royalty, but as due under their paving contract.
Counsel for defendant requested the court to charge the jury, in substance, that June 29th, 1875, plaintiffs and defendant made a written contract for paving a certain part of Woodward avenue; that the work was done, accepted by the board of public works, and the amount due ordered paid by the council; that the contract amount was assessed, collected and paid over except $833; that this amount was retained under the contract; that the question to be determined is whether plaintiffs are entitled to recover this sum, which depends upon the construction to be placed upon the contract by the court; that by the contract plaintiffs agreed, first, to pay all royalty on the pavement called for by the contract and specifications attached to it, describing the “Stowe cedar block and sand foundation pavement;” second, to protect the city against all claims for any patent used in the construction of said pavement, viz.: the pavement specified in the specifications; third, that in order to insure the protection of the city, it had a right to retain this money, until some one should establish a title to it as royalty; that in order to properly construe this clause in the contract, the written bid of plaintiffs and the printed advertisement of the city referred to therein, must be construed in connection therewith; that the advertisement cannot be clearly understood without reference, 1st, to the invitation of the city addressed to plaintiffs in March, suggesting that they file a proposition for use of the patent: 2d, to their proposition afterwards put in on April 5th, transmitting only the Stowe patent: 3d, to the acceptance of that proposition by the board of public works April 23d: 4th, to the advertisement of June 17th requiring bidders: and 5th, the bid itself; that all these writings being in pari ma- term are to be construed together; that under them the' pavement contracted for was the Stowe pavement, and that the ninety-four cents expressed in the contract included the sixteen cents royalty on the Stowe patent, and that it was not competent under this contract to show that the pavement was laid under the Phillips patent; that in order for plaintiffs to recover they must make out a title to the sum retained as owners of a royalty, and not as contractors, and that the pavement laid was covered by the Stowe patent, and that they had introduced no evidence to show that the pavement was covered by the Stowe patent. The court refused each and all of these requests, and charged that it made no difference whether the patent existed or not upon the pavement in this case, whether or not the Phillips or the Stowe or any other of them were actually laid.
This statement is somewhat lengthy, but it presents pretty clearly the questions which counsel desired to have the court pass upon. In the light of what has been already stated, we will now, and before attempting to pass upon any of the legal questions raised, give as brief and condensed an abstract of the contract and writings already referred to as can consistently be done, in their regular chronological order.
On the 5th day of March, 1875, a communication was sent by the board of public works to Eugene Eobinson, notifying him that no bids for patent wood pavement would be received unless thrown open to competition, and that in order to prevent any misunderstanding thereafter, he was requested to file with the board a copy of any patent he was interested in or controlled; also to file a proposition showing what royalty contractors would have to pay.
April 5th, 1875, Eobinson and Earwell sent a communication to the board of public works offering the use of the Phillips round block pavement and the Stowe cedar pavement for the season of 1875 for the sum of sixteen cents per square yard, and enclosed- therewith the Stowe patent and their authority to lay the same.
The board of public works accepted so much of this communication as refers to the use of the Stowe patent.
June 17th the board advertised for sealed proposals “ for furnishing all the labor and materials and regrading and repaving Woodward avenue * with wood pavement according to the specifications adopted by the common council and the estimates of the city engineer.” The advertisement, among other provisions, contained a clause that “bidders for patent wood pavement must include in their proposals the amount of royalty which the city has contracted to pay the owners of the patent.”
In reply to this Eugene Bobinson addressed a communication to the board offering to execute and perform the work specified in the advertisement and the specifications adopted by the common council at prices therein stated: “For furnishing and laying square yards of Stowe wood paving, including ballast and top dressing, 95 cents per square yard; Phillips cedar block, 98 cents; Wyeoff cedar block, 90 cents.” The same proposition seems to have been repeated for paving generally in the city, the only difference being 94 instead of 95 cents for Stowe pavement.
The specifications referred to in this advertisement and offer were headed “specifications for Stowe cedar foundation pavement,” and the specifications in fact describe the Stowe pavement, and are inconsistent with the Phillips patent.
June 29th a written contract was entered into by and between the city by the board of public works and Eugene Bobinson. In this contract Bobinson agreed to furnish at his own proper cost the materials and regrade and repave Woodward avenue “with Stowe cedar block and sand foundation pavement in conformity to the specifications and estimates hereto [thereto] attached and made a part of this contract.” This contract also contained the following provision:
“ And it is further mutually understood that the party of the second part shall, and the party of the second part especially agrees that he will pay all royalty or money necessary to be paid or to become due on account of putting down the pavement required by this contract and said specifications, and protect the city against all claims for damages of every kind and nature on account of the use by the party of the second part of any patent or infringement of any patent in the construction of said pavement. And to secure this end the controller shall retain out of the first instalment of money to be paid said contractor a sum fully sufficient to pay all royalty due on account of the laying down of said pavement.”
This was the only written contract ever entered into between the parties in reference to this particular work, and is the contract under and in accordance with which plaintiffs claim the balance in dispute. Under this contract plaintiffs were to receive “ ninety-four cents for each and every square yard of pavement, superficial measure, including ballasting of bank gravel.”
As between the parties, these papers all relate to the very subject matter in issue; they are all parts and parcel of the same transaction. The specifications and estimates are expressly made a part of the contract, and as to them there can be no question. The board of public works had advertised for proposals to do this work and a written proposition had been made by Eobinson in answer thereto offering to do the work specified in the advertisement, and this contract resulted therefrom. This contract authorized the city to retain out of the contract price sufficient to pay all royalty, and the correspondence which previously took place between Eobinson and Far-well and the board of public works showed at least what the parties understood this amount would be. Under the circumstances we think all these writings belong together, and that they should be resorted to for the purpose of settling, or assisting in so doing, any question arising aud growing out of the uncertainties or ambiguities of the contract of June 29th.
There is another reason why the advertisement of the board of public works, and the offer of plaintiffs to do the work in accordance therewith, should be received in connection with this contract. The provisions of the charter of the city of Detroit, as we shall hereafter refer to more fully, require that proposals for such work shall be advertised for and the contract let to the lowest bidder. If any doubt therefore could arise as to the terms and construction of this contract it woúld be proper to resort to the advertisement and bid, as they must be considered, within certain limits, as the authority of the board to enter into any contract at all. This provision of the charter, to be of any force whatever, cannot be construed as giving authority to advertise for proposals for a public work of one kind and afterwards entering into a contract materially different therefrom. This in effect would be to authorize the board of public works to enter into private contracts with individuals for the paving of the streets of the city, — something which we understand the board have no authority to do. Detroit v. Michigan Paving Co., 36 Mich., 335.
When we come to examine this contract in the light of the previous writings, this case may be disposed of according to simple and well established elementary rules.
That this contract required the plaintiffs to lay the Stowe pavement, there can, it seems to me, be no possible doubt.
The advertisement called for proposals to re-pave the street with wood pavement according to the specifications adopted. The bid of plaintiffs offered to do the work at a certain price in accordance with those specifications. When we turn to those specifications, we not only find them headed “ Specifications for Stowe cedar foundation pavement,” but a comparison of the specifications with the description or manner of laying the Stowe pavement as contained in the patent shows that it was the Stowe pavement that was to be laid. Farther than this, turning to the contract, it provides for xepaving “Woodward avenue 80 feet wide from the south curb line of Jefferson avenue to a point 200 feet south ■of Atwater street, with Stowe cedar block and sand foundation pavement,” according to the specifications, etc.
This, then, was what the plaintiffs had contracted to do. This contract was contrary neither to public policy, nor to any written or unwritten law of this State. It was one the city had made in accordance with the provisions of its charter, so that the contracting parties on both sides were legally competent to and did enter into this, —a valid binding agreement. Under such circumstances 'I know of no good reason, nor can I conceive of any, and certainly none is suggested in the record, why these parties should not be bound by the contract they have ■entered into.
It is conceded, and was on the trial in the court below,- — and it was upon this theory they recovered, — that ■the pavement actually laid was not the Stowe, but the Phillips pavement. This is a practical concession by plaintiffs that they did not perform the contract on their part; An examination of the letters patent will show •that the Stowe and Phillips pavements are not laid in the' same manner. The Phillips pavement may be a better one for aught we know, but it is not a question of comparisons. Neither the plaintiffs, nor the board of public works, nor both combined, without a reletting, would have had any authority to substitute some other kind of pavement for the one contracted for, whether such •substituted pavement should in fact be better or not. To give the board and contractors such a power, would render nugatory the express provisions of the charter.
The plaintiffs, therefore, not having performed the ■contract on their part, cannot recover upon that contract. They cannot sue for and recover the contract price for laying a Stowe pavement and at the same time admit that they laid no such pavement at all, but something else the contract did not call for. This seems to me too plain and elementary to require the citation of authorities or to admit of any question.
If then the plaintiffs, have not performed the contract on their part so as to be able to recover upon the express contract, can they upon an implied contract for materials furnished and work and labor performed for, ;and accepted by, the defendant?' This is the only other ground upon which they can found their action. It seems to me they cannot recover upon a quantum meruit for such materials, work and labor, and that the case of Detroit v. The Michigan Paving Company, already referred to, is decisive of this question.
It was there held that the provisions in the Detroit city charter, § 207, and sec. 30, 3 Sess. L., 1871, p. 284, of an act to establish a Board of Public Works, which forbids the execution of public works except under contract with the lowest bidder, was intended to prevent private contracts for such work; that where such a provision is contained in the charter the city cannot be held liable for work done for their benefit as upon an implied contract, for the law will not imply a promise as, against the city, where it could not make an express contract.
If the city could be held liable in this case upon an implied contract, it might then become material to farther construe the express contract in this case as to the amount retained in accordance therewith. As the case now stands, we do not consider that or the other questions raised at all material, and. shall not, therefore, farther discuss them.
For the reasons given, I am of opinion the judgment should be reversed and a new trial ordered.
The other Justices concurred. | [
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] |
Marston, J.
Plaintiff brought assumpsit in the Superior Court of Grand Rapids to recover the balance due upon a note. The action was commenced by declaration and service made upon the defendant, who was a resident of Newaygo county, in the city of Grand Rapids. The declaration set forth that plaintiff was a resident of the city. The defendant appeared and pleaded the general issue. The plaintiff afterwards, by leave of the. court, filed an amended declaration, in which no mention whatever was made as to the place of residence of either of the parties. To this declaration defendant filed a plea of the general issue and the parties proceeded to trial, when defendant’s counsel objected to the introduction of any evidence on the ground that the amended declaration did not state that either plaintiff or defendant were residents of the city of Grand Rapids, and therefore the court had no jurisdiction of the cause. The court over-; ruled the objection of the defendant, to which ruling counsel excepted. The plaintiff recovered a judgment and defendant brings the questions raised here upon a ease made.
Section 13 of the Act of M[arch 24th, 1875, defines the jurisdiction of this court as follows r
“ The said Superior Court shall have original jurisdiction and concurrent jurisdiction with the circuit court for the county of Kent, in all civil actions of a transitory nature, where the debt or damages are one hundred dollars or over, and in which the defendants, or one of them, if there be more than one defendant, shall have been served with a copy of the declaration, or with process within the city of Grand Rapids, or in which the plaintiff shall reside in the city of Grand Rapids, and the defendants, or one of them, if there bo more than one defendant, shall bo served with a copy of the declaration, or with juocess in Kent counLy.”
This section undertakes to give- the Superior Court of Grand Rapids original jurisdiction and concurrent jurisdiction with the circuit court for the county of Kent in all actions of a transitory nature, where the dobt or damages are one hundred dollars or over: First, where the defendants, or one of them, if more than one, are served with • process within the city of Grand Rapids, and this without any reference whatever to the place of residence of either of the parties, plaintiff or defendant. Second, where the plaintiff is a resident of the city, and the defendants, or one of them, shall be served with process in Kent county.
This case comes under the first provision, as there was no pretense, either in the amended declaration or on the trial, that plaintiff was a resident of the city. The defendant was a resident of an adjoining county, but was served with process in the city — so that the case comes clearly within the jurisdiction of the court as conferred by the act already quoted.
The constitutionality of that act is the real question to be considered, and although the argument was not as thorough as we might have wished considering the importance of the question, yet in view of its importance and oft-recurring nature, I think it best that the examination should not be longer delayed.
By the Constitution “The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the Legislature in cities.” Art. VI, sec. 1. It is conceded that the debates in the Constitutional Convention throw no direct light upon the question, except that the words “inferior local” were on motion stricken from section one as reported and the word “municipal” inserted in lieu thereof, leaving this section as it now stands.
'Were this word “municipal” stricken from the section, I should still have grave doubts as to the power of the Legislature to confer so sweeping and extended a jurisdiction as has by this legislation been attempted, upon courts established in cities. As the section now stands, it seems very clear to my mind, not from that section alone, but from the entire article relating to the judicial department, that the system therein provided for, of dividing the state into judicial circuits, with power to the legislature to 'alter the limits or increase the number thereof, with the jurisdiction there conferred upon them and upon justices’ courts, was considered sufficient for all ordinary purposes; that the system of county courts would no longer be necessary and they were therefore swept out of existence.
' It is also clearly apparent that each circuit, as contemplated in and provided for by the constitution, should include at least one county, and that at no time could there be more than one circuit court in a county or a circuit and a county court in the same county. It must however have been a matter considered by the members of the Constitutional Convention, engaged as they were, in the preparation of a judicial system permanent in its character, that a necessity might thereafter arise in some circuits, to relieve them from a part of their business ; that in the growth and development of the State, cities would be springing up, in which, owing to the large manufacturing, mercantile and other business carried on and transacted therein, considerable litigation might be expected to arise, and that the circuit court of the county in which such city or cities were situate, would be inadequate to meet the growing demands made upon it in a prompt and satisfactory manner, and that it might therefore, at some time become necessary to establish one or more courts in particular cities to relieve the circuit of a portion of the business, and that with this object and purpose in view the clause in question authorizing the legislature to establish municipal courts in cities was inserted.
There was not however, in my opinion, any intention, by the insertion of this clause, to destroy or materially change or affect -the jurisdiction conferred upon the circuit courts, or any of them, or, that such municipal cqurts when established, should have a jurisdiction, territorially, in any class of cases, co-extensive with the limits of the county, much less of the entire State. They were in my opinion intended for the benefit of and to meet the wants of the city in which they were established.
To farther test the correctness of these views, and assuming that the jurisdiction sought to be conferred upon this court can be sustained, let us see how far it might be carried and how it would be likely .to operate in practice.
If the true construction of this clause is, that while the court must be established and held in a city, jurisdiction may be conferred upon it in any class of cases, limited only by the discretion of the Legislature, what would be the result ? That the Legislature is not limited as to the number of municipal courts having, concurrent jurisdiction it may establish in a city, must be conceded. And if the Legislature can authorize service of the original process of such courts,' where the plaintiff resides in the city, within the limits of the county, then 1 know of no limitation to the power of the Legislature, under similar circumstances, to authorize service of such process in any and every county in the State. Might the Legislature not in this way, draw to and concentrate in the municipal courts of a particular city, a very large proportion of the entire litigation arising in transitory actions within the State? Or suppose again, that a municipal court is established in the city of Lansing, the seat of the State government, where people from all parts of the State have business to transact with the several departments which necessarily requires their personal presence. In all such cases service within the limits of the city could easily be obtained and the result would be that no one against whom an action might be commenced would, be safe. Actions could be commenced and tried in such a court between parties, where the plaintiff was a resident of one of the southern and the defendant a resident of one of the northern counties in the State, thus compelling parties, at a great and unnecessary expense and inconvenience to themselves and their witnesses to travel long distances in some petty case that never would have been commenced nearer home, or if it had, could be defended with but little expense or inconvenience. Indeed we need not farther pursue the investigation in this direction, as it will readily occur to most minds that abuses of the grossest kinds might easily be perpetrated under such a system, and that the time of such a court could be so engrossed with business from other parts of the State, that the circuit it was designed to relieve would derive no benefit therefrom whatever. To my mind it seems very clear, that a court upon which such a jurisdiction could be conferred, could in no proper sense be called a municipal court, even although established and held within the limits of a city. It may however be said that the Legislature would not be at all likely to confer such an extended jurisdiction upon these courts, yet such is the jurisdiction attempted to be given the Superior Court of Grand Bapids. The question is not however, what the Legislature in its wisdom would or would not be likely to do, but what it has the power to do.
I shall not at present refer to the late decisions of this court, or the cases therein cited, touching the jurisdiction of these courts, as they are already familiar. I may, however, refer to somewhat similar constitutional provisions in other States and the construction placed thereon. In Meyer v. Kalkmann, 6 Cal., 590, where under the constitution of that State the Legislature had power “to establish such .municipal and other inferior courts as may be deemed necessary,” it was held that the jurisdiction of a court established under this authority must necessarily be confined to the territory of the municipality, and that an act giving it power beyond this was void. This was apparently not followed in Hickman v. O’Neal, 10 Cal., 294. In this case the question arose upon an execution issued upon a valid judgment, and it was properly held that the Legislature could authorize the court to send its process for such a purpose beyond the limits of the city. The court said “The Superior •Court was not intended to be an inferior court in respect to the mode of enforcing its process, but in respect to the character of the subjects of its jurisdiction, and a subordinate relation to other tribunals. The inferior court, can not, it is true, act upon subjects or persons beyond the limited sphere to which it is restricted; but after it has acted, the mere process by which it is to enforce its judgments, is within the scope of the legislative power.” This distinction I fully concur in. The court, however, in Chipman v. Bowman, 14 Cal., 158, went the whole length of holding that a summons might be served upon a person beyond the limits of the city.
The constitution of Illinois contained a clause giving the Legislature authority to establish courts as follows: “Provided that inferior courts maybe established by the General Assembly, in the cities of this State, but such courts shall have a uniform organization and jurisdiction.” Under this it was held that an act creating a recorder’s court, the jurisdiction of which wa3 not limited to the cities territorially, was unconstitutional. The court said that the constitutional provision limited the territorial jurisdiction of the courts to be established under this proviso, to the cities for which and within which they are established. They were intended to be for the benefit of the cities and to meet their wants, and not.that of the adjacent country; that they were designed to dispose of the litigation arising in the cities.
This was followed in Covill v. Phy, 26 Ill., 432, where it was held that the common pleas court of the city of Aurora had no jurisdiction to send original process beyond the city limits, nor could such power be consti tutionally granted, while as to final process it would be otherwise.
And although under a somewhat, similar constitutional provision a contrary doctrine was held in Wisconsin, yet in Atkins v. Fraker, 32 Wis., 510, and Connors v. Gorey, id., 518, the earlier cases were overruled, and it was held that the jurisdiction could not be extended beyond ibe limits of the municipality; that all process must be served within the municipality, but that in transitory actions the voluntary appearance of a defendant residing outside of the municipality would give the court jurisdiction of his p'erson. The case was tried upon the merits and no question of jurisdiction raised.
From a careful consideration of this question I am of opinion that municipal courts established in cities under our Constitution are limited in their jurisdiction, and that the Legislature cannot confer upon such courts the broad and general jurisdiction attempted by section 13 of the act of 1875.
While then these courts cannot be considered as inferior, yet they are of limited jurisdiction, as to the residence of the parties, and the necessary facts should be set forth on the record showing jurisdiction. Such is the well settled rule as to the Circuit Courts of the United States, and I can conceive of no good reason why the same rule should not apply here. Turner Adm’r v. Bank of North America, 4 Dallas, 11.
The case of M’Cormick v. Sullivant, 10 Wheat., 192, lays down in my opinion the correct rule which should be applied to these courts and their proceedings, viz.: that they are of limited jurisdiction, but are not technically inferior courts; their judgments and decrees- are binding until reversed, though no jurisdiction be shown of record.
We are, however, of opinion that a party should not be permitted to proceed to trial upon the merits, and then attempt for the first time to raise the question of jurisdiction in a case like the present. By pleading the general issue it may be well said that he has submitted himself to the jurisdiction of the court, and that the judgment will be binding.
The other questions raised are of no importance and need not be considered.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
On the 12th day of November, 1875, plaintiff in error executed and delivered to defendant in error a chattel mortgage upon a span of horses and other personal property to secure the payment of four hundred and forty-nine dollars according to two promissory notes. These notes not having been paid, as claimed by the mortgagee, he took possession of the mortgaged property, whereupon the mortgagor brought this action — replevin— to recover possession of the property taken. Upon the trial, Gardner, who was plaintiff below, introduced evidence tending to prove title to the property taken, its unlawful removal from his possession, and the value thereof, and rested. The defendant then introduced evidence tending to show that the property was taken by him under and by virtue of the chattel mortgage referred to, which with the accompanying notes, were introduced in evidence, when he rested. The plaintiff in rebuttal offered certain evidence which was rejected. The offer is not very clear, yet as we understand it, the offer was substantially that in 1869 the plaintiff had borrowed money from the defendant; that when the same became due it was not' paid; that a certain amount of usurious interest was then added to the principal sum and a new note given for the amount of such principal and interest; that substantially the same course was adopted on several subsequent occasions as the notes became due; that the notes of November 12th secured by mortgage were thus made up, and included a large amount of usury, and that since the giving of these last named notes, the real prin eipal included therein had been fully paid, with compound interest thereon. To the evidence thus offered two objections were made and sustained: first, that this was not an action brought upon such notes, and for that reason, under our statute, the question of usury could not be raised; second, that the mortgage and notes in question were given upon a complete settlement of all former transactions, and that usury in the old transactions could not therefore be inquired into. The second position is fully covered by Smith v. Stoddard, 10 Mich., 148. It was there held that where in a new security a sum is included for unlawful unpaid interest, the security to the extent of such unlawful interest is without consideration, and therefore liable to abatement to that extent.
Neither can, in my opinion, the first position be sustained. The theory upon which the court below proceeded was, that within the doctrine of Tannahill v. Tuttle, 3 Mich., 104, the mortgage operated as an absolute transfer of the title to the property mortgaged, and that the debt was thereby paid. This, however, is not the correct doctrine. Lucking v. Wesson, 25 Mich., 445. As was there said, the true relation of the parties is that of debtor on the one side and creditor, secured by lien upon the property, upon the other. The mortgagee in this case, by seizing Iho property was but adopting one of the methods permitted by law to enforce payment of his debt, and the mere fact that he had not previously brought a personal action upon the notes would not preclude the plaintiff in this action, in an action of replevin, where the notes and mortgage were relied upon in defense, from showing that the notes in part were made up of usurious items, and that in all other respects they had been fully paid. He at all events would have a right to show what amount had been paid upon the notes, for the purpose of reducing the amount of the judgment which the mortgagee would be entitled to recover in this case, as his special interest in the property would be governed by the amount due and not by its value. The defense of usury is a personal one, and may be waived, and so may the party voluntarily pay usurious interest, and where he does so he will not be permitted to recover it back. To this extent the statute undoubtedly goes, but it never was intended that by substituting new paper, with usury added, for the old paper as the same became due, the question of usury could not thereafter be raised, or that the creditor by taking a mortgage upon personal property to secure the payment of such usurious debt could by taking possession of the property and proceeding to sell the same, thereby preclude the debtor, in an action of replevin to recover possession of the property, from showing the entire transaction, upon the theory that the action was not one brought upon the usurious note. To give the statute such a construction would be but pointing out a method for the grasping and unconscionable creditor to evade our usury laws entirely.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Graves, J.
This is an information in the nature of quo warranto against the defendants alleging their assumption to act as a corporation by the name and title of “The Cheboygan Slack Water Navigation Company,” and that in so doing they usurp the franchise of being a corporation.
The defendants plead actual incorporation on the nineteenth of April, 1867, under the act entitled “An act to provide for the incorporation of slack water navigation companies, for the improvement of rivers in the counties of St. Joseph, Cass, Berrien and Cheboygan and defining their powers and duties.” Approved March 25, 1867 (2 Sess. L. 1867, p. 832). To this plea there is a general demurrer in which defendants have joined. Several important questions are mooted in relator’s brief which do not arise in this proceeding* and these will not be considered. In disposing of the case we shall adhere strictly to the precise issue raised, and also to the ground, so far as it appears pertinent, which is taken to support the affirmative of it.
What is that issue? It is this, and this only: Are the defendants legally incorporated? No other subject of inquiry is admissible in this proceeding.
The information is filed under Comp. L., § 7074, and not under § 7085, and it contemplates the case of an assumption by the defendants of the franchise of incorporation without legal right, and consequently that no corporate entity exists to be proceeded against. The complaint is that these persons assume to be incorporated without being so, and therefore the information is against them personally, and not against the artificial being they are charged as unlawfully simulating. Where the information is aimed at alleged corporate delinquencies it supposes and virtually admits corporate existence instead of denying or ignoring it, and the corporation is itself made a party. § 7085 supra. The law adapts the proceeding to the nature of the case and operates consistently. Under the admission made by the demurrer the defendants must be deemed to be lawfully incorporated unless there are insuperable difficulties in the way and which belong to this act of 1867, and no such difficulties are perceived.
The energies of corporations authorized by it are to be applied and exerted on navigable rivers in a part only of the territory of the State, and as the right is not extended to the whole territory of the State, it is contended by the relator that the enactment infringes part of section one of article fifteen of the constitution, and is therefore wholly void. The provision referred to is as follows: “ Corporations may be formed under general laws; but shall not be created by special act except for municipal purposes.”
We think it would be a strained and unreasonable construction to read this clause as requiring all laws for creating corporations not municipal to be so framed as to- expressly authorize the corporations in all cases to conduct the specific operations for which they are promoted and established anywhere in the territory of the State. The language does not fairly imply any such meaning, and we do not understand the clause was designed to compel the Legislature to enact privileges which in the nature of things could not be enjoyed. The great purpose of the provision was to introduce a system of legislation in regard to the institution of corporations which would exclude the corruption and party favoritism which had too often accompanied the method previously in vogue, and to secure as far as practicable for all the people of the State an equality of opportunity and a guard against sectional discriminations. It was determined that corporations of the class in question should owe their erection to general laws and not to special acts, and within this principle, that no law general in form should be allowed to localize the specific work or business of the corporation within narrower bounds than it would naturally be compelled to occupy if not thus localized by enactment. At the same time it was not designed to hinder the confinement of the specific work or business of the corporation by the terms of the law within a given section in any case, when in consequence of natural conditions such work or business could not be carried on elsewhere.
When the provision in question was adopted the system of direct and immediate incorporation of particular individuals by legislative charter, or in other words, the creation of corporations by special act, was generally condemned as impolitic, and those holding this opinion contended that corporations should be organized under common regulations which would permit any group of persons wishing to do so to effect incorporation without special application or special favor, and would exclude sectional distinctions and local immunities and local jealousies, and in this state of opinion the convention framed and the people adopted this section, and if we read it in a sense subservient to the sentiment which then prevailed, we shall give it the construction already suggested, and which its terms as it seems to us fairly bear.
We think the territorial restriction in the act of 1867 is not repugnant to the constitutional provision referred to. The things to be done by corporations which it allows to be created could not be done any where else.
The remaining objections do not controvert the sufficiency of the statute to enable the defendants to incorporate under it, but they relate to the power of the Legislature to confer and the ability of the corporation when formed to hold and exercise particular franchises and incidents which the act purports to grant or.is supposed to imply. Conceding for this case to this class of objections all the force which can be rightly claimed for them, and still the statute affords a valid basis for corporate organization.
All the provisions which are exposed to attack on constitutional grounds may be stricken out and every application of a provision liable to be impugned on such ground may be excluded without impairing the act to an extent which would disable it as one under which persons can lawfully incorporate.
For example, the right to take tolls, and the right to exercise the power of eminent domain may be stricken out, and the privilege of damming and bridging without consent of the board of supervisors may be excluded without destroying the statute.
We abstain from extended observations on this branch of the case partly because we think the question on which the result depends does not require it, and partly because the relator has not been fully heard, he having submitted on a brief, and which merely mentions certain points and cites authorities.
We think the defendants are entitled to judgment with costs upon the demurrer.
The other Justices concurred. | [
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Campbell, C. J.
Brownell was convicted of murder in the second degree, for killing one Marvin H. Bailey on the 5th day of July, 1876. The fatal shot was given upon an actual or threatened assault made by Bailey on Brownell, while the latter was on his way home from a place where both had been present, and Bailey’s conduct was wanton and ugly, and without any adequate occasion, if there was any appearance of occasion.
On the 6th of July Brownell was arrested and held for examination. On the 26th the justice returned the depositions to the circuit court for the county of Branch, the homicide being in Quincy in that county. On the 1st of May, 1877, the information was filed, and on the same day plaintiff in error was arraigned and brought to trial. Before pleading he moved to quash the information on four grounds, which were in brief: 1. That the return does not show the commission of the crime charged; 2. It does not aver probable cause to believe the defendant guilty; 3. It does not show whether bail was fixed, or the offense deemed bailable; 4. It does not appear the defendant was committed for trial on the charge. The motion was overruled.
The offense charged was murder, and inasmuch as the indictment or information does not state the degree, which'must be found by the jury, there seems to be no defect in a commitment which describes the offense as it is charged. Upon a question of bail, the real character of the charge and the degree must in some way appear, inasmuch as murder in the second degree is bailable by a justice. Comp. L., § 7868. The statutes are certainly not in a very satisfactory shape, but we think it would be going too far to hold a commitment bad, for terms which would be good in an indictment.
The objection that the justice used the phrase “cause to suspect” instead of cause to believe, has some apparent reason in it, and certainly the statute does not contemplate a commitment upon evidence that does not make out a prima facie case of guilt. But we do not think the language of the statute, requiring probable cause “to believe” the prisoner guilty was intended to introduce any new rule. The common law term in such cases was “suspicion” and not “belief,” and the habeas corpus act refuses the statutory writ of right in cases where persons are committed on “suspicion” of felony or treason. Comp. L., § 6994. Although the terms are not strictly synonymous, the statutes seem to use them in the same sense.
The question of bail does not seem to us to be important upon a motion to quash. The objection that the commitment does not state the party is to be held “for trial,” as required by § 7860, is also one which would have weight if the precedents had not very generally omitted such a phrase. It seems to have been quite generally taken for granted that a justice’s commitment was by inference to be so understood.
No point seems to have been taken on the trial, and no error is alleged, upon the somewhat remarkable delay in filing the information, and extreme haste in urging it on when filed. While the proceeding unexplained appears peculiar, to say the least, yet we cannot consider it on this record, and it may be open to a satisfactory explanation. ■
An objection made to a ruling compelling a witness to answer questions touching his deposition without showing or reading it to him, — and which is claimed to be- within Lightfoot v. The People, 16 Mich., 507, becomes unimportant, from there being no attempt at impeachment.
The defense rested upon the grounds among others, that Brownell used a pistol to repel an assault wljiich was not only violent in fact, but made by a powerful man of dangerous temper, who had made threats against Mm. Looking at the case in a common-sense light, we cannot avoid seeing that any person would naturally be more in fear of a man of that sort than of a quiet or a weaker man, and would in case of an attack from him, feel a greater need of extreme measures to protect himself and resist his adversary. Inasmuch as every one finds his excuse.in facts as they honestly appear to him, such important facts as these cannot be’ disregarded.
The witnesses who were examined, or offered for examination, and whose testimony was excluded as inadmissible, were personally familiar with both parties and capable of forming opinions about their relative strength, tempers, and other personal qualities, not capable of any description except by opinion. We think this testimony should have been received and not struck out. Hurd v. People, 25 Mich., 405.
It appears to us that the testimony of one called as an expert upon the effect of a pistol shot upon the clothing when fired at a certain distance, was based on too small an experience. A single pistol shot through Ms own clothing without any proof of the comparative amounts or.kinds of loading, and without ever seeing further experiments at greater or less distances or at the same distance, with pistols of the same or different make or calibre, is too small a foundation for generalizing.
There is no doubt that evidence of the opinions of witnesses that Brownell appeared to be in fear should not have been shut out. The case of People v. Lilly, ante, p. 270, decided since the trial below, covers so much of this case as to make it useless to enlarge on this point and some others.
We think it was also proper to seek to show the previous threats and conduct of Bailey as having some tendency to explain the character of his assault on Brownell. The attack was in the night, and no witness could see very clearly at any distance what may have been manifest to Brownell as to the extent of his danger.
It was entirely inadmissible, in answer to general good reputation of the prisoner, to receive evidence of an alleged act of violence against another person than Bailey, at a former time and different place. The prisoner could not be prepared to meet any such testimony or explain it, and its introduction might seriously prejudice, the jury. The court the next day after its reception ruled it out, but in the meantime the other proofs in the case had been tinctured by it, and the effect could not be removed. Doubtless there may be cases where striking out evidence may undo the wrong of receiving it; but. this is not always the case, and the effect of such proof on a man’s character cannot be readily undone.
Upon the charge, to which many exceptions were taken, it may be said that in many respects it resembles the charges given at the circuit in People v. Lilly, and in some respects those given in Nye v. People, 35 Mich., 16. It seems to us that there is evidence in the record showing that in some respects charges which may have been correct abstract legal propositions, had some tendency to mislead the jury in considering the quality of the offense, because not warranted by the testimony.
The circumstances of the attack,, as shown by the prosecution, show that Bailey was, the aggressor, and had no possible excuse for it. There was nothing to warrant any discussion of murder unless upon a theory which the court permitted to be considered by the jury that Brownell had armed himself intending to kill Bailey on the first pretext or assault and took advantage of an attack that he might do so. There was no testimony which could be regarded as legally bearing in that direction, and it is not allowable for a jury to convict a man upon imagination. There must be'proof which is enough to remove their doubts, and they cannot be permitted to eke it out by fancy. The charge which allowed them to act upon such a notion in determining between murder and other grades of homicide, or to .act on it at all, was erroneous.
The defendant below asked a number of specific charges which were refused, and which it is claimed were not covered by charges actually given.
The case was chiefly dealt with as involving either murder or excusable homicide. Manslaughter was referred to in a purely abstract way, with no reference to the facts.
Upon the testimony there was no room for a verdict of anything more than manslaughter, if the shooting was caused by Bailey’s attack, and provoked by it. There was no cooling time. The whole affair was in hot blood, and the attack was a violent one, or else the anger or fear of Brownell was a mere pretext to enable him to commit murder. We have found no testimony on either side to maintain such a theory. And although the charges requested pointed out very clearly various matters which deserved and required attention, the only charge given concerning manslaughter gave no light upon the nature of the provocation which might be sufficient, and included remarks upon cooling time which had nothing to do with the case on trial. The jury were clearly misled by the charges upon this Subject, and the omissions to charge. No doubt the requests were numerous and not all important. But the defendant may justly complain if any important defense is practically-ignored.
We think also that while the charge was in the main very fair upon self-defense, it- was too narrow in confining it to apprehension of immediate danger to life. Any serious bodily harm apprehended from a felonious attack —such as mayhem, for example — would not merely excuse but justify extreme resistance. A man cannot be required when hard pressed, to draw very fine distinctions concerning the extent of the injury that an infuriated and reckless assailant may probably inflict.
There was also error, as we held in the case of Lilly, in making the presence or proximity of third persons an important consideration in determining whether there was extreme danger. The presence’ of by-standers does not so generally operate to prevent the excesses of sudden violence that the law can presume it will give much confidence to the party assailed. When they actually interfere in season, they usually prevent any serious conflict. Where they do not thus interfere, there is not usually any great likelihood of their doing much good later.
We think the defenses of manslaughter and self-defense were not fairly presented by the charge, and that so far as the record shows, they were really the important issues in the cause.
The judgment must be reversed, and a new trial ordered. The defendant must be released from State Prison and remanded to the custody of the sheriff of Branch county, and his bail fixed at one thousand dollars.
The other Justices concurred. | [
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] |
Campbell, C. J.
This is a bill filed by several purchasers of separate lots by direct or mesne conveyances from several distinct grantors who got their respective rights by allotments under partition proceedings. They seek to obtain a revival of those proceedings for the purpose of having a decree barring of their rights several persons who were not made parties to that suit, and to prevent them from asserting their legal rights, as they are doing in some instances, by ejectment.
The bill is peculiar and somewhat involved, but its important features may be easily described. It was dismissed by the Circuit Court on demurrer.
In 1850 a decree made by the circuit court for the county of St. Clair was affirmed by this court, which was in substance that partition should be made between John Thorn as half owner, and the heirs of Thomas S. Knapp, as owners of the other half of certain property in Port Huron divided into city lots. The decree directed an accounting by Thorn for the proceeds of other lots sold in which Knapp was equally interested, allowing Thorn compensation for his services in managing the property, and directing him to pay the heirs or the estate of Knapp to pay him any balance found against either on the accounting. It does not clearly appear, and is not now important, whether or not such balance was made chargeable on the property. (Inferentially it would seem not to have been made so chargeable, as the balance, if coming from Knapp’s estate, was a personal claim, and the same result would apply against Thorn or his estate.),
Thorn died in May, 1851, leaving a widow, and none but collateral heirs, the descendants of brothers and sisters. The widow and Samuel W. Hamilton were appointed administrators. Hamilton had several years before held title to certain lots north and separate from the lands embraced under the terms of the decree against Thorn, and which would have been embraced,-not in the partition, which related to lands then owned, but in the accounting for lands previously sold, the title to which was recognized and not questioned. These lands, being all lots lying north of Broad street, which had been once held by Thorn subject to Knapp’s equity in the moiety, were at the time of the original chancery proceedings owned by Mrs. Thorn in her own right, and not legally involved in the proceedings. She afterwards conveyed them to Hamilton, in 1851, after Thorn’s death.
In November, 1852, the suit was revived, and Mrs. Thorn and Hamilton were brought in as administrators, and a large number of Thorn’s heirs were also made defendants. Some now appear to have been left out who are made defendants, or whose grantees are made defendants, to this present bill. The character and extent of their interests are not defined distinctly.
In the same month an order of reference was made, and on the 20th of May, 1853, an account was stated, by which the Knapp heirs were credited with $2,500 as due them from Thorn’s estate, over and above his counter claims. This settlement bound the estate as represented by the administrators, and the heirs of Thorn were not otherwise directly concerned in it, so that their absence from the record would not affect it. It was, moreover, a personal claim belonging to the Knapp heirs, which was a pecuniary and not landed interest, and which could not pass to any one else by their sale of real estate. We are at a loss to conceive how it concerns these complainants.
On the 20th of May, 1858, a decree of partition was made, which was never appealed from, by which, for reasons not appearing, the balance due the Knapp heirs was to be paid out of the property north of Broad street, which Samuel W. Hamilton then owned in his own right and which seems for some reason or other to have been voluntarily subjected to the partition, giving Hamilton an equivalent out of the Thorn interest in the lands south of Broad street.
The effect of this decree was to give to the Knapp heirs one-half of the lots south of Broad street, as valued, and to give the Thorn estate and Hamilton the rest.
This decree not appealed from bound all the parties to the suit, and all claiming under them.
The present complainants all claim by titles derived from these various parties. They do not claim that the defendants have ever done anything to bar their rights.
It is a very well settled doctrine that parties purchasing titles under judicial sales purchase just what can lawfully be sold, neither more nor less, and have no further rights. Each of these complainants appears, if the bill is true, to have a valid undivided interest in his or her own separate lot. Neither of them is interested in any other lot. The lots were laid out by Thorn himself, and no one parcel is therefore necessarily entangled with any other, and each is subject to partition by itself. Butler v. Roys, 25 Mich., 53.
The owner of each of these parcels holds, if the bill is true, just such a title as would have been granted by a deed signed by every party to the partition suit, and has no equity to anything else, because nothing else was purchased. He has no more right to ask the defendants to release to him than to have a co-complainant do it.
Defendants are entitled to bring ejectment for their interests, and are compelled by law to sue separately for each separate holding. And the interests of the complainants are also several and not joint, and must be severally enforced.- They cannot at the same time claim under a decree and seek to avoid or open it, and there is no defect in the decree as far as the parties to the suit were concerned. No complainant is in any different or worse position than he would have been by purchasing an estate and not getting title from all the heirs. The decree could not be opened so as to accomplish any change in results without also setting aside the titles obtained under it, and if this were done the complainants would have nothing left to enforce.
It would be improper for us to attempt, as was requested, to examine and settle all the questions which the parties are anxious to have determined for them concerning their titles. If, as we hold, the bill makes out no case for relief, it would be improper to consider what may be mooted in some other possible litigation beyond what we have found it necessary to intimate in order to dispose of this case.
The decree dismissing the bill must be affirmed with costs.
Graves and Cooley, JJ., concurred. Marston, J., did not sit in this case. | [
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Per Curiam.
When this case was before us at a former term, we held that the plaintiff was.not entitled to recover. See Lansing v. Toolan, 37 Mich., 152. He has since amended his declaration and had a new trial, and the case comes up again. The evidence was not materially different on this trial, and the circuit judge directed a verdict for defendant.
The plaintiff claims to hold the city responsible for the acts of a contractor in cutting a ditch across one of the streets of the city, which he. planked over for sixteen feet only. The plaintiff in a dark night fell into this ditch as he was passing along the street. The contractor cut it for his own convenience in the prosecution of another work. The plaintiff claims that it was dangerous because not covered further, and gave evidence that the contractor thought so and called the attention of the city marshal to it. There is no claim, however, that the city contemplated further action in respect to it at the time of the injury, and the theory of the plaintiff’s action still is that the city is responsible the same as if the work had been ordered by it. This brings the case exactly within Detroit v. Beckman, 34 Mich., 125, and our former decision in this case. The city has constructed a work the plan of which is not such as to guard sufficiently, as the plaintiff believes, against accidents. We have only to repeat what we said before, that the question thus presented is one for the municipal authorities, and cannot be referred to a jury.
Judgment affirmed with costs. | [
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] |
Per Curiam.
This ease was commenced in justice’s court by summons, and the summons was served by a person deputed for the purpose. The deputation endorsed on the summons was in the following words: “By request of plaintiff I hereby authorize Charles Harryman to serve the within process on the within defendant. Detroit, October 28, 1874. Frederick J. Barbier, Justice of the Peace.”
This deputation is claimed to be defective, because it does not recite that Harryman was a person of lawful age, and not interested in the suit. We do not think this a fatal defect. It is not usual to make such a recital,, and in the absence of any showing on the point, we cannot presume the justice selected an incompetent person.
This is all there is of the case in this court. Judgment must be affirmed with costs. | [
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Graves, J.
Defendant in error recovered against plaintiffs in error and the other parties upon the following note, and for the full amount:
.“Breedsville, Mich., Jan. 2d, 1873.
215. Two months after date, we promise to pay to the order of Bobert Baker, or bearer, two hundred and fifteen dollars at the Michigan National Bank of Kalamazoo, value received, with ten per cent, interest.
Breedsville Manufacturing Company.”
It appears from the case, that the plaintiffs in error and others, including one William H. Marsh, sometime in the fall or latter part of the summer of 1871, engaged in business at Breedsville, as partners, under written articles ; that the articles described the business to be carried on, as the manufacture and sale of “ The American Triumph Cultivator,” and provided that the co-partnership should bear the style of the “Breedsville Manufacturing Company,” and should continue until dissolved by mutual consent, or by operation of law; that the associates continued as a firm until June 10th, 1872, at which time 'William H. Marsh, one of the number, died; that after his death some of the survivors kept on with business at the seat of the firm, and continued to make use of the firm name until about the time the note was given; that a considerable portion of the consideration of the note consisted of indebtedness which had accrued from the firm to the payee prior to the death of Marsh, whilst the residue consisted of indebtedness which arose after that event, and that the note was in fact executed by C. C. Leathers. These facts are not understood to be controverted.
The plaintiffs in error claimed at the trial, and now insist, that the partnership was dissolved June 10th, 1872, by Marsh’s death, and that consequently they were not parties to nor bound by the note executed by Leathers, January 2d, 1873, in the name of the Breedsville Manufacturing Company.
The defendant in error, not denying that by Marsh’s death the co-partnership tie was severed, and the remaining members were left respectively at liberty to recognize no further partnership connection, yet contended, and now contends, that the survivors, including plaintiffs in error, continued in fact to do business as before, and under the old name, and thereby assumed the character and incurred the liability of a firm from the death of Marsh, composed of the remaining members, and bearing the old name, and that the new concern so constituted as successor of the old one, and composed of the survivors of the latter, were jointly liable for the indebtedness which accrued both before and after the death of Marsh. He also contended that as to so much of the note as consisted of the indebtedness which arose before the death of Marsh, the surviving members of the old firm were bound and liable in a suit upon the note.
Now a critical examination of the record makes it very clear that there was no evidence whatever that Trumble had anything whatever to do after the death of Marsh with the concern, whatever its character, which thereafter conducted affairs in the name of the old firm, and no evidence of any act or word of his implying, dr remotely indicating his further connection with the remaining members, or his assent to or acquiescence in the continuance of any business in the former name, and no evidence of any act or omission to estop him from claiming exemption from liability.
In his character of surviving member only of the former firm, Leathers had no power to bind Trumble by a time note in the name of the old firm, even for indebtedness which had accrued before the dissolution. Express authority was necessary to authorize the imposition of such a liability for acknowledged debts of his own late firm (Smith v. Shelden, 35 Mich., 42, and cases), and certainly it was not practicable to bind him for a debt of another concern to which he was in law a stranger. Hence, although the note was made in the name of the “Breedsville Manufacturing Company,” it was not Trumble’s note.
As it was not shown that defendant in error was a bona fide holder for value without notice, there is no place for any question which such a state of fact might authorize.
The rulings of the circuit judge were adverse to this opinion,, and as the judgment is entire against all who were defendants below, it must be reversed as to all (Sheldon v. Quinlen, 5 Hill, 441, and notes), and the other questions cease to be material. As a consequence of the reversal a new trial must be allowed, and the plaintiffs in error must recover their costs in this court.
The other Justices concurred. | [
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Marston, J.
Complainants filed their bill of complaint for the purpose of having set aside a certificate of sale made by the sheriff of certain premises claimed as a homestead and to have defendant release to them all title claimed by him under such sale.
The bill alleges that complainants are husband and wife occupying the premises, being less than a city lot, as a homestead; that the value thereof, exclusive of certain mortgages thereon given prior to the levy, does not exceed $1,500; that complainants own the premises as tenants in common; that defendant' had recovered certain judgments against John B. Lozo; that executions were issued thereon and a levy by virtue thereof made upon John B. Lozo’s undivided half, and sold to defendant who had obtained a deed thereunder. Defendant appeared ■and demurred to the bill, which was overruled and leave given to answer. No answer having been put in, the cause was heard upon the bill as confessed, and a decree rendered in favor of complainants. Defendant appealed.
The appellant insists that the bill of complaint should show all the facts necessary to a full description of a homestead as defined by law; that there is no averment in the bill that there was any dwelling house on the land and appurtenances, and no averment that the value of the premises did not exceed the sum of fifteen hundred dollars.
No very nice technicalities should be resorted to on an examination of pleadings so long as it is apparent that the issues sought to be raised can fairly be brought up by them, and that the parties have not endeavored to keep back or cover up something which should appear.
The bill of complaint alleges that the complainants are owners in fee of the premises [describing them] “ and have their residence in the building situated on said lot and occupy the same as a homestead, * * and that said premises were occupied by complainants, who were then husband and wife, as a homestead at the time of said levy.”
It is alleged, therefore, that there is and was a building situate upon the lot, in which they resided, and that they occupied the same as a homestead. This we think is fully equivalent to a distinct allegation that there was a dwelling house on the premises. If there was a house or building there and they resided in it, we think that would entitle such a building to be dignified with the name of dwelling. As to the question of value, the allegation is “ that the whole value of the said premises over and above the amount of two mortgages prior in date to the date of the record of the levy of the execution in favor of Hiram A. Sutherland hereinafter set forth does not exceed the sum of fifteen hundred dollars.” 'While it would have been better and more satisfactory to have set forth more in detail the mortgages referred to, yet under a general demurrer we think the allegation must be considered sufficient.
The real question in the case is whether a homestead can be owned and occupied by husband and wife as tenants in common.
The constitution and statutes of this State exempt as a homestead any quantity of land not exceeding forty acres, or instead thereof any lot in any city or village, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of the State, not exceeding in value fifteen hundred dollars.
These provisions have ever received a liberal construe* tion in this State. In McKee v. Wilcox, 11 Mich., 358, it was held that a homestead might be claimed in land of which a party was in possession under a contract to purchase. In Orr v. Shraft, 22 Mich., 261, that premises in which the husband has only an equitable interest would be protected as a homestead. In that case the legal title to the premises was in the wife, and a portion of the building thereon was occupied for business pur-~ poses.
In Bunker v. Paquette, 37 Mich., 79, it was held that a house exempt as a homestead might be removed by the owner to another lot or parcel of land, and that it would not be subject to seizure or sale upon execution while in transit.
The statute does not require that the person who claims certain premises as a homestead should own the entire title thereto in fee simple. The word “owner” as used in the law has generally been treated as include ing all parties who had a claim or interest in the property although the same might be an undivided one or fall far short of an absolute ownership, and possession alone has frequently been held, in reference to personal property, as prima facie evidence of ownership. Even in certain classes of criminal offenses our statutes have provided that it shall be sufficient to prove on the trial that at the time the offense was committed, either the general or special property, in the whole or in any “part of the real or personal estate, was in the person or community-alleged in the indictment to be the owner thereof.” See Comp L., §§ 7812, 7787. Instances might be multiplied indefinitely where a special property was held sufficient proof of ownership. The cases of McKee v. Wilcox and Orr v. Shraft settle the question that an absolute estate in fee simple is not required. Why then should it be held that a homestead could not be claimed and allowed in lands held in joint tenancy? I confess I can see no good reason for any such distinction. Even if the other joint tenant was a stranger, and not the wife, of the claimant, the lands might be partitioned in such manner under our statute as still to save a homestead.
It has been held under the homestead laws of other states that a homestead might be claimed in lands held in common with others. McClary v. Bixby, 36 Vt., 257; Thorn v. Thorn, 14 Iowa, 49; Horn v. Tufts, 89 N. H., 478.
The decree must be affirmed with costs.
The other Justices concurred. | [
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] |
Per Curiam.
Suit was brought under section 2065 of the Compiled Laws, against plaintiff in error for damage done by her dog in biting defendant in error while in a highway and out of her enclosure. The declaration in the suit before a justice was verbal and referred to the section in question, and averred the injury to have been done to the plaintiff below “while on the highway and out of the enclosure of the said defendant, by a dog, the property of defendant, owned or kept by defendant contrary to” said section.
The general issue was pleaded and on a trial before the justice judgment was recovered, and appeal was taken by Miss Jenks to the circuit.
On the trial at the circuit defendant’s counsel objected that the declaration set forth no cause of action. Plaintiff thereupon was allowed on his request to amend by inserting the words “ or kept by said defendant.”
Defendant thereupon demurred to the declaration on the ground that it was in the disjunctive, and did not declare against defendant as owner or keeper or both. This was overruled, and the ruling excepted to.
The case was then tried on the merits. Defendant below asked a charge that the plaintiff was not entitled' to recover under the pleadings and evidence. The jury found for plaintiff and found specially that Miss .Tanks was both owner and keeper of the dog.
The first objection under which the amendment was put in was not made until plaintiff had closed his case and had as we must assume proved that Miss Jenks was both owner and keeper of the dog. No amendment made at that. stage could very well take defendant by surprise, especially if — as appears from the record, it was really no amendment, but was already in the justice’s return. We are not aware of any practice which authorizes verbal demurrers in the circuit court. We do not, however, think the -declaration — if defective — to have been more than technically and formally so — and governed by the liberality due to oral proceedings before a justice, it was free from any substantial objections.
Defendant however proceeded to put in his testimony, and waived any defect if it existed.
As for the objection that there was no proof to support the verdict it is enough to say that we are not told what the proof was, and must assume it was sufficient.
Judgment must be affirmed with costs. | [
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Graves, J.
This case comes before the court on an appeal against the dismissal of the bill. The suit was instituted in the name of Stephen Brush and Georgiana Hyslop, but in its progress her death was suggested and the cause was ordered to proceed in the name of Brush.
In 1856 Mrs. Kimberly conveyed block 69 south of Cass street in the city of Saginaw to Robert Hyslop of the city of New York to satisfy a demand he held against her husband. Sutherland & Sweet had been intrusted with the collection of the demand and there was correspondence on the subject, but after one or two letters this was conducted by Sweet and Hyslop, Sutherland taking no part in it. When Sweet came to send to Hyslop.the Kimberly conveyance he wrote him that he had an offer of $300 for the block and that he thought that was its full value. The correspondence was continued and it eventuated in an agreement to sell and finally in a deed to Binder. The deed was given in the spring of 1858, and in August of that year Binder deeded to Sweet. In March, 1863, Robert Hyslop died leaving a will by which he gave his estate to his wife Georgiana and Brush in trust for certain purposes. In May, 1865, this action was brought and nominally by Brush and Mrs. Hyslop to set aside the deed from Robert Hyslop to Binder and that from Binder to Sweet on the charge that the legal title thus obtained from Hyslop was procured by their fraud upon him. It was alleged that the fraud was not discovered during the life of Hyslop, and Brush, swears that it was first made known by Newell Barnard of Saginaw in a letter of May 30, 1864, addressed to Hyslop after his death.
The case made by the bill is that Hyslop, testator of complainants, gave a conveyance to Binder, which with the later one from Binder to Sweet, was liable to be set aside on equitable grounds; wherefore in contemplation of equity Hyslop continued to be owner subject to the repayment of the money he had received; that on his death such right and ownership were vested in complainants by the will and so remained and that complainants sued in their character of such owners for the relief to which their testator was entitled. Stump v. Gaby, 17 Eng. L. & Eq., 357.
Now it must be considered that the facts either contradict the alleged title of complainants to sue or at all events establish a state of things which according to the principles of the court must necessarily preclude any relief.
It appears that just previous to the bill and on the 16th of March, 1865, Brush and Mrs. Hyslop entered into the following agreement with Newell Barnard:
“Whereas heretofore, to wit, about the 16th day of March, A. D., 1858, Bobert Hyslop (now deceased), conveyed by deed to William Binder block sixty-nine (69) in that division of the city of Saginaw, south of Cass street according to the plat of said city of record in the' office of the register of Saginaw county, in the State of Michigan.
“And whereas also it is claimed and supposed that said deed to Binder was obtained by fraud and that the present holder of the title of said block was a party to such fraud, and that such property may be recovered back by the representatives of said deceased.
“And whereas also the executor and executrix of the said deceased reside in the city of New York, and are desirous of having Newell Barnard, of the said city of Saginaw, aid in the prosecution of a suit for the recovery of said property on the terms hereinafter stated.
_ “ Now, therefore, in consideration of the premises the said executor, Stephen Brush, and the said executrix, Georgiana Hyslop, as parties of the first part, and said Barnard as party of the second part, have and do hereby agree as follows, that is to say:
“First. Said Brush executor and said Hyslop executrix, in consideration of the agreements of said Barnard herein contained agree that a suit may be instituted in their names as executor and executrix of said deceased for the recovery of said property; that said Barnard may manage and control the same as to him may seem best; that he may if he shall deem proper so to do compromise the aforesaid claim to said property on the part and in the behalf of the estate of said deceased, and that they will at any time on the request and at the expense of said Barnard convey by deed of quit claim all the rights of said estate either legal or equitable in or to said lands either before suit brought or after1 decree therein to said Barnard or whom he may request.
“Second. Said Barnard agrees in consideration of the foregoing that he will on the delivery of this agreement pay to said Brush and Hyslop the sum of twentyfivd dollars; that he will use his best efforts and judgment in the management of the suit hereinbefore referred to if any is brought to bring the same to a just issue and end; that he will advance and pay all necessary costs and disbursements necessary t'o carry on such suit, said parties of the first part furnishing him all the evidence affecting the controversy that may be in their possession or control; that if he shall make any compromise of the said matters in controversy he will use his best judgment in making the same; that if the property is conveyed to him he will dispose of the same to the best of his judgment and out of the proceeds of any compromise or disposition or sale of said property he will retain first the aforesaid sum of twenty-five dollars so advanced and paid herein and all other payments, costs and disbursements by him paid out in the prosecution and management of the aforesaid matters with interest thereon from the time of payment, and the residue of such proceeds after retaining the aforesaid payments and interest he will pay to the said parties of the first part the equal one-half and retain the other half as a compensation for his trouble in the management of said business.
“It is further agreed by said Barnard that in all such proceedings he will save said parties of the first part harmless from all costs or liability arising out of or from the bringing of any such suit whether successful or not.”
And the case shows without any question whatever that the bill was filed under this arrangement and that all proceedings on that side from first to last have been taken on the basis of it by Mr. Barnard as exclusive master of the litigation, and that except in name he has been from the commencement the real and only complainant.
Now only two theories seem possible.
One, that Barnard through his contract with complainants acquired the whole equity which they received through the will from Iíyslop; and the other, that instead of acquiring the equity, he contracted to buy and they to sell, under an agreement therefor which they ask the court to help them carry out, the right to complain in their names of a fraud committed against their testator. According to the first, the whole interest, which was a pure equity, became vested in Barnard, and he should have been complainant on the record and the bill should have explained his interest and title to sue. Supposing the facts sufficient to establish this theory, it then follows that the evidence defeats the title of the nominal complainants to sue, and makes out a very different case from that alleged in the bill.
The other view involves considerations equally fatal. In De Hoghton v. Money, L. R. 2 Ch. App., 164, the court observed that the “right to complain of a fraud was not a marketable commodity,” and it was held that an agreement to acquire a right of that sort would not be countenanced. See also Hill v. Boyle, L. R. 4 Eq. Cas., 260; 2 Story’s Eq. Jur., § 1040 g. note; 2 Spence’s Eq. Jur., 868, 869, 872. In order to grant relief under this aspect of the case, it would be necessary for the court to base its action upon the validity in equity of such an arrangement and to regard it as competent for Barnard to buy the right not only to sue in equity for the fraud on Hyslop, but moreover the right to do so in the names of Hyslop’s trustees. This the principles of the court will not allow. No extended discussion is necessary.
The result is that the decree below must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
The questions raised in this case depend upon the regularity and effect of the proceedings taken to substitute H. H. Eiley as attorney for plaintiff, and the proceedings commenced in his name for a transfer of the cause before notice of such substitution had been served upon the attorneys for defendants.
March 29th an order was entered in the common rule book that H. H. Eiley be substituted in the place and stead of Severens, Boudeman & Turner as attorney for plaintiff. This order purported to have been entered and signed by Mr. Eiley with the written consent of the attorneys for plaintiff. On the same day an application was made to one of the circuit court commissioners for a transfer of the cause to the circuit court for the county of St. Joseph. This petition set forth the fact that Eiley was the attorney for plaintiff and a resident of the county of St. Joseph. An order was made on this petition, fixing a day for the hearing thereof; copies of this petition and order were on the 80th day of March served upon the attorneys for the defendants, and at the same time a notice was served upon them of the substitution of Mr. Eiley as attorney for plaintiff.
We are of opinion that the substitution was not complete and did not authorize any proceedings to be taken in the case by or in the name of Mr. Eiley until notice of such substitution had been given in the proper manner to defendants’ attorneys. To recognize the right of attorneys to interfere with the conduct or management of a cause, upon a mere claim that they had been substituted as attorneys of record, but before notice thereof had been served upon the attorneys of record for the opposite party, would be very likely to create confusion and mischief. Until a substitution has been properly made and notice thereof given, the attorneys for the other party have a right to disregard any steps or proceedings taken in the name of any other than the attorneys of record. in the case, and until notice of a change has been received they have no means of knowing, and no right to recognize any other as attorney in the conduct and management of the case. The authorities cited in the brief of counsel for defendants we think fully sustain this view.
For these reasons the order transferring the case to Kent circuit must be sustained with costs.
The other Justices concurred. | [
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Per Curiam.
Plaintiff appeals from a summary judgment granted in favor of defendants on the ground that plaintiffs complaint failed to state a claim upon which relief can be granted. GCR 1963, 117.2(1). We reverse.
Plaintiff, Nora Wallington, was two years old. She was scalded by hot water from the bathtub faucet in the single family residence rented by her parents. She seeks damages from the co-owners of the premises. The trial court ruled that plaintiffs complaint failed to state a cause of action because it was "absolutely devoid of any factual allegations which could, in any light, be construed as a reservation of control [over the rented premises by] the landlord”.
The general rule in Michigan, as the trial court correctly points out, is that in the absence of a statute requiring that a dwelling be kept in good repair by the owner or a special agreement under which an owner retains control of a dwelling occupied by a tenant, a landlord has no duty to inspect or repair rented premises. Lipsitz v Schechter, 377 Mich 685; 142 NW2d 1 (1966), Hockenhull v Cutler Hubble, Inc, 39 Mich App 163, 166-167; 197 NW2d 344 (1972).
There are, however, exceptions to this rule.
"One exception developed by the common law is that the lessor, like a vendor, is under the obligation to disclose to the lessee concealed dangerous conditions existing when possession is transferred, of which he has knowledge. There is 'something like fraud’ in a failure to give warning of known hidden danger to one who enters upon the assumption that it does not exist; and the lessor will be liable to the lessee or to members of his family for his nondisclosure * * * .
"It is not necessary that the lessor shall believe the condition to be unsafe, or even that he have definite knowledge of its existence, before he is under any duty in regard to it. It is enough that he is informed of facts from which a reasonable man would conclude that there is danger; * * * .
"There is of course no duty to disclose conditions which are known to the tenant, or which are so open and obvious that he cannot reasonably be expected to fail to discover them when he takes possession, * * * .” Prosser, Torts (4th ed), § 63, pp 401-402. See also 49 Am Jur 2d, Landlord and Tenant, §§ 788, 789, pp 736-740.
The hidden dangerous condition exception is recognized in Michigan. In Annis v Britton, 232 Mich 291; 205 NW 128 (1925), the Court found that the landlord had no common law duty to repair the premises, but it noted that the landlord "did not induce the plaintiff to rent the premises by fraudulent representations or by any concealment of the defective condition complained of’. Annis v Britton, supra, at 294.
In Rhoades v Seidel, 139 Mich 608; 102 NW 1025 (1905), the Court ruled:
"The liability of a landlord to a tenant for injuries resulting from defects existing at the time premises are leased extends only to defects which he knows or which he should know, and which are not open to the observation of the tenant.”
Rhoades was relied upon by this Court in Heward v Borieo, 35 Mich App 362; 192 NW2d 668 (1971), in which plaintiff claimed that she suffered injuries as a result of a hidden defect in certain leased premises. Summary judgment for defendant was reversed. The Court held:
"The questions of defendant’s knowledge of the defects relied on by plaintiffs, whether she should have known of these defects and whether the defects were open to observation by Lucy M. Heward were questions of fact. Summary judgment was improper.”
A lessor, therefore, is liable to a tenant for injuries resulting from defects existing at the time premises are leased where: (1) the lessor knew or should have known of the existence of the defects; (2) the lessor realized or should have realized the risk of physical injury arising from the defect; (3) the lessor conceals or fails to disclose the existence of the condition to the lessee; and (4) the defect is not observable to the lessee. See, Restatement of Torts (2d), § 358 (1965).
In passing upon a motion for summary judgment pursuant to GCR 1963, 117.2(1), the trial court must accept as true all well-pleaded facts in the complaint Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179-180; 230 NW2d 363 (1975). The court must determine whether plaintiffs claims are so unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).
In this case plaintiffs complaint alleges that defendants were co-owners of the premises rented by plaintiffs parents; that at the time the premises were transferred to plaintiffs parents a bypassed thermostat in the hot water heater which allowed uncontrolled heating of the water constituted a hidden dangerous condition; that each of the defendants was aware of or should have been aware of this hidden dangerous condition; that neither of the defendants notified plaintiffs parents of this hidden dangerous condition nor were plaintiffs parents independently put on notice thereof; and that as a proximate result of this hidden dangerous condition and defendants failure to advise plaintiffs parents plaintiff suffered injury.
These allegations state a claim upon which relief can be granted. Summary judgment under GCR 1963, 117.2(1) was improper.
Reversed and remanded. Costs to appellant. | [
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Per Curiam.
Plaintiff brought an action for wrongful death against defendants. The complaint is based on allegations of malpractice.
Defendant Winkler moved for accelerated judgment on the ground that the action against him was barred by the two-year statute of limitations applicable to actions charging malpractice. MCLA 600.5805(3); MSA 27A.5805(3). The motion was granted.
Plaintiff contends that for wrongful death actions the proper period of limitations is the three-year period provided for in MCLA 600.5805(7); MSA 27A.5805(7). It has been so ruled in several cases not involving a charge of malpractice. Rhule v Armstrong, 384 Mich 709; 187 NW2d 223 (1971), Coury v General Motors Corp, 376 Mich 248; 137 NW2d 134 (1965), Szydelko v Smith’s Estate, 259 Mich 519; 244 NW 148 (1932).
This Court has ruled, however, that the two-year period of limitations for malpractice actions is applicable to wrongful death actions which charge malpractice. Castle v Lockwood-MacDonald Hospital, 40 Mich App 597; 199 NW2d 252 (1972). We are persuaded that that ruling was correct and we apply it here.
The lower court is affirmed. Costs to appellee. | [
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Bronson, J.
This is an appeal from an order apportioning an award by Ray Fitzgerald, the plaintiff, from a third-party tortfeasor between the plaintiff and Michigan Mutual Insurance Company, the plaintiff’s employer’s workmen’s compensation carrier. Both the plaintiff and the insurer appeal as of right.
On May 31, 1972, plaintiff was injured during the course of his employment. He received workmen’s compensation benefits for a total of 93 weeks under MCLA 418.361; MSA 17.237(361), totaling $7,842. Plaintiff also received from Michigan Mutual reasonable medical and rehabilitative expenses of $691.95. Michigan Mutual paid plaintiff a total of $8,533.95.
On August 27, 1973, the plaintiff brought a suit against Challenge-Cook Brothers, Inc., the third-party tortfeasor, which resulted in a verdict for the plaintiff in the amount of $57,500, including costs and interest. The expenses of recovery in successfully prosecuting the claim amounted to $21,383.
On November 26, 1976, the trial judge entered the following order, from which plaintiff appeals:
"THIS MATTER HAVING COME ON TO BE HEARD upon the Motion of the Intervener, Michigan Mutual Insurance Company, for an Order pursuant to MCLA 418.827 apportioning the proceeds of recovery from a Judgment obtained in the above-captioned matter, and the Court having determined that Michigan Mutual Insurance Company paid a total of $7,842 in specific loss benefits and $691.95 in medical expenses, and the Court having further determined that the benefit to the Intervener amounted to 14.8% of the total recovery, and the Court having further determined that the total expenses of recovery amounted to $21,383, and the Court being fully advised in the premises,
"IT IS ORDERED that Intervener, MICHIGAN MUTUAL INSURANCE COMPANY, be and the same hereby is charged with 14.8% of the expenses of recovery incurred in effectuating Judgment in this matter which amounts to $3,164.68. IT IS FURTHER ORDERED AND ADJUDGED that of the expenditures of the Intervener, MICHIGAN MUTUAL INSURANCE COMPANY, for Workmen’s Compensation Benefits paid to the Plaintiff amounting to $8,533.95, its proportionate share of recovery of $3,164.68 shall be deducted and the balance amounting to $5,369.27 shall be remitted to the Intervener, MICHIGAN MUTUAL INSURANCE COMPANY.”
I.
MCLA 418.827; MSA 17.237(827) provides in pertinent part:
"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation beneñts.
"(6) Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.” (Emphasis added.)
As stated in Crawley v Schick, 48 Mich App 728, 739; 211 NW2d 217 (1973), the reason for apportioning costs is:
" * * * [T]o insure that neither the employee nor the workmen’s compensation carrier would reap benefits from the suit against the party causing the compensable injuries without bearing a pro rata share of the expenses generated by the suit.”
Under MCLA 418.361; MSA 17.237(361), plaintiff was entitled to 93 weeks of compensation for his injury. This period had expired before judgment for plaintiff was entered. Therefore, it appears that the carrier’s liability was completely satisfied as of the date of the judgment. The interest of the carrier at the time of recovery was $8,533.95 total, the amount it had paid to plaintiff.
The carrier’s share of expenses in the case at bar was calculated by the trial court as follows:
$ 57,500.00 Amount of Judgment
8,533.95 Benefit to Carrier (specific loss benefits and medical expenses paid)
8,533.95 = 14.8417% = Carrier’s Share 57,500.00 of Expenses
We hold that expenses were correctly apportioned by the trial judge.
Plaintiff contends that the expenses must be apportioned differently, citing Schalk v Michigan Sewer Construction Co, 62 Mich App 658; 233 NW2d 825 (1975), lv granted, 398 Mich 810 (1976), and Crawley v Schick, supra. In those cases, this Court calculated the carrier’s share of expenses by including as a benefit to the carrier an "advance payment credit”. I.e., plaintiff would apportion expenses in the case at bar as follows:
$ 57,500.00 Amount of Judgment
— 8,533.95 Amount Paid by Carrier
— 21,383.00 Expenses of Recovery
$ 27,583.05 "Advance Payment Credit”
$ 27,583.05
+ 8,533.95
$ 36,117.00 Total Benefit to Carrier
$ 36,117.00 = 62.8% = Carrier’s Share of $ 57,500.00 Expenses
This calculation would be correct under Crawley and Schalk if the carrier had future liability at the time of the apportionment to which the "advance payment credit” could apply. In the case at bar, however, the carrier’s liability for 93 weeks of specific loss benefits had been totally satisfied when the apportionment of expenses was made. In this case, the "advance payment credit” was not a benefit to the carrier, because the carrier had no future liability. Crawley and Schalk are therefore distinguishable; expenses were correctly apportioned by the trial court.
A recent Michigan Supreme Court case, Kroll v Hyster Co, 398 Mich 281; 247 NW2d 561 (1976), discussed but failed to resolve the issue of how expenses of recovery are to be apportioned. The approach taken by Chief Justice Kavanagh is consistent with the trial court’s calculation. Under that approach, the "advance payment credit” is not treated as a benefit to the carrier. To the extent our holding is inconsistent with Justice Williams’ opinion, it is distinguishable for the same reasons as Crawley and Schalk: here, the carrier has no future liability.
II.
Plaintiff contends alternatively that expenses should be apportioned by reference to total recovery minus total expenses:
$ 57,500.00 - 21,383.00 Amount of Judgment Expenses of Recovery
$ 36,117.00 Balance
$ 8,533.95 Amount Paid by Carrier -=-$ 36,117.00
= 23.63% = Carrier’s Share of Expenses
There is no authority or logical reason for apportioning expenses by this method and we decline to follow it.
In view of our disposition of this case, we need not discuss appellee’s argument that expenses of recovery shoúld be payable by the carrier only as it actually receives a future benefit.
Affirmed. Costs to appellee.
The Court split 2-2. Justice Levin joined Chief Justice Kav~ anagh’s opinion and Justice Coleman joined a separate opinion by Justice Williams. See Lone v Esco Elevators, Inc, 78 Mich App 97; 259 NW2d 869 (1977), following the Kavanagh-Levin opinion. | [
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Per Curiam.
The defendant was found "guilty but mentally ill” after a trial for assault with intent to commit murder. He was sentenced to prison and appeals. His principal claims are that MCLA 768.36; MSA 28.1059 is unconstitutional under the due process and equal protection clauses of our constitution.
Is defendant deprived of his right to equal protection by the classification of "guilty but mentally ill”? We think not. Defendant complains that a person who is mentally ill at the time of his committing a crime who does not plead insanity can’t be found "guilty but mentally ill” under our statute. This is true. The Legislature does not have to make every single category absolutely airtight and all inclusive in order to keep the classification reasonable and nonarbitrary. People v Murphy, 364 Mich 363; 110 NW2d 805 (1961), People’s Appliance, Inc v City of Flint, 358 Mich 34; 99 NW2d 522 (1959). The Legislature created definitions for certain crimes but then said people could be excused from the commission of these crimes if they were insane at the time of the commission. The Legislature, after many years and much pressure, created an in-between classification — those mentally ill but not legally insane at the time of the commission of the offense. They created special rules as to their disposition after a finding to that effect.
There are reasons for such a classification. Some find reasons not to have it. The Legislature is the proper body to determine if classifications should be adopted. It is not an arbitrary or unreasonable classification.
Defendant does not have standing to challenge the mandatory 5 years probation provision as he was sentenced to prison.
The fact that one must plead insanity before one can be found "guilty but mentally ill” does not invalidate the statute. The Legislature had a right to make such a classification that was not all-inclusive. This Court is sure that if the defendant’s counsel thought his client was mentally ill at the time of the crime, he would plead insanity in order to get a verdict of "guilty but mentally ill”. If defendant is claiming insanity at the time of the offense and it is factually possible that he was sane and guilty but mentally ill at the time of the commission of the offense, the Legislature can insist on such a classification.
Defendant complains that the trier of the fact "may” find the defendant guilty but mentally ill and not that it "must” find him guilty but men tally ill. A trial judge who must state his factual findings may find it difficult to have all the elements of "guilty but mentally ill” proven and not make such a conclusion. However, if he acquits despite such findings, the acquittal stands. Jurors, who make no detailed findings of fact, can certainly be instructed "that if the required elements are proven beyond a reasonable doubt, your verdict will be 'guilty but mentally ill’ ”.
Defendant claims the statute is unconstitutional under the due process clause of the constitution. We decide this case on the record submitted on the appeal from the trial court. People v McLeod, 77 Mich App 327, 258 NW2d 214 (1977), refutes defendant’s claim. Our factual situation is even more adverse to the defendant’s position.
Defendant alleges the trial court erred in not amplifying the instructions relative to insanity, The defendant, at trial, neither objected to the charge as given nor offered additional instructions. The charge correctly stated the law. There was no error.
Affirmed. | [
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Bashara, J.
This is an appeal by plaintiff from a trial court order finding him in contempt of court for failure to make child support payments pursuant to a previously issued divorce judgment. The amount of the arrearage was established at $9,025.
Plaintiff appeared at the contempt proceedings without the assistance of counsel. It was disclosed, upon inquiry of the trial court, that plaintiff’s only source of income was from public assistance payments under the aid to dependent children with an incapacitated parent program. Plaintiff also stated that he was appealing an adverse determination of disability in an effort to obtain social security benefits.
Since the litigants’ divorce, plaintiff has remarried and has three children by that marriage. At the contempt hearing, plaintiff indicated that it had been four or five years since he had last engaged in gainful employment. Plaintiff stated that he had arthritis. In response to the trial court’s statements that it appeared that plaintiff had not even made a reasonable attempt to find employment, the plaintiff stated only that he does go to a doctor for his arthritic condition.
The trial court found the plaintiff to be in contempt of court, but did not order his incarceration. Instead, the court instructed the plaintiff to seek employment and set a sentencing date for approximately three weeks hence, at which time plaintiff was to advise the court as to whether he was able to find employment. Plaintiff was admonished that he would be sent to jail unless he found a job.
At the sentencing proceeding, plaintiff appeared with counsel and without a job. A motion was made to set aside the judgment of contempt, which was denied, the trial court stating that it would not relitigate the issue of plaintiffs contempt. Plaintiffs counsel then proceeded to present medical reports as to the extent of plaintiffs arthritic condition. The trial court acknowledged the existence of plaintiffs arthritis, but found after an examination of the medical evidence that plaintiff was not precluded by the disease from engaging in all forms of employment. Further, as the trial court noted, there was no explanation or offer of any statements as to the efforts plaintiff made to find employment or why he was unable to secure a job. Plaintiff was sentenced to 30 days in the county jail, to be suspended upon payment of $300, which would be applied to the past due child support.
It is plaintiff’s contention that the trial court’s judgment of contempt rests upon an impermissibly narrow scope of factual findings and, therefore, cannot be sustained. This argument is based exclusively upon the recent case of Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976), which affirmed this Court’s decision reported at 59 Mich App 730; 229 NW2d 907 (1975). Viewed in light of Sword, plaintiff maintains essentially that the trial court’s judgment is based only upon a finding that there was a child support arrearage and that plaintiff was physically able to work.
If plaintiff’s characterization of the foundation for the trial court’s judgment were accurate, we would reverse that judgment and remand this case without hesitation. However, there is a determinative distinction between the circumstances in this case and those in Sword.
In Sword the alleged contemnor explained to the trial court the considerable efforts that were made unsuccessfully to find employment. Sword v Sword, 59 Mich App at 733; 229 NW2d at 908. Notwithstanding the apparent inability to secure employment after a good faith effort, the trial court held the defendant in contempt and sentenced him to jail. Thus, the defendant was incarcerated for disobedience of an order with which it was impossible for him to comply. Only the defendant’s physical ability to work was considered by the trial court. Id. at 734; 229 NW2d at 908.
Both this Court and the Supreme Court concluded that physical ability to work is not a sufficient basis alone to sustain a judgment of con tempt for failure to make child support payments. Sword, supra. Civil contempt is a coercive remedy, designed to induce compliance with a court order by imposing the threat of incarceration until the contemnor renders that compliance. 399 Mich at 380; 249 NW2d at 92-93. However, if the alleged contemnor has made a diligent effort to obey the court’s order, but is unable to acquire the requisite means for compliance, no amount of coercive force applied in a civil contempt proceeding will alter that state of circumstances. Accordingly, Sword mandates that an inquiry be made beyond ascertaining only that the alleged contemnor has the physical ability to work.
A number of areas into which the trial court may inquire are suggested in the Sword opinion. Id. at 378-379; 249 NW2d at 92. However, those suggested areas of inquiry are not intended to be applied by rote to every case. Rather, each case will present a different array of circumstances to the trial court. From an inquiry into those circumstances, the trial court must ascertain whether the alleged contemnor has sufficient ability, or by the exercise of due diligence could be of sufficient ability, to comply with the court’s order. Id. at 379; 249 NW2d at 92. If the record supports a finding that the alleged contemnor has refused or neglected to reasonably endeavor to comply with the order, then a judgment of contempt will be sustained. It is those circumstances to which the coerciveness of civil contempt proceedings was intended to apply.
In the instant case the trial court did not limit its inquiry to determining plaintiffs physical ability to work. Indeed, the tenor of both the contempt and sentencing proceedings was directed toward ascertaining the diligence with which plaintiff en deavored to comply with the child support order. It became apparent from our reading of the record in both proceedings that the trial court was attempting to induce the plaintiff to make an effort to find employment so that he could meet his child support obligations.
Although the trial court found that plaintiff does have arthritis, it was also found that plaintiff’s condition does not obviate all potential employment opportunities. That finding is not challenged on appeal. Further, after adjudging plaintiff to be in contempt, the trial court delayed sentencing for nearly a month. The delay was accompanied by an admonishment to plaintiff to find employment if he desired to retain his freedom. At the sentencing proceeding plaintiff sought only to emphasize his arthritic condition, unaccompanied by any recitation of what measures had been taken to find suitable employment.
We conclude under these circumstances that the trial court’s judgment was proper. It is our opinion that the judgment is supported by a record sufficient to sustain the trial court’s finding that plaintiff is physically able to work and has neglected or refused to exercise due diligence to place himself in a position of sufficient ability to comply with the support order. The coerciveness of civil contempt may provide the plaintiff with the necessary incentive to rectify this unfortunate situation.
Affirmed.
The pertinent colloquy was as follows:
"THE COURT: I suppose Mr. Butler, you’re not even looking for a job. Most men come in here and say that they are out of work, laid off, I don’t have any money, can’t seem to find a job. Your situation is a little different, you are probably not looking for a job because in your own mind you feel you are disabled.
"RESPONDENT: No, I do go to the doctor. He doesn’t say that, you mean my mind, but he says that too.
"THE COURT: It is a difference of opinion as to whether you’re disabled, grant me that.
"RESPONDENT: Between him and social security, yes. I’ll grant you that.
"THE COURT: What do you feel is wrong with you?
"RESPONDENT: Got arthritis.” | [
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Bashara, J.
Plaintiff appeals from a circuit court order modifying an arbitrator’s award of recovery under an automobile insurance policy issued by defendant, Aetna Casualty and Surety Company (Aetna). The modification disallowed combination of the uninsured motorist coverage limitations on plaintiff’s two automobiles with a resultant decrease in the available fund from which plaintiff could obtain recovery.
Plaintiff’s ward was severely injured in a collision between his brother’s motorcycle, on which he was riding, and an uninsured motorist. On a consent judgment of $99,000, plaintiff collected the liability limit of $20,000 from the state uninsured motorist fund. Plaintiff also collected $38,000 from the uninsured motorist coverage on the motorcycle and an automobile owned and insured by Scott McQueen’s brother. It was plaintiff’s attempt to combine the uninsured motorist coverage limitations on the two automobiles owned by her and her husband that fomented the controversy under review.
Aetna issued a single policy to plaintiff providing insurance for the two owned automobiles. The insurance premiums charged were equal to twice that charged for a single automobile less a 15 percent discount on the total. There were provisions in the contract of insurance limiting Aetna’s liability for uninsured motorist coverage and re quiring arbitration of certain disputes arising under the contract.
In response to plaintiffs claim of recovery from the uninsured motorist coverage, Aetna admitted liability for $20,000. However, Aetna rejected plaintiffs claim that the $20,000 limitation on each covered automobile could be combined to provide a $40,000 limit of recovery. Further, Aetna refused to tender payment of the $20,000 admittedly due unless plaintiff executed a release of all claims against Aetna, including the claim that the uninsured motorist coverages could be "stacked”.
Suit was instituted by plaintiff for a declaratory judgment holding stacking to be permissible and for an award of punitive damages because of Aetna’s refusal to pay their admitted liability of $20,-000. The resulting judgment held that plaintiff could not combine, or stack, the coverages, but reserved determining the punitive damages claim until the issue was decided by an arbitrator.
Subsequent to an arbitration hearing an award was issued fixing damages from the injury at $156,917.66 and permitting plaintiff to stack the uninsured motorist coverages, making Aetna liable for $40,000. On plaintiffs motion to confirm the award, the circuit court modified it to preclude stacking and awarded an additional $3,300 in interest computed from the date on which plaintiffs claim was first perfected.
Plaintiffs initial contention is that the declaratory judgment on the issue of "stacking” was erroneous. Our review of the pertinent case law compels us to agree.
An exclusion provision was held to be void where it made uninsured motorist coverage on one automobile unavailable to the insured for recovery from injuries sustained in a collision involving another automobile owned by the insured and covered by similar insurance from the same insurer. Boettner v State Farm Mutual Insurance Co, 388 Mich 482; 201 NW2d 795 (1972). The Court concluded that the provision was an attempt to avoid the statutory obligation of providing uninsured motorist coverage. Id., at 487; 201 NW2d at 798. It was further held to be unconscionable as enabling the insurer to collect premiums for coverage that was not in fact provided. Id., at 487-488, quoting from Blakeslee v Farm Bureau Mutual Insurance Co of Michigan, 388 Mich 464, 473-474; 201 NW2d 786 (1972).
Boettner differs factually from the instant case only in that Boettner involved two separate policies and two separate premiums. However, another panel of this Court concluded that the result in Boettner was not intended to be governed by the mere number of premiums paid or policies issued by the insurer. Citizens Mutual Insurance Co v Turner, 53 Mich App 616; 220 NW2d 203 (1974).
We concur with the Turner decision. Moreover, it is our conclusion that the premium discount given by Aetna does not change the result. Nothing in the record shows that the discount was given as a quid pro quo for a limitation on uninsured motorist coverage. Thus, the limitation urged by Aetna cannot withstand the emphatic pronouncement of our Supreme Court in Boettner. Therefore, the uninsured motorist coverages may be combined to increase Aetna’s liability to $40,-000 for the injuries sustained by plaintiffs ward.
It is also argued by plaintiff that an award for exemplary damages should have been rendered against Aetna. In support of that position, plaintiff urges that Aetna acted in bad faith when it refused to pay the amount of its admitted liability. However, bad faith alone will not entitle an aggrieved party to recover exemplary damages from one who breaches a contract. Rather, the nature of the contract must be examined to ascertain whether it concerns "matters of mental concern and solicitude”. Stewart v Rudner, 349 Mich 459, 471; 84 NW2d 816, 824 (1957).
Assuming arguendo that Aetna’s breach was intentional, nevertheless, we conclude that the nature of the contract would not sustain an award of exemplary damages. The character of the contract is pecuniary only. Upon the occurrence of specified events, Aetna was to become liable for nothing more than the payment of money. While a breach by Aetna would cause plaintiff some degree of annoyance, that can be said to arise in almost every context in which a breach of contract occurs. As stated by the Court in Rudner:
"When we have a contract concerned not with trade and commerce but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.” Id., at 471; 84 NW2d at 824.
The contract in the case under review does not possess the foregoing qualities that would entitle plaintiff to exemplary damages against Aetna.
Both plaintiff and Aetna claim that the award of interest is improper. Plaintiff contends that the 12 percent rate provided for in MCLA 500.2006; MSA 24.12006, should be given retroactive effect and be applied to this case. On the other hand, Aetna argues that interest should have been computed from the date of the arbitration award in lieu of the date on which plaintiff’s claim was perfected. We reject both contentions.
The statute referred to by plaintiff is in the nature of a penalty to be assessed against insurers for dilatory practices in settling meritorious claims. That statute was enacted after this controversy arose. Such statutes, having a punitive purpose, are never given retroactive effect. Shwab v Doyle, 258 US 529; 42 S Ct 391; 66 L Ed 747 (1922). Further, a statute will not be applied retroactively unless such a legislative intent is clearly and unequivocally expressed. Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160; 150 NW2d 752 (1967).
Similarly, Aetna’s contention cannot be sustained. At the time liability was contested, the amount of plaintiff’s loss was liquidated, known or. easily ascertainable. The only question requiring resolution was whether Aetna was going to be liable for $20,000 or $40,000 of plaintiff’s damages. Accordingly, plaintiff is entitled to interest on the amount of Aetna’s liability from the date the claim was perfected. Reinshuttle v Aetna Life & Casualty Insurance Co Inc, 72 Mich App 74; 248 NW2d 671 (1976). This matter is a subject for trial coúft determination.
Reversed &nd remanded for further proceedings Consistent with this opinion. Costs to plaintiff.
The limitation of liability provision states:
"Regardless of the number of (1) persons or organizations who are Insureds under this policy, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damage, or (4) automobiles or trailers to which this policy applies.
"[T]he limit for Uninsured Motorists Coverage stated in the declarations as applicable to 'each accident’ is the total limit of Aetna Casualty’s liability for all damages because of bodily injury sustained by one or more persons as the result of any one accident.”
The arbitration provision reads as follows:
"If any person making claim under the Uninsured Motorists Coverage and Aetna Casualty do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the Insured, or do not agree as to the amount of payment which may be owing thereunder, then, upon written damand of either, the matter or matters upon which such person and Aetna Casualty do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and Aetna Casualty each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this paragraph.” | [
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Per Curiam.
Plaintiffs appeal as of right from the October 19, 1976, judgment of the trial court, sitting without a jury, awarding plaintiffs $545 in damages for the conversion of some of their personal property by defendants. Plaintiffs contend that the award is inadequate.
James and Janice Gum, plaintiffs, entered into a rental agreement with Robert and Margaret Fitzgerald, defendants, on March 14, 1973. In July of 1973 defendants locked plaintiffs from the rental premises prior to a termination of the tenancy and while plaintiffs’ personal possessions and household goods remained in the premises. Defendants claimed at trial that they thought plaintiffs had moved out.
About a week prior to changing the locks, a dispute had arisen between the parties concerning plaintiffs’ use of a fuel storage barrel located on the premises, the repeatedly late rental payments by plaintiffs and a broken antique window. Defendants testified that when they notified plaintiffs that they had been sent a 30-day eviction notice plaintiffs said they would be leaving immediately. Plaintiffs testified that they said they would be out in 30 days.
Plaintiffs left the premises on July 4, 1973, to spend the weekend at Mr. Gum’s parents’ house and testified that they told defendants of their plans. While plaintiffs were gone defendants changed the lock on the rental premises. On plaintiffs’ return on July 6th they discovered that they were locked out and contacted the sheriff’s department. The sheriff’s department arranged for defendants to meet plaintiffs at the rental premises on that day while two deputies were present. The parties entered the house and plaintiffs observed that their washer and dryer were missing and that their belongings had been stacked in the living room. Defendants admitted to having moved the furniture and having removed the washer and dryer. Plaintiffs’ demand that their goods be returned to them at that time was refused by the defendants.
Shortly after July 6, 1973, plaintiffs contacted an attorney who wrote defendants a letter suggesting that defendants properly terminate the tenancy and that arrangements be made to settle both parties’ claims in this dispute. Prior to the institution of this suit no further attempts to recover the property were made other than plaintiffs’ phone call to defendants at Christmas time of that year demanding the return of their property. Defendants’ response was to tell plaintiffs to contact defendants’ attorney.
Defendants sold some of plaintiffs’ belongings. A power antenna and two furnaces were allowed to pass along with the sale of the rental premises in March of 1974. The remaining belongings were either taken to defendants’ garage or stored in the barn or milkshed located on the rental premises which passed with the sale of the property. These last items were lost in a fire which destroyed the barn and milkshed shortly after the sale. There is nothing in the record to indicate that the buyers of the premises were ever informed by defendants of plaintiffs’ interest in this property.
Defendants testified that their attorney had told plaintiffs to recover their belongings but there was no indication that plaintiffs were ever informed of the location of the goods. Plaintiffs were not informed of the sale of the premises.
Plaintiffs testified at trial that various goods and furniture were present in the house on July 6, 1973, at a total purchase or replacement cost of $8,157. Mrs. Fitzgerald’s testimony established the presence on the premises of goods (other than those sold), which, according to plaintiffs’ proofs, would have a value of $760. Proof was presented at trial that furniture values normally increase by three per cent per year taking inflation over depreciation.
The damages awarded at trial were for the conversion of plaintiffs’ property which had been sold. The trial court found no conversion as to the stored items, holding that plaintiffs were precluded from recovery by their failure to plead a bailment of their goods in defendants. In addition, the court held that plaintiffs had not made reasonable attempts to recover their property within a reasonable time.
Plaintiffs raise three issues on this appeal: 1) whether it was necessary for them to plead a bailment theory in order to recover for the loss of their property that had been stored by defendants; 2) whether the trial judge erred in finding that that plaintiffs were precluded from recovering damages by their failure to make reasonable attempts to recover their property within a reasonable time; and 3) whether the damages awarded were inadequate.
This Court finds that a conversion did occur when defendants interfered with plaintiffs’ dominion over their property by locking them from the rental premises. Conversion is any distinct act of dominion wrongfully exerted over another’s personal property inconsistent with, or in denial of, the owner’s interest in that property and it occurs at the point that such wrongful dominion is asserted. Thoma v Tracy Motor Sales, Inc, 360 Mich 434; 104 NW2d 360 (1960), Nelson & Witt v Texas Co, 256 Mich 65, 70; 239 NW 289 (1931), Miller v Green, 37 Mich App 132, 138; 194 NW2d 491 (1971). If a conversion has occurred no demand is necessary. Nibbelink v Coopersville State Bank, 286 Mich 1; 281 NW 415 (1938), Baxter v Woodward, 191 Mich 379; 158 NW 137 (1916).
The landlord’s wrongful dominion over the property begins when he changes the locks. Schara v Thiede, 58 Wis 2d 489, 497; 206 NW2d 129, 133 (1973). While there appear to be no Michigan cases directly on point, the case law in various other jurisdictions supports the conclusions of this Court. See Puerto Rico Industrial Development Co v J H Miller Mfg Corp, 173 F Supp 596, 606-607 (SD Ill, 1959); Kertz v Paris, 168 Cal App 2d 67, 70; 335 P2d 154, 156 (1959), Harnden v McKinney, 103 SW2d 869, 870 (Tex Civ App, 1936); Annotation, 148 ALR 649. If there is a refusal of the right to possession a conversion has occurred and no further demand is necessary. Nibbelink v Coopersville State Bank, supra.
Plaintiffs are required to show that a reasonable attempt has been made to recover their property in order to establish that their right to possession has been refused. Once this refusal is established they may recover the value of the lost or damaged goods determined as of the time of the conversion. Nelson & Witt v Texas Co, supra. Here, plaintiffs were refused possession on July 6, 1973. Two later attempts to recover their property were not met with any cooperation on defendants’ part. Defendants’ failure to inform plaintiffs of the location of their property prevented plaintiffs’ recovery of that property. There has been a refusal of possession beginning on July 6, 1973, and continuing to the time of its sale, loss or destruction. Plaintiffs acted reasonably in the context of defendants’ actions.
The value of used furniture is properly shown by its original or replacement cost in the market, taking into consideration the use to which it has been subjected. Langland v Kraemer, 230 Mich 449, 450; 202 NW 1007 (1925). The award given by the trial judge with respect to the goods which had been sold is in conformance with the proofs at trial and is left undisturbed. The value of all the remaining goods should be set in conformance with their value as established at trial.
The judgment of the lower court is reversed with respect to all the items not found to have been converted. This case is remanded and the lower court is ordered to enter an amended judgment taking into consideration the value of all the remaining goods converted by defendants. Costs to plaintiffs. | [
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Per Curiam.
A jury convicted Reginald Harris of armed robbery. MCLA 750.529; MSA 28.797. Sentenced to a term of 40 to 50 years imprisonment, defendant appeals as of right and has filed a motion for peremptory reversal.
Defendant bases his appeal and motion on three issues. He charges that the trial court abused its discretion by ordering him removed from the courtroom during the trial because of his conduct. The issue has no merit.
In Illinois v Allen, 397 US 337; 90 S Ct 1057; 25 L Ed 2d 353 (1970), reh den, 398 US 915; 90 S Ct 1684; 26 L Ed 2d 80 (1970), the Supreme Court held that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court, that his trial cannot be carried on with him in the courtroom. The court stated that "trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case”. 397 US at 343.
An examination of the record in the instant case unfolds a course of conduct during trial nothing short of an affront to the court. Defendant repeatedly interrupted the trial with his willful and disorderly behavior, making it impossible to carry on the proceedings in his presence. The judge warned defendant of the consequences of his actions and gave him the opportunity, after ordering him removed from the courtroom, to reclaim the right to be present on condition that he conduct himself in a manner consistent with the decorum and respect inherent in the concept of courts and judicial proceedings. Defendant chose not to take advantage of the opportunity, maintaining his refractory attitude and acting belligerently. The trial judge acted within the proper scope of discretion in removing defendant from the proceedings.
Defendant also claims he was denied his right to a fair and impartial trial because he was tried in jail clothing. However, to preserve the issue for appellate review, objection must be made before the jury is empaneled. Failure to object in timely fashion waives any defects as to defendant’s appearance before the jury. People v Shaw, 381 Mich 467; 164 NW2d 7 (1969), People v Woods, 32 Mich App 358; 188 NW2d 649 (1971). In the instant case, no objection was made until after the jury was empaneled.
Moreover, according to defendant’s trial attorney, he and his client had discussed the matter of clothing. Defendant had told his attorney he owned no civilian clothing and that even if he did, he preferred to wear the clothes in which he was, in fact, tried. A prisoner who voluntarily chooses to stand trial in jail clothing cannot be heard to complain on appeal. United States v Williams, 498 F2d 547 (CA 10, 1974), State v Hall, 220 Kan 712; 556 P2d 413 (1976). Defendant is barred from claiming error.
Finally, defendant contends that the trial court, by imposing a 40 to 50 year sentence, transgressed the limitations set out by the Supreme Court in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). We agree.
Tanner construed the indeterminate sentence statute, MCLA 769.8; MSA 28.1080, which states:
"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit House of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court.”
The Tanner Court held that "any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act”. 387 Mich at 690. Sentences with too short an interval between minimum and maximum frustrate the clear purpose and intended effect of the indeterminate sentence act.
In People v Bullock, 48 Mich App 700; 211 NW2d 108 (1973), the Tanner two-thirds rule was applied to a repeat offender. Defendant was convicted of larceny in a building. He had two previous convictions but had not been charged as an habitual offender. The Court, without comment as to first or second conviction, reduced the defendant’s sentence to comply with the rule in Tanner.
A panel of this Court specifically addressed the first conviction issue in People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), and found the indeterminate statute does apply to a defendant who is a repeat offender when he or she has not been charged or convicted under the habitual criminal act.
As Redwine observed, People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974), in which the Court held the indeterminate sentence act inapplicable to a person charged under the habitual criminal act, does not control cases in which there is no habitual criminal prosecution. In addition, the Supreme Court has applied the Tanner rule to cases in which the defendant had committed prior felonies. See People v Redwine, supra, at 84-85 and cases cited therein.
The distinction, implicit in Redwine, between one charged or convicted as an habitual offender and one who is simply a repeat offender, accurately reflects the distinction intended in the stat ute by the language "convicted for the first time of crime”. Such a distinction also preserves the essence of the construction given the statute in Tanner, in which the Court concerned itself with the principle of indeterminacy and the need to maintain it through the elimination of severe judicial limitations on sentencing. The regard the Court had for the underlying principle of indeterminacy convinces us that the rule expounded in Tanner must be used in the present case.
Defendant’s minimum sentence is, therefore, modified to 33-1/3 years pursuant to GCR 1963, 820.1(7). The motion for preremptory reversal is denied. | [
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T. M. Burns, P. J.
Defendant was convicted of armed robbery, MCLA 750.89; MSA 28.284, before a jury in the Monroe County Circuit Court and appeals by right. We reverse because the prosecutor’s cross-examination of the defendant and arguments to the jury impermissibly infringed on defendant’s right to remain silent.
The offense occurred at the Square Deal Market in Monroe. Defendant and a female companion entered the store with several customers when the market opened for business. After the other customers had been served and the store was empty, the defendant and his companion approached the counter with several items as if wishing to purchase them. When the owner of the store opened the cash register the female announced, "This is a stick up”. The money from the register and the owner’s purse was put into a paper bag and the pair fled.
Defendant had been raised in the neighborhood of the market and was well known by the proprietress. When they ran from the store, defendant pushed the door into another woman from the neighborhood who also recognized him. To further cement their case the people presented evidence showing that a fingerprint found on the cash tray belonged to defendant.
Defendant did not deny that he was in the market, but did deny participating in the robbery. According to him, he had spoken to the female while both were in the market, but had not planned to participate in the robbery. He fled when she announced the holdup because there was a war rant outstanding for his arrest and he did not want to become involved with the police. During his direct examination defendant did not claim that he had told his "innocent bystander” story to the police.
On cross-examination the following colloquy occurred:
"Q (By Mr. Rostash [prosecutor], continuing): Mr. Hoye, did you ever tell the police that this happened in the way your are describing it, that you had nothing to do with it, that you just happened to be standing there when this girl demanded the money?
"A No, I didn’t.
"Q Did you ever tell anybody about it?
"A Yeah, but they wouldn’t be nobody close around here.
"Q Nobody around here?
"A No.
"Q This is the first time you have even told that story?
"A Right.
"Q To anyone?
"A Right.”
During rebuttal argument the prosecutor stated:
"Another thing about the — of course, we’ve talked to you about credibility. Mr. Spielman [defense attorney] said that it is not his or my prerogative to tell you how to believe the people or how to judge them, and we don’t intend to do that. However, the Defendant gets up on the witness stand and tells us a story under oath. We asked him if he has ever told anybody else this — no, never, never told it to anybody else in the whole world until he came here now. Never told it to even his girl, who, for heaven’s sake if we could have had that information, could have tried to verify his story. Never said a word about it to anybody until he comes here, and he expects then you members of the jury to believe that it is true.”
In People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), our Supreme Court made it clear that questioning and argument such as occurred in this case violates a defendant’s right to remain silent. Some panels of this Court have found such errors to be harmless. In People v Swan, 56 Mich App 22, 35; 223 NW2d 346 (1974), lv den, 395 Mich 810 (1975), the error was found harmless but the panel warned:
"We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused’s silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant’s silence thus risks the loss of a perfectly good case for no reason.”
The prosecutor in this case has run the risk and lost. This breach of defendant’s right cannot be considered an inadvertent mistake by the prosecutor. Rather it demonstrates a deliberate attempt to do what has been repeatedly forbidden. We find it offensive to the maintenance of a sound judicial process, People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), and refuse to reach the second step of the harmless error analysis. People v Dunn, 46 Mich App 226; 208 NW2d 239 (1973), People v Terry Moore, 55 Mich App 678; 223 NW2d 302 (1974), lv den, 394 Mich 756 (1975), People v Parks, 57 Mich App 738, 747; 226 NW2d 710 (1975), People v Hargrave, 74 Mich App 690; 254 NW2d 614 (1977). The only way to stop deliberate violations of the rule in Bobo is to be unyielding in our application of its prohibition.
Reversed.
That this type of evidence would be inadmissible on other grounds is evident from examination of two recent United States Supreme Court cases.
In United States v Hale, 422 US 171; 95 S Ct 2133; 45 L Ed 2d 99 (1975), the Court ruled as an evidentiary matter that a defendant’s silence is not admissible in a Federal prosecution as an inconsistent statement because a necessary factual predicate is missing. Since defendant is under no duty to speak at the time of arrest, Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), his trial testimony cannot be inconsistent with silence at arrest.
More recently in Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), the Court reversed two state convictions because introduction of evidence of silence at arrest was a violation of due process. The Court did not apply a harmless error analysis in either case because the prosecuting authority had not claimed that the error was harmless. | [
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] |
N. J. Kaufman, J.
Defendant appeals from a $10,000 judgment, entered pursuant to an adverse jury verdict, for injuries sustained by plaintiff after being assaulted and beaten by defendant’s bartender. On appeal, defendant contends that plaintiff did not present evidence showing that the bartender was acting within the scope of his employment. Therefore, defendant argues that his motion for a directed verdict should have been granted by the trial court. We disagree.
Our standard of review has been oft enunciated by the Supreme Court. See e.g. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975), noting:
"In deciding whether or not to grant a motion for a directed verdict, the trial judge must accord to the non-moving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the non-moving party. If the evidence, when viewed in this manner, establishes a prima facie case, the motion for a directed verdict must be denied.”
An application of that standard to the facts of this case leads us to the conclusion that a prima facie case was established. The evidence, in the light most favorable to plaintiff, shows that after plaintiff had consumed a sufficient amount of alcohol to appear drunk, the bartender threw him through the swinging doors of the bar and onto the street, where the bartender proceeded to beat plaintiff, inflicting serious injury.
Affirmed. | [
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Per Curiam.
Plaintiffs appeal from a final order of the Houghton County Circuit Court which affirmed an order granting reallocation of a $25,000 consent judgment. Defendant Employers Mutual also appeals alleging error in the court’s reallocation.
Plaintiff, Earl Manninen, was injured while in the course of his employment. He commenced collecting workmen’s compensation benefits for total and permanent disability. The lawsuit alleged injuries from the negligent design by defendant, Warner & Swasey Company, of a vehicle in which defendant was riding. Plaintiff also complained that defendants, Bark River Culvert Company and Employers Mutual Insurance Company, failed to make a proper inspection of the vehicle.
Plaintiffs subsequently settled with defendant Warner & Swasey Company, for the sum of $25,-000. Initially, the court ordered that $12,500 be paid to each plaintiff, with plaintiff Earl Mannimen to reimburse defendant Employer’s Mutual for workmen’s compensation benefits from his share of the judgment only. After Employers Mutual filed objections, the court reallocated the amount of the judgment ordering 1/3 to be paid to plaintiffs attorneys, 1/2 of the balance to Employers Mutual as reimbursement for workmen’s compensation payments, and the balance to plaintiffs. The court reaffirmed its order on a subsequent motion for rehearing.
The sole issue is whether the trial court correctly apportioned the proceeds of the consent judgment under the statute providing for reimbursement to a workmen’s compensation carrier. MCLA 418.827; MSA 17.237(827) is the appropriate statute. Its pertinent language is as follows:
"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.
"(6) Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.”
We believe that the correct application of the statute was set forth in Schalk v Michigan Sewer Construction Co, 62 Mich App 658; 233 NW2d 825 (1975), lv granted, 398 Mich 810 (1976).
In reference to the statute, the Court said at 660-661:
"Under MCLA 418.827; MSA 17.237(827), an injured party is permitted to sue a third-party tortfeasor without that injured party waiving any right to collect from the insurance carrier. MCLA 418.827(1); MSA 17.237(827X1). If such a suit results in recovery for the injured party, that party must reimburse the insurance carrier for money it paid and will have to pay to him as compensation. MCLA 418.827(5); MSA 17.237(827X5). The 'expenses of recovery’ may, however, be first deducted from any recovery gained from the third-party tortfeasor. MCLA 418.827(5); MSA 17.237(827X5). It has been determined that the costs of recovery must be shared proportionately by the injured party and the insurance carrier. MCLA 418.827(6); MSA 17.237(827X6).”
It is unnecessary to further reiterate the case law and reasoning cited in Schalk. However, we note that Schalk was silent as to the method of determining a plaintiff spouse’s share in either the recovery or expenses of recovery. Accordingly, the trial court should first have determined what portion of the total settlement, including a pro rata share of the costs of recovery, represented the interest of plaintiff, June Manninen, and deducted that amount. The court should then determine the reasonable costs of recovery including the attorney’s fees expended by defendant, Employers Mutual, to the extent its attorney contributed to obtaining the recovery, as well as the expenses incurred by plaintiffs in reaching the settlement, and deducted that amount. The court should then deduct the benefits paid by defendant, Employers Mutual, or an amount which may be agreed upon by the parties. The balance, if any, should be paid to plaintiff Earl Manninen.
Reversed and remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Defendant appeals his plea-based conviction for armed robbery, MCLA 750.529; MSA 28.797, raising three alleged defects in the plea-taking procedure. We affirm.
Defendant first alleges error in the failure of the trial court to advise him that he may be charged as a habitual offender, GCR 1963, 785.7(l)(c). As there has been no showing that defendant has been so charged, this was not reversible error. People v Love, 76 Mich App 379; 256 NW2d 602 (1977), People v Michael Jones, 73 Mich App 91; 250 NW2d 554 (1976).
Defendant’s second allegation of error is that the trial judge failed to inform him that he could not be placed on probation if the plea was to armed robbery, as required by GCR 1963, 785.7(l)(f).
A failure to comply with GCR 1963, 785.7 does not automatically mandate reversal:
"Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.
"Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.” Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975).
In People v Freeman, 73 Mich App 568, 570; 252 NW2d 518 (1977), this Court held that a failure to comply with GCR 1963, 785.7(l)(f) was harmless error where "as a result of the sentence agreement, defendant knew before he pleaded that he was going to prison if he pleaded guilty”.
In the case at bar, although there was no sentencing agreement, the court read to defendant the statute under which he was charged. That statute provides that armed robbery is "punishable by imprisonment in the state prison for life or for any term of years”. The trial court continued:
"THE COURT: And you heard me read the statute under which you are charged. Do you have any questions about the statute at this time?
"THE DEFENDANT: No.
"THE COURT: Do you understand the possible punishment as set forth in that statute?
"THE DEFENDANT: Right.”
In light of defendant’s response that he understood the possible punishment for armed robbery, we hold that the failure of the trial court to strictly comply with GCR 1963, 785.7(l)(f) was not reversible error.
In addition, under the prior rule, which did not require a defendant to be informed that he could not be put on probation for armed robbery, but which did require the court to inform him of any mandatory minimum sentence, it was not reversi blé error not to inform a defendant who pleaded guilty to armed robbery that he could not be placed on probation. Guilty Plea Cases, supra, at 118.
Finally, defendant alleges error in the trial court’s failure to strictly comply with GCR 1963, 785.7(l)(g), which requires the court to inform defendant of several rights defendant is giving up by pleading guilty. Defendant contends that the court failed to inform defendant that a guilty plea would waive his right to a trial and that the right to a trial included the right to question witnesses against him. On review of the transcript, we find that defendant was informed that a guilty plea would waive his right to a trial, to have witnesses against him appear and to compulsory process for obtaining witnesses in his favor. In this case, failure to strictly comply with GCR 1963, 785.7(l)(g) does not mandate reversal. Guilty Plea Cases, 395 Mich 96, 122-123; 235 NW2d 132 (1975), People v Love, supra.
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Per Curiam.
Plaintiff Association Research and Development Corporation (ARDCO) appeals a judgment in its favor against CNA Financial Corporation, Continental Cásualty Company and Continental Assurance Company (CNA), Peck Agency, Inc., and Peck Associates, Inc.
This lawsuit grows out of a business relationship between plaintiff and defendants beginning in the fall of 1971. In September, 1971, Florists Trans-world Delivery Association (FTD) contacted Mr. Glenn Friedt for assistance in locating a new carrier for FTD’s insurance program. Subsequently, Mr. Friedt brought Mr. Robert Reed into the project and together they formed ARDCO to service the FTD account. Mr. Reed then sought the help of Mr. Francis Peck, a principal of Peck Agency, Inc., a Detroit insurance agency. In early 1972, FTD, on the recommendation of plaintiff and Peck Agency, agreed to take on CNA as its carrier. Thereafter, the four companies maintained an ongoing business relationship for the purpose of administering the FTD account.
Over the next three years, relations soured between plaintiff, Peck Agency and CNA and in April, 1975, plaintiff brought this lawsuit. Plaintiff alleged four counts against Peck Agency and CNA: (I) breach of contract; (II) assumpsit, or implied contract; (III) intentional interference with an advantageous business relationship; and (IV) business slander. During the trial, plaintiff discovered that in 1973 Mr. Peck left Peck Agency and began operating a new agency, Peck Associates, Inc. Upon plaintiff’s motion, the trial court permitted amending the complaint to include Peck Associates as a defendant in all claims against Peck Agency. At this time, plaintiff also droppped Count IV.
At the close of plaintiff’s proofs, the trial court granted several of the defendants’ motions for directed verdicts. It granted a motion for directed verdict for the Peck defendants on Count III and for CNA on Counts I and II. The court also dismissed all counts against Peck Agency, ruling that the proper defendant was Peck Associates. Plaintiff then withdrew Count II against Peck Associates. Consequently, the only issues to go to the jury were Count I, breach of contract, against Peck Associates and Count III, intentional interference with an advantageous business relationship, against CNA.
The jury returned a verdict for plaintiff. It awarded $80,000 on Count I plus one-half court costs, attorney fees and costs and $2.00 on Count III plus one-half court costs, attorney fees and costs. Upon plaintiff’s motion to enter judgment on the jury verdict or grant a new trial, the trial court ruled that the verdict should stand except for the award of attorney fees and costs. The judgment was entered accordingly.
Plaintiff raises four claims of error which we consider in order.
I
Plaintiff argues, first, that the trial court erred in deleting from the final judgment the jury’s award of attorney fees and costs. The award of attorney fees and costs was indeed beyond the power of the jury. In general, an award of attorney fees is prohibited unless specifically authorized by statute. City of Centerline v 37th Dist Court Judges, 74 Mich App 97, 103; 253 NW2d 669 (1977), aff'd 403 Mich 595; 271 NW2d 526 (1978). The rule fails to apply only in unusual circumstances such as where the opposing party has committed unlawful acts. Fleischer v Buccilli, 13 Mich App 135; 163 NW2d 637 (1968). No special circumstances existed in this case; therefore, the jury award of attorney fees and costs was improper.
The more important question, however, is the appropriate judicial response to this improper verdict. The court has several options: (1) delete the award of attorney fees and costs from the judgment; (2) instruct the jury that the award is not permitted by law and return them for further deliberations; or (3) order a new trial. We conclude that only the latter two options were available to the trial court in this case and that it erred in deleting the award from the final judgment.
The proper remedy for a defective verdict depends on the kind of defect present. Where a verdict is defective because it contains mere surplusage the court may remedy the problem by deleting the surplusage from the final judgment. Robertson & Wilson Scale & Supply Co v Richman, 212 Mich 334; 180 NW 470 (1920), Rawson v McElvaine, 49 Mich 194; 13 NW 513 (1882). Even if the defect is not due to the presence of surplus-age, the court may still alter the verdict itself so long as the court can ascertain the intent of the jury and the court’s final judgment implements that intent. Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970); Rabior v Kelley, 194 Mich 107, 116-117; 160 NW 392 (1916). In other situations, however, such as where the verdict is inconsistent, Harrington v Velat, 395 Mich 359; 235 NW2d 357 (1975), Farm Bureau Mutual Ins Co v Sears, Roebuck & Co, 99 Mich App 763; 298 NW2d 634 (1980), or contains a remedy not authorized by law, McCormick v Hawkins, 169 Mich 641; 135 NW 1066 (1912), Rathbone v Detroit United Railway, 187 Mich 586; 154 NW 143 (1915), the trial court must either reinstruct the jury or order a new trial.
The trial court apparently believed that the award of attorney fees was surplusage and could be disregarded in entering the judgment. If the jury intended the award to compensate plaintiff only for its legal costs, the award would indeed be surplusage. However, the jury may have intended that the award ensure that plaintiff would have received the full amount of its compensatory damages, undiminished by legal costs. It is reasonable to suppose that, if the jury had been informed that it could not award attorney fees, it would have increased plaintiff’s compensatory damages. For this reason, we do not believe the award of attorney fees and costs was surplusage. Nor do we find that the jury’s intent was ascertainable. It is equally reasonable to assume that the jury, correctly informed, would have stuck to its original damage award in the conviction that that was all plaintiff deserved. The trial court, therefore, did not have the authority to delete the attorney fees and costs in the final judgment as either surplus-age or consistent with the jury’s ascertainable intent. The correct response was either to reinstruct the jury or order a new trial. The only available appellate remedy is to reverse the judgment and order a new trial. We adopt this remedy.
Because the other issues raised by appellant may arise at the new trial we shall address each issue in turn.
II
Plaintiff argues that the trial court erred in granting a directed verdict on the issue of the Peck defendants’ tortious interference with plaintiff’s business relationship with FTD. On appeal from the grant of a defendant’s motion for a directed verdict, the question is whether plaintiff’s proofs, viewed in a light most favorable to plaintiff, are sufficient on each element of the claim to justify submitting it to the jury. Patelczyk v Olson, 95 Mich App 281; 289 NW2d 910 (1980). The elements of the tort of interference with an advantageous business relationship are (1) a valid business relationship (2) known to the defendant who (3) engaged in intentional conduct (4) causing the termination of that relationship resulting in (5) damages. Northern Plumbing & Heating, Inc v Henderson Brothers, Inc, 83 Mich App 84, 93; 268 NW2d 296 (1978), lv den 405 Mich 845 (1979). In the instant case, the question is whether plaintiff produced evidence that the Peck defendants intentionally interfered with plaintiff’s relationship with FTD sufficient to withstand a directed verdict.
Plaintiff points primarily to two pieces of evidence. First, on April 24, 1972, Mr.' Peck wrote a letter to FTD stating that "regarding promotional material, CNA cannot, of course, go ahead with this until FTD executes a joint 3-year 'agent of record letter’ directly to the Peck Agency, Inc., and ARDCO, as has been thoroughly discussed by all concerned and agreed upon prior to closing”. Other testimony indicated, however, that neither ARDCO nor FTD had agreed to the joint agent of record letter and that as of the spring of 1972 no request for an agent of record letter had been made on behalf of Peck Agency.
Second, in June, 1972, FTD requested that ARDCO assume certain administrative duties then performed by FTD. ARDCO agreed and Continental found the arrangement satisfactory. Mr. Peck, however, objected strenuously to the transfer. As a result, FTD, Peck Agency, and ARDCO negotiated an alternative method of handling the duties, embarrassing ARDCO.
Viewed in a light most favorable to plaintiff, this evidence would have justified a jury’s finding that Peck Agency had intentionally interfered with plaintiff’s business relationship with FTD. The trial court erred in granting defendant Peck Agency’s motion for a directed verdict. These events, however, occurred well before Peck Associates was created in 1973. The evidence as to these occurrences, therefore, would not have justified a jury’s finding that Peck Associates intentionally interfered with plaintiff’s business relationship with FTD. The trial court did not err in granting a directed verdict for Peck Associates on Count III.
Ill
Plaintiff next claims as error the trial court’s refusal to give plaintiff’s instructions on punitive damages on the intentional interference with a business relationship count against CNA. We cannot agree.
In Michigan, damages may not be awarded to punish the defendant. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980); Birkenshaw v Detroit, 110 Mich App 500, 511; 313 NW2d 334 (1981); Peisner v The Detroit Free Press, Inc, 104 Mich App 59, 71; 304 NW2d 814 (1981); Riggs v Fremont Mutual Ins Co, 85 Mich App 203, 206; 270 NW2d 654 (1978); Ray v Detroit, 67 Mich App 702, 704; 242 NW2d 494 (1976). Plaintiff relies, however, on Dassance v Nienhuis, 57 Mich App 422; 225 NW2d 789 (1975), which held that punitive damages may be awarded for intentional interference with an advantageous business relationship. Nevertheless, we find that Dassance was decided incorrectly. The Dassance Court based its finding that punitive damages are warranted where "vindictive, willful, wanton or malicious conduct is present”, Dassance, supra, 434, specifically on Alexander v Detroit, 392 Mich 30, 43; 219 NW2d 41 (1974). In Alexander, though, the Supreme Court held that "[i]n the absence of one of these forms of intentional conduct, no exemplary damages are in order”. 392 Mich 43. (Emphasis supplied.) The cases are legion that punitive and exemplary damages are distinct. See Kewin v Massachusetts Mutual, supra; Birkenshaw v Detroit, supra; Peisner v Detroit Free Press, supra (Brennan, J., concurring); Ray v Detroit, supra. Exemplary damages are to compensate the plaintiff for its humiliation, outrage, and indignity resulting from defendant’s wilful, malicious or wanton conduct, Kewin v Massachusetts Mutual, supra, 419. Punitive damages, however, are designed to punish defendant for its misconduct. See Peisner v Detroit Free Press, supra (Brennan, J., concurring). The Dassance ruling that Michigan allows punitive damages, therefore, could not properly rely on Alexander v Detroit, supra. Indeed, punitive damages have been disfavored in Michigan for generations. See Stilson v Gibbs, 53 Mich 280; 18 NW 815 (1884).
Plaintiff’s proffered instruction informed the jury that it may award damages "to punish and deter” the defendant. We find applicable today the venerable words of Chief Justice Cooley:
"[I]n all cases it is to be distinctly borne in mind that compensation to the plaintiff is the purpose in view, and any instruction which is calculated to lead them to suppose that besides compensating the plaintiff they may punish the defendant is erroneous.” Stilson v Gibbs, supra, 284.
Because plaintiff’s requested jury instruction was erroneous, the trial court acted correctly by rejecting it.
. IV
Finally, plaintiff argues that the trial court erred in dismissing Peck Agency, Inc., as a party defendant on the breach of contract count. On August 3, 1973, the following agreement was signed by Mr. Francis Peck of Peck Agency and Mr. Robert Reed of ARDCO:
"It is hereby mutually agreed that commission [sic] generated on insurance written through the Florists’ Transworld Delivery Association Group Insurance Trust or its successor(s) by either the Peck Agency, Inc. and/ or its successor(s) and/or Association Research and Development Corporation and/or its successor(s) shall be shared equally after sales and administration expenses.”
Peck Agency was a corporation in which Mr. Peck and his brother each owned a 50% interest. In October, 1973, Mr. Peck established Peck Associates, a corporation in which he maintained a 100% interest. Peck Associates assumed half of Peck Agency’s accounts, including the FTD account. It also continued to use Peck Agency stationary and shared office space with Peck Agency. Apparently, plaintiff became aware of Peck Associates’ existence only at trial and, upon its motion, the court allowed plaintiff to amend its complaint to include the corporation as a codefendant. Later, the court dismissed Peck Agency on the ground that Peck Associates was the proper defendant. Judgment on the breach of contract count, therefore, was not against Peck Agency.
The question on appeal is whether at the time of the breach Peck Agency was liable on the August 3, 1973, contract. We note first that Mr. Peck had apparent authority to bind Peck Agency to the contract. Mr. Peck accepted the contract "on behalf of Peck Agency, Inc.”. Below his signature appears: "Francis D. Peck
"Chairman of the Board”
Although by August Mr. Peck and his brother were operating separately, Peck Associates was not established until later in the year. Mr. Peck represented himself as an officer of Peck Agency and signed the contract in that capacity. Moreover, plaintiff conducted business with Peck Agency through Mr. Peck exclusively. Thus, Mr. Peck must have appeared as an agent entrusted with general management of Peck Agency. As such, the plaintiff was entitled to rely on such apparent authority unless it was notified of some limitation on that authority. Bergy Bros, Inc v Zeeland Feeder Pig, Inc, 96 Mich App 111, 115; 292 NW2d 493 (1980), lv gtd 411 Mich 974 (1980). Because plaintiff did not have such notice, Peck Agency was bound by the contract. See, also, Sweeney v Adam Groth Co, 269 Mich 436, 439; 257 NW 855 (1934).
This conclusion, however, does not settle the matter. The breach of the contract occurred after Peck Associates had taken the FTD account from Peck Agency. Although the testimony alludes to an agreement between Mr. Peck and his brother to divide the business of Peck Agency, the record does not disclose the details of this agreement. In light of the record’s relative silence on the nature of the agreement, we can only speculate as to its legal effect. We decline to do so and, instead, direct the trial court to conduct an evidentiary hearing into the agreement between Frank Peck and his brother to transfer to Peck Associates one-half of Peck Agency’s business, including the FTD account. After making findings of fact, the trial court must determine whether the agreement was legally effective to transfer liability on the August 3, 1973, contract to Peck Associates. The court may dismiss Peck Agency as a party defendant on the breach of contract claim only if it decides that the agreement transferred liability to Peck Associates before the breach occurred.
The judgment is reversed and remanded for a new trial in accordance with this opinion. No costs, neither party having prevailed in full.
Bronson, P.J., concurs in the result only.
By this holding we do not decide that the trial court erred in dismissing Peck Agency as a defendant on Count III. That issue was not raised on appeal and we decline to decide it. | [
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Per Curiam.
Plaintiff appeals as a matter of right from a summary judgment granted under GCR 1963, 117.2(1).
On March 11, 1980, Bernice Fuller filed a complaint for partition of a certain parcel of land located in Independence Township, Oakland County, Michigan. The defendant, Betty Jeanne Fuller, Bernice Fuller’s daughter, answered the complaint and, on May 22, 1980, filed a counterclaim asking the court to find the defendant the sole owner of the property and demanding an accounting from her mother. Thereafter, defen dant moved for a summary judgment. On February 23, 1982, the circuit court issued an order granting summary judgment in defendant’s favor as to Bernice Fuller’s complaint, under GCR 1963, 117.2(1). In accordance with a stipulation between the parties, an amended order making the summary judgment order a final judgment was issued on March 22, 1982. On May 18, 1982, following the filing of the claim of appeal herein, Bernice Fuller died.
On May 15, 1953, Harry and Virginia Chamberlain quitclaimed their interest in the property in question to Betty Jeanne Fuller and Jacqueline Marie Keyes. The Chamberlains’ interest in the property was that of land contract vendees. At the time that the quitclaim deed was executed, the Chamberlains also assigned their purchasers’ interest in the land contract to Betty Jeanne Fuller and Jacqueline Marie Keyes. On August 30, 1954, Jacqueline Marie Keyes quitclaimed her interest in the property to Betty Jeanne Fuller. Thereafter, on August 5, 1955, Herbert A. and Nina R. Bowman, the land contract vendors, executed an assignment of their sellers’ interest in the land contract to Betty Jeanne Fuller, Frank F. Fuller and Bernice M. Fuller. On March 6, 1965, the Bowmans executed a seller’s assignment of land contract to Betty Jeanne Fuller, Frank F. Fuller and Bernice M. Fuller. Frank F. Fuller died on April 7, 1966. The Bowmans, on October 25, 1967, executed a warranty deed conveying the property to Bernice Fuller, Betty Jeanne Fuller and Richard L. Fuller "jointly with rights of survivorship specifically granted and not as tenants in common”. Richard L. Fuller quitclaimed his interest in the property to Bernice Fuller and Betty Jeanne Fuller on December 3, 1979.
It appears that approximately 15 years prior to the filing of this action, defendant moved from this state to Florida. During the years which followed, the premises for the most part were maintained and cared for by Bernice Fuller. Bernice Fuller also either resided in or rented the premises during this period. Whether defendant contributed money for the care and maintenance of the property is the subject of some controversy.
It is argued on appeal that Bernice Fuller’s petition for partition should have been granted, in spite of the fact that the land was deeded to the parties "jointly with rights of survivorship specifically granted and not as tenants in common”. Plaintiff representative opines that the additional langauge, "with rights of survivorship specifically granted”, adds nothing to the word "jointly”. It is asserted that the parties were merely joint tenants and that, as so granted, partition is available.
While defendant does not contest this fact, it should first be noted that Bernice Fuller’s unfortunate death after the filing of the claim of appeal does not abate the action herein. See MCL 600.2921; MSA 27A.2921.
The substantive issue presented herein centers around the propriety of the trial court’s order granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1).
" 'A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiff’s claim and is to be considered by an examination of the pleadings alone. * * * Our job as a reviewing court is to accept as true the well-pleaded facts in plaintiff’s complaint, against each defendant, * * * and to determine whether these claims are so "clearly unenforceable as a matter of law that no factual development can possible [sic] justify a right to recovery.” (Citations omitted.)’ ” Tumbarella v Kroger Co, 85 Mich App 482, 489; 271 NW2d 284 (1978), lv den 406 Mich 939 (1979), quoting Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179; 230 NW2d 363 (1975).
Generally, all land held jointly is subject to partition. MCL 600.3304; MSA 27A.3304. See Henkel v Henkel, 282 Mich 473; 276 NW 522 (1937); Beaton v LaFord, 79 Mich App 373; 261 NW2d 327 (1977). The Supreme Court, however, in Ames v Cheyne, 290 Mich 215; 287 NW 439 (1939), slightly altered this principle, holding that under specified circumstances neither party to a joint tenancy may deprive the other of his right to survivorship and that, hence, a partition may not be granted. Therein, the land was conveyed to the parties "as joint tenants and not tenants in common, and to the survivor thereof, parties of the second part”. (Emphasis in original.) Ames, supra, p 218. With respect to this conveyance, the Court stated:
"Where property stands in the name of joint tenants with the right of survivorship, neither party may transfer the title to the premises and deprive the other of such right of survivorship. Schulz v Brohl, 116 Mich 603; 74 NW 1012 (1898); Finch v Haynes, 144 Mich 352; 107 NW 910; 115 Am St Rep 447 (1906).” Ames, supra, p 218.
See Jones v Snyder, 218 Mich 446; 188 NW 505 (1922). This rule of property law has been reaffirmed by the Michigan Supreme Court on at least three other occasions. See Mannausa v Mannausa, 374 Mich 6; 130 NW2d 900 (1964) ("as joint tenants with right of survivorship and not as tenants in common”); Ballard v Wilson, 364 Mich 479; 110 NW2d 751 (1961) ("as joint tenants with right of survivorship, and not as tenants in common”); Rowerdink v Carothers, 334 Mich 454; 54 NW2d 715 (1952) (to the parties "or the survivor of them”). See, also, Beaton, supra, pp 375-376; Anderson v Richter, 54 Mich App 532, 534-537; 221 NW2d 251 (1974).
Plaintiff would have this Court circumvent the holding of Ames by distinguishing the facts which gave rise to the conveyance therein from the facts which gave rise to the conveyance herein. First, the facts herein closely parallel the facts present in Ames. Second, plaintiff’s assertion totally disregards the lack of emphasis placed on the facts by the Ames Court. The Ames Court clearly stressed the words of conveyance as dispositive of the issue. See Ames, supra, p 218. Moreover, the Ames rule has been applied in varying factual situations. See Mannausa, supra; Ballard, supra. The Supreme Court in Mannausa, supra, pp 8-9, quoting Ballard, supra, pp 483-484, aptly summed up the pervasiveness of the Ames rule as follows:
" 'Hence arises our problem: The 3 grantees before us hold the property as "joint tenants with right of survivorship, and not as tenants in common.” Does such a deed create a mere joint tenancy, or something more?
" 'It has been held repeatedly in a parallel situation, where a deed ran to "A and B, and the survivor of them, his heirs and assigns,” that the intent of the grantor was to convey a moiety to A and B for life with remainder to the survivor in fee, and that neither grantee could convey the estate so as to cut off the remainder. Accordingly, and apparently upon parity of reasoning, we held in Ames v Cheyne, supra, 218, that "where property stands in the name of joint tenants with the right of survivorship, neither party may transfer the title to the premises and deprive the other of such right of survivorship” (citing the Schulz and Finch Cases [Schulz v Brohl, 116 Mich 603; 74 NW 1012 (1898); Finch v Haynes, 144 Mich 352; 107 NW 910; 115 Am St Rep 447 (1906)] * * *) and concluded that "plaintiff may not have partition.”
" 'We are not persuaded by appellee’s arguments either that the decision in Ames v Cheyne was erroneous or that it should be overruled. Moreover, our prior decision, in Mr. Justice Cooley’s words, "has become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by overruling it.” In the years since the Ames decision was handed down there is no question but that the rule of that case has become a rule of property in this State. Estates have been built, conveyances made, and wills drawn in reliance upon it.
" 'Where a rule fixing the status of property has existed for .many years, has been relied upon by the profession, and has been sustained by decision, a proper judicial regard for certainty of titles and estates would suggest that it is not to be disturbed. Under the rule of Ames v Cheyne we hold that these parties intended to create and did create joint life estates followed by a contingent remainder in fee to the survivor, indestructible by the voluntary act of only one of the life tenants.’ ”
The plaintiff also urges this Court to disregard the all-encompassing aspect of the Ames rule because of its archaic nature. To support this contention, plaintiff cites the committee comment accompanying MCL 600.3304; MSA 27A.3304, wherein the committee states:
"The general rule that there is a right in a co-tenant to have the premises partitioned is not universally applicable. A co-tenant may do things which will limit this right. He may contract away his right to partition, Avery v Payne, 12 Mich 540 (1864); Eberts v Fisher, 54 Mich 294; 20 NW 80 (1884). The court probably went to the extreme limit of finding a contract against partition in the case of Ames v Cheyne, 290 Mich 215; 287 NW 439 (1939), when it found that the parties by taking the land as joint tenants with a right of survivorship were contracting that they would not partition the premises. It seems quite likely that given a proper case reasonably argued the court would today find that property taken by persons as joint tenants with a right of survivorship was subject to partition since the statement 'with right of survivorship’ would reasonably be considered merely a statement of an incident of joint tenancy rather than a contract.” (Emphasis in original.)
This argument, however, is severely discounted by the fact that after the enactment of MCL 600.3304; MSA 27A.3304, which is substantially the same as its precursor, 1948 CL 631.1, the Supreme Court reaffirmed the holding in Ames. See Mannausa, supra. In any event, it is not this Court’s place to narrow the interpretation of a rule that the Supreme Court has clearly indicated should be applied in a case such as this.
Because the land was conveyed to the parties herein "jointly with rights of survivorship specifically granted and not as tenants in common”, which is nearly identical to the language present in Ames, Ames is controlling. The denial of Bernice Fuller’s petition for partition is upheld.
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Per Curiam.
Plaintiff appeals the grant of summary judgment on two elements of her claim for damages.
Plaintiff sued defendant for damages for breach of an alleged implied employment contract. The trial court granted a summary judgment for defendant on that part of plaintiffs claim requesting punitive and exemplary damages for breach of contract. It also granted a summary judgment on plaintiffs second count, a claim for damages for intentional infliction of emotional distress. It held that Michigan law precludes the award of these types of damages sought for breach of an employment contract.
We are fortunate in that the principles of law to be applied here are clearly delineated in the Supreme Court’s opinion in Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980). Although that case involved damages arising out of nonpayment of insurance benefits under a disability income protection policy, we believe that the principles found to bar the relief sought in Kewin also bar the relief sought here.
In Kewin, the Court held that exemplary damages are normally not available for breach of a contract:
"Our review of the precedent [sic] indicates that those cases which permit recovery of exemplary damages as an element of damages involve tortious conduct on the part of the defendant. See, e.g., McFadden v Tate, 350 Mich 84; 85 NW2d 181 (1957) (assault and battery); Scripps v Reilly, 38 Mich 10 (1878) (libel); Welch v Ware, 32 Mich 77 (1875) (assault and battery). An award of exemplary damages is considered proper if it compensates a plaintiff for the 'humiliation, sense of outrage, and indignity’ resulting from injuries 'maliciously, wilfully and wantonly’ inflicted by the defendant. McFadden, supra, 89. The theory of these cases is that the reprehensibility of the defendant’s conduct both intensifies the injury and justifies the award of exemplary damages as compensation for the harm done the plaintiff’s feelings.
"In cases involving only a breach of contract, however, the general rule is that exemplary damages are not recoverable. 9 Michigan Law & Practice, Damages, § 91, p 88; 22 Am Jur 2d, Damages, § 245, p 337. Just as with that denying damages for mental distress, the theory underlying the denial of exemplary damages in breach of contract cases is that the plaintiff is adequately compensated when damages are awarded by reference only to the terms of the contract.” Kewin, supra, pp 419-420.
The Court held that, "absent allegation and proof of tortious conduct existing independent of the breach * * * exemplary damages may not be awarded in cómmon-law actions brought for breach of a commercial contract”. Kewin, supra, pp 420-421.
Plaintiff, having alleged no tortious conduct independent of the breach, cannot recover damages if her employment contract is a commercial contract. She claims, however, that an employment contract is not commercial, but is personal in nature, seeking the benefit of an exception to the general rule noted in Kewin, supra, p 420. We cannot agree. The only contract which the Court in Kewin recognized as noncommercial was the contract to marry. We agree with plaintiff that the employment relation consists of significant personal, as well as commercial, elements. An employment contract does not, however, fail the only test for a commercial contract noted by the Court in Kewin: the susceptibility of accurate pecuniary estimation of damages. A breach of an employment contract may produce substantial easily ascertainable monetary damages. In this respect, it is not at all like a marriage contract. It is also unlike other contracts for which exemplary (or punitive) damages have been held proper in other jurisdictions. See 22 Am Jur 2d, Damages, § 245, p 337. Although we will not hold that all employment contracts are commercial under Kewin, plaintiff has failed to state any facts to make her employment contract exceptional by its emphasis on personal, rather than commercial, goals. We hold that plaintiff’s complaint does not state a claim upon which exemplary damages may be awarded.
The trial judge also held that damages for mental distress were not recoverable for breach of an employment contract. Again, we turn to the Supreme Court’s opinion in Kewin for guidance. In all breach of contract actions, the damages recoverable are those that arise naturally from a breach, or that were within the parties’ contemplation at the time of contracting. Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854). Generally, damages for mental distress cannot be recovered for breach of a contract. Kewin, supra, p 415. The Supreme Court recognized the continuing validity of the exception stated in Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957):
"The nature and object of the agreement justified the treatment accorded it in Stewart. A contract to perform a Caesarean section is not a commercial contract in which pecuniary interest are most important. Rather, such a contract involves 'rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal’. Stewart, 469. Where such interests are invaded by breach of a contract meant to secure their protection, mental distress is a particularly likely result. Flowing naturally from the breach, these injuries to the emotions are foreseeable and must be compensated despite the difficulty of monetary estimation.” Kewin, supra, p 416.
While we agree with plaintiff that breach of an employment contract is more likely to cause injuries to the emotions than most breaches of contract, we agree with defendant that the employment contract’s essence is commercial. Upon a breach, plaintiff can be adequately compensated by reference to the contract’s terms. Kewin, supra, p 417. See also 38 Am Jur 2d, Fright, Shock and Mental Disturbance, § 35, p 43. The same result we have reached on this issue was reached by a federal district court applying Michigan law in Fisher v General Telephone Co of the Northwest, Inc, 510 F Supp 347 (ED Mich, 1980).
Plaintiffs complaint alleged no facts on which a court could find that, in making her specific employment contract, the parties contemplated that mental distress damages would be caused by its breach. Kewin, supra, p 419. Although plaintiff labeled part of her complaint as a tort action for intentional infliction of mental distress, she pled no facts in support of this claim beyond stating that defendant intentionally breached the contract. If Michigan recognizes a tort action for the intentional infliction of emotional distress (see Kewin, supra, p 421), plaintiff’s complaint fails to state such a claim.
Affirmed. Costs to appellee. | [
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Per Curiam.
Plaintiff appeals as of right from the Wayne County Circuit Court’s order of July 10, 1981, granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1) and 117.2(3), failure to state a claim upon which relief can be granted and no genuine issue of material fact.
Plaintiff’s complaint alleged that while he was employed by Rocco Ferrera Construction Company in the construction of a sewer tunnel for the City of Detroit, he was overcome by fumes emitted by various equipment and machinery and, as a result, he fell and was injured. The construction of the sewer tunnel was part of an overall program designed to create a regional sewage disposal system for southeastern Michigan, utilizing the centralized facilities of the Detroit Water and Sewage Department.
Plaintiff commenced this civil action seeking damages for personal injury and alleging various theories of negligence, gross negligence, inherently dangerous work activities, strict liability, nuisance per se and nuisance in fact. After the completion of the discovery process, defendant’s motion for summary judgment based on the defense of gov ernmental immunity was granted. Plaintiff appeals raising two issues for our consideration.
First, plaintiff contends that the trial court erred in finding that defendant was entitled to the defense of governmental immunity.
In Pittman v Taylor, 398 Mich 41, 45; 247 NW2d 512 (1976), our Supreme Court abrogated the common-law doctrine of state governmental immunity and today the doctrine exists only by statute. MCL 691.1407; MSA 3.996(107) provides in part:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.”
The Legislature has enacted certain exceptions to this general grant of immunity, none of which are applicable to the case at bar. See Thomas v State Highway Dep’t, 398 Mich 1, 9, fn 3; 247 NW2d 530 (1976).
Inasmuch as the term "governmental function” has no statutory definition, the task of determining whether a particular government activity is a "governmental function” within the meaning of the statute has fallen on the judiciary. The Supreme Court has adopted a case-by-case approach to making this determination. See, Thomas, supra, pp 11-13. Out of this case-by-case approach arose three separate classification schemes or tests for determining when an activity is a governmental function. Recent Supreme Court decisions have consistently utilized these three tests in classifying claims of governmental immunity.
The first of these tests, the "sui generis” test was announced by the Supreme Court in Thomas, supra, p 21, and later applied in Parker v City of Highland Park, 404 Mich 183, 193-195; 273 NW2d 413 (1978). Under this approach, which was adopted by Justices Fitzgerald, Kavanagh and Levin, the term "governmental function” is limited to "those activities sui generis governmental— of essence to governing”. This approach would confer governmental immunity only upon those activities which were of such a "peculiar nature” that they could only be done by the government.
In adopting the "of essence to government” test, the Fitzgerald bloc specifically rejected the "common good of all” test applied by a dissenting opinion signed by Justices Williams, Coleman and Ryan. Parker, supra, p 194.
In casting the crucial "swing vote” the late Justice Moody concurred with the Fitzgerald bloc’s conclusion that the operation of a municipally owned general hospital did not constitute a governmental function. Justice Moody, however, utilized a slightly different approach to the "sui generis” test. Justice Moody suggested:
"[A]s a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” Parker, supra, p 200.
Justice Moody also rejected the Fitzgerald bloc’s conclusion as stated in its dissenting opinion in Thomas, supra, that a function is not governmental unless the particular activity involved has "no common analogy in the private sector”.
Justice Moody’s analysis suggests that an essen tial government activity may have a common analogy in the private sector, thus his interpretation of the "sizi generis” test clearly extends immunity to a broader range of government activities than would the Fitzgerald bloc. See Littlejohn & DeMars, Governmental Immunity After Parker and Perry: The King Can Do Some Wrong, 1982 DC L Rev 1, 17 (1982).
In Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), the Justices aligned themselves as they had in Parker, supra, with Justice Moody casting his "swing vote” in favor of the dissenting opinion in Parker, thus holding that the operation of a public mental hospital was a "governmental function”. It is of special significance to the case at bar that Justice Moody’s opinion in Perry, supra (which at first glance might appear contrary to his position in Parker, that the operation of a general hospital is not a governmental function), was based, at least in part, upon the government’s pervasive role in the area of mental health, as well as the legislatively mandated public policy in favor of fostering treatment and care for the mentally handicapped.
While the untimely death of Justice Moody and the impending changes in the Supreme Court’s membership cast some doubt as to the continuing validity of Parker, supra, and Perry, supra, our decision today is governed by those cases.
Even if we were to assume, as plaintiff would have us hold, that the operation and maintenance of a regional sewage disposal system could be carried out by the private sector and thus is not a governmental function according to Justices Fitzgerald, Levin and Kavanagh, see Perry, supra, p 215, and Thomas, supra, pp 21-25, it does not follow that the trial court erred in holding that defendant was entitled to the defense of governmental immunity.
Under the "common good of all” test advocated by Justices Ryan, Williams and Coleman, the operation of this sewage disposal system is clearly a governmental function. Applying Justice Moody’s analysis to the facts of the case at bar tips the scales in favor of finding that the defendant was in fact engaged in the discharge of a governmental function.
In the case at bar, as in Perry, the government plays a pervasive role in the field. The record in this case reveals that the sewage disposal facility in question serves approximately five million people in the six-county area of Southeastern Michigan, an area of 3,951 square miles. The project was accomplished at a cost of over $100,000,000. It was financed entirely by government grants, 55% federal, 25% state and 20% City of Detroit. To our knowledge, there are no private entities providing alternative sewage disposal systems within this region. Moreover, as in Perry, supra, this activity is in furtherance of the public policy in favor of the efficient and ecologically sound disposal of waste sewage. Our holding today is consistent with the previous decisions of this Court which have held that the operation of the same sewer project is a governmental function. See Davis v Detroit, 98 Mich App 705; 296 NW2d 341 (1980), lv den 410 Mich 856 (1980); Scott v Detroit, 107 Mich App 194; 309 NW2d 201 (1981).
We are mindful of this Court’s decision in Mitts v Village of Fowlerville, 119 Mich App 76; 326 NW2d 431 (1982), holding that the operation of a much smaller sewage disposal system was not a governmental function, however, we are persuaded that our holding represents the better view. Inas much as the sewage system involved in Mitts was dwarfed in comparison to the one in the case at bar, it was affected by different policy considerations. We conclude, therefore, that the trial court did not err in holding that the plaintiff was entitled to the defense of governmental immunity.
Plaintiff also contends that the trial court erred in granting defendant’s motion for summary judgment because his complaint sufficiently pled a cause of action for nuisance to which the defense of governmental immunity does not lie.
While our resolution of this issue is made difficult by reason of a split of authority within the Supreme Court, there is unanimity within the Court in support of the proposition that, at least in certain circumstances, there is a judicially created exception to governmental immunity for tortious activity sounding in nuisance. See Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978); Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978).
Determining the scope of this exception, however, is somewhat problematic. A review of the plurality opinion of Justices Fitzgerald, Kavanagh and Levin in Rosario, supra, and Gerzeski, supra, reveals that they do not believe that governmental immunity is a defense to a claim of nuisance, regardless of whether it is an intentional or a negligent nuisance.
The late Justice Moody and Justice Williams on the other hand took the position that governmental immunity does not bar claims based upon a nuisance in fact that was created intentionally. Conversely, they would hold that, where a claim of nuisance is created by negligent conduct, governmental immunity is a valid defense.
The remaining two members of the Court, Jus tices Ryan and Coleman, would allow the nuisance exception to operate only in very narrow circumstances, i.e., where the conduct creates a nuisance per se (i.e., activities that are nuisances without regard to the care with which they are conducted or the circumstances under which they exist) or an intruding nuisance (i.e., where damage is caused by a direct trespass).
In the case at bar, plaintiff’s complaint alleged, inter alia, nuisance per se and nuisance in fact. We note that on appeal plaintiff has failed to challenge the trial court’s order of summary judgment dismissing his claim of nuisance per se and, therefore, this issue is deemed abandoned and will not be considerecd by the Court. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959); Davey v Detroit Automobile Inter-Ins Exchange, 98 Mich App 123, 128; 296 NW2d 12 (1980).
The question then becomes whether the allegations contained in plaintiff’s complaint were sufficient to set forth a valid claim of intentional nuisance in fact. If they were not, we must affirm the trial court’s order of summary judgment pursuant to GCR 1963, 117.2(1), because a majority of the Supreme Court (Justices Moody, Williams, Ryan and Coleman) agree that the doctrine of governmental immunity bars claims based upon nuisances created by negligent conduct.
In Rosario, supra, p 142, it was stated that:
"In order to find an intentional nuisance, the trier of fact must decide based upon the evidence presented that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance. This finding comports with the definition of intentional nuisance set forth in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952):
" 'A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.’ ”
In his leading treatise on torts, Prosser highlights the difference between an intentional nuisance and a nuisance arising out of negligent conduct. With respect to intentional nuisances, he says that:
"Occasionally they proceed from a malicious desire to do harm for its own sake; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to plaintiff’s interests is substantially certain to follow.
"But a nuisance may also result from conduct which is merely negligent, where there is no intent to interfere with the plaintiff, but merely a failure to take precautions against a risk apparent to a reasonable man.” (Emphasis added.) Prosser, Torts (4th ed), § 87, pp 574-575.
Thus, in order to have stated a valid claim of intentional nuisance, plaintiff must have alleged that the defendant intentionally created or continued the alleged activity causing the alleged nuisance, in this case operation of machinery within the tunnel in such a manner so as to cause an accumulation of toxic fumes, with full knowledge that the harm to plaintiff was substantially certain to follow. This, plaintiff has failed to do and, therefore, we conclude that the trial court did not err in granting defendant’s motion for summary judgment based on the defense of governmental immuntiy.
In addition, we would hold that the trial court’s order of summary judgment was proper under GCR 1963, 117.2(3) because the record below is devoid of any affidavits, depositions, admissions or other factual support for his claim of nuisance. Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979).
Finally, we reject plaintiff’s contention that the trial court erred in refusing him an opportunity to amend his complaint to correct any "factual defect”. Failure of the trail court to allow amendment of a complaint is not grounds for reversal where the amendments would not have cured the fatal defect. Zimmerman v Stahlin, 374 Mich 93, 96; 130 NW2d 915 (1964). In the case at bar, even if the trial court had allowed plaintiff an opportunity to amend his complaint, summary judgment would still lie for lack of a genuine issue of material fact.
Affirmed.
No costs, a public issue being involved.
D. F. Walsh, J., concurred in the result only.
Count VI of plaintiffs complaint entitled "Nuisance in Fact” alleged:
“The above work activities as undertaken at the direction of defendants resulted in the accumulation of hazardous and poisonous gases within the said tunnel, causing a dangerous, hazardous and offensive condition in said tunnel, which condition was contrary to the health and welfare of employees in said tunnel, including plaintiff herein and constitutes a nuisance in fact, which nuisance was a direct and proximate cause in the catastrophic event upon which this cause is based and resultant injury to plaintiff.”
In addition, ¶ 3 of plaintiffs complaint which was incorporated by reference into Count VI alleged:
"The site of construction where plaintiff was engaged as a laborer for the aforesaid employer and contractee of defendants was in the general vicinity of Eighteen Mile Road and Hayes Road, plaintiff suffering injury to his person on or about February 13, 1976, while in the process of undertaking laborious work activities within the said tunnel shaft he was overcome by noxious and poisonous fumes as emitted by various machinery in said tunnel and permitted to accumulate in excessive amounts, the said incident causing injury to plaintiff of lasting duration rendering him totally disabled for the rest of his life.” | [
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Per Curiam.
Plaintiff appeals from an order granting accelerated judgment to defendant Home Insurance Company and from an order granting summary judgment to defendant City of Flint.
Plaintiff, a police officer for the City of Flint, was injured while on duty on October 6, 1977, when the police car in which he was a passenger was struck broadside by another car. Plaintiff received his full pay until January 31, 1979, when he was placed on a permanent disability retirement pension. Thereafter, he contacted an attorney, and on September 27, 1979, his attorney sent a request for personal injury protection benefits (PIP) to Lake Agency, an independent agent for Home Insurance Company, the insurer of the police vehicle.
Plaintiff brought the instant action as a result of Home Insurance Company’s refusal to pay PIP benefits. Plaintiff alleged that defendant Home Insurance Company wrongfully refused to pay him PIP benefits pursuant to the city’s policy. Plaintiff further alleged that defendant City of Flint had a duty to plaintiff, pursuant to its contract with Home Insurance Company, to notify the company of plaintiff’s claim for benefits and change to disability retirement status. Plaintiff alleged that the city breached its duty by failing to notify Home Insurance Company of his claim.
After a trial on the notice issue, the trial court in a written opinion granted Home Insurance Company’s motion for accelerated judgment, finding that plaintiff’s action was time-barred under this Court’s interpretation of MCL 500.3145(1); MSA 24.13145(1) of the no-fault act in Burns v Auto-Owners Ins Co, 88 Mich App 663; 279 NW2d 43 (1979).
For the reasons stated in Burns, we find that the Legislature intended the language "the notice of injury * * * may be given to the insurer * * * by a person claiming to be entitled to benefits therefor, or by someone in his behalf’ to be nondiscretionary:
"We find that the Legislature intended to provide for the exclusive method by which notice can be given to the insurer so as to extend the one-year limitations period. If, as plaintiff argues, notice may be given by anyone, the Legislature would have had no apparent reason to specify that notice 'may be given * * * by a person claiming * * * benefits * * * or by someone in his behalf. * * *
"This statute does not deal with notice clauses in insurance contracts. Cf. MCL 500.3008; MSA 24.13008. As noted by the Davis panel [Davis v Farmers Ins Group of Companies, 86 Mich App 45; 272 NW2d 334 (1978)], the statute’s purpose is not to protect litigants who may be unaware of a notice provision but who nevertheless bring their claims within the limitations period, but rather to encourage claimants or persons acting in their behalf to bring their claims to court while those claims are still fresh. To hold that mere notice, from whatever source, of an accident which could possibly give rise to a claim for benefits by a noninsured is sufficient would, we think, thwart this legislative purpose.” 88 Mich App 663, 665-666. (Emphasis in original.)
The insurance company cannot be expected to investigate all potential claims merely because a claim unrelated to the plaintiff incidentally contains all the information concerning the plaintiff’s injuries required by § 3145(1). We note that while this Court did not apply the requirement that notice be submitted by the claimant or someone on the plaintiff’s behalf in Lansing General Hospital, Osteopathic v. Gomez, 114 Mich App 814; 319 NW2d 683 (1982), the holding was based on unique facts the Legislature could not have contemplated when it drafted the statute.
We also find that the trial court properly denied plaintiff’s motion for relief from judgment. Although plaintiff claims the insurance policy in effect between the City of Flint and Home Insur anee Company established a different notice requirement from that provided by the no-fault statute, our review of the policy reveals that the insurance company clearly did not waive compliance with the requirements of § 3145(1), and in fact, the contract’s notice language is arguably stricter than that of the statute.
The trial court correctly found that the city owed no duty to file the claim for PIP benefits on plaintiff’s behalf. Summary judgment for failure to state a cause of action is proper in the absence of a duty, since plaintiff’s negligence claim is so clearly unenforceable as a matter of law that no factual development could possibly sustain it. Sowels v Laborer’s International Union of North America, 112 Mich App 616; 317 NW2d 195 (1981).
Affirmed. | [
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] |
G. R. McDonald, J.
Plaintiff appeals by right the denial of its claim for refund of use taxes paid; defendant appeals by right the grant of a partial refund of use taxes paid. The factual background of this case is drawn from the stipulation of facts entered into by the parties and on which the case was tried in the Court of Claims.
Plaintiff does business at the Kalamazoo Municipal Airport as a licensed aircraft retailer and a fixed-base operator. In addition to selling and servicing aircraft, plaintiff provides aircraft for rent or charter and offers flight instruction and pilot services. At the time plaintiff purchased aircraft for its use in rental and charter operations, it elected under Rule 82 of the specific sales and use tax rules, 1979 AC, R 205.132, not to pay sales tax at the time or purchase, but rather to pay use tax on rental receipts derived from the rental of the aircraft purchased.
In addition to aircraft owned by plaintiff, it was stipulated that plaintiff has used in its rental and charter operations:
"(a) Aircraft owned by other fixed base operators (to provide a specific charter when the taxpayer has either no pilot available, or no plane, i.e., a 'sub-charter’).
"(b) Aircraft leased from other entities. (These aircraft are leased exclusively by the taxpayer. The leases are 'true leases’, that is, the leases are not forms of installment sales contracts. The leases contain no purchase option.)”
The parties further stipulated that sales or use tax had been paid on the leased aircraft and that "Plaintiff has no liability for Michigan sales or use tax with respect to (these) aircraft * * * unless the lease or charter of aircraft owned by others is an independently taxable transaction.”
Some customers utilize the flight instruction or pilot services offered by plaintiff without renting its aircraft. Some customers rent aircraft from plaintiff without arranging for either flight instruction or for a pilot to be provided by plaintiff. Charges for instruction were separately itemized on invoices sent to plaintiff’s customers. Instructional charges were calculated on an hourly rate and did not vary whether or not the customer rented the aircraft in which the instruction was received. Charges for pilot services were not separately itemized on invoices, but the charge was calculated using a .separate hourly rate. The charges for instructional services and for pilot services were stipulated to represent reasonable charges for those services.
On sub-charters from other fixed-base operators, the other operator billed plaintiff. Plaintiff in turn billed the customer, receiving as its compensation for arranging the charter the difference between the two bills.
Pursuant to its election under Rule 82, the plaintiff paid use tax on rental receipts attributable to aircraft it owned. However, plaintiff excluded from rental receipts reported for use tax purposes income attributable to pilot services, instructional services, and the charter or rental of aircraft owned by other fixed-base operators or owned by other entities.
The State Board of Tax Appeals held that plaintiff was liable for use tax computed on those rental receipts excluded by plaintiff. Plaintiff paid the taxes assessed under protest and instituted a suit for refund in the Court of Claims. The trial judge held that pilot services and instructional services provided in conjunction with rental of the aircraft were subject to use tax. The court found, however, that plaintiff’s subleasing of aircraft rented or chartered from others was not a taxable transaction where sales or use tax had been paid by the third party and ordered defendant to refund to plaintiff $31,890.29, plus interest.
Plaintiff on appeal challenges the trial judge’s determination that plaintiff must pay use tax on charges for pilot and instructional services it provides in conjunction with its rental of aircraft to customers. Rule 82, pursuant to which plaintiff elected to pay use rather than sales tax, provides, in pertinent part:
"A person engaged in the business of renting or leasing tangible personal property to others shall pay the Michigan sales or use tax at the time he purchases tangible personal property, or he may report and pay use tax on the rental receipts from the rental thereof.”
Use tax is defined in § 3 of the Use Tax Act, MCL 205.93; MSA 7.555(3), as "a specific tax for the privilege of using, storing or consuming tangible personal property in this state, which tax shall be equal to 4% of the price of such property * *
We agree with plaintiff that, under the particular facts present in this case, income attributable to instructional and pilot services rendered was not part of the "price” of the aircraft to which the use tax applies.
"Price” is defined in § 2 of the Use Tax Act, MCL 205.92(f); MSA 7.555(2)(f).
"(f) 'Price’ means the aggregate value in money of any thing, or things, paid or delivered, or promised to be paid or delivered by a consumer to a seller in the consummation and complete performance of the transaction by which tangible person[al] property or services shall have been purchased or rented for storage, use or other consumption in this state, without any deduction therefrom on account of the cost of the property sold; cost of materials used, labor or service cost, interest or discount paid, or any other expense whatsoever.” (Emphasis added.)
Pilot and instructional services were not always part of the "complete performance of the transaction” by which plaintiff rented aircraft to its customers. These services were neither necessary nor incidental to complete performance of the taxable transaction, i.e., the rental of the aircraft. Customers were free to and did rent aircraft without purchasing these services; services could be and were purchased by customers who did not rent aircraft from plaintiff. Charges for pilot services and instructional services were calculated using a separate hourly rate and were stipulated to be reasonable.
Each case must, of course, turn on its own facts. On the particular facts of this case, we conclude that the distinct and identifiable service transactions, which may or may not occur contemporaneously with the taxable aircraft rental transaction, are clearly severable from the latter and thus not subject to the use tax.
Defendant has cross-appealed, claiming the trial judge erred in holding that plaintiff need not pay use tax on those transactions in which it subleases to its customers aircraft it has leased from a third party where the third party has paid Michigan sales or use tax on the aircraft at the time of its purchase.
The Michigan Use Tax Act does not impose a use tax on every lease transaction. Following definition of "price”, by which the amount of use tax due is to be calculated, MCL 205.92(f); MSA 7.555(2)(f) provides:
"No tax is to be computed or collected on rental receipts when the tangible personal property rented or leased has previously been subjected to a Michigan sales or use tax when purchased by the lessor.” (Emphasis added.)
"Purchase” is broadly defined as "acquired for a consideration” and includes a lease transaction. MCL 205.92(e); MSA 7.555(2)(e).
As the aircraft rented by plaintiff from third parties were subject to use or sales tax when purchased by plaintiff’s lessors it is clear, and defendant does not argue otherwise, that a use tax may not be imposed on receipts resulting from the rental transaction between plaintiff and the owner-lessor of the aircraft.
The statute is not clear on whether receipts from subleasing of such aircraft by plaintiff are subject to use tax. Defendant argues that a use tax is collectible on subsequent sublease transactions in which plaintiff, as a "lessor”, has not been subjected to any previous payment of sales or use tax in relation to the aircraft it subleases, irrespective of the fact that the property has been subject to sales or use tax when purchased by plaintiff’s "lessor”.
The construction of the statute urged by defendant would be contrary to this Court’s duty not to extend the scope of tax laws by implication of forced construction. Such laws may be made plain, and the language thereof, if dubious, is not resolved against the taxpayer. In re Dodge Brothers, 241 Mich 665, 669; 217 NW 777 (1928). Further, the defendant’s construction would be wholly inconsistent and contrary to the Legislature’s purpose and intent in enacting the Use Tax Act.
The Use Tax Act is designed to impose an excise tax on the use, storage or consumption of tangible personal property brought into Michigan in interstate commerce, after it has come to rest in this state. Western Electric Co v Dep’t of Revenue, 312 Mich 582, 596; 20 NW2d 734 (1945). "Its intent is to reach those purchases by Michigan consumers not reached by the sales tax act [MCL 205.51 et seq.; MSA 7.521 et seq.]. ” National Bank of Detroit v Dep’t of Revenue, 334 Mich 132, 141; 54 NW2d 278 (1952). "The sales tax act and the Use Tax Act are complementary. Their relation is such as to require recognition in each of the provisions and operation of the other.” Don McCullagh, Inc v Dep’t of Revenue, 354 Mich 413, 425; 93 NW2d 252 (1958), app dis 359 US 343; 79 S Ct 897; 3 L Ed 2d 927 (1959).
Thus, the use tax is intended to reach the storage, use or consumption of tangible personal property brought into Michigan on which a Michigan sales or use tax has not been paid. Consistent with this purpose, the provision of the Use Tax Act in issue here must be interpreted as meaning that once either use or sales tax has been paid by the owner-lessor relating to tangible personal property, subsequent sublease transactions involving that property are not taxable under the Use Tax Act.
Such transactions would be taxable, if at all, under the state sales tax. The parties having stipulated that the aircraft had been subject to Michigan use or sales tax when purchased by plaintiffs lessors and that the leases of the aircraft are "true leases”, to which the sales tax is inapplicable, compare MCL 205.51(l)(d); MSA 7.521(l)(d), the subleasing by plaintiff of such aircraft is not a taxable transaction.
The judgment of the Court of Claims is affirmed in part and reversed in part in accordance with this opinion.
This provision has been subsequently amended by 1981 PA 166, §1.
The untenability of defendant’s position is also illustrated by the following example. Assume that A sells an aircraft to B, who pays a sales tax on the purchase price. B then leases the aricraft to C. C subleases it to D, who in turn subleases it to E. Thus, four separate transactions have taken place:
(1) A sells to B;
(2) B leases to C;
(3) C subleases to D;
(4) D subleases to E.
Because a sales tax has been paid upon the purchase by B, it is clear under the "price” definition that no tax is payable on the second transaction. Defendant argues that even though the transfer of possession from B to C is not taxable, the transfer of possession from C to D triggers a second use tax liability upon the subleased aircraft. However, if defendant’s argument were taken one step further, the transfer from D to E would not be taxable, D’s immediate sublessor having paid use tax. Defendant’s construction of the statute thus results in an irrational pattern of alternating taxable and nontaxable transactions involving the same property. | [
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W. F. Hood, J.
Plaintiff appeals as of right from a judgment denying plaintiff’s claim for reimbursement from defendant for personal injury protection benefits paid by plaintiff to Thomas Sterly. The benefits consisted of $41,343.79 for medical expenses and $4,668.80 for lost wages resulting from injuries Sterly sustained in an accident which occurred while he was a passenger in an automobile owned and being driven by plaintiff’s insured, James Leach.
At the time of the accident there was in force a no-fault insurance policy issued by defendant to Thomas Sterly’s mother, Betty Sterly. Citing MCL 500.3114; MSA 24.13114, which reads in pertinent part:
"(1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy * * * applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household * * *.”
Plaintiff claims that defendant’s policy provided personal injury protection coverage to Thomas Sterly under one of two alternate theories. The first theory is that although at the time of the accident Thomas Sterly was living with his sister and grandfather in the grandfather’s trailer in Petoskey he was nevertheless domiciled in his mother’s household in Harbor Springs. Alternately, if he was domiciled in the household of his grandfather and sister in Petoskey, the policy covered him because his sister should be considered a person named in defendant’s policy. The trial court found that plaintiff was not entitled to recover under either theory. We affirm.
The first issue presented is whether the trial court correctly ruled that at the time of the accident Sterly was not domiciled in the same household with his mother.
The testimony disclosed that Sterly was 20 years old at the time of the accident, which occurred August 17, 1978. In the summer of 1977, a year after his graduation from high school, he left his mother’s home for his brother’s farm, where he lived and worked until November, and then went to Detroit. His employment there proved unsatisfactory and he returned in early 1978 to his mother’s home in Harbor Springs. About a month later he moved to his grandfather’s trailer home, where his sister also lived, in Petoskey. He took with him only his clothes and what he needed for his day to day existence, leaving his stereo and some other items of property with his mother. His reasons for leaving his mother’s home were to be closer to his work and to his friends, and also because of some differences with his mother and some incompatibility with his mother’s live-in companion. He had lived in the grandfather’s trailer more than six months at the time of the accident. He ate his meals there (except for the meals he obtained at the restaurant where he was employed) slept there, and traveled from there to his job and back. He was satisfied with the arrangement and had no plans to terminate it. He received no support of any kind from his mother. Nevertheless, he retained his mother’s address as his official address for such things as his bank statements and driver’s license. He knew that he could and probably would return to his mother’s home if he lost his job or if some other contingency occurred.
Domicile and residence in Michigan are generally synonymous terms and, for purposes not involving insurance law, have been defined as "the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time”. Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554 (1933). See, also, Leader v Leader, 73 Mich App 276; 251 NW2d 288 (1977).
Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477; 274 NW2d 373 (1979), is the only Michigan Supreme Court case interpreting the term "domicile” for the purposes of the no-fault act. That decision began its analysis by pointing out that for insurance purposes the term "domiciled in the same household” has no absolute or fixed meaning, and must be viewed flexibly in the context of the numerous factual settings possible. Workman, pp 495-496. The Court further stated that in determining whether a person is "domiciled in the same household” as an insured, the courts of this and other states have articulated a number of factors, no one of which is, by itself, determinative. Each factor is to be weighed and balanced with the other. The Court went on to say:
"Among the relevant factors are the following: (1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his 'domicile’ or 'household5 * * *; (2) the formality or informality of the relationship between the person and the members of the household * * *; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises * * *; (4) the existence of another place of lodging by the person alleging 'residence5 or 'domicile5.55 Workman, pp 496-497. (Citations and footnote omitted.)
Based upon these factors Workman upheld the trial court’s finding that a daughter-in-law who lived with her husband in a trailer within the curtilage of the house of her father-in-law, the named insured, was "domiciled in the same household55 with the named insured.
In ascertaining domicile for purposes of the no-fault act, our Court has held that persons domiciled may include those who are not actually living in the same household as the insured. Specifically, it has been held that estranged spouses and children living with estranged spouses qualify for protection even though living apart from the named insured. Bierbusse v Farmers Ins Group of Companies, 84 Mich App 34; 269 NW2d 297 (1978); Citizens Mutual Ins Co v Community Services Ins, 65 Mich App 731; 238 NW2d 182 (1975). However, this Court has not had the opportunity to consider the particular problems posed by young people departing from the parents’ home and establishing new domiciles as part of the normal transition to adulthood and independence. This case, therefore, presents a question of first impression in this jurisdiction.
All relevant factors must be considered in ascertaining domicile. Montgomery v Hawkeye Security Ins Co, 52 Mich App 457; 217 NW2d 449 (1974). In Workman, supra, as previously noted, the Court stated that the four factors therein specified were merely "among the relevant factors” to be considered. See, also, Davenport v Aetna Casualty & Surety Co of Illinois, 144 Ga App 474; 241 SE2d 593 (1978) (domicile to be ascertained by evaluating the aggregate of details surrounding living arrangements). Other relevant indicia of domicile include such factors as whether the claimant continues to use his parents’ home as his mailing address, whether he maintains some possessions with his parents, whether he uses his parents’ address on his driver’s license or other documents, whether a room is maintained for the claimant at the parents’ home, and whether the claimant is dependent upon the parents for support.
Courts which have considered whether children of named insureds are domiciled with their parents for purposes of insurance benefits have sometimes held that even when most of those ties are present domicile has been severed. In Waller v Rocky Mountain Fire & Casualty Co, 272 Or 69; 535 P2d 530 (1975), the court held that the named insured’s son, who had prior to the accident moved to his friend’s parents’ house, was not a "resident” of his father’s home, despite the fact that the son had left clothing with his parents, had not changed his mailing address, had given his parents’ address on an employment application, and returned to his parents’ home most weekends. The finding of non-residency was upheld in part on the son’s testimony that he planned to move back with his parents in the future on only a very temporary and indefinite basis. In Cotton States Mutual Ins Co v McEachern, 135 Ga App 628; 218 SE2d 645 (1975), the court held that the son of a named insured who had moved from his father’s home six weeks previously was not a resident of his father’s household, despite the fact that he and his wife frequently took their meals at his father’s home. The court stated that the mere intent to change domicile may suffice if the individual takes some action to remove himself from his parents’ home. In Tencza v Aetna Casualty & Surety Co, 111 Ariz 226; 527 P2d 97 (1974), the court held that the named insured’s 18-year-old stepdaughter who had moved away from his household two months before did not qualify as a domiciliary, since all relevant indicia pointed to her emancipation. Relevant factors noted by the court included her desire to escape friction between her and her brother, the absence of parental guidance following her move to another state, the absence of any intent on her part to return, her endeavors to support herself, and the fact that she was at an age when many young women are considered emancipated.
Old Reliable Ins Co v Brown, 558 SW2d 190 (Ky App, 1977), involved a twist to the question of whether children no longer living with their parents are nonetheless domiciled with them. There, the daughter had moved from her mother’s household in Kentucky and was living in Texas, but, when the mother was killed in an auto accident, the mother’s estate sought benefits under the daughter’s insurance policy claiming that the mother and the daughter were part of the same "household”. The administrator of the mother’s estate based this claim on the contention that the daughter’s plans to reside permanently in Texas were indefinite and the daughter lacked the intention to abandon her Kentucky home. The court stated, p 191:
"We are of the opinion that (the daughter’s) 'floating intentions’ are typical of the recently emancipated young adult. Her vague intention of returning 'home’ does not support the conclusion that she and her mother were residents of the same household. She was not dependent on her parents for support and had maintaned a separate residence in a distant locale for over a year at the time of the accident.”
We conclude the facts in this case fully support the trial court’s finding that Thomas Sterly was not domiciled in the same household with his mother for the purpose of determing coverage under her policy. At the time of the accident he had not lived with his mother for six months and was not dependent upon her for support, he liked living in his grandfather’s trailer and expected to continue to do so indefinitely, and he had no precise plans or expectations of returning to his mother’s home. Storage of some of his belongings at his mother’s home, use of such home as a mailing address, and the knowledge that he could and would return to live with her if forced to do so by adverse circumstances, are insufficient to constitute him a member of his mother’s household.
Moreover, the determination of domicile is a question of fact for trial court resolution. Leader v Leader, 73 Mich App 276, 283; 251 NW2d 288 (1977). We should not reverse where, as here, the evidence does not clearly preponderate in the opposite direction. Brady v Central Excavators, Inc, 316 Mich 594; 25 NW2d 630 (1947).
At the time of the accident, Thomas Sterly’s sister, Donna Sterly, also resided in the grandfather’s trailer, and it is plaintiffs alternate theory that defendant’s policy covered Thomas because his sister should be considered a person named in the policy.
One of the vehicles listed in the policy declaration was a 1976 Monza and there was a code designation indicating that a driver of that vehicle was an unmarried female under the age of 21. The insurance agent testified that he was aware that Donna Sterly was the person referred to and he assumed that she was the principal driver of the Monza. Plaintiff contends that although the name of Donna Sterly was not spelled out in the policy, she was, nevertheless, by virtue of the code designation "a person named in the policy”.
Plaintiff did not dispute that the "named insured” on defendant’s policy was Betty Sterly, who is the mother of Thomas and Donna Sterly. The first step in plaintiff’s argument is based on the contention, however, that there is a distinction between "named insured” and "person named in the policy”. Plaintiff has cited no case law from this or any other jurisdiction in support of that contention. Our Court has used the term "named insured” interchangeably when referring to "the person named in the policy” under § 3114. Thus in Bierbusse v Farmers Ins Group of Companies, 84 Mich App 34, 36; 269 NW2d 297 (1978), the Court said:
"Our research has produced only one case that interprets the aforementioned section of the no-fault act. In Citizens Mutual Ins Co v Community Services Ins, 65 Mich App 731; 238 NW2d 182 (1975), a panel of this Court held that an estranged spouse, not domiciled with the named insured, is still covered by the named insured’s no-fault automobile policy. However, the panel went on to conclude that any other relative of the named insured or the spouse must be domiciled with the named insured in order to be covered under the named insured’s policy.” (Emphasis added.)
And in Citizens Mutual Ins Co, supra, p 732 the Court said:
"Defendant has succinctly stated the issue: do personal protection insurance benefits of a Michigan no-fault automobile insurance policy extend to the estranged wife of a named insured not domiciled in his household?” (Emphasis added.)
We are not persuaded that there is a distinction between the phrase "the person named in the policy” and the phrase "the named insured”.
We further believe it illogical to interpret a code designation, dealing with a risk classification, as the equivalent of naming an insured. Policy language must be construed according to its ordinary, plain meaning. Rowland v Detroit Automobile Inter-Ins Exchange, 388 Mich 476; 201 NW2d 792 (1972). Under plaintiffs interpretation, sons or daughters leaving their parents’ household to establish new domiciles would carry with them coverage from their parents’ policy and extend it to their spouse or other relatives in their new household. This interpretation requires a greatly strained construction of the statutory language and would substantially expand the insurer’s exposure without the insurer’s having any practical means of calculating the risk.
In Citizens Mutual Ins Co, supra, p 733, this Court held that personal injury protection coverage extends to an estranged spouse living in a different household from the named insured. However, in so holding, the importance of giving § 3114 a careful but reasoned restrained construction was recognized, the Court stating:
"What the Legislature meant by the language employed and the structure of the sentence must be determined with some degree of reason. There is reason for limiting insurance benefits to any relative of the insured or his spouse to those relatives domiciled in the insured’s household. It creates a definite limit to the exposure of the insurer, an essential factor in determining the insurance premium.”
We hold, as did the trial court, that the code designation did not serve to constitute Donna Sterly "the person named in the policy”.
Affirmed.
Plaintiff contends the trial court erroneously considered only the four factors listed in Workman, ignoring all others. We do not so read the trial court’s opinion. | [
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] |
D. E. Holbrook, P. J.
On August 9, 1973, plaintiff Robert Barnett, shareholder and director of defendant International Tennis Corporation (ITC), successor to Franklin Racquet Club, Incorporated, filed a shareholder’s derivative action seeking, inter alia, restoration to the corporation of a part of the salaries paid to defendants Seymour Brode and Marshall Greenspan (also shareholders and directors of the corporation), dissolution of the corporation and for the corporation to buy out his shares, and attorney’s fees. Defendants counterclaimed and asked that plaintiff be ordered to execute his personal guarantee of a loan sought in connection with construction by the corporation of a new tennis facility (Centaur Farms Racquet Club). Defendants appeal from the dismissal of the counterclaim and from the court order directing them to repay part of their salaries to the corpora tion and setting their salaries to $20,000 yearly. Plaintiff cross-appeals from the court’s refusal to dissolve the corporation or to order the corporation to buy out plaintiff’s shares.
Originally, Barnett and the three defendants, Brode, Greenspan and Philip Minkin, were associated in the Franklin Racquet Club, Incorporated and F. R. C. partnership. The defendant corporation, ITC, is a successor to these two entities. Plaintiff and the three defendants each owned 25 per cent of ITC and the former corporation. They were all directors and officers.
ITC owns and operates tennis clubs in South-field, Michigan (Franklin Racquet Club); Bloomfield Township, Michigan (Square Lake Racquet Club); Lansing, Michigan (Greater Lansing Racquet Club); Toronto, Canada (Winfield Racquet Club); and West Bloomfield, Michigan (Centaur Farms Racquet Club). During 1973 to 1975 ITC also owned and operated a World Team Tennis franchise known as the Detroit Loves.
During 1972 arrangements were being made with the National Life Insurance Company of Vermont for the financing of the Franklin, Square Lake and Greater Lansing racquet club additions. National Life agreed to loan $2,400,000 provided plaintiff and defendants, together with their wives, agreed to personally guarantee portions of the loan. At the same time as these negotiations were being held with National Life, the parties felt there was an opportunity to be had by "going public” with their stock. Advisors suggested that there should be owner management, so Brode and Greenspan agreed to become full-time employees. This was the foundation for the contract which was ultimately signed on November 9, 1972.
On November 9, 1972, Barnett, Brode, Green span and Minkin signed a management contract wherein Brode and Greenspan would provide full-time management to Franklin Racquet Club, Incorporated, and each was to be paid five per cent of the profits with a minimum of $20,000 per year. The contract was for a period of four years. Barnett had refused to personally guarantee any portion of the mortgage with National Life Insurance Company unless Brode and Greenspan signed the management contract.
Barnett knew that the mortgage transaction with National Life Insurance Company was pending at the time of the November agreement but was under the impression that the closing could be postponed from the date of November 29, 1972. Minkin, one of the four directors of Franklin Racquet Club, Incorporated, felt the mortgage could not be postponed and testified that he and the other directors (Brode and Greenspan) were, in effect, forced by Barnett to sign the November agreement since otherwise Barnett would refuse to execute the guarantee of the mortgage and the corporation would lose the mortgage commitment fee of $50,000. The closing of the mortgage took place on November 10, 1972. Mr. William Liberson, corporate counsel for Franklin Racquet Club, Incorporated, was at the November meeting. He had already drafted two versions of the employment contract before the final one was signed on November 9, 1972. The terms of the agreement were, according to Liberson, negotiated and the result of heavy bargaining. Brode’s testimony suggests that the November agreement was signed only as a concession to Barnett for signing the guarantee of the mortgage. On June 30, 1972, there was a board meeting at which the board had reported to it the salaries of $20,000 each of Brode and Greenspan for the period of June 1, 1972 to June 1, 1973, which was approved. At the samé meeting the board by resolution changed the name of the corporation from Franklin Racquet Club, Incorporated, to Interriationál Tennis Corporation.
Thereafter, there was a dispute as to whether or not Barnett had been approached by Brode concerning additional salaries for Brodé and Greenspan. Mr. Barnett denied he was approached and Brode said he was. According to Brode, Barnett insisted on either sticking to the November agreement or being bought out. When Brode asked Barnett to attend ¿ genéral meeting of the board to discuss the wages, Barnett refused. It was because of this refusal that Brode resorted to formal notice proceedings of the July 12, 1973, meeting. At the July 12, 1973, meeting of the board of directors, Brode, Greenspan and Minkin voted in favor of an amendment to the November agreement which doubled the $20,000 salaries to be paid to Brode and Greenspan. Barnett was the sole nay vote when the directors voted on the amendment.
Brode and Greenspan justified the increases in salary based on their additional duties. The "additional duties” assumed by Brode and Greenspan concern primarily work involving the construction of a new tennis facility and the acquisition and management of the World Team Tennis franchise, the Loves. Barnett argues that performance of these duties was contemplated in the November 1972 agreement. The board of directors had met in May of 1973 to discuss acquisition of the World Team Tennis franchise, the Detroit Loves. Barnett testified that he thought they agreed only to purchase an option to buy the franchise. He claimed that he did not find out about the purchase of the franchise until he read it in the newspaper. Mr. Minkin, on the other hand, testified that the directors agreed to a firm commitment at the May meeting and authorized payment of $60,000 for the franchise to which Barnett agreed.
Minkin, Liberson and Thomas Garner, comptroller of defendant corporation, all testified that the World Team Tennis duties performed by Brode and Greenspan were substantial. According to Brode he spent approximately 30 hours per week in World Team Tennis duties including a great deal of out-of-town travel. Brode and Greenspan presented witnesses who testified as to the reasonableness of their amended $40,000 yearly salaries. Although Barnett testified that he attended few meetings where World Team Tennis was discussed, he agreed with the final decision to sell the franchise.
There was some discussion at the July 12th meeting concerning Barnett’s desire to be bought out by the others. Barnett recalled that his fellow directors offered him $300,000 for his shares. Mr. Liberson, Mr. Minkin and Mr. Garner testified that no firm offer was made to Barnett by the other directors.
The remaining relevant facts are set out in the analysis of the appropriate issues.
The parties initially discussed the standard of review in the shareholder’s derivative action. This standard was recently described by this Court:
"A shareholder’s derivative action, being equitable in nature, is reviewed de novo in this Court. See Dozier v Automobile Club of Michigan, 69 Mich App 114; 244 NW2d 376 (1976). However, the de novo review of equity cases must be reconciled with the mandate of GCR 1963, 517.1 which states that factual determinations made by a trial court sitting without a jury will not be set aside unless clearly erroneous. In Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975), this Court explained:
" 'It is well-settled in Michigan that although chancery cases are reviewed de novo, this Court does not reverse or modify unless convinced that it would reach a different result had it occupied the position of the trial court. * * * [Citations omitted.]
" 'It is also true that, whether the action is in law or equity, principal regard must be given to the special opportunity of the trial court to judge the credibility of witnesses, and findings of fact will not be set aside unless they are clearly erroneous. [GCR 1963, 517.1.] * * * [Citations omitted.]’
A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed after reviewing the entire record, although there is evidence to support the finding. Tuttle v Department of State Highways, 397 Mich 44; 243 NW2d 244 (1976).” Mazur v Blendea, 74 Mich App 467, 469; 253 NW2d 801 (1977).
The first issue is whether or not the November 9, 1972, management agreement was executed under duress and, therefore, was not enforceable against Brode and Greenspan.
In reference to the duress issue, Minkin described the November 9, 1972, meeting of the directors as unfriendly and stated that Barnett "had a gun to our heads”. This was based on Minkin’s feelings that the success of the corporation hinged on the execution of the National Life mortgage. Minkin was under the impression that the closing could not be postponed and, therefore, he was compelled to sign the agreement to avoid loss of the commitment fee and default on construction contract bills.
Liberson, attorney for the corporation who drafted the employment contract, testified that throughout the negotiation period, which began in the summer of 1972, the $20,000 salary remained unchanged. He testified that the terms of the employment contract were fully negotiated and that the November 9th meeting was the scene of "heavy bargaining”. Brode testified that he told Barnett at the November 9th meeting that execution of the National Life mortgage was absolutely essential to the success of the corporation. He argued that he was forced to sign the employment contract for $20,000 per year or risk the corporation’s insolvency and this constituted duress, thus making the contract unenforceable.
In its January 6, 1976, opinion, the trial court acknowledged that Barnett refused to pledge his personal assets towards the necessary financing unless the employment contract was signed. However, the trial court concluded:
"All of the proofs in this regard, merely demonstrate to the Court that there was the clearest type of understanding and acceptance of the ultimate terms, regardless of their popularity.
"The defendants presented many proofs to justify a larger salary for their efforts, but this Court does not feel that it is appropriate to become involved in remaking their original agreement. In order to promote a young business, it is not unusual for an equity owner to agree to work for no salary at all, their reasons are their own and their voluntary agreements should be sustained.”
In Hackley v Headley, 45 Mich 569, 574; 8 NW 511 (1881), Justice Cooley gave a definition of duress. "Duress exists when one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will.”
Professor Williston in his treatise on contracts gave the following as the basic elements of economic duress:
"1. The party alleging economic duress must show that he has been the victim of a wrongful or unlawful act or threat, and
"2. Such act or threat must be one which deprives the victim of his unfettered will.
"As a direct result of these elements, the party threatened must be compelled to make a disproportionate exchange of values or to give up something for nothing. If the payment or exchange is made with the hope of obtaining a gain, there is not duress; it must be made solely for the purpose of protecting the victim’s business or property interests. Finally, the party threatened must have no adequate legal remedy.” 13 Williston on Contracts, § 1617, p 704.
In the instant case, the trial court ruled that Barnett engaged in no unlawful acts, and he was not legally obligated to personally guarantee the loan. Therefore, Brode and Greenspan were not induced by any unlawful act of Barnett to make a contract under circumstances which deprived them of their free will. Brode and Greenspan were knowledgeable businessmen. They had considered the terms of the contract through negotiations which had spread over a period of time. They had adequate resources and opportunities to evaluate their alternatives with respect to the management contract. As the trial court stated in its opinion, Barnett was under no obligation to execute his personal guarantee for the financing of the corporation. Thus, his refusal to execute the guarantee until various terms of the management agreement met with his satisfaction did not constitute duress against Brode and Greenspan. The trial court, after analysis of the testimony, concluded that the action of Brode and Greenspan was voluntary. We also point out that the defendants Brode and Greenspan had requested and received a change in the original draft eliminating a severe prohibition against competition, which was amended to the advantage of defendants, and also liberalized the provision regarding the renting of an apartment for Greenspan. These changes were in the final draft. We agree with the trial court’s ruling.
Another issue raised on appeal is whether the amendment of the employment contract whereby the salaries of the two managing directors of the corporation were increased to $40,000 each per year in July of 1973 was effective.
The salary provision of the November 1972 mam agement contract was amended at a board meeting in July of 1973 by a vote of three to one. Brode, Greenspan and Minkin voted to increase the am nual salaries of Brode and Greenspan from $20,-000 to $40,000. Barnett dissented. As to the amendment of the salaries the trial judge held:
"In July of 1973, the two managing partners decided that they wanted a raise and convinced the third defendant to vote with them. In effect, they then amended the terms of the contract to double their salaries and subsequently increased fringe benefits.
"The defendants presented many proofs to justify a larger salary for their efforts, but this Court does not feel that it is appropriate to become involved in remaking their original agreement. In order to promote a young business, it is not unusual for an equity owner to agree to work for no salary at all, their reasons are their own and their voluntary agreements should be sustained.
"Defendants have urged, in support of their right to amend the management agreement, that this was a corporation contract on November 9th, and therefore, it can be amended by corporate action, whether plaintiff approves or not.
"This Court seriously questions whether it was a corporate contract in that sense, since there were personal undertakings involved. But even if it were, there was a third party beneficiary in the picture, to-wit: the plaintiff, and going a step further, the Corporation should not be permitted to give away a contractual benefit, to which it was entitled, whether there was a specific beneficiary or not. The shareholders are always considered by the law to be such beneficiaries.
"All salary, bonues [sic] or benefits received by defendants Brode and Greenspan, in excess of the November 9, 1972 agreement, must be returned to International Tennis Corporation.”
There is no dispute that the July 1973 board meeting was properly convened, that the amendment passed by vote of three to one, and that unanimity was not required. The trial court’s opinion refers to a third-party beneficiary theory and questions whether the November agreement was a corporate contract although its final decision does not seem to be based on these theories. The trial court "seriously questioned” whether the November 1972 employment contract was a corporate contract. An examination of the signature page of the agreement reveals that it was a corporate contract. Saint Joseph Valley Bank v Napoleon Motors Co, 230 Mich 498, 501; 202 NW 933 (1925). The form and language of the agreement disclose that the November 9, 1972, agreement was a corporate contract. A third-party beneficiary theory does not apply in the instant case as Barnett does not satisfy the statutory requirement set forth in MCLA 600.1405; MSA 27A.1405 for third-party beneficiaries. The November 9, 1972, employment contract provides that Brode and Greenspan are to perform management services for the corpo ration and not for Barnett. Thus, since Brode and Greenspan have not promised nor undertaken to give or do anything directly to or for Barnett, Barnett does not have an enforceable right as a third-party beneficiary.
The crucial inquiry is whether the amendment was void for lack of consideration. In order to justify the increase in a corporate officer’s salary, it must be shown that additional duties have been, or are to be, assumed by the officer. 5 Fletcher on Corporations, § 2138, pp 516-518, 1 Williston on Contracts, § 130, p 531.
Brode and Greenspan argue that the increase in their salaries is justified due to the additional duties undertaken by them in connection with the construction of the Centaur facility and management of the Loves team. They allege that the November 1972 contract did not contemplate nor include services they rendered in construction of additional clubs, i.e., Centaur, nor did the contract include management of the World Team Tennis team. Brode and Greenspan therefore argue that these additional duties justify the increased salaries. Barnett argues that the November employment contract is worded in a broad enough fashion so as to have included these additional duties undertaken by Brode and Greenspan. The original contract in pertinent part provides as follows:
"WHEREAS, Club is desirous of obtaining certain management services that are available and proffered by Seymour Brode, individually, hereinafter referred to as 'Brode,’ and Marshall Greenspan, individually, hereinafter referred to as 'Greenspan,’ both of whom have indicated that they would undertake to manage 'Club,’ and,
"IT IS AGREED as follows:
"1. That Brode and Greenspan individually covenant, agree and by this instrument do commit and contract for and on behalf of themselves to perform any and all management services for and on behalf of Club during the term hereinafter set forth. It is specifically acknowledged and agreed that the extent of the management required is such as to preclude any definition of the services to be performed by Brode and Greenspan with exactitude; however, it is acknowledged that the attitude and philosophy of the undertaking of Brode and Greenspan for Club is such as to require them to devote all of their time as is reasonably necessary under like circumstances, so as to produce successful, smooth running and profitable tennis club operations, not only as they now exist, but any growth or addition thereto in the future. Included by way of description, but not limitation, Brode and Greenspan shall have the right to hire, fire and organize the internal operation of the Club, and to do any and all things necessary and incident that management persons would do in similar circumstances without, however, divesting stockholders, directors or partners of those rights inherently theirs, including but not limited to the right of policy making and importation of basic philosophies to the operation of the Club.” (Emphasis supplied.)
It is undisputed that the corporation changed between November of 1972 and July of 1973. Of particular significance was the acquisition of the World Team Tennis franchise and the assumption of duties incident thereto. This transaction was apparently not contemplated until after the November agreement was executed. The acquisition of the World Team Tennis franchise substantially expanded the nature of the duties to be performed by Brode and Greenspan.
Also, the November contract dealt with management, not construction, as contractors for the building of the Centaur Farms Racquet Club, which was also an additional duty. It is the hold ing of this Court that the broad language of the November agreement did not contemplate nor include the services rendered by the defendants in the construction of additional clubs nor management of the World Team Tennis franchise. The contract was for the management of racquet clubs and these other duties were not included. The management of the racquet clubs to us means management and not construction. Further, it does not include carrying on the operation of the purchase and servicing of the World Team Tennis franchise. Therefore, these additional duties provided consideration for the amendment of the salaries from $20,000 to $40,000 each per year. This Court also notes that the reasonableness of the salaries of $40,000 per year each for Brode and Greenspan was clearly demonstrated at trial. The testimony of Frank Hausemann, Jr., Wyndham Gary, John Aldworth, and Allen Schwartz amply proves that these salaries were reasonable.
A plain reading of the contract of November 1972 conclusively shows to us that our construction of the contract is correct, and the trial court’s to be in error in this regard. This Court reverses the trial judge’s orders that all salaries in excess of $20,000 be returned to the corporation.
An additional issue raised by defendants is whether the trial court erred in finding that plaintiff was not obligated to personally guarantee the financing of the construction of the Centaur facility and that his failure to agree to personal liability did not cause a delay in closing and the increase in the interest rates.
In August of 1972, the corporation entered into a lease for the Centaur site. In December of 1972, a mortgage commitment letter was prepared by City National Bank which conditioned the mort gage loan on the personal guarantees of the four directors and their wives. The commitment was to expire in May of 1973. Barnett refused to undertake personal liability, however, the closing did not actually take place until September 13, 1973. Robert Lockwood, assistant vice-president of the City National Bank, testified that the bank had not been ready to close on the original closing date. Defendants testified that the closing did riot occur in May because the bank was not ready and because of a delay in construction. The original interest rate was modified upwards by one per cent in the final mortgage agreement. Defendants counterclaimed against Barnett for failure to execute a personal guarantee in the Centaur mortgage. They alleged that this failure caused the delay in closing which resulted in the higher interest rate. The trial court awarded Barnett a judgment of no cause of action on defendants’ counterclaim. The trial court stated:
"Defendants have counter-claimed against the plaintiff for his failure to execute a personal guarantee on some later financing, saying that his failure caused a delay in the closing which resulted in a higher rate of interest.
"After hearing the proofs, the Court is of the opinion that his failure to agree to personal liability was not the cause of the delay in closing. Further, the plaintiff was not obliged to sign. Merely because he had done so in the past, created no obligation to do so thereafter. Indeed, his attitude of concern as expressed at the November 9, 1972, contract negotiation was a clear indication that he was seriously concerned about an unlimited pledging of personal responsibility.”
We agree with the trial court and point out that according to Mr. Liberson, the corporation’s attorney, the closing was postponed because the neces sary documents had not been prepared. Mr. Lockwood stated that there was no evidence of record as to the reason for the increased interest rate. He could not state that Barnett’s refusal to guarantee the mortgage was responsible for the increase.
Thus, the record supports a conclusion that Barnett never agreed to sign the Centaur mortgage guarantee. The record is devoid of testimony suggesting a causal connection between the increase in interest rate and the failure of Barnett to assume personal liability. The facts show that the delay in closing and the increase in the mortgage rate was not caused by Barnett and his wife’s refusal to sign. Mr. Lockwood, vice-president of City National Bank, testified that five or six of the requirements in the mortgage commitment were not met by May 20th, the time set for closing. There were also problems concerning the lease and mortgage. Lockwood also stated that the bank was not relying heavily on the personal guarantees of the other individuals but that Minkin’s personal financial statement was the most important one to the bank. Minkin himself testified that the bank was relying upon his financial stability and was not interested in the other investors. There is substantial evidence in which to justify the trial court’s finding that the failure of Barnett and his wife to sign the guarantee did not cause any damage to the corporation.
Defendants also argue that it was an abuse of discretion for the trial court to order the corporation to pay the attorney’s fees of a shareholder who had brought a shareholder’s derivative suit.
The trial judge ruled in favor of Barnett and ordered Brode and Greenspan to pay back to the corporation $61,827.53. The trial court also ordered the defendant corporation to pay $12,500 towards Barnett’s attorney’s fees. This Court has held that the trial court erred in ordering Brode and Greenspan to repay salaries exceeding $20,-000. Barnett did not succeed in whole or in part in his suit and no pecuniary benefit went to the corporation. Thus, the attorney’s fees should not be awarded to Barnett. That order is set aside. See MCLA 450.1493; MSA 21.200(493).
Another issue raised by defendants is whether or not the trial court abused its discretion in denying defendants’ motion to tax their costs against plaintiff more than the ordinary witness fee for defendants’ expert witness.
Both plaintiff and defendants filed motions to tax the opposing party more than the ordinary witness fees for testimony of their respective expert witnesses. Both motions were argued and decided by the trial court on May 12, 1976. The trial court noted that neither party had prevailed in full and, rather than enumerate which party had prevailed on which issue, it would allow each party to pay its expert more than the ordinary witness fee, but denied the right to tax these fees as costs to the opposing party.
Expert witness fees may be taxed as part of the taxable costs in any given case. MCLA 600.2164; MSA 27A.2164. It is proper to tax as cost fees paid to the expert in connection with his or her preparation for trial. Gundersen v Village of Bingham Farms, 1 Mich App 647; 137 NW2d 763 (1965). The general rule is that costs are awarded in circuit court to the prevailing party. GCR 1963, 526.1. In equity, where both parties are partly successful, taxation of costs is largely discretionary. 20 CJS, Costs, §§ 12, 14; pp 281, 286. The taxation of expert witness fees is within the discretion of the trial court. Maas Brothers, Inc v Weitzman, 288 Mich 625; 286 NW 104 (1939), Gundersen, supra.
Inasmuch as defendants’ counterclaim was denied, we affirm the trial court’s ruling on expert witness fees.
Defendants and cross-plaintiffs were unsuccessful in their counterclaim. Cross-plaintiffs’ argument that the trial judge failed to exercise his discretion is not convincing. The trial judge’s decision was based on motions, oral arguments and testimony which took from June to September. He was in the best position to determine the appropriateness of taxation of costs. His decision should not be disturbed. Cross-plaintiffs’ issue is without merit.
Another issue raised is whether the trial court erred in denying defendants’ motion to find plaintiff in contempt for allegedly inconsistent sworn statements, and whether such denial is reviewable in a general appeal.
Cross-plaintiffs allege that Barnett made contradictory sworn statements concerning his knowledge of the construction of the Centaur facility, which is an affront to the dignity and integrity of the judicial system. Thus, the trial court erred in summarily dismissing defendants’ motion to hold Barnett in contempt.
The Supreme Court has held that a review of the trial judge’s refusal to find a party in contempt can only be brought about by a petition for a writ of mandamus or certiorari. Mason v Siegel, 301 Mich 482, 484; 3 NW2d 851 (1942). Presently, this action would be classified as a complaint for an order of superintending control. GCR 1963, 711.3, Shelby Twp v Liquid Disposal, Inc, 71 Mich App 152, 154; 246 NW2d 384 (1976). Under the above authority cross-plaintiffs may not seek by general appeal to review the order of the trial court refusing to punish for contempt.
The final issue deals with the court’s dismissal of Barnett’s count II. The issue was whether or not the trial court erred in finding that the actions of the directors of defendant corporation were not willfully unfair and oppressive to the corporation and that, therefore, neither dissolution nor buy-out should be ordered.
Count II of Barnett’s complaint alleged willfully unfair and oppressive conduct on the part of the board of directors of ITC and asked for dissolution of the corporation or a buying out of Barnett’s shares. The trial court found in favor of defendants on this count. The court noted that there was dissension among the shareholders, financial loss in connection with the acquisition of the World Team Tennis franchise, lack of formality in accounting and carelessness in the running of the corporation. However, the trial judge determined that there was no corporate paralysis, no deadlock, no mismanagement, no deterioration of corporate property and no accounting inaccuracies. The totality of circumstances do not indicate conduct so severe as to call for judicial intervention. We agree.
Barnett lists several "facts” in support of his position as to the defendants’ willfully unfair and oppressive conduct. As pointed out by defendants, however, these alleged facts are not conclusively proven. They are each refuted by testimony of the witnesses. The trial judge as trier of facts was obligated to determine the credibility of the various witnesses and was in the best position to do so. Barnett’s argument that the judge failed to consider the effect of the alleged misconduct of defendants is not supported by the record. The court considered the totality of the circumstances. Be cause this is a closely held corporation, Barnett, as shareholder and director, is affected by corporate action as directly as the corporation is affected. The court found that because of the informal character of the corporation, its actions were proper and acceptable to all.
MCLA 450.1825; MSA 21.200(825) authorizes the circuit court to adjudge dissolution of a corporation when it is established that the acts of the directors are illegal, fraudulent or willfully unfair and oppressive to the corporation or to the shareholders seeking judicial intervention. Additionally, the court may order that the directors responsible for the wrongful acts buy out the complaining shareholder.
As dissolution is a very drastic measure, it is considered a last resort remedy. It is necessary to prove exceptional circumstances before dissolution will be ordered. These include financial loss, corporate paralysis, mismanagement and deterioration of property. The ultimate test is whether corporate ruin will inevitably follow continuance of present management. Stott Realty Co v Orloff, 262 Mich 375; 247 NW 698 (1933), Levant v Kowal, 350 Mich 232; 86 NW2d 336 (1957). Absent a clear abuse of discretion, the trial court’s ruling will not be disturbed.
The trial court’s finding that exceptional circumstances were not present in the instant case is not clearly erroneous. The evidence shows that the corporation is a valuable entity with a potentially bright future, with values greatly in excess of the money advanced by the parties. Judicial dissolution was properly denied.
Reversed in part and affirmed in part. No costs, neither party prevailing fully. | [
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Danhof, C. J.
Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and first-degree criminal sexual conduct, MCLA 750.520b(l)(e); MSA 28.783(2)(l)(e), and sentenced to 12 to 20 years imprisonment. He appeals by right.
Defendant’s attorney at first declined an instruction on the lesser offense of unarmed robbery when the possibility of such an instruction being given was discussed in chambers, but later, before the jury began its deliberations, defense counsel did request such an instruction. The trial judge denied the request on the ground that it was not timely. In this he erred; the request for instruction prior to the beginning of deliberations was sufficient to preserve this issue for review. People v Jones, 71 Mich App 270, 272-273; 246 NW2d 381 (1976).
Evidence that establishes the greater offense always supports the giving of instructions on necessarily included offenses, and unarmed robbery is a necessarily included lesser offense of armed robbery. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). Since Ora Jones and Chamblis have been given retroactive application, People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Jackson, 70 Mich App 478, 480-481; 245 NW2d 797 (1976), we must reverse defendant’s armed robbery conviction. Retrial on that charge is not required, however; instead, we remand for entry of a judgment of conviction of the lesser included offense of unarmed robbery and for resentencing, People v Herbert Ross, 73 Mich App 588, 594; 252 NW2d 526 (1977), provided, however, that if the prosecuting attorney, in his discretion, determines that justice would be better served by retrial on the armed robbery charge, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction of unarmed robbery and grant a new trial on the armed robbery charge. People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976), People v Herbert Ross, supra, at 594.
The trial judge failed to specify whether the single sentence he imposed applied to both convictions, and because that single sentence must be vacated because of the error committed, defendant shall be resentenced on his conviction of first-degree criminal sexual conduct, as well. The judgment of sentence shall reflect the sentence imposed on each conviction.
Defendant’s claim of prosecutorial misconduct, which he raises for the first time on appeal, does not warrant reversal; if defendant had objected timely a curative instruction could have alleviated any potential for prejudice flowing from the prosecutor’s remarks. People v Humphreys, 24 Mich App 411, 414; 180 NW2d 328 (1970).
Affirmed in part, modified in part, and remanded for further proceedings consistent with this opinion.
T. M. Burns, J., concurred. | [
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Quinn, P. J.
This is an appeal and cross-appeal from a judgment entered by the Court of Claims in an action designated as a class action. Plaintiffs sought payment of pension benefits under the program established for retirees of Michigan State Police. Defendants are the state departments administering the "Michigan Department of Public Safety Pension, Accident & Disability Fund”, created pursuant to MCLA 28.101 et seq.; MSA 3.331 et seq. Plaintiffs alleged that defendants had wrongfully excluded payment for accumulated, unused sick leave from average annual salary in computing the retirement benefits for members of the Michigan Department of Public Safety Pension, Accident & Disability Fund.
MCLA 28.107; MSA 3.337 provides that the pension benefits of its members are based upon 50 percent of the average annual salary for the last two years of service for which such members were paid. In calculating pension rates, the pension board had included the items of base pay and overtime, longevity pay, and annual leave as salary, but had excluded accumulated sick leave as an element in the computations. By way of background, annual leave and 50 percent of sick leave accumulations are both paid in lump sums at retirement. Unlike annual leave which has a limit of 240 hours, sick leave accumulation has no limit. The exclusion of sick leave accumulations in pension computations has existed since 1954 when the practice of making lump sum payments was instituted.
The Court of Claims held that the exclusion of the payment for accumulated sick leave in computing pension rates was improper. Plaintiff Cram was held to be entitled to back pension benefits corrected for the improper exclusion, minus any employee contribution that would have been paid out of the accumulated sick leave to the pension fund and should receive such corrected pension benefits for the three-year period prior to filing of the complaint because of the applicability of the statute of limitations of the Court of Claims Act barring claims accruing prior to that period.
Of the several issues raised on appeal and cross-appeal, we find that one is dispositive of both appeals. That issue is whether the pension board was correct in excluding the lump sum payment for accumulated, unused sick leave from annual salary in the computation of retirement benefits. The Court of Claims held that the exclusion was incorrect. We hold that the exclusion was correct.
In pertinent part, MCLA 28.107; MSA 3.337 reads:
"A member who retires after 25 years of service, or because of duty incurred total disability, shall receive an annual pension payable monthly, equal to 50% of the average annual salary for the last 2 years of service for which the member was paid.”
The key to decision is the meaning of the phrase "average annual salary for the last two years of service”.
In People v Lay, 193 Mich 476, 488; 160 NW 467 (1916), "salary” is defined as "a periodical allowance made as compensation to a person for his official or professional services or for his regular work”. In Beach v Kent, 142 Mich 347, 356; 105 NW 867 (1905), it is defined as "a fixed annual or periodical payment for services depending upon the time and not upon the amount of service rendered”. By statute and by Supreme Court definition "salary” is paid for service, not sick leave.
This comports with our understanding of the Civil Service Commission’s rules governing payment of sick leave. That commission has exclusive authority over compensation of classified state employees, Const 1963, art 11, § 5. Pertinent rules of the commission on sick leave provide:
"10.1 Allowance. — Every continuing full time employee in the state classified service shall be entitled to sick leave with pay of one-half work day (four hours) for each completed biweekly work period.
"10.8 No Advance Credit. — Sick leave shall not be allowed in advance of being earned. If an employee has insufficient sick leave credits to cover a period of absence, no allowance for sick leave shall be posted in advance or in anticipation of future leave credits. In the absence of applicable leave credits, payroll deduction for the time lost shall be made for the work period in which the absence occurred.
"10.13 Payment at Retirement. — An employee who separates from the state classified service for retirement purposes in accordance with the provisions of a state retirement act shall be paid for fifty percent of his unused sick leave as of the effective date of separation. Such payment shall be made at the employee’s current rate of pay by the agency from which the employee retires.”
Additionally, the long-standing administrative practice of excluding payment for accumulated, unused sick leave from average annual salary in the computation of retirement benefits and the legislative acquiescence therein should not be overruled without cogent reasons, Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968). We find no cogent reasons for overruling the administrative construction of MCLA 28.107; MSA 3.337.
The issue we have disposed of as we have obviates discussion of all the other issues raised on the appeal and the cross-appeal.
Reversed but without costs, a public question being involved. | [
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H. L. Heading, J.
Plaintiffs appeal from the order of the lower court granting defendants’ motion for summary judgment. We conclude that the motion was properly granted, and affirm.
The case now before us grew out of another lawsuit, a medical malpractice action brought by defendants Maurine and Robert Emmons against plaintiffs Albert Gasis and Gasis Orthopedic Clinic. Stanley Schwartz and defendant professional corporation, acting as attorneys for Mr. and Mrs. Emmons, instituted the medical malpractice action.
During the pendency of the aforementioned malpractice lawsuit plaintiffs brought this action, alleging malicious prosecution by the Emmonses and negligence by their attorneys in bringing the action. Defendants filed motions for summary judgment, one pursuant to GCR 1963, 117.2(1), alleging that plaintiffs had failed to state a claim upon which relief could be granted, and one pursuant to GCR 1963, 117.2(3), and supported by affidavits, alleging that there was ho genuine issue of fact. Plaintiffs filed no opposing affidavits.
After a hearing on the motions, the trial court granted summary judgment in favor of defendants on grounds that plaintiffs’ complaint failed to state a cause of action. The court, in its opinion, pointed out that plaintiffs failed to allege a favorable determination under the prior lawsuit, an essential element of the tort of malicious prosecution. The court also found that defendant attorneys owed no duty of due care to plaintiffs, and that plaintiffs therefore stated no cause of action for negligence.
The requirement that the prior action upon which a complaint of malicious prosecution is based must have terminated in a manner favorable to the plaintiff is one of long standing. The rule and its rationale were stated in Brand v Hinchman, 68 Mich 590, 598; 36 NW 664 (1888):
"When the action complained of is the beginning or prosecution of a criminal suit or proceeding it is properly held, by all the authorities, that the determination of such suit or proceeding must be such as does not admit a reasonable cause for the prosecution. There must be an acquittal, or such proceedings as determine the case in the favor of the accused person without any settlement by him of the criminal charges, or any connivance on his part to secure his discharge. This is also the general rule where a groundless and malicious civil suit constitutes the cause of action. Were the rule otherwise, the defendant in the action complained of might recover in an action for malicious prosecution, and yet be convicted, or have a judgment rendered against him, in the former suit.”
Accord, Rowbotham v Detroit Automobile Inter-Insurance Exchange, 69 Mich App 142; 244 NW2d 389 (1976).
The trial court was correct in finding that plaintiffs’ complaint was fatally defective in this regard, and in granting summary judgment to defendants on the malicious prosecution claim.
Plaintiffs allege, however, that the trial court erred in granting summary judgment to defendants Stanley Schwartz and Sommers, Schwartz, Silver, Schwartz, Tyler and Gordon, P. C. That claim, plaintiffs allege, was not for malicious prosecution but for negligence. Defendant attorneys, plaintiffs argue, have a duty to adverse parties not to institute lawsuits without first undertaking a thorough investigation to determine whether the action is meritorious, and failure so to investigate constitutes actionable negligence vis-a-vis the adverse parties.
This novel theory has apparently not been ruled upon heretofore by an appellate court of this state. A similar claim was recently rejected, however, by the California Court of Appeals in Norton v Hines, 49 Cal App 3d 917; 123 Cal Rptr 237 (1975). The California court said, Norton, 49 Cal App 3d 917, 921:
"In the case at bar a former litigant is suing adverse counsel. Clearly, an adverse party is not an intended beneficiary of the adverse counsel’s client. If a cause of action exists against attorneys for the reasons alleged here, it must be pleaded as an action for malicious prosecution. We see no reason to extend applicable law now found in cases involving attorneys and third parties when there is sound and recognized public policy for limiting the cause of action to malicious prosecution under the facts as pleaded by Norton.”
The court also noted that public policy considerations supported the result, saying:
"The attorney owes a duty to his client to present his case vigorously in a manner as favorable to the client as the rules of law and professional ethics will permit. He is an advocate and an officer of the court. He is cognizant of the public policy that encourages his clients to solve their problems in a court of law.* * * We believe the public policy of favoring free access to our courts is still viable. However, if Norton’s cause of action against attorneys for negligence is permitted, this policy will be subverted.” Norton, supra, 922-923. (Footnote omitted.)
We think the reasoning of the California court is sound, and adopt it. Defendant attorneys owed no duty to plaintiffs to refrain from acting on behalf of their clients. Read most favorably to plaintiffs, the pleadings and affidavits reveal no basis for assessing liability against defendant attorneys. The trial court did not err in granting defendants’ motion for summary judgment.
Plaintiffs also allege error in the trial court’s refusal to consider, in ruling on the motions, a deposition taken by plaintiffs in defiance of an order of the court. We do not think the trial court erred in this regard.
Affirmed. Costs to appellees. | [
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R. B. Burns, P. J.
This is an automobile negligence action wherein the trial judge found plaintiff William Barnett guilty of contributory negligence as a matter of law and directed a verdict of no cause for action on the plaintiffs’ negligence count. A jury found no cause for action under plaintiffs’ theory that defendants were liable for damages under the "last clear chance doctrine”. Plaintiffs appeal. We reverse.
Plaintiff William Barnett was transporting boxes of freezer parts in his station wagon. The cargo area was full and a row of boxes was placed on the tailgate and secured by straps. As he was traveling westbound in the second lane of a five lane highway, a strong wind blew two of the boxes off the tailgate. No other cars were in sight and he backed up to the nearest box. He put his car in park and activated his emergency flasher light. After he retrieved the boxes and placed them back on the tailgate he began to resecure the load. He heard a screeching noise and that was the last thing he remembered.
Defendant Doris Vander Til testified that she was driving west in the second lane at a speed of between 40 and 45 miles per hour, and that when she first saw Mr. Barnett’s car the emergency flashers were not visible as he was standing in front of one and a box blocked her view of the other one. She assumed that Mr. Barnett’s car was moving and when she realized that his car was stopped she immediately applied her brakes but was unable to stop in time to avoid hitting him.
Defendants argued that they were entitled to a directed verdict because Mr. Barnett’s violation of MCLA 257.672; MSA 9.2372, which prohibits stopping on the main traveled portion of a highway, made him guilty of contributory negligence as a matter of law. In directing the verdict of no cause for action on the negligence count the trial judge said:
"With regard to the * * * point as to whether or not he’s guilty of negligence, it seems to me it is abundantly clear he is guilty of contributory negligence. He stopped his car on a five-lane highway and puts his flasher lights on and then walks back a distance of 40 feet the first time, 20 feet the second time to pick up two packages 16 X 16 X 22 inches when there were driveways available, there was a shoulder available, there was a Lane 3 available which was a left-turn lane, and it seems to me that the cause of action on negligence and contributory negligence is clear that he was guilty of contributory negligence, and I will direct a verdict on that. I will put the case to the jury solely on last clear chance.”
Justice Williams, writing for the majority of the Court in Zeni v Anderson, 397 Mich 117, 143; 243 NW2d 270, 283 (1976), stated:
"An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the ñnder of fact whether the party accused of violating the statute has established a legally sufficient excuse. If the finder of fact determines such an excuse exists, the appropriate standard of care then becomes that established by the common law. Such excuses shall include, but shall not be limited to, those suggested by the Restatement Torts, 2d, § 288A, and shall be determined by the circumstances of each case.” (Emphasis supplied.)
During the course of the trial plaintiff William Barnett testified as follows:
"A. * * * I had no driveways to turn into. The closest driveway on my right side was two or three hundred feet up the road. There was nothing on my left side, so I backed up to the closest box and got out of the car, turned the blinkers on, got out of the car and went to the furthest box away, picked it up and put it on the top tier where it belonged, went to the second box and put it on where it belonged. And I made the decision at that point to strap them down rather than try to make for the side of the road with it and have the possibility of them coming off again.
* * *
"Q. You started to say that you had recognized that now with the boxes up there, you could have made a left turn and gotten off into the Laser driveway?
"A. As far as I can recall, that is correct.
"Q. Go ahead.
"A. The driveway wasn’t there. I mean it seemed like it was further back. It was too far back for me to make a turn into it. It might have been possible at the point where I stopped the car, but it wasn’t from where I started to back it up.
"Q. Why didn’t you pull into Lane 3, as has been suggested by the defendant?
"A. Well, my thoughts were — I think I said the wrong thing again. If I were to go into Lane 3, the center lane, I would be blocking two lanes instead of one.
"Q. You mean one with the car and one with the boxes?
"A. Right.
"Q. You knew that directly off your left front, across three lanes, 30 feet or so, were two driveway entrances?
"A. In my position, it would have been almost impossible to turn into those driveways. I would have to back up further.
"Q. After you put the boxes back on the tailgate, you could have gotten into your car and slowly turned and turned into one of these driveways, couldn’t you?
"A. And the wind could have caught the top boxes and blown them off again, too, in that operation.
"Q. But there was no traffic coming at this time, was there?
"A. There was, apparently. There was traffic coming at that point in time, yes.
"Q. I’m asking what you saw.
"A. I didn’t see any, no.
"Q. As far as you knew, there would be no hazard presented for any moving traffic to simply drive your car off into the driveway with the load loose but then tie it down in the driveway?
"A. I was taking the chance of leaving the boxes in the road again.”
In our opinion the trial judge usurped the function of the jury. He should have allowed the jury to determine if plaintiffs had established a sufficient excuse for the violation of the statute.
Reversed and remanded for a new trial. Costs to plaintiffs.
These excuses include:
"(a) [T]he violation is reasonable because of the actor’s incapacity;
"(b) he neither knows nor should know of the occasion for compliance;
"(c) he is unable after reasonable diligence or care to comply;
"(d) he is confronted by an emergency not due to his misconduct;
"(e) compliance would involve a greater risk of harm to the actor or to others.” 2 Restatement of Torts 2d, § 288A, p 33. | [
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] |
J. H. Gillis, J.
Defendant was convicted by a jury of first-degree criminal sexual conduct, contrary to MCLA 750.520b(l); MSA 28.788(2)(1). He was subsequently sentenced to 3-1/2 to 20 years in prison. Defendant appeals as of right.
The charges against the defendant stem from an incident which took place in the late evening hours on December 16, 1975, in the City of Fern-dale.
The complaining witness, while walking to a friend’s apartment, was approached by a knife-wielding assailant who pushed her to the ground. The assailant molested and sexually assaulted the complaining witness before being chased from the scene by the screams of an area resident. Defendant was later arrested and tried for the offense.
Defendant first contends that the trial court erred in reading the information to the jury, inasmuch as the information was defective in alleging facts insufficient to constitute the charge of first-degree criminal sexual conduct, MCLA 750.520b(l); MSA 28.788(2)(1). Therefore, the information misled the jury as to elements of the offense charged therein.
The record reveals that the defendant did not object to the text of the information at trial. It is well established that an information may not be challenged for the first time on appeal.
Defendant, while cognizant of MCLA 769.26; MSA 28.1096, alleges that the defective information misled the jury from the very outset of the trial, constituting gross error and resulting in a miscarriage of justice as evidenced by defendant’s subsequent conviction. Hence, no objection need be made at trial in order to preserve the issue for appeal.
The pertinent portion of the information as read to the jury states:
"That Andrew Hernandez * * * did, with another person, to-wit: Madelyn K. Wayne, engage in sexual penetration, to-wit: touching of complainant’s primary genital area under the following existent circumstances, to-wit: defendant was 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.”
Defendant was tried for violation of MCLA 750.520b(l) which states:
"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 exist:
"(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.”
It is quite clear that the information was defective in stating that the touching of the genital parts would constitute first-degree criminal sexual conduct. "Sexual penetration” is necessary in order to sustain such a charge.
However, no miscarriage of justice resulted from the defective information. The trial court, in reading the information to the jury, expressly indicated that the information contained only the charges brought by the prosecution. Specific definitions of the law applicable to the case were given to the jury by the trial court in the jury instructions. Moreover, pursuant to the jury’s request, the court repeated these same thorough instructions during the jury deliberations. The trial court also instructed the jury to follow the law as given in the jury instructions.
Based upon this record, we fail to see how the jury was misled and find no reversible error on this issue.
Defendant next contends that the prosecutor’s closing arguments went beyond the realm of the evidence presented at trial, and included statements of the prosecutor’s own belief as to defendant’s guilt and credibility, thus denying defendant a fair trial. We disagree.
A careful review of the record indicates that the prosecutor’s remarks were based upon the testimony and evidence presented at trial. Such statements are clearly permissible in the prosecutor’s closing arguments. In People v Cowell, 44 Mich App 623, 627-628; 205 NW2d 600 (1973), this Court considered the propriety of prosecutorial comments.
"The question of the propriety of a prosecutor’s remarks is dependent upon all the facts of the case. A statement cannot be taken out of context. Just as jury instructions must be read as a whole, so must the remarks of the prosecutor. The prosecutor’s remarks must be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial. The fact that a statement has been reversible error in one case does not automatically mean that a similar remark is reversible error in another case. Each case must be considered on its own facts. For example, a remark found to constitute reversible error because it was not supported by the evidence would not be reversible error in a case where it was supported by the evidence.” (Emphasis supplied.)
Even if the prosecutor’s closing remarks could in some way be construed as not being based in toto upon the evidence, there would no reversible error.
Defendant did not object to the prosecutor’s closing arguments at trial. The law in Michigan is well settled that the failure to object is a bar to appellate review unless the prejudicial effect of the prosecutor’s comments was so great that it could not have been cured by a timely objection and cautionary instruction. People v McLendon, 51 Mich App 543, 547; 215 NW2d 742 (1974), People v Humphreys, 24 Mich App 411, 416; 180 NW2d 328 (1970). The nature of the statements made by the prosecutor cannot be classified as inflammatory or highly prejudicial. Such remarks, even if not based upon the evidence presented at trial, created no error which could not be cured by a timely objection and a cautionary instruction.
Hence, we conclude that the prosecutor’s closing arguments did not deny the defendant a fair trial.
Defendant further contends that the jury instructions given by the trial court were erroneous and misleading, thus confusing the jury as to the elements of the charged offense.
The alleged erroneous instruction reads as follows:
"The Defendant is charged with the crime of Criminal Sexual Conduct in the First Degree. The Defendant has pleaded not guilty to this charge. To establish this charge, the People must prove each of the following elements beyond a reasonable doubt:
"First, the Defendant engaged in a sexual act which involved some actual entry into the genital openings of the complainant’s body, the act alleged. If you should so find there must have been a sexual act, that is, it must have had its purpose as the arousing, stimulating or gratifying of the sexual emotion or it must have been done with some other sexual improper intent or purpose. ” (Emphasis supplied.)
Defendant claims that the highlighted portion of the aforementioned instruction includes the definition of "sexual contact”, which is not an element of first-degree criminal sexual conduct but is an element of second-degree criminal sexual conduct. Therefore, the instructions confused the jury by rendering indistinguishable the differences between these two offenses. Furthermore, the alleged error was compounded since the court used the same language in instructing the jury as to third-degree criminal sexual conduct.
The definitions of "sexual act” and "sexual contact” while similar in some respects are separate and distinct propositions.
"Sexual act” is defined by the Michigan Criminal Jury Instructions. CJI 20:2:04.
"If you find that any act occurred, it must have been a sexual act. It must have had as its purpose the arousing, stimulating or gratifying of the sexual emotions [or it must have been done with some other sexually improper intent or purpose].”
"Sexual contact” is defined by MCLA 750.520a(g); MSA 28.788(l)(g).
" 'Sexual contact’ includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.”
Jury instructions containing these definitions are readily comprehendible if properly given. The instructions given to the jury by the trial court were clear, concise and in accordance with the Michigan Criminal Jury Instructions. The Supreme Court has urged the bench and bar of this state to use these standardized instructions.
The standardized instructions for first and third-degree criminal sexual conduct specify that the definition of "sexual act” should be given "where there is a question about the sexual nature of the act”. CJI 20:2:04, use note.
Clearly, where sexual penetration is alleged to have occurred with a finger, as is the case in the instant matter, there is a question as to the sexual nature of the act.
Having determined that the trial court instructed the jury in a concise manner in accordance with the Michigan Criminal Jury Instructions, we find no error.
Defendant finally contends that he was denied the assistance of competent and effective trial counsel in contravention of his constitutional right to a fair trial.
The instances which defendant cites in support of this contention lack merit in light of preceding paragraphs of this opinion and People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). Therefore, we need not address the issue.
The other issues raised on appeal do not warrant discussion by this Court.
I would affirm.
MCLA 767.76; MSA 28.1016. People v Haggerty, 27 Mich App 594, 596; 183 NW2d 862 (1970), People v Walsh, 27 Mich App 100, 104; 183 NW2d 360 (1970).
"The issue in this case is was Andrew Hernandez the person that did this, and the people believe that based upon the evidence he was the person that committed those acts and that he must be held responsible to the People of this state for his conduct and, the people will argue, from the evidence.
"And you heard Mr. Hernandez’s testimony and you are entitled to give it the weight that you feel it deserves, and you will decide if his testimony is credible, if it is believable, if it is rational, if it is logical, and if you believe Mr. Hernandez’s testimony, go right in that jury room and say so by your verdict, that he is an innocent man, that he didn’t do it.
"In any event, Officer Macomber stops him and he lies to Officer Macomber and he told you that. Officer Macomber asked him what he was doing in that area and he said he had a fight with his girlfriend, a lie, had been driving around for over an hour, another lie, yet he asks you to believe that he spent forty-five minutes hiding in a field because he was afraid. Afraid of what?
"I believe that from the testimony you could answer that question. He was afraid of being caught.
"Mr. Catlin [defense counsel] says that they picked on this automobile. His client is an unfortunate victim of circumstance. He just happened to be in the wrong spot at the wrong time.
"If you accept that and if you believe that, your verdict in this case should be not guilty.
"From Mr. Catlin’s closing argument it appears that this is a gigantic frame-up that one person after another is building a set of blocks in order to try to convict Andy, as Mr. Catlin calls him, His name is Andrew Hernandez. He is an adult male and he is on trial in this court.”
In the matter of the proposed amendment of GCR 1963, 516, 396 Mich 958 (1976). | [
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] |
N. J. Kaufman, J.
The plaintiff, Catherine Young, began work for the defendant, Kmart, in 1966 as a stock clerk. She worked as a stock clerk until 1970, when she started working at the service desk of the Kmart store at Oakland and Grand River Avenue in the City of Detroit. She worked until she suffered a heart attack in December of 1975. Prior to 1975, the plaintiff had not suffered any illness which required hospitalization and was never under a physician’s care for anything other than minor ailments.
Her duties as a service desk clerk included waiting on customers with complaints, taking care of lay-aways and bringing change to the cashiers. According to the plaintiff’s testimony, she would carry approximately 40 pounds of coins from a second-floor office down a flight of stairs to the cash registers and to the service desk each morning. She was called on quite frequently to supply change for the cashiers.
The plaintiff’s last day of work was December 16, 1975. The store was unusually busy because of the Christmas season. The plaintiff was scheduled to work her usual shift from 9:30 to 5:00. Because of the number of customers and the fact that some employees did riot come to work, however, plaintiff was asked to work until 8:00 p.m. that evening. She agreed to stay.
During the day, the plaintiff was very busy. In addition to going to and from the second-floor office to get change for the cashiers, she had to carry-two boxes up from the basement. Moreover, she was unable to complete her lunch hour and was very tired by early afternoon.
The plaintiff testified that shortly after lunch she began to feel tired and experienced some pain under her left breast. She believed that they were gas pains. The pains in her chest continued all afternoon, but she continued to work after taking several short breaks. After a short time off for supper, she continued to work until about 8:00 that night.
She went home and the pain continued to worsen. When the pain did not subside during the night, she sought medical attention. She went to Harper Hospital at about 6:00 a.m. on December 17th. She was treated for gastritis and released to return home. When the pain did not subside, however, she returned to the hospital at about 5:00 p.m. and was admitted to the intensive care unit under the diagnosis of a heart attack.
The plaintiff has not worked since December 16, 1975. She applied for worker’s compensation benefits.
Both physicians who examined the plaintiff concurred that the plaintiff had suffered a heart attack based on their independent examinations of the plaintiff and review of the hospital records taken at the time that she was admitted. They testified by deposition before the hearing referee. Dr. Sheldon N. Kaftan, D.O., certified in internal medicine, opined that the plaintiff had suffered a previous heart attack and that she suffered from degenerative arteriosclerotic heart disease. Dr. Kaftan also indicated that the plaintiff had angina pectoris and mild, chronic obstructive lung disease caused by plaintiff’s long-standing smoking habit. Dr. Kaftan gave an electrocardiogram (EKG) to the plaintiff. The EKG disclosed that the plaintiff had suffered heart damage to the inferior wall of the heart. Dr. Kaftan noted plaintiff’s smoking habit and that her cholesterol level was high. In response to a lengthy hypothetical, Dr. Kaftan opined that the plaintiff had the beginnings of her heart attack at her place of employment and that damage to the heart occurred at the time that she thought she was having gas pains. Moreover, Dr. Kaftan said that that plaintiff was totally disabled from her former employment and that it would be dangerous for her to return to that job because of the physical and emotional stress involved.
On cross-examination, Dr. Kaftan admitted that arteriosclerosis was an ordinary disease of life and that the plaintiff had a high risk of coronary heart disease because of her smoking habit and elevated cholesterol level. Still, he continued to believe that the stress of the work day had directly contributed to the plaintiff’s heart attack.
Dr. Sidney L. Schuchter, M.D., examined the plaintiff on February 20, 1978, at the defendant’s request. Dr. Schuchter gave the same patient history as did Dr. Kaftan, indicating that the plaintiff had been a heavy cigarette smoker for many years and that her cholesterol level was an extremely high 355. Dr. Schuchter concluded, as did Dr. Kaftan, that plaintiff had a heart attack and that she is disabled. But Dr. Schuchter disagreed that the plaintiff’s heart attack had any causal relationship with plaintiff’s work. Dr. Schuchter opined that the narrowing of the heart arteries and formation of blood clots would take place whether or not a person exerted herself. He stated that ordinary work stress, even heavy physical stress, does not cause heart attacks. The doctor did state, though, that very unusual stress, under unusual circumstances, might precipitate cardiac arrythmia, which might precipitate a heart attack.
The hearing referee denied benefits, finding that the plaintiff did not establish a causal relationship between her employment and the heart attack. The Workers’ Compensation Appeal Board reversed in a unanimous opinion dated July 29, 1981. The board gave an open award of $90 per week from December 17, 1975, until the further order of the bureau. From this decision the Kmart Corporation appeals.
I
The defendant first argues that the board erred in finding that the plaintiff’s heart attack arose out of and in the course of employment because she suffers from an "ordinary disease of life” (arteriosclerosis) and the heart attack occurred at least 24 hours after the plaintiff last worked. We reject this argument for the reasons given in Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 441 (1979). Kostamo was a set of consolidated cases involving workers who alleged heart attacks resulting from job-related stress. Although the Supreme Court was divided four-to-three on some of the consolidated cases, all seven justices agreed in one of the cases, Jarman v Atlas Supply Co. In Jarman the Court affirmed a Workers’ Compensation Appeal Board award of benefits to the plaintiff. In the opinion of the Court, Justice Levin determined that the board adequately sup ported its conclusion that Jarman’s heart attack was precipitated in part by job-related stress:
"The WCAB in Jarman does not appear to have granted preclusive effect to a medical conclusion, as it did in Kostamo. The bulk of the opinion is devoted to a detailed examination of the circumstances surrounding Jarman’s heart attack underlying the expert’s opinion. The WCAB’s review of the testimony — the difficult work schedule, time pressures, physical labor and sense of responsibility under which Jarman labored — adequately support its conclusion that work-related physical and emotional stress existed and contributed to Jarman’s heart attack.” 405 Mich 137.
In the minority opinion Justice Ryan stated that the appellate courts are bound to uphold a board’s factual decisions if they are supported by any of the evidence presented. 405 Mich 147. "The sole question on review by the Court of Appeals, and in turn here, is 'whether there is any evidence to support the award.’ ” 405 Mich 147, fn 2, quoting Mitchell v Metal Assemblies, Inc, 379 Mich 368, 370; 151 NW2d 818 (1967). The determination of causation is strictly factual, Justice Ryan reasoned, and therefore the board must be upheld if any evidence supports its conclusions. 405 Mich 146.
In both opinions it was evident that the Court accepted the idea that job-related stress could cause heart attacks. Thus, the defendant’s argument that an "ordinary disease of life” is not compensable is erroneous. If the disease — no matter how "ordinary” — arises out of and in the course of employment it is compensable under the Worker’s Disability Compensation Act. See 405 Mich 145, fn 1 (Ryan, J., dissenting), citing 1 Larson, The Law of Workmen’s Compensation, §§ 6.00-13.23, pp 3-1 to 3-342. The board’s decision here is adequately supported by some of the testimony given and does not give preclusive weight to the medical testimony.
We note in passing that the defendant’s citation to Fries v Kalamazoo Stove & Furnace Co, 338 Mich 65; 61 NW2d 87 (1953), is inappropriate. In Fries the Supreme Court held that the board should have denied compensation because the board expressly admitted in its opinion that it was pure conjecture whether the plaintiffs illness arose out of and in the course of employment. A plaintiff has the burden of proving causation, and that burden was unmet in Fries. If, on balance, the plaintiffs case and the defendant’s case are equally balanced in their persuasive effect on the board, the defendant is entitled to judgment because the plaintiff did not prove the cause by a preponderance of the evidence. Here, however, the plaintiff met her burden and the board’s opinion expressed none of the qualifying reservations expressed in the Fries board’s opinion.
II
The defendant next argues that the board erred in awarding future benefits because there was no testimony that the plaintiffs subsequent heart problems were related to the heart attack of December 17, 1975. We disagree. Both doctors testified that the plaintiff should not return to work. This alone supports the conclusion that the continuing problems stemmed from the job-related heart attack. Additionally, the defendant — after having the plaintiff examined — did not offer her a new position.
III
As its third issue, the defendant argues that the board committed legal error in awarding compensation for an "ordinary disease of life”. This argument is closely tied to the first issue and fails for the same reasons under Kostamo, supra. See also Carter v Lakey Foundry Corp, 118 Mich App 325, 333; 324 NW2d 622 (1982) (back injuries).
IV
The defendant’s final argument is that the plaintiff failed to notify Kmart of her injury, as required by MCL 418.381, 418.441; MSA 17.237(381), 17.237(441). The notice and claims provisions of the statute as they existed at the time the events below transpired provided that, in a claim for benefits arising out of an occupational disease, notice must be given the employer within 120 days after the disablement, and the filing of a claim was required within six months after the occurrence of the disablement. The notice period began to run at the time the claimant knew, or should have known, that the disease or disability might be work-related. Krol v Hamtramck, 398 Mich 341, 346; 248 NW2d 195 (1976). MCL 418.381; MSA 17.237(381) also provided, at the time relevant to this injury:
"In a case in which the employer has been given notice of the happening of the injury or has notice or knowledge of the happening of the accident within 3 months after the happening of the same, and fails, neglects or refuses to report the injury to the bureau as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of the employer or his insurer, until a report of the injury has been filed with the bureau.”
The facts relating to this issue are not in dispute. All parties acknowledge that the notice and claim periods of the WDCA were not met by the plaintiff, yet there is no dispute that the defendant knew about the plaintiffs heart attack within three months of her last day of employment. The narrow legal question upon which this issue turns is whether the tolling provisions of MCL 418.381; MSA 17.237(381) required that the employer knew or should have known that the injury or disease was causally related to the claimant’s employment. The unanimous opinion of the board did not appear to recognize such a requirement and did not find facts relative to the employer’s knowledge of a causal relationship between plaintiffs heart attack and her employment, stating:
"We further find that plaintiffs supervisors were well aware of her heart condition and why she had to terminate her employment with them. Having failed to report plaintiffs condition, the notice and claim statute was tolled and cannot now be raised as a defense. Norris v Chrysler Corp, 391 Mich 469 (1974); Krol v Hamtramck, 398 Mich 341.”
The adequacy of the notice required by the tolling provision of MCL 418.381; MSA 17.237(381) was the subject of a unanimous opinion by the Michigan Supreme Court in Norris v Chrysler Corp, 391 Mich 469, 477; 216 NW2d 783 (1974). There the Court stated:
"The notice given must be sufficient to make the employer aware that an injury has been sustained. If, after inquiry, the employer does not believe the injury to be compensable, it need not report the accident. However, in not reporting the accident, the employer assumes the risk that the injury will be found to be compensable. If such a determination occurs, the employer’s penalty is a suspension of statutory limitations.”
This standard was subsequently applied in Krol v Hamtramck, supra, p 347, an occupational disease case. Both the employer and employee may have been unaware of a causal connection between the work and the disability but this does not mean there has not been notice. Combs v Michigan Mobile Homes, 406 Mich 507, 509; 280 NW2d 451 (1979) (heart problems).
The board applied the correct law to the facts of this case in holding that having timely notice of plaintiffs condition and, having failed to report that condition, the defendant forfeited the opportunity to raise the notice and claim statute as a defense.
We affirm the board on all issues.
We express no opinion on the effects of cholesterol levels on the heart.
In the main case, Kostamo, the board issued only a conclusory opinion which did not link the medical testimony of an illness to the lay testimony about job conditions. The Court held that the board gave the medical testimony preclusive effect, failing to consider all the testimony given. 405 Mich 130-131. As a result, the cause in Kostamo was remanded for detailed findings. 405 Mich 138.
This section was substantially altered by 1980 PA 357, § 1 and 1981 PA 197, § 1, but is reprinted as it appeared in 1976. | [
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Per Curiam.
Defendants appeal as of right from a January 27, 1982, order of summary judgment granted in plaintiffs favor under GCR 1963, 117.2(3). The court ruled, as a matter of law, that a homeowner’s insurance policy which plaintiff had issued to defendant Ann Berry did not provide coverage for certain property damage caused by her son, defendant David Robertson, when he set fire to a house owned by defendants William and Shirley Kelley and insured by defendant Citizens Insurance. Citizens Insurance paid the Kelleys $57,300 for the loss. Citizens thereafter, as subrogee of the Kelleys, instituted an action against Robertson and Berry, alleging that Robertson wil fully and maliciously or negligently caused the damage to the Kelleys’ property and that Berry breached her duty to control her minor son, thereby causing the damage. Citizens’ claim against Berry was settled for $2,500.
Plaintiff Michigan Millers Mutual Insurance Company, Berry’s homeowner insurer, brought this declaratory judgment action seeking a determination that plaintiff had no duty to defend or provide coverage for Robertson in connection with the subrogation action brought by Citizens. Plaintiff relied on the terms of Berry’s insurance policy, contending that Robertson was not an insured under the policy because he was not residing in his mother’s household when he set the fires and that the damage which occurred was both "expected and intended” by Robertson and was therefore excluded from coverage.
Plaintiff filed a motion for summary judgment, contending that it was entitled to a declaratory judgment in its favor as a matter of law because, among other reasons, the policy clearly excluded coverage for either intentional or expected property damage and Robertson admitted in his deposition in the subrogation action that the property damage to the Kelleys’ home was both expected and intended. At the hearing on the motion, defense counsel argued that there was a question of fact with respect to whether Robertson intended to cause such severe damage to the home. In addition, defense counsel argued that, although Robertson admitted setting the fires, there was a question of fact as to whether Robertson was too intoxicated by alcohol or drugs to have formed the requisite intent.
The policy exclusion stated:
"Section II Exclusions
"This policy does not apply:
"1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
"f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.”
Robertson’s deposition stated in pertinent part:
"I figured it’s got to burn something, it’s going to burn everything.
"I just wanted to get it burned enough. I didn’t care if it burned to the ground so my fingerprints weren’t found.”
The trial judge granted a summary judgment in plaintiffs favor, stating:
"The Court: My reaction is this: This is what he said: T just wanted to get it burned enough, I didn’t care if it burned to the ground, so my fingerprints were not found.’ It was his intention to destroy incriminating evidence. He didn’t call the police or fire department. And he didn’t try to extinguish the fire.
"Now, those are unrebutted facts. My reaction is that there therefore is no question of fact because when you start a fire of this magnitude there is no other reasonable inference than that you intended to burn the building to the ground, that you cared less.
"For those reasons summary judgment is granted as prayed for. The court will sign an order to that effect.”
Defendants contend on appeal that the trial judge erred in ruling as a matter of law that the property damage at issue in this case was "intended” by Robertson and therefore excluded from insurance coverage. Defendants argue that, for an insurance policy provision which excludes coverage for damage caused intentionally by the insured to be operative, there must be a finding that the insured intended the damage which occurred and not merely that he intended the act which caused the damage. Defendants urge this Court to find that there was a question of fact with respect to whether Robertson intended the severe damage which resulted from the fires that he started.
Plaintiff, on the other hand, argues that, in the present case, the damage was excluded if it was either expected or intended from the standpoint of the insured. Plaintiff contends that the trial court properly found, based on Robertson’s deposition testimony, that the damage to the Kelleys’ home was both expected and intended.
In reviewing the summary judgment granted under GCR 1963, 117.2(3), this Court must consider the pleadings, affidavits, and other materials supporting and opposing the summary judgment motion, giving any reasonable doubt to the opposing parties to determine whether there is any material issue upon which reasonable minds might differ. Braman v Bosworth, 112 Mich App 518; 316 NW2d 255 (1982). Applying that standard in the present case, we find that summary judgment in plaintiff’s favor was properly granted.
It is true that this Court has held that an insurance policy provision which excludes coverage for damage caused intentionally by the insured does not relieve the insurance company of liability where the insured intends the act which causes the damage but does not intend the resulting damage. See Connecticut Indemnity Co v Nestor, 4 Mich App 578; 145 NW2d 399 (1966). That principle of law, however, is not applicable in the present case where the exclusionary provision also excluded coverage for damage that was "expected”.
It is clear from Robertson’s deposition testimony that, at a minimum, he expected the severe damage which resulted to the Kelleys’ home. As a matter of law, the property damage was excluded from coverage under the clear language of the insurance policy provision.
In addition, we find that there were sufficient statements made by Robertson in his deposition to support the trial judge’s finding that the severe damage to the home was also intended by Robertson. The following exchange took place at Robertson’s deposition:
”Q. Was everything burning when you left?
"A. Yeah.
”Q. The fires that you had started?
"A. Yeah.
”Q. Did you set the fires in the area you had been?
"A. No. I just set it in the basement, figured it got to burn something, it’s going to burn everything.
”Q. At the time of the fire, was it your intention to burn the entire home to the ground?
"A. I just wanted to get it burned enough, I didn’t care if it burned to the ground, so my fingerprints weren’t found.
”Q. It was your intention to destroy whatever incriminating evidence was in the home?
"A. Yeah.”
We agree with the trial judge that the only reasonable inference which could be drawn from Robertson’s statements regarding his actions in setting fire to the basement was that he intended to severely damage the Kelleys’ home. The trial court’s finding that the damage was excluded from coverage because it was intentional from the insured’s standpoint was proper.
Defendants also argue that summary judgment was improper in this case because there was a question of fact as to whether Robertson was too intoxicated to have formed the requisite intent to cause the damage. At his deposition, Robertson stated that the beer had not affected him at the time of the fire. As a matter of law, there was no question of fact with regard to his intoxication. In addition, as discussed above, the exclusionary provision at issue in this case did not require a finding of intent. Coverage was excluded based on the undisputed evidence that Robertson expected the property damage which occurred.
We conclude that the trial court properly granted summary judgment in plaintiff’s favor.
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Per Curiam.
John J. Bradbury, the plaintiff, appeals from a jury verdict of no cause of action in a case involving an allegedly defective transmission and linkage system on an automobile designed and manufactured by the Ford Motor Company, the defendant. On March 13, 1981, the Wayne County Circuit Court denied the plaintiff’s motion for a new trial.
In March of 1977, the plaintiff’s father purchased a new 1977 Ford Thunderbird from a Ford dealer. The car was equipped with a Ford FMX automatic transmission with the gear selector located on the steering column. The plaintiff testified that it was often extremely difficult to shift from reverse to drive, park to reverse, and reverse to park. Both the plaintiff and his father testified that they did not return the car to the dealership to discuss this problem.
On May 5, 1977, the plaintiff returned home after running errands with the car. He checked the mail and found that the post office had a registered letter for him. The plaintiff, using the Thunderbird, set out to get the letter. He saw the mail carrier’s jeep and, after asking the carrier if he had the letter, parked the car. The plaintiff testified that he put the gear selector in park and stepped out of the car. He testified that he had no problem shifting into park, and the car was stationary when he stepped out. He walked around the front of the car toward the carrier’s jeep. While the plaintiff was watching the carrier search for the letter, the carrier looked up and told the plaintiff to look at the car. The car was moving in reverse about eight or nine feet from the curb. Both the plaintiff and the carrier testified that about 30 seconds elapsed from the time the plaintiff left the car to the time it was seen moving. The plaintiff ran into the street and around the rear of the car attempting to get to the controls. When he was behind the car, the car pinned his leg against a light pole.
The plaintiff’s theory at trial was that the transmission was negligently designed, manufactured, assembled, tested, and inspected and that Ford failed to adequately warn of the dangerous and defective condition. From an adverse jury verdict, the plaintiff appeals, raising six issues.
I
In his first issue, the plaintiff argues that the trial court erred in refusing to allow the admission into evidence of a National Highway Transportation Safety Administration (NHTSA) report examining the FMX and other transmissions. The plaintiff contends that the report was admissible under MRE 803(8)(B) as a public record, as rebuttal or impeachment evidence to counter an expert’s testimony that Ford transmissions performed like transmissions by other United States manufacturers, and to show that Ford had notice of a defect, triggering a duty to warn._
Rule 803 provides:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
"(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, and subject to the limitations of MCLA 257.624; MSA 9.2324.”
In Graham v Ryerson, 96 Mich App 480, 490; 292 NW2d 704 (1980), lv den 410 Mich 858 (1980), this Court concluded that an investigation report compiled by the NHTSA was prepared pursuant to a duty imposed by law and, therefore, would be admissible under MRE 803(8)(B). The duty is identical in our case, and we, therefore, reach the same conclusion. Rule 803(8)(B) is no bar to the admissibility of the report.
Those parts of the report comparing Ford FMX transmissions to transmissions manufactured by other automakers became relevant when a defense expert testified that Ford FMX transmissions were no worse than other transmissions. Thus, under MRE 402, this evidence was presumptively admissible unless prohibited by another rule. MRE 403 provides an exception:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The defendant argues, and the trial court agreed, that the prejudicial effect of the report outweighs its probative value. We do not believe the probative value is substantially outweighed by the danger of unfair prejudice. We have no doubt that, if believed by the jury, evidence of a substantial performance difference would harm the defense, but we do not think this is unfair. "Damaging” is not equivalent to "prejudice”. We have examined the relevant parts of the report and do not see how the wording, diagrams, or statistics could be unfairly prejudicial. Any inaccuracies are best considered by the jury when determining the weight to be given the report. MRE 104(e). Cf. Bridwell v Segel, 362 Mich 102, 106; 106 NW2d 386 (1960). In fact, many of the inaccuracies the defendant complains about (e.g., multiple reports of same incident) are cured by more refined statistics in the report (e.g., number of vehicles involved, including some compared by vehicle identification number). The court abused its discretion when it disallowed the admission of relevant parts of the report.
Those sections of the report showing that Ford knew of the possible defect also should have been admitted into evidence. First, they are relevant to the failure to warn issue. Second, they were not offered for a hearsay purpose. Third, for the reasons stated earlier, the probative value was not substantially outweighed by the danger of unfair prejudice.
II
The plaintiff next argues that the trial court erred by refusing to instruct the jury "to consider Ford’s duty to warn as a question of fact”. We agree that the court should have instructed on the failure to warn issue, but we disagree with the plaintiff’s presentation of the issue. The existence of a duty to warn is a legal issue. The adequacy of the warning is a question of fact. Dunn v Lederle Laboratories, 121 Mich App 73; 328 NW2d 576 (1982). A manufacturer is required to adequately warn of dangers it knows or has reason to know of. 2 Restatement Torts, 2d, § 388, pp 300-301; Dunn v Lederle Laboratories, supra. The manufacturer is held to the knowledge of an expert and is presumed to know of studies concerning the safety of its products. Dunn v Lederle Laboratories, supra; Borel v Fibreboard Paper Products Corp, 493 F2d 1076, 1089 (CA 5, 1973), cert den 419 US 869; 95 S Ct 127; 42 L Ed 2d 107 (1974). With this knowledge, the manufacturer must adequately warn of dangers. Smith v ER Squibb & Sons, Inc, 405 Mich 79, 90; 273 NW2d 476 (1979).
The plaintiff .presented evidence tending to show that Ford knew its transmissions were dangerous. Additionally, the report excluded by the court (see Issue I) tended to show knowledge. Plaintiff also presented evidence showing a dangerous characteristic of the transmission. Plaintiff was therefore entitled to an instruction, on failure to warn. Whether Ford’s warnings or lack of warnings were reasonable is a question for the jury.
III
The plaintiff’s third issue is that the court erred in allowing the defendant to introduce a "patient history” of the plaintiff. That document was compiled when the plaintiff was in the hospital for the injury received in the accident. It contains a statement, attributed to the plaintiff, which says that the plaintiff did not put the shift lever in park before leaving the car. At trial the plaintiff denied making this statement, and the document was not signed or otherwise adopted by the plaintiff as his version of the facts.
The document was not admissible under MRE 803(4) because the statment was not made for the purpose of medical treatment or diagnosis. While a doctor may need to know that a leg was crushed, or was pinned between a moving car and a post, the plaintiff’s actions in setting the shift selector are medically irrelevant and, therefore, do not fall within this hearsay section. It was, however, admissible under MRE 613(b) for impeachment purposes. The trial court here apparently admitted the statement under that rule as a prior inconsistent statement. The plaintiffs prime objection to the court’s action is that he denies making the statement. This does not render the statement inadmissible, though. If there is sufficient evidence to support a finding that the plaintiff made the statement, it is admissible. MRE 104(b). A hospital employee testified that the "patient history” was derived from the patient’s (plaintiffs) statements to an intern. This is sufficient to support a finding that the plaintiff made the statement. This does not conclusively mean that the plaintiff made the statement — if he denies it, a jury question of credibility is raised. MRE 104(e). A witness is not required to verify he made the statement before it can be admitted in evidence. MRE 613(b). The witness must be afforded an opportunity to deny or explain the statement, MRE 613(b), and plaintiff was given that opportunity. We, therefore, find that the statement was properly admitted for impeachment purposes under Rule 613(b).
IV
The plaintiff next argues that defense counsel’s repeated references to a "settlement check” were prejudicial. The defense sought to show that the plaintiff was in a hurry to get a settlement check from another lawsuit and, thinking the registered letter was that check, carelessly set out upon the journey which caused his injury. Beneath that reference, though, is a hint that the plaintiff is overly litigious, more fond of money than the preservation of rights. Such innuendo is, of course, highly improper. We find it unnecessary to determine just how prejudicial the comments were. We trust that upon remand of this case all improper references to a "settlement check” will disappear.
V
As his fifth issue, the plaintiff argues that the trial court abused its discretion by allowing Ford to present seven expert witnesses when the plaintiff had only one. MCL 600.2164(2); MSA 27A.2164(2) provides:
"No more than 3 experts shall be allowed to testify on either side as to the same issue in any given case, unless the court trying such case, in its discretion, permits an additional number of witnesses to testify as experts.”
The defendant argues that all seven witnesses were necessary, while the plaintiff argues that certain evidence was cumulative. We agree that some evidence was cumulative. We also feel that some witnesses were capable of giving, although they did not give, the same testimony other witnesses gave. Counsel and the trial court should strive on remand to condense the witness list. If more than three witnesses are needed on an issue, the statute poses no barrier to an appropriate exercise of the trial court’s discretion. Now that the qualifications of the defendant’s experts and the specifics of their testimony are known, the parties will be in a better position to assist the trial court in its exercise of discretion. At this juncture, however, we cannot say that the trial court abused its discretion by permitting the imbalance of experts.
VI
Because we are reversing the trial court’s judgment, it is unnecessary to address the question of costs levied against the plaintiff by the trial court.
Reversed and remanded. We do not retain jurisdiction.
Approximately 20 to 25 percent of the time, according to the plaintiffs testimony.
Part of the defendant’s theory was that Bradbury did not put the shift lever at "park”.
On cross-examination and in deposition testimony, the plaintiff said three to five minutes elapsed.
MCL 257.624; MSA 9.2324 limits the use of motor vehicle accident reports compiled under the Michigan Vehicle Code.
15 USC 1411 through 1418.
We wish to stress that only those portions of the report whose relevance is shown can be admitted. The plaintiff is not entitled to have the entire report admitted simply because some parts are relevant. For one thing, this would confuse the jury too much. On the other hand, the defendant is not entitled to have the entire report excluded simply because some parts are irrelevant.
Rule 803 states:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
"(4) Statements made for purposes of medical treatment or medical diagnosis in connection with treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment- and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”
Rule 613(b) states:
"Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).” | [
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Per Curiam.
Plaintiff appeals by right from a circuit court judgment affirming an order by the Michigan Department of Licensing and Regulation suspending plaintiffs real estate broker’s license for 60 days because plaintiff failed to comply with the requirements of MCL 451.213; MSA 19.803 and 1979 AC, R 338.2738(1).
On August 19, 1980, defendant issued a complaint against plaintiff which alleged the following:
"2. That on or about November 21, 1979, licensee failed to have a journal of receipts and disbursements from the trust account with a running balance after each entry.
"3. That on or about November 21, 1979, licensee had as signatory on the trust account Gerald A. Waechter who was not an associate broker licensed to the licensee.
"4. That on or about November 21, 1979, licensee had open transactions reflecting escrow deposits in the amount of $58,993.36 while having a balance in trust account #0051-4571-0, Michigan National Bank, in the amount of $53,406.66, indicating $5,586.70 of escrow moneys not retained until consummation or termination of the transaction.”
Following a hearing, the hearing referee found: (1) the evidence that plaintiff failed to keep a running balance in its disbursement journal was uncontradicted; (2) the correct account number of plaintiffs escrow account was 0051-4571-9, and the number used by defendant, 0051-4571-0, was the result of a typographical error by plaintiffs bank; however, plaintiff had been fully informed throughout the proceedings and was never misled by this error; (3) Gerald Waechter was a signatory on plaintiffs escrow account; and (4) plaintiff failed to retain approximately $5,586.70 in the escrow account until consummation or termination of transactions.
On appeal, plaintiff challenges several of the factual findings made by the referee and affirmed by the Department of Licensing and Regulation. The standard of review to be employed in reviewing the circuit court’s judgment and the agency’s determination is "whether [the] decision is supported by competent, material and substantial evidence on the whole record”. Murphy v Oakland County Health Dep’t, 95 Mich App 337, 339; 290 NW2d 139 (1980) (emphasis deleted).
Plaintiff first contends that no evidence at all was presented by defendant on plaintiffs escrow account because defendant had the wrong account number.
The record fully supports the referee’s conclusions that the incorrect escrow account number on defendant’s complaint was the result of a typographical error made by plaintiff’s bank and that plaintiff was never misled or prejudiced by this error. Plaintiff was aware, from the start of the audit and through the administrative hearing, that defendant was challenging plaintiff’s escrow account procedure, and the audit was based on information supplied by plaintiff.
Plaintiff next argues that no deficit actually existed in its escrow account because the auditor deducted the amount of checks from the balance as soon as the checks were written, rather than when the recipients of the checks cashed them and the checks then cleared the banks. We disagree. MCL 451.213, subds (i), (j); MSA 19.803, subds (i), (j) clearly state that any money deposited in the escrow account must be retained in that account until the transaction involving that sum is either terminated or consummated. The account is not to be used as an ordinary checking account, with funds available to the real estate broker for daily use. Instead, the account is a trust fund, and whatever sum is placed into the account must be retained there "in the full amount” until the transaction is complete. Thus, at no point, under any accounting system, should a properly maintained account show a deficit; any deposit would be shown opposite an equal withdrawal from the account, and the balance would never slip below $0.
Finally, the record amply supports the conclusion that plaintiff permitted someone other than a licensed real estate broker or associate broker to sign checks drawn on the escrow account. Although no checks were actually introduced in evidence, defendant’s auditor testified that she saw the signature of such an unauthorized person on two checks labeled "escrow account”. Given the testimony, it was apparent the auditor must have seen cancelled checks. Even had this not been so, the explicit language of 1979 AC, R 338.2738(1) requires only that the checks be signed, rather than that they be fully negotiated.
Affirmed. | [
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] |
Per Curiam:.
Appellee, Louis Chiodo, filed a claim against the appellant, the estate of Anthony Chiodo, alleging that he had loaned $1,000 to his deceased brother and that the appellant was obligated to repay this sum. Appellant disputed the existence of a loan. The appellee produced a check made out to the deceased which had the word "labor” scratched out and the words "loan to be replaced when possible” written on the top of the check. According to the testimony, this change occurred after the check had cleared the banking system and had been returned to the appellee, who then authored the change. The referee held that a loan had been made; the probate court affirmed this determination. Appellant appeals, and we affirm.
Appellant relies on MCL 440.3407(3); MSA 19.3407(3) to argue that the check was materially altered and thus could only be enforced according to its original tenor, in which state it bore the word "labor”. From this, the appellant concludes that the check given by the appellee to his deceased brother was for "labor” only and was not a loan.
We find the appellant’s argument fatal for two reasons. First, MCL 440.3407(3); MSA 19.3407(3), which states that a materially altered instrument may only be enforced according to its original tenor, is applicable only to subsequent holders in due course. Not only is the appellant not a subsequent holder in due course, but the appellant is not even a holder. See MCL 440.1201(20); MSA 19.1201(20). Second, MCL 440.3407; MSA 19.3407 refers to material changes which affect "the contract of any party thereto”. Since the appellee’s check was not altered until after it had been processed through the banking system and reacquired by the appellee, the liability of each of the parties under their respective contracts was discharged. No contract existed for the appellee to alter. MCL 440.3601(3); MSA 19.3601(3), and MCL 440.3603; MSA 19.3603.
Appellant’s second contention is that parol evidence should not have been admitted to vary the terms of the check. Appellant asserts that the word "labor” on the check transformed the check from an ordinary negotiable instrument contract, see MCL 440.3413-440.3416; MSA 19.3413-19.3416, into a contract which clearly and unambiguously showed that the parties had agreed that the money was given for labor.
For the parol evidence rule to be invoked, there must first be a completely integrated agreement between the parties. The test of completeness was first set forth in Butler v Iron Cliffs Co, 96 Mich 70, 78; 55 NW 670 (1893), wherein the Michigan Supreme Court stated quoting from Jones, Construction of Commercial and Trade Contracts, §134:
"The test of the completeness of the writing proposed as a contract is the writing itself. If this bears evidence of careful preparation, of a deliberate regard for the many questions which would naturally arise out of the subject-matter of the contract, and if it is reasonable to conclude from it that the parties have therein expressed their final intentions in regard to the matters within the scope of the writing, then it will be deemed a complete and unalterable exposition of such intentions. If, on the other hand, the writing shows its informality on its face, there will be no presumption that it contains all the terms of the contract. In every case, therefore, the writing must be critically examined in the light of its surrounding circumstances, with a view of determining whether it is a memorial of the transaction.”
In this light, we find it clear that a check with only the notation "labor” inscribed on it is not a completely integrated agreement. Hence, parol evidence was admissible to establish the oral contract between the appellee and the deceased.
Appellant’s final allegation merits little comment. Although the appellant acknowledges the fact that the dead man’s statute, MCL 600.2166; MSA 27A.2166, was abrogated by MRE 601, the appellant contends that for public policy reasons, i.e., the possibility of a third party effectively defrauding a decedent’s estate, the rule should remain intact. The same argument was presented to this Court in Dahn v Sheets, 104 Mich App 584; 305 NW2d 547 (1981), lv den 412 Mich 928 (1982). The Court concluded that public policy would not be served by substantially impáiring a potentially viable defense or claim. Dahn, supra, pp 589-590. We agree.
Affirmed. Costs to appellee. | [
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] |
D. C. Riley, J.
Plaintiffs, City of Livonia and certain home owners and residents in the Sunset Hills Subdivision, appeal the trial court’s order of summary judgment dismissing their suit to enjoin the issuance of a license by the defendant, Department of Social Services (department) to the defendant Human Services and Aftercare, Inc. (applicant), for immediate use of certain premises situated in the Sunset Hills Subdivision in the City of Livonia as an adult foster care small group home for six or fewer persons, or, in the alternative, to enjoin the use of the premises by the applicant in violation of state and local law or building and use restrictions. Plaintiffs raise a plethora of issues which we consider seriatim.
I. Exemption From Local Zoning Ordinances
At the outset, we reject plaintiffs’ contention that the applicant must comply with the Livonia zoning ordinance which prohibits residentially zoned property, such as that involved in this case, from being used for adult foster care homes. Our Legislature has provided that adult foster care small group homes, caring for six or less persons, shall be exempt from local residential single-fam ily zoning restrictions and, therefore, may be legally licensed by the defendant department under the Adult Foster Care Facility Licensing Act, 1979 PA 218, MCL 400.701 et seq.; MSA 16.610(51) et seq., in a residentially zoned area. In licensing the adult foster care small group home in the instant case, the defendant department relied upon § 3b of 1921 PA 207 as amended by 1976 PA 396 as amended by 1977 PA 28, MCL 125.583b; MSA 5.2933(2), for the necessary, zoning exemption.
That statute provides in pertinent part as follows:
"Sec. 3b. (1) As used in this section, 'state licensed residential facility’ means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973 as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.
"(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.” (Emphasis added.)
Under this statute, the applicants are exempt from the Livonia zoning ordinance.
We also reject plaintiffs’ contention that the exemption from local zoning ordinances previously granted state licensed residential facilities by § 3b was abolished with the adoption of the new Adult Foster Care Facility Licensing Act, 1979 PA 218, which replaced and repealed 1972 PA 287. Plaintiffs reason that, since the Legislature, when repealing 1972 PA 287, failed to change the statutory reference in § 3b of 1921 PA 207, state licensed adult foster care facilities are no longer exempted by statute from local zoning ordinances. We disagree. It is readily apparent that, when the Legislature granted exemptions to adult foster care facilities, it was careful to limit that exemption to those facilities which were state licensed and which, in addition, cared for six or fewer persons; hence, the reference in § 3b(l) to 1972 PA 287. This statutory reference was only necessary for the informational purpose of indicating under what statute such facilities were then state licensed. The mere fact that such facilities are now licensed under a different statute is not sufficient reason to hold that the exemption of § 3b(l) is no longer applicable.
In a very similar case, Livonia v Dep’t of Social Services, 119 Mich App 806; 328 NW2d 1 (1982), another panel of this Court rejected this identical argument for the reasons stated in Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300, 306-307; 312 NW2d 238 (1981). The controversy in Brandon Twp centered around § 16a of the township rural zoning act, MCL 125.286a(2); MSA 5.2963(16a)(2), which, like MCL 125.583b; MSA 5.2933(2), provided an exemption from township zoning ordinances to state licensed residential facilities and also defined "state licensed residential facility” by reference to 1972 PA 287. The Brandon Twp Court rejected the argument that the exemption from local zoning applied only to adult foster care facilities licensed under the old act.
"Since the old [Adult Foster Care Facility Licensing Act] was repealed, all adult foster care facilities will be licensed under the new act, and the construction fostered by plaintiff would render § 16a a nullity, a highly disfavored result. See Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975). The failure to amend subsection (1) of § 16a of the [township rural zoning act] must be viewed as a legislative oversight, since the Legislature’s expressed intent in enacting § 16a was to 'implement the policy of this state that persons in need of community residental [sic] care shall not be excluded by zoning * * *’.” Brandon Twp, supra, pp 306-307.
We are in accord with this reasoning and the result in Livonia v Dep’t of Social Services, supra, and, therefore, conclude that the enactment of 1979 PA 218 did not abolish the provision of § 3b exempting state licensed residential facilities providing care for six or fewer persons from local zoning regulations.
Our conclusion is supported by the fact that the new licensing statute, MCL 400.716(2); MSA 16.610(66)(2) provides:
"A temporary license shall not be granted under this act if the proposed adult foster care facility for more than 6 adults has not obtained zoning approval or obtained a special or conditional use permit if required by an ordinance of the city, village, or township in which the proposed facility is located.”
The clear implication of this language is that the Legislature intended that facilities housing six or fewer persons need not obtain local zoning approval.
We are not persuaded by plaintiffs’ alternative argument that, if the exemption from local zoning regulations for facilities which provide care for six or fewer persons, as provided by 1921 PA 207 as amended, is still valid, it is inapplicable to the case at bar as the premises in question is a "small group home” which, by definition, has capacity for 12 adults and, therefore, is not within the scope of the exemption which only applies to structures providing resident services for 6 or fewer persons.
Section 3b of 1921 PA 207 as amended requires that a state licensed residential care facility "providing supervision or care, or both, to 6 or less persons” be considered a residential use by local governments. Plaintiffs’ argument overlooks the fact that this statute does not provide that facilities must be "licensed” for the care of six or fewer to be considered residential uses; rather, the criterion is whether a facility is actually providing care to six or fewer persons. The exemption is obviously concerned with the number of residents actually living in the facility, not the number of potential residents. See Brandon Twp, supra, p 309. Moreover, the applicant in the case at bar only sought a license for a facility to care for six or fewer persons and, therefore, the small group home license issued by defendant department was restricted to six or fewer persons. Our conclusion in this regard is supported by the statutory provisions under the new Adult Foster Care Facility Licensing Act. MCL 400.713(5); MSA 16.610(63)(5) requires a license for an adult foster care facility to state the maximum number of persons to be received for foster care at one time. Any increase beyond six in the number of persons to be received for foster care at one time in a small group home requires application for a temporary license. MCL 400.719(3); MSA 16.610(69)(3). A proposed adult foster care facility for more than six adults must obtain zoning approval or obtain a special or conditional use permit if required by a local ordinance before a temporary license can be granted. MCL 400.716(2); MSA 16.610(66)(2). Thus, if a structure has the capacity for more than six residents, it may not expand beyond six without conforming to local zoning ordinances. Therefore, limiting the exemption to family homes is not necessary to insure that facilities with more than six residents will comply with zoning ordinances.
II. Unconstitutional Divestiture of Home Rule Cities’ Inherent Zoning Authority
Next, plaintiffs claim that, in the alternative, § 3b unconstitutionally divests home rule cities of constitutional and statutory authority to enact, pursuant to their police power, a zoning ordinance regulating property concerns purely local in nature. Plaintiffs rely upon Const 1963, art 7, § 22 which provides in pertinent part as follows:
"Each * * * city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.”
It must be noted that, under the provision of this section, the authority of cities to adopt ordinances is expressly made subject to law and, therefore, where a local ordinance is contrary to state law, as it is here, the state law prevails.
In Brandon Twp, supra, an argument similar to plaintiffs’ was raised and the Court discussed the question of whether the state Legislature could reverse zoning restrictions imposed by municipal ordinance with respect to the exemption for adult foster care facilities. The Court held:
"It can be stated as a general principle of law that local zoning ordinances are subordinate to otherwise permissible legislative enactments. See Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978).” Brandon Twp, supra, pp 304-305.
Thus, we conclude that § 3b of 1921 PA 207 as amended does not unconstitutionally divest plaintiff city of any inherent zoning authority.
III. Title-Object Clause
Const 1963, art 4, § 24 states:
"Sec. 24. No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.”
This constitutional provision embraces two separate concepts: (1) that the law shall not embrace more than one object; and (2) that the object which the law embraces shall be expressed in its title. Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich 123, 128; 240 NW2d 193 (1976).
Plaintiff city contends first that 1921 PA 207 has a one-object concept — to establish enabling authority for municipal adoption of a zoning ordinance. Thus, amendment thereof by 1976 PA 396 to include a substantive regulatory provision exempting state licensed residential facilities from zoning ordinances violates the one-object limitation of Const 1963, art 4, § 24.
With regard to the proper test for determining whether a particular statute violates the single-object clause, the Michigan Supreme Court noted:
"Justice Cooley in People ex rel Drake v Mahaney, 13 Mich 481 (1865), says with respect to the same provision of the Constitution of 1850:
" 'The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state.’ Mahaney, supra, 494-495.” Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), supra, pp 131-132.
Thus, the single-object clause is only violated where "subjects diverse in their nature and having no necessary connection” are included in an act. It is clear that where an act such as 1921 PA 207 confers certain powers, a subsequent amendment thereto defining and regulating those powers cannot be said to be diverse in nature from or unconnected with the object of the act. Therefore, we conclude that the single-object clause is not violated by 1921 PA 207 as amended.
Next, plaintiffs contend that 1979 PA 218 embraces more than one object which is not stated in its title and, therefore, is violative of Const 1963, art 4, § 24.
Plaintiffs correctly observe that the stated object of 1979 PA 218 is to
"provide for the licensing and regulation of adult foster care facilities; to provide for the establishment of stan dards of care for adult foster care facilities; to prescribe powers and duties of the department of social services and other departments; to prescribe penalties; and to repeal certain acts and parts of acts.”
Plaintiffs contend, however, that the provisions of the act exceed this object in that they preempt local building or housing maintenance codes that might otherwise apply to certain adult foster care homes. Plaintiffs further contend that this object is not stated in the title of the act.
As noted above, the single-object clause is violated only when subjects diverse in their nature which have no necessary connection are included in the act. In the case at bar, the preemption of local regulation is directly related to, and is necessary to the implementation of, the principal object of providing state licensing and regulation of adult foster care facilities. In regard to plaintiffs’ claim that the object of the act was not stated in its title, "[t]he title of an act is not required to be an index of all its provisions”. Commuter Tax Ass’n of Metropolitan Detroit v Detroit, 109 Mich App 667, 671; 311 NW2d 449 (1981), lv den 411 Mich 1065 (1981). The constitutional requirement that the object be expressed in the title is met "if the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary or incidental to that purpose * * Commuter Tax Ass’n, supra, p 672, quoting Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917). While preemption of certain local regulations is not specifically mentioned in the title, such preemption is clearly germane to the stated purpose of the act which is to provide for the licensing and regulation of adult foster care facilities.
IV. Standards
Next, plaintiff city contends that 1977 PA 28, § 3b(4) and 1979 PA 218, § 16(1) are unconstitutional for lack of standards.
1979 PA 218, § 16(1) provides in part:
"Unless the city, village, or township approves a temporary license, a temporary license shall not be granted under this act if the issuance of the license would substantially contribute to an excessive concentration of community residential facilities within a city, village, or township of this state.” MCL 400.716(1); MSA 16.610(66X1).
Further, § 16(3) provides that:
"The department shall not issue a temporary license to an adult foster care facility which does not comply with * * * section 3b of Act No. 207 of the Public Acts of 1921, as amended, being section 125.583b of the Michigan Compiled Laws.” MCL 400.716(3); MSA 16.610(66)(3).
As § 16 incorporates the requirements of 1921 PA 207, § 3b(4), it must be read in pari materia therewith:
"(4) At least 45 days before licensing a residential facility described in subsection (1), the state licensing agency shall notify the council of the city or village or the designated agency of the city or village where the proposed facility would be located to review the number of existing or proposed similar state licensed residential facilities whose property lines are within a 1,200 foot radius of the property lines of the location of the applicant. The council of a city or village or an agency of the city or village to which the authority is delegated shall, when a proposed facility is to be located within the city or village, give appropriate notification of the proposal to license the facility to those residents whose property lines are within a 1,500 foot radius of the property lines of the proposed facility. A state licensing agency shall not license a proposed residential facility when another state licensed residential facility exists within the 1,500 foot radius, unless permitted by local zoning ordinances, of the proposed location or when the issuance of the license would substantially contribute to an excessive concentration of state licensed residential facilities within the city or village. In a city with a population of 1,000,000 or more a state licensing agency shall not license a proposed residential facility when another state licensed residential facility exists within a 3,000 foot radius of the proposed location. This subsection shall not apply to state licensed residential facilities caring for 4 or less minors.” MCL 125.583b(4); MSA 5.2933(2X4).
Plaintiffs argue that these statutes constitute an unconstitutional delegation of legislative power to an administrative agency as the delegation fails to provide the defendant department standards to aid in determining the meaning of "excessive concentration”. Westervelt v Natural Resources Comm, 402 Mich 412; 263 NW2d 564 (1978). We disagree.
In Dep’t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976), the Court set forth the applicable principles for determining whether a given statute has provided sufficient standards.
"In making this determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power in the hands of administrative officials.
"While no hard and fast rule exists for determining whether a given statute has provided sufficient stan dards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.
"First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood, 274 Mich 47, 53; 264 NW 285 (1935).
"Second, the standard should be 'as reasonably precise as the subject matter requires or permits’. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).
"The preciseness of the standard will,vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. * * *
"Third, if possible the statute must be construed in such a way as to 'render it valid, not invalid’, as conferring 'administrative, not legislative’ power and as vesting 'discretionary, not arbitrary, authority’. Argo Oil Corp v Atwood, supra, 53.” (Footnote omitted.)
Applying these principles to the case at bar, it is clear that the licensing and regulation of adult foster care residential facilities is a subject that requires some degree of flexibility. The Legislature has established, by statute, a specific maximum density for adult foster care facilities. The "excessive concentration” criteria is only applicable to situations where the concentration of homes is allegedly excessive even though it satisfies the statutory maximum density. Any attempt to specifically set forth further criteria for determining whether excessive concentration has occurred would be impractical as the level of permissible concentration may well vary according to the constantly changing demographic characteristics of a particular community. Such a determination inherently requires the exercise of some limited discretion. We hold that, under the present scenario, the defendant department is permitted to exercise such discretion while it is prohibited from acting arbitrarily and, therefore, we find that these statutes are valid as they confer administrative and not legislative power and as they vest discretionary and not arbitrary authority. Our conclusion in this regard is bolstered by the rule of statutory construction which requires this Court to afford a statute the presumption of constitutionality and to construe it as constitutional unless the contrary clearly appears. People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974).
V. Placement of Mentally III Persons in Adult Foster Care Small Group Homes
Next, plaintiffs would have us hold that a license may not properly issue under 1979 PA 218 for an adult foster care small group home where the intended use of the facility is for individuals who suffer from "mental illness”. We find that it is unnecessary to address the merits of this claim as the record in the case at bar reveals that the defendant residents who plan to reside at this home are "mentally retarded” persons and are not "mentally ill”. There is no question but that such individuals are eligible for placement in adult foster care small group homes.
VI. Notice
Plaintiffs further contend that the defendant department failed to comply with the notice provisions of 1977 PA 28, § 3b(4) and 1979 PA 218, § 32(1). These sections require that the defendant department provide notice to the city council and the city clerk or to a designated agency as to where a proposed state licensed residential facility is to be located, at least 45 days prior to issuance of a license for such a facility.
This Court has held that procedural irregularities in fulfilling statutory notice requirements are not grounds for reversal of an administrative action absent a showing of material prejudice. Montiy v East Detroit Civil Service Board, 54 Mich App 510, 516; 221 NW2d 248 (1974).
While it is clear, from a review of the record, that the defendant department failed to provide strict compliance with these sections by sending notice to the Livonia City Council, it is equally clear that the council had actual notice of the proposed license well in advance of 45 days before the license was issued. The record reveals that on January 26, 1981, the plaintiff city’s Bureau of Inspection had received notice of the license application. Furthermore, on April 1, 1981, the plaintiff city filed the complaint in the instant action seeking declaratory or injunctive relief enjoining the defendant department from issuing a license for the operation of the proposed facility. Inasmuch as the lower court’s temporary restraining order was not dissolved until July 20, 1981, licensure did not occur until well beyond 45 days after the plaintiff city had actual notice of the proposed facility and, therefore, plaintiffs cannot claim that they were materially prejudiced. We find that the intent of the statutory notice provision was fulfilled and the defendant department’s failure to comply with the literal terms of the statutory notice provisions does not mandate reversal.
VII. Due Process and Equal Protection
Next, plaintiffs raise a three-pronged attack on the constitutionality of 1921 PA 207 and 1979 PA 218. Under the Adult Foster Care Facility Licens ing Act, MCL 400.723(3); MSA 16.610(73X3), the department is authorized to issue a license before resolution of a complaint filed by a municipality. Plaintiffs contend that they are placed in the disadvantaged position of trying to reverse a situation which is already fait accompli. Plaintiffs, however, cite no authority or policy considerations in support of their contention and, therefore, they have abandoned this argument. Brooks v January, 116 Mich App 15, 31; 321 NW2d 823 (1982).
Secondly, plaintiffs argue that the act fails to afford the parties a hearing before a fair and impartial tribunal in violation of the procedural guarantees of due process and equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. This claim is based upon the dual investigative and adjudicative function of the director of defendant department, pursuant to MCL 400.723, 400.724; MSA 16.610(73), 16.610(74). In support of this position, plaintiffs cite Pitoniak v Borman’s, Inc, 104 Mich App 718, 724; 305 NW2d 305 (1981), which quoted Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975), for the proposition that the potential for prejudice is "too great a risk * * * where a judge or decision-maker * * * 'might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker.’ ”
In discussing the foregoing statement, the Pitoniak Court cited Hortonville Joint School Dist No 1 v Hortonville Education Ass’n, 426 US 482; 96 S Ct 2308; 49 L Ed 2d 1 (1976). In Hortonville, the United States Supreme Court upheld the constitutionality against a due process challenge of a similar procedure wherein a school board discharged striking teachers and then subsequently sat as a decision maker during the disciplinary proceedings. In finding no violation of due process, the Court held:
" 'Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. Withrow v Larkin, 421 US 35, 47 [95 S Ct 1456; 43 L Ed 2d 712] (1975); FTC v Cement Institute, 333 US 683, 700-703 [68 S Ct 793; 92 L Ed 2d 1010] (1948). Nor is a decision-maker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not "capable of judging a particular controversy fairly on the basis of its own circumstances.” United States v Morgan, 313 US 409, 421 [61 S Ct 999; 85 L Ed 2d 1429] (1941); see also FTC v Cement Institute, supra, p 701.’ 426 US 482, 493.” 104 Mich App 727.
The instant case clearly falls within the Horton-ville rule. The director of the department had issued a response to plaintiffs complaint pursuant to its investigative powers under MCL 400.724; MSA 16.610(74). The director subsequently rendered judgment on plaintiffs complaint. There was no showing by plaintiff that the director was incapable of rendering a fair decision. Hence, under Hortonville, the director’s dual role as investigator and decision maker does not, in itself, violate due process.
Lastly, plaintiffs submit that the individual homeowners included in this litigation have been deprived of substantial property interests, in violation of due process, as they were not afforded a hearing before they were deprived of their property interests, presumably by the zoning exemption which would allow the foster home to be licensed. We disagree.
Before any procedural due process protection attaches, one must demonstrate an interest within the contemplation of the "liberty or property” language of the Fourteenth Amentment. Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972); Dow v Michigan, 396 Mich 192, 202-203; 240 NW2d 450 (1976). Property owners have no vested rights in the zoning of their property. Baker v Algonac, 39 Mich App 526, 535; 198 NW2d 13 (1972). "No owner has a right in the continuance of a zoning once established.” Lamb v City of Monroe, 358 Mich 136, 147; 99 NW2d 566 (1959). Thus, we conclude that the mere fact that the individual plaintiffs may have relied upon the continuance of existing zoning does not give them a vested property interest entitling them to due process protection.
VIII. Building and Use Restrictions
Next, plaintiffs contend that the use of the ■ premises as a state licensed residential facility will violate duly recorded building and use restrictions which, among other things, require that the subject property be used for single family residential purposes. Plaintiffs further contend that a judicial determination that 1977 PA 28 vitiated these deed restrictions would constitute a violation of the constitutional prohibition against impairment of contractual obligations. US Const, art I, § 10; Const 1963, art 1, § 10.
The restrictions provide in relevant part:
"No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.”
Restrictive covenants are to be strictly construed in adherence to the long-standing principle that land should be freely alienable. Moreover, the deed restrictions cannot interfere with the public policy of this state to establish community housing for the handicapped. Bellarmine Hills Ass’n v Residential Systems Co, 84 Mich App 554; 269 NW2d 673 (1978).
While restrictive covenants identical to the one in the case at bar have been interpreted as restricting property to single-family use, Bellarmine Hills, supra; Malcolm v Shamie, 95 Mich App 132; 290 NW2d 101 (1980), the Michigan courts have consistently given a liberal construction of the word "family” when used in a restrictive covenant to include other favored social units in addition to a traditional family. As early as 1883 our Supreme Court stated:
"Now this word 'family’ contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relative, or any group constituting a distinct domestic or social body.” Carmichael v Northwestern Mutual Benefit Ass’n, 51 Mich 494, 496; 16 NW 871 (1883). Quoted with approval in Bellarmine Hills, supra.
In cases similar to the one at bar where the proposed use of a facility is noncommercial, this Court has upheld the use of the property as an adult foster care small group home, despite similar deed restrictions. Bellarmine, supra; Malcolm, supra; Leland Acres Homeowners Ass’n, Inc v R T Partnership, 106 Mich App 790; 308 NW2d 648 (1981). We are in accord with this line of cases and, therefore, hold that the building and use restrictions do not prohibit the applicant’s proposed use of the premises as an adult foster care small group home.
Inasmuch as our holding rests upon a judicial interpretation of the covenant involved and not upon a finding that 1977 PA 28 vitiated these covenants, the constitutional prohibition against the impairment of contractual obligations is inapplicable. In any event, it is well settled that the police power of the state may be exercised to affect the impairment of contract clause. Lahti v Foster-ling, 357 Mich 578; 99 NW2d 490 (1959).
IX. Additional Statutory Violations
Plaintiffs argue that the defendant department committed a host of additional violations of law. First, plaintiffs note that, pursuant to MCL 400.713(3)(b); MSA 16.610(63)(3)(b), a license may issue only if the applicant is in compliance with acts and rules promulgated under the Adult Foster Care Facility Licensing Act. Plaintiffs assert that, inasmuch as the department has not promulgated any rules under the new leasing act and the prior rules were promulgated under the now repealed licensing act, 1972 PA 287, this provision has not been complied with. This assertion is without merit.
There are rules promulgated under the previous licensing act, 1972 PA 287. See, Vol II of the Michigan Administrative Code, 1979 AC, R 400.2101 et seq. Section 31(2) of the Administrative Procedure Act of 1969, MCL 24.231(2); MSA 3.560(131X2), provides in part as follows:
"(2) When a law authorizing or directing an agency to promulgate rules is repealed and substantially the same rule-making power or duty is vested in the same or a successor agency by a new provision of law or the function of the agency to which the rules are related is transferred to another agency, by law or executive order, the existing rules of the original agency relating thereto continue in effect until amended or rescinded, and the agency or successor agency may rescind any rule relating to the function.”
' Pursuant to that provision, the rules promulgated under 1972 PA 287 are, by operation of statute, still in effect and, therefore, plaintiffs’ claim is without merit.
Second, we are not persuaded by plaintiffs’ contention that the defendant department’s "indifference to the views of the City of Livonia and its residents”, with respect to the foster care homes, constitutes a violation of MCL 400.709(2); MSA 16.610(59)(2). That statute states in part that "the department shall cooperate with other state departments and agencies and local units of government in administering this act”. We are in accord with the observation of the hearing referee that the record reveals no evidence of the department’s failure to cooperate with the city.
Plaintiffs’ claim, that the application for licensure in this case is defective, was not raised below and, therefore, this issue is waived on appeal. Brooks, supra. In any event, we have reviewed this claim and found it to be without merit.
Next, plaintiffs claim that there are existing violations of local building, plumbing, electrical, heating, and fire code regulations and ordinances. Although it is not clear, plaintiffs’ position seems to be that compliance with such codes is a prerequisite to valid licensure of an adult foster care home by the department but cites no authority or policy considerations in support of this position. By merely asserting a position, a party on appeal is deemed to have abandoned his argument. Brooks, supra.
The final alleged statutory violation asserted by plaintiffs is that the licensure of the residence in question in violation of municpal zoning ordinances constitutes a nuisance per se. This argument is also without merit. As discussed above, the residents are exempt from local zoning ordinances and, therefore, there is no violation of such ordinances which can be used to sustain a claim of nuisance per se.
X. Summary Judgment
Finally, plaintiffs contend that the trial court erred in granting defendants’ motion for summary judgment pursuant to GCR 1963, 117.2(3).
GCR 1963, 117.2(3) allows the trial court to grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Szidik v Podsiadlo, 109 Mich App 446, 448-449; 311 NW2d 386 (1981). A motion based on subrule 117.2(3) is designed to test whether there is factual support for a claim. Partrich v Muscat, 84 Mich App 724, 730; 270 NW2d 506 (1978). Before a summary judgment may be granted, the court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim asserted cannot be supported by any evidence at trial. Jacobs v DAIIE, 107 Mich App 424, 432; 309 NW2d 627 (1981). The Supreme Court has held that a court may not grant summary judgment unless it finds that "it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome”. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973) (emphasis deleted); Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965). The court must give the benefit of any reasonable doubt to the opposing party and inferences are to be drawn in favor of the one opposing the motion. Littsey v Wayne State University, 108 Mich App 406, 416; 310 NW2d 399 (1981).
Plaintiffs fail to allege any material issue of fact in this case. Moreover, there is no showing that the trial court did not give the benefit of every reasonable doubt in favor of the plaintiffs in ruling upon the motion. The trial court, therefore, did not err in granting defendants’ motion for summary judgment.
In the case at bar, defendants presented affidavits to the trial court in support of its motion but plaintiffs presented no affidavits to counter defendants. The record fails to reveal the existence of any disputed material facts. Moreover, there is no showing that the trial court did not give plaintiffs the benefit of every reasonable doubt in ruling on defendants’ motion. Therefore, we conclude that the trial court properly granted defendants’ motion for summary judgment.
Affirmed. No costs, a public issue being involved. | [
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J. R. McDonald, J.
Defendants, Rufus Jackson and Ronnie Lee Smith, were convicted of the charge of armed robbery, MCLA 750.529; MSA 28.797. The trial was unique in that each defendant had a separate jury to decide their respective cases, but were present in the same courtroom and heard the same evidence. Both defendants were represented by the same attorney. At the trial, defendant Jackson elected to testify in his own behalf, while defendant Smith chose not to testify. Defendant Jackson was the only witness presented by the defense. The jury verdicts were handed down on February 25, 1976. On March 10, 1976, defendant Smith was sentenced to a period of not less than 10 years with a maximum imprisonment of 15 years. Defendant Jackson was sentenced to a period of from 5 to 15 years. Both defendants appeal their convictions as of right, asserting five claims of error. On March 4, 1977, both cases were consolidated on appeal.
It is claimed by defendants: (1) that the trial court erred in considering the content of alleged confessions of defendants during a Walker hearing on the voluntariness of the confessions, (2) that the trial court erred in finding that the confessions were voluntarily given, (3) that the trial court erred in not instructing the jury that it was their responsibility to determine whether defendants made the confessions, and whether the confessions were true, (4) that the trial court erred in allowing the prosecutor, on cross-examination, to question Jackson regarding his poverty and unemployment, and (5) that the representation of both defendants by the same attorney denied them their right to effective assistance of counsel.
For purposes of discussion, we will consolidate the first two issues raised by defendants.
I and II. The Walker Hearing.
Prior to trial, the court conducted a Walker hearing to determine the voluntariness of the alleged confessions of both defendants. Detective William Ackerman, who interrogated defendants and obtained the confessions, said that neither defendant had appeared to be in any physical distress during the questioning. Defendants claimed they were suffering heroin withdrawal symptoms at the time of their arrest and interrogation and were "climbing the walls” by the time they gave the incriminating statements. They said they were denied medical treatment until after they signed the statements.
Defendants said they had been told by a jail turnkey that they would get medical treatment if they cooperated with the police. Jackson claimed that Ackerman said the same. The jail turnkey was not called to testify. Ackerman denied making the statement and said he could not recall discussing the matter with the turnkey. Both defendants said they signed statements only to get medical aid.
Lincoln Park Officer Gordon Loveday was the arresting officer. He arrested defendants on the evening before the statements were made. He said, that at the time of their arrest, neither defendant appeared to be in any distress, and Jackson did not seem to be concerned about the sores on his arms and legs.
The content of defendants’ statements was read into the Walker hearing record by Ackerman, after he was asked the question in regard to each defendant, "What, if anything, did he say?”
Hospital medical records on both defendants were admitted into evidence. Defendants were treated at Outer Drive Hospital in Lincoln Park several hours after signing confessions. The medical reports indicated that Jackson was given penicillin shots for the open sores on his arms and legs. The reports also indicated that both defendants were heroin addicts and were suffering withdrawal. It was noted that Jackson was "awake and alert”, and Smith had "cramps”. Both were given prescriptions for Valium.
The trial court noted that there had been conflicting testimony as to the circumstances attending the giving of the confessions and accepted as credible the testimony of Ackerman. He said that, in his opinion, testimony established that defendants were in full control of themselves and were not irrational when the statements were made. Nor were they in any apparent distress. The trial court recognized that defendants were treated at the hospital for "apparently unquestioned drug withdrawal symptoms”, but found that the hospital reports corroborated Ackerman’s version of what happened rather than defendants’. The trial court was especially impressed by the assessment by the hospital of Jackson’s condition as "awake and alert”. The trial court found that the confessions were voluntarily given.
Defendants claim that the trial court exceeded its authority in considering the credibility of defendants and insist that their confessions were not voluntary.
The voluntariness of a confession of a person accused of a crime is to be tested in a separate evidentiary hearing outside of the presence of the jury. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Such a hearing was held in the instant case, but defendants allege error in procedure and outcome.
The sole purpose of a Walker hearing is to determine the fact of voluntariness, and a reviewing court is concerned only with the correctness of that determination. On appeal, we are required to examine the whole record and make an independent determination of the ultimate issue of voluntariness. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial court in its ruling, we will affirm that ruling. People v Hummel, 19 Mich App 266; 172 NW2d 550 (1969).
Voluntariness is to be determined from the totality of the circumstances, People v Cutler, 73 Mich App 313; 251 NW2d 303 (1977), and, where credibility is at issue, this Court will give deference to the findings of the trial court, since the trial judge is in a superior position to judge the credibility of the witnesses. People v Combs, 69 Mich App 711; 245 NW2d 338 (1976), People v Hummel, 19 Mich App 266, 268-270; 172 NW2d 550 (1969).
In Combs, supra, this Court stated:
"In reviewing the cold, typewritten transcript of the Walker hearing it is clear that there was a conflict between the two versions of the incident presented to the trial court. Since the central issue becomes one of credibility we will not disturb the trial court’s findings of fact. People v Olson, 66 Mich App 197, 201; 238 NW2d 579 (1975). The trial court was not required to accept defendant’s version of the incident and we cannot say after reviewing the entire record of the Walker hearing that the trial court’s finding that the defendant’s statements were voluntarily made is clearly erroneous.” 69 Mich App at 716.
Credibility was a central issue in the instant case. Defendants’ claim that the trial court erred in considering their credibility is without merit. The trial court was not required to believe defendants’ version of what happened, and apparently he did not. He believed instead the testimony of the police officers, and found that their testimony was corroborated by hospital records detailing medical treatment given defendants.
Defendants also claim that the trial court erred in considering the content of statements they allegedly made to police. However, they made no objection during the Walker hearing when Ackerman was asked what defendants had said. Nor was there any objection when Ackerman read the statements into the record in reply to the question. Furthermore, a review of the trial court’s findings in the Walker hearing does not indicate that it was influenced by or considered the substance of the statements.
Defendants’ reliance upon People v Britt, 37 Mich App 175, 177; 194 NW2d 528 (1971), lv den, 387 Mich 752 (1972), is misplaced. In Britt, this Court stated that "it would be desirable if a judge conducting a Walker hearing concerning the admissibility of a statement did not learn the nature of the statement until after he had made his decision on the issues of voluntariness and admis sibility, so that his decision on those issues is not subconsciously influenced by knowledge of admissions made in the statement. However, we can visualize situations where, because of the defendant’s testimony or other evidence at the Walker hearing, it may become necessary for the people to introduce inculpatory aspects of the statement in rebuttal.” It is clear from the language used by the Court that a per se exclusionary rule was not intended.
A review of the entire record in this case does not bring us to a definite and firm conviction that a mistake was committed by the trial court in its ruling. People v Hummel, supra, People v Thomas Jones, 73 Mich App 107; 251 NW2d 264 (1976). Defendants’ claim of error is without merit.
III. Instructions on Confessions.
Defendants contend that the trial court committed reversible error in not instructing the jury that it was their responsibility to determine whether defendants made the confessions introduced at trial, and whether the confessions were true. The trial record does not reveal that defendants requested any instructions on confessions. The record does reveal that defense counsel said he was satisfied with the instructions given by the trial court.
It is well-settled that no party may assign as error failure to give or the giving of an instruction unless objection is raised before the jury retires to consider the verdict. The objecting party must specifically state the grounds for his objection at that point. People v Broom, 50 Mich App 337, 341; 213 NW2d 247 (1973), GCR 1963, 516.2; MCLA 769.26; MSA 28.1096.
Defendants’ reliance upon People v Williams, 46 Mich App 165; 207 NW2d 480 (1973), is misplaced. This Court, in Williams, stated that the better practice with regard to confessions found in a Walker hearing to be voluntary would be to advise the jury "that they should find 1) if it was made, and 2) if they so find, they should decide if the statement is true”. 46 Mich App at 170. However, in Williams, this Court held that since defense counsel made no objection to the trial court’s instructions and, in fact, expressed satisfaction with the instructions as given, there was no error.
In the instant case, since defendants made no objections to the trial court’s instructions, and expressed satisfaction with the instructions as given, we hold that there was no error. Williams, supra, People v Bradley, 54 Mich App 89; 220 NW2d 305 (1974).
IV. Improper Cross-Examination.
Defendant Jackson testified at trial; Smith did not. On direct examination appellant Jackson stated that he lived in a housing project in Ecorse. He also testified that he was trying to pawn his rifle because he was unable to pay his rent. Defendant Jackson also testified on direct examination that he was addicted to heroin. Defendants contend that the following recross-examination of defendant Jackson constituted reversible error:
"Q [by Mr. Telek, Assistant Prosecuting Attorney]: Sir, where did you work?
"A I was laid off.
"Q How long have you been laid off?
"MR. TAMSEN [defense counsel]: I think that’s improper on redirect I did not ask anything about employment. I think he’s going beyond the field of redirect.
"MR. TELEK: I’ll tie it in if the Court will bear with me.
"THE COURT: In the exercise of judicial discretion, I’ll allow it as it is cross examination.
"Q (By Mr. Telek) What was your last answer, sir?
"A What did you say?
"Q How long had it been since you worked?
"A It would have been a year Christmas.
"Q And, you have been an addict for seven years?
"A Yes.
"Q Using it regularly?
"A Well, off and on, methadone clinics.
"Q This costs money, right?
"A Yes.
"Q How much money?
"A Whatever one can spend on it.
"Q Pardon?
"A Whatever one could spend.
"Q I see. But you weren’t using the rifle to get this money, is that correct?
"A No, I wasn’t.”
Later, the following occurred:
"Q Although you’re not working, you didn’t support your habit by robbing, did you?
"A No, I didn’t.”
Defense counsel did not object at this point.
Defendants in the instant case claim that under People v Johnson, 393 Mich 488; 227 NW2d 523 (1975), the cross-examination of Jackson as to his poverty and lack of employment constituted reversible error.
In the recent case of People v Thomas Jones, 73 Mich App 107, 109; 251 NW2d 264 (1976), the Court was confronted with an alleged Johnson error. In the Jones case, the defendant claimed that the prosecutor was improperly allowed to cross-examine the defendant and other defense witnesses regarding the unemployment and pov erty of the defendant at the time of the alleged offense.
The Jones Court, at page 109, said:
"Argument one, just stated, is premised principally upon the Michigan Supreme Court disposition of a similar question in People v Johnson, 393 Mich 488; 227 NW2d 523 (1975), and would be determinative if we were to countenance a strained interpretation of Johnson which states that the mere asking of any question by the prosecutor, regardless of justification, concerning defendant’s unemployment or poverty required reversal. It is clear that this interpretation of Johnson is erroneous.
"The basic fallacy of defendant’s contention is demonstrated by the following language of Justice Williams in Johnson, at 499:
" 'That is not to say, however, that the trial court does not have considerable discretion in ruling on the relevance and materiality of argument coming before it. Clearly, the trial court has broad discretion in exercising its judgment whether a particular line of inquiry or argument is to be allowed before the jury. * * * Yet there is an obvious limit to the exercise of such discretion in cases of abuse.’ ” (Footnote omitted.) (Citation omitted.)
"It is plain, therefore, that the Supreme Court did not set forth a per se reversal rule. Instead, the question before us for decision is this: Whether the court below abused its discretion in allowing this line of questioning.”
Like the Jones Court we are mindful of the extreme prejudice that can be engendered by irrelevant questions relating to a defendant’s poverty or unemployment. The onus cannot be placed on the defendant to disprove the inference which might arise from irrelevant and highly prejudicial testimony on this subject, that being: a defendant is guilty solely because he is poor. In the instant case, to hold that it was error to allow the ques tioning of the prosecutor would clearly be a misapplication of Johnson.
We have examined the testimony with care and conclude that the defendants’ argument is without merit. Most of the cross-examination of the defendant Jackson was not objected to and thus absent manifest injustice which is not present here, is beyond appellate review. The subjects complained of were, for the most part, put in issue first during the direct examination of the defendant.
It is basic to Michigan jurisprudence that once the defendant chooses to testify on his own behalf, and in fact takes the witness stand, his credibility is open to impeachment on the same basis as an ordinary witness. The scope of such questioning rests within the sound discretion of the trial court and is not subject to review unless it is shown to have been grossly and oppressively abused. People v Johnson, supra. From a careful review of the direct and cross-examination of defendant Jackson we find no abuse of discretion, nor manifest injustice to the defendants, and therefore no reversible error.
V. Representation of Both Defendants by Same Counsel.
Finally, defendants contend that the representation of both defendants by the same attorney denied them their right to effective assistance of counsel. Shared counsel is not prejudicial per se. People v Tillman, 59 Mich App 768; 229 NW2d 922 (1975). We find in the instant case that defendants suffered no prejudice from sharing counsel, therefore, no reversible error resulted. People v Osborn, 63 Mich App 719, 724; 234 NW2d 767 (1975), People v Spencer, 61 Mich App 392, 396; 232 NW2d 413 (1975), People v Dockery, 20 Mich App 201, 210; 173 NW2d 726 (1969).
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Danhof, C. J.
The Supreme Court vacated our earlier disposition of this case, 68 Mich App 337; 242 NW2d 574 (1976), and remanded the case back to this Court for reconsideration in light of People v Atkins, 397 Mich 163; 243 NW2d 292 (1976). 399 Mich 834 (1977).
Defendant Mata was found guilty of delivery of heroin in violation of MCLA 335.341(l)(a); MSA 18.1070(41)(l)(a) on the testimony of a paid police informant. The issue which was before this Court in our earlier decision was whether the trial judge clearly erred in concluding that no promises of leniency were made to the witness for his testimony. We concluded that the trial judge did not err.
The Atkins opinion dealt with three issues:
"(1) Whether reversal is required because the trial court did not sua sponte instruct the jury that the testimony of an addict-informer was to be received with care and caution;
"(2) Whether the uncorroborated testimony of an addict-informer is insufficient as a matter of law to make a jury-submissible issue on defendant’s guilt; and
"(3) Whether the jury was misled by a failure to disclose the possibility of future favorable treatment for the addict-informer testifying against defendant.” 397 Mich at 167.
As to the first issue, the Court held that where the defendant’s strategy was to put the witness "on trial”, there would be no error in failing to sua sponte give a special cautionary instruction. The record in the instant case discloses the following instruction and subsequent discussion:
"In weighing the testimony and determining the credibility of all the witnesses in the case, you should take into consideration the interest or lack of interest of each witness in the outcome of the case. You should take into consideration the manner in which the various witnesses have given their testimony upon the witness stand, the opportunity that they or any of them may have had for observation or knowledge of the subject matter about which they testified, their honesty, their memory, their capacity and understanding, probability or improbability of their statements, and their bias or prejudice, if any, as shown by the evidence in the case.”
"(In the absence of the jury, the following proceedings were had:)
"THE COURT: While the jury was still in the jury box and before it had retired to commence its deliberations, the Court called counsel for both sides to the bench and asked if there were any objections to the charge of the Court or any further requests for instructions which either counsel desired to present.
"At that time, the Court understood that counsel both stated that they had no further instructions and no objections to the charge as stated; is that correct, gentlemen?
"MR. MARTIN [defense attorney]: That’s correct, your Honor, on behalf of the defendant.”
The record discloses no request by the defendant for a special cautionary instruction. As in Atkins, the defense strategy in the instant case was to attack the credibility of the informant-witness. As in Atkins, we find no reversible error in the instant case.
As to the second Atkins issue, the Court held that:
"We hold that the credibility of an addict-informer, like that of an accomplice, is a jury question, and that the jury may convict on such testimony alone.” 397 Mich at 172.
As to the third Atkins issue, the Court stated in part:
"However, it is one thing to require disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness’s credibility. It is quite another to require 'disclosure’ of future possibilities for the jury’s speculation. Indeed, if a prosecutor were required to volunteer that, although there was no agreement, he intended to recommend some sort of consideration for a witness because the witness was testifying in this and other cases or had corrected his past misdeeds, could this not be viewed as vouching for that witness’s credibility? The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony. Of the latter, this jury was made well aware by means of the thorough and probing cross-examination by defense counsel.” 397 Mich at 174.
As in Atkins, there has been no showing of an actual undisclosed agreement or promise made by the prosecution to the witness for leniency or other reward. While it is clear that the paid informant-witness in the instant case had an expectation of consideration for his cooperation, we believe that the jury was made well aware of the facts motivating the witness through the thorough cross-examination and closing argument of defense counsel.
In his concurring opinion in Atkins, Justice Levin wrote:
"Although the record does not support a conclusion that there was an agreement, the probability is that there was a tacit understanding.
"I question the usefulness of a distinction between the 'disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness’s credibility’ and ' "disclosure” of future possibilities for the jury’s speculation’.”
"A statement by an accomplice-informer witness that no promise has been made to him is misleading although no positive promise has been made if he has a reasonable expectation of leniency or other reward. The statement is not wholly true as it conceals the witness’s expectations, expectations fostered by the practice of granting concessions to accomplice-informer witnesses. The apparent purpose of knowing concealment and a failure to correct the record is to mislead the jury.”
"If there is an agreement with a prosecution witness, it must be disclosed to the jury.
"If there is no agreement and charges of law violation have been or could be lodged against the witness or sentencing has been deferred, and in similar cases the prosecutor has refrained from prosecuting or has granted or sought charge reduction or leniency in sentencing for witnesses who assisted the prosecution, those facts and their significance should be fully disclosed and explained to the jury.” 397 Mich at 177-183.
In People v Crawl, 401 Mich 1; 257 NW2d 86 (1977), Justice Levin cites Atkins stating:
"Such disclosure should * * * be full and complete to avoid misleading the jury.” 401 Mich at 34.
At defendant Mata’s trial, the jury was made aware that the paid informant witness had been able to avoid prosecution for past crimes, that the prosecutor’s office had previously dismissed several criminal charges against the witness which involved a variety of crimes, that the witness was a paid informant, that the witness was presently facing several pending felony charges, that the witness was acquainted with some members of the prosecutor’s staff, that the witness was "not look ing forward to going to prison”, and that the witness had previously gone along with "deals” worked out between his attorney and the prosecutor. In his closing argument the defense attorney contended that the prosecution witness had committed perjury, that the witness "is like a traveling minstrel, a traveling minstrel with a guitar or a — he sings a song and he gets a reward. Most of the time it’s money. This time it’s freedom from prison.” In his rebuttal the prosecutor stated in part: "We’ve got the detectives. They watched him do it, Watched Tom [the paid informant witness]. We’ve got Tom’s testimony, nothing else. Tom is in jail today. He came over here — fortunately, they didn’t leave his jail clothes on him. Cases are still going against him, B and E’s, to be tried very soon.” We believe that this record contains a full and fair disclosure of the "facts which may motivate the witness” in giving his testimony. We do not believe the jury was misled by the witness’s denial that he expected some deals to be made in those pending cases. We therefore find no error.
Affirmed.
V. J. Brennan, J., concurred. | [
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Per Curiam.
This case presents the not uncommon situation of a wife who, having worked so that her husband could obtain a professional education, finds herself left by the roadside before the fruits of that education can be harvested.
The parties were married for seven years but, because of the husband’s military service and several separations, lived together for only approximately four years. During this time the husband obtained a medical degree and is presently in a surgical residency in Maryland. The wife has worked as a guidance counselor in public schools during the marriage and continues in that employment. At the time of the judgment and for the next few years, the wife’s income will exceed the husband’s.
The trial court granted the wife’s counter complaint for divorce. There were no substantial assets acquired during the marriage, a result in part from the cost of the husband’s education. In lieu of a property settlement, the trial court awarded the wife $15,000 alimony in gross to be made in three payments beginning six months after the judg ment was entered. The trial court deemed this an equitable adjustment of the parties’ interests. Both parties appeal. The husband claims that an award of alimony where his wife’s current earnings are greater than his own is an abuse of discretion. The wife claims the award should be raised to $60,000 to reflect her efforts in the husband’s acquisition of an M.D. degree.
An award of alimony is discretionary and should be based on "the ability of either party [to earn] and the character and situation of the parties, and all the other circumstances of the case”.
Under the statute, the financial situation of the parties is a principal, but not an exclusive or controlling factor.
We are not convinced we would have reached a different result had we occupied the position of the trial court. Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975), lv den, 395 Mich 769 (1975). It was impossible to award the wife a portion of the husband’s medical degree, the only substantial asset acquired during coverture. An award of $15,000 fairly represents the wife’s contribution to the acquisition of that asset, financial and otherwise.
We do think, however, that it is inequitable for the husband to be required to make the payments ordered by the trial court while still pursuing his medical training. We therefore modify the judgment to require payment of $2,000 plus interest per year while his residency continues and the balance to be paid within one year after his residency is completed.
The balance of the trial court’s judgment is affirmed.
Before trial the lower court held the "no-fault” divorce statute, MCLA 552.6; MSA 25.86, was unconstitutional. The divorce was granted to the wife on a finding that the husband was guilty of "relationships with other women”. No issue as to the constitutionality of the statute has been raised on appeal. But see, Cowsert v Cowsert, 78 Mich App 129; 259 NW2d 393 (1977), finding the statute constitutional.
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] |
Per Curiam.
Plaintiff brought an action to recover for injuries he suffered when the car in which he was a passenger left the road and struck a tree in the early morning hours of July 12, 1971. The automobile was owned by defendant Doris Ogilvie and driven by her son, defendant Scott Ogilvie. The jury returned a verdict of no cause of action. Plaintiffs motion for a new trial was denied and he appeals as of right.
The trial court erred, plaintiff charges, in permitting the defendant to testify to the events immediately preceding the accident. Plaintiff testified that he had no recollection of the events during the time from 3 to 4 days before the accident to several days afterwards. His physician testified that plaintiff suffered from retrograde amnesia, a loss of memory affecting a period immediately prior to a precipitating cause. Consequently, defendant’s testimony, charging plaintiff with contributory negligence, was the only evidence of events leading up to the accident.
Plaintiff objected to the admission of such testi mony on the basis of the dead man’s statute; that is, plaintiff claims that inasmuch as he was incapable of testifying within the meaning of the dead man’s statute, defendant should not have been allowed to testify to events of which plaintiff had no memory.
The much criticized dead man’s statute, MCLA 600.2166; MSA 27A.2166 provides in part:
"(1) In an action by or against a person incapable of testifying, a party’s own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.
"(2) A 'person incapable of testifying’ includes an individual who is incapable of testifying by reason of death or incompetency * * * .”
Courts, recognizing that the statute impedes the fact finding process, have questioned whether the statute has caused more injustice than it prevents. Fojtik v Lawson, 303 Mich 568; 6 NW2d 895 (1942), Smilay v Sage, 304 Mich 514; 8 NW2d 158 (1943) , In re Potter Estate, 351 Mich 326, 331; 88 NW2d 452 (1958), and commentaries cited therein. In Michigan, as a result of such criticism, courts have, by strict construction, shown no disposition to extend the scope of the statute. Mallery v Van Hoeven, 332 Mich 561, 566; 52 NW2d 341 (1952).
Plaintiff would nevertheless have us extend the scope of the statute to one suffering from retrograde amnesia. He argues that because it is not necessary, as formerly it was, for a person to be adjudged mentally incompetent or insane in order to invoke the statute, it can be enlarged to include one in plaintiff’s situation.
While it is true that there no longer need be a judicial determination of incompetence, the person incapable of testifying must still be incapable by reason of death or incompetency. The plaintiff in this case was not incompetent as the term is used in the context of the statute. Indeed, plaintiff was not incapable of testifying at all. He was merely unable to recall events shortly before and after the accident. That is not the type of incapability envisioned by the statute. Cf. Sturman v Johnson, 209 Va 227; 163 SE2d 170 (1968). To include an amnesiac within the coverage of the statute runs counter to the express policy in this state of not expanding the scope of the dead man’s statute.
Another panel of this Court has rightly refused to extend the dead man’s statute to include one suffering from traumatic amnesia. The Court noted the policy against extending the statute beyond its original meaning and advanced another valid reason for adhering to a strict interpretation in the circumstances.
"Foreseeably, the rule for which plaintiffs contend would encourage future plaintiffs, particularly plaintiffs whose claims would otherwise be vitiated by the taint of contributory negligence, to feign convenient loss of memory.” Howell v King, 77 Mich App 272, 277; 258 NW2d 200 (1977).
The trial court’s refusal to extend the dead man’s statute to one suffering retrograde amnesia is entirely consonant with the express policy of our courts.
Plaintiff also claims the trial court erred in submitting the issue of contributory negligence to the jury. There was no error. Defendant introduced sufficient evidence from which a jury might infer contributory negligence. It was not only proper but necessary that this question of fact be submitted to the jury. Jaworski v Great Scott Supermarkets, 71 Mich App 235; 247 NW2d 363 (1976).
Nor was the jury’s verdict against the great weight of the evidence, as is contended:
"This Court will not substitute its judgment for that of the jury unless a careful review of the record reveals a miscarriage of justice. Williams v Fiedlar, 22 Mich App 179; 177 NW2d 461 (1970), aff'd 386 Mich 221; 191 NW2d 52 (1971).” Durbin v K-K-M Corp, 54 Mich App 38, 58; 220 NW2d 110 (1974).
In view of the evidence presented at trial both as to defendant’s negligence and plaintiffs contributory negligence, we cannot say that a miscarriage of justice occurred.
Affirmed.
Subsection 4 of the statute provides that if the deposition or testimony of a person is taken "in his lifetime or when he is mentally sound,” that testimony may be used in any subsequent litigation and the bar upon testimony is completely lifted. Clearly, then, the incapability referred to in subsection 2 of the act denotes death or mental unsoundness and nothing more. (Emphasis added.) | [
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Per Curiam.
Plaintiffs Roger A. De Saele and Borman, Inc., for themselves and all property owners in two special property tax assessment districts, appeal a trial court decision granting defendant City of Sterling Heights’ motion for accelerated judgment. The trial court’s order barred separate class action suits brought by the named plaintiffs, which alleged fraud by the defendant’s creation of the special assessment districts and sought injunctive relief prohibiting collection of the assessments. Hearings on the motion were held on January 29, April 30, and June 25, 1979. On April 6, 1979, the trial court issued its opinion granting the defendant’s motion. On June 14, 1979, the lower court issued an amended opinion further explicating the bases for its decision. Due to the identical nature of the issues and arguments raised by the named plaintiffs, these cases have been consolidated for appeal. Plaintiffs appeal as of right.
The trial court in this case concluded that it had subject matter jurisdiction to hear the plaintiffs’ actions based upon the equitable remedies sought therein. See Romulus City Treasurer v Wayne County Drain Comm’r, 86 Mich App 663, 669-670; 273 NW2d 514 (1978), lv gtd 406 Mich 976 (1979), read by the lower court as creating an exception to the otherwise "exclusive” jurisdiction of the Tax Tribunal.
Other cases before this Court, however, have found the tribunal’s jurisdiction to encompass claims for relief similar to that sought herein. In Edros Corp v City of Port Huron, 78 Mich App 273, 275; 259 NW2d 456 (1977), plaintiff sought in part "a temporary and permanent restraining order preventing any further action regarding the district”. The Edros Court specifically rejected the plaintiff’s argument that Tax Tribunal jurisdiction was unavailable. In its analysis of the Tax Tribunal’s jurisdiction, the Court stated:
"MCL 205.731; MSA 7.650(31) grants the tribunal exclusive jurisdiction to review directly final decisions regarding special assessments. Additionally, the powers of the tribunal are extensive and include the authority to issue the relief requested by plaintiff.
"Thus upon a proper showing the tribunal has the authority to order or direct the taxing agency to take no further action relating to a disputed tax assessment until the merits of the controversy have been determined. The fact that the tribunal, as a quasi-judicial agency, has no contempt powers does not diminish the validity and binding force of its writs, orders or directives. Enforcement is obtainable by application to the circuit court.” Edros Corp, supra, 277-278. (Emphasis added; footnotes omitted.)
Additionally, in State Treasurer v Eaton, 92 Mich App 327, 332; 284 NW2d 801 (1979), this Court held that where a taxpayer "asserted a tenable claim of fraud”, as defined in MCL 211.76; MSA 7.122, review of the claim by the Tax Tribunal was proper.
We conclude that the circuit court lacked subject matter jurisdiction over the actions consolidated in this appeal. Accordingly, the circuit court’s grant of accelerated judgment was proper, albeit for the wrong reason. The court granted defendant’s motion pursuant to GCR 1963, 116.1(5), whereas accelerated judgment properly should have been granted under GCR 1963, 116.1(2). Where the trial court achieves the correct result but assigns the wrong reason therefore, this Court will not disturb that result on appeal. Durbin v K-K-M Corp, 54 Mich App 38, 46; 220 NW2d 110 (1974), lv den 394 Mich 789 (1975).
To conclude, we affirm the result reached by the trial court, without prejudice to plaintiffs’ right to petition the Tax Tribunal for relief within 30 days of the date of release of this opinion.
Such petition, of course, is subject to all defenses which defendant can fairly raise, including those raised in the circuit court. We direct the Tax Tribunal to waive any prior expiration of the 30-day filing rule found in MCL 205.735(3); MSA 7.650(35X3). GCR 1963, 820.1(7).
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Per Curiam.
Plaintiffs Joseph Lucido, Jr., and Joseph Lucido filed a complaint against defendants Apollo Lanes and Bar, Inc. (Apollo Lanes), and Shore Lanes, Inc. (Shore Lanes). Plaintiffs alleged that Joseph Lucido, Jr. (plaintiff), then a minor, was served alcoholic beverages at Apollo Lanes on September 28, 1980, no inquiry having been made about his age. Although plaintiff became visibly intoxicated, employees of Apollo Lanes continued to serve him alcohol. Plaintiff left Apollo Lanes and proceeded to Shore Lanes, where he was further served intoxicating beverages without inquiry into his age and while visibly intoxicated. Plaintiff then left Shore Lanes. While traveling home in his automobile, he lost control of the vehicle, left the roadway and struck a house, sustaining severe injuries. Plaintiffs alleged that defendants violated a penal statute by failing to make inquiry into plaintiff’s age; engaged in gross, wilful, and wanton conduct by encouraging plaintiff to drink to excess; failed to act in a reasonable manner; and failed to warn concerning the use of intoxicants by a minor. Count II of plaintiffs’ complaint sought damages for loss of services and loss of society suffered by Joseph Lucido.
Count I of plaintiffs’ complaint was dismissed pursuant to motions for summary judgment based on GCR 1963, 117.2(1), the trial court finding that plaintiffs had failed to state a claim upon which relief could be granted.
On appeal, plaintiffs argue that the trial court erred in granting defendants’ motions for summary judgment on the ground that the dramshop act created an exclusive remedy for actions against tavern owners for damages sustained due to an unlawful sale of intoxicants. Plaintiffs also argue that the dramshop act did not preempt a common-law remedy arising from the violation of MCL 436.33; MSA 18.1004, a penal statute. Plaintiffs’ third argument states that the trial court erred in dismissing plaintiffs’ cause of action alleging gross and wilful conduct by defendants. This Court finds no error in the trial court’s dismissal of plaintiffs’ claim.
No common-law remedy existed against a bar owner who sold liquor to a minor or a visibly intoxicated person. Browder v International Fidelity Ins Co, 413 Mich 603; 321 NW2d 668 (1982). MCL 436.22; MSA 18.993, a portion of the Michigan Liquor Control Act commonly known as the "dramshop act”, created a statutory remedy against tavern owners. Browder, supra. The statute gives a cause of action to a "wife, husband, child, parent, guardian, or other person” injured by "a visibly intoxicated person” by reason of an unlawful sale or furnishing of intoxicants to the person, where the sale is a proximate cause of the injury. MCL 436.22(5); MSA 18.993(5). The intoxicated person has no cause of action against the bar owner for injuries sustained due to an unlawful sale because he is not "an innocent person entitled to recover under the act”. Kangas v Suchorski, 372 Mich 396, 401; 126 NW2d 803 (1964).
Many cases decided by the Supreme Court and this Court have discussed whether the dramshop act was intended as an exclusive remedy against tavern owners for the unlawful sale of intoxicants. Most recently, in Browder, the Supreme Court concluded that: "The Legislature obviously intended the cause of action and the period of limitations provided in the dramshop act to be the exclusive cause of action and exclusive period of limitations * * *”. Browder, p 612. After a lengthy and thorough analysis, the Court stated:
"In summary, we find that the Legislature intended the dramshop act to be a complete and self-contained solution to a social problem not adequately addressed at common law. The plain and unambiguous language, together with the built-in checks and balances adopted by the Legislature to finely hone the rights and obligations of the parties under the act, lead to only one conclusion: the Legislature intended the statutory action of trespass on the case to be the exclusive remedy and 'any action’ arising under dramshop-related facts to be instituted within two years.” (Footnote omitted.) Browder, pp 615-616.
In Manuel v Weitzman, 386 Mich 157, 164-165; 191 NW2d 474 (1971), the Supreme Court specifically approved the following statement: "We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants” (emphasis omitted), quoting DeVillez v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970). Accord, Rowan v Southland Corp, 90 Mich App 61, 68-69; 282 NW2d 243 (1979); Jones v Bourrie, 369 Mich 473; 120 NW2d 236 (1963).
This Court finds the above-cited cases to be controlling. The trial court correctly granted summary judgments on plaintiff Joseph Lucido, Jr.’s, claim. The dramshop act is an exclusive remedy, and plaintiffs may not assert a claim based on a violation of a penal statute.
Plaintiffs argue that a common-law action for violation of MCL 436.33; MSA 18.1004 existed prior to the enactment of the dramshop act and that the dramshop act has not preempted that common-law cause of action.
It is this Court’s opinion that the dramshop act was designed to create the type of action which plaintiffs argue can be derived from the penal statute. The dramshop act and the cases interpreting it indicate that the remedy provided therein is exclusive. While MCL 436.33; MSA 18.1004 provides that the sale of liquor to a minor is a misdemeanor, it does not specifically create a cause of action for a minor who is illegally served. It does not appear from anything in the statute that it was the Legislature’s intent to create a cause of action on the behalf of a minor.
In Manuel, the Supreme Court ruled that the dramshop act is an exclusive remedy for injuries arising out of the unlawful sale, giving away, or furnishing of intoxicants. The only case which has found an exception to this rule is Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977). In Grasser, a wrongful death action brought by the deceased intoxicated person’s executrix was allowed. The defendants in Grasser had been advised by the executrix-daughter that the deceased was an alcoholic and unable to tolerate drink. Defendants had agreed not to serve him. They violated that agreement, and the deceased suffered injuries while intoxicated which caused his death.
Plaintiffs here alleged in their complaint that defendants breached their duty to plaintiff Joseph Lucido, Jr.:
"By gross, wilful and wanton conduct through affirmatively encouraging plaintiffs conduct in drinking in excess.”
The trial court properly granted summary judgments for failure to state a claim for gross negligence. The facts of this case do not warrant a finding of an exception to the general rule stated in Manuel.
Affirmed. | [
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Per Curiam.
Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced to imprisonment for 20 to 40 years and appeals by right.
Reversal is required because the court failed to inform defendant at the plea-taking proceeding that he could not be placed on probation. GCR 1963, 785.7(l)(f); People v Rogers, 412 Mich 669; 316 NW2d 701 (1982). This error was not cured when the court later informed defendant at sentencing that he could not be placed on probation. The error was not cured because defendant’s plea had already been accepted at that time, because the court mistakenly told defendant that he had been given this information at the plea-taking proceeding, and because the court did not oifer defendant an opportunity to withdraw his plea. The prosecution contends that Rogers should not be applied retroactively to this case, but that position appears untenable in view of the numerous instances in which the Supreme Court has applied Rogers to reverse cases which arose before Rogers was decided. See People v Willie Johnson, 413 Mich 898; 319 NW2d 1 (1982); People v Crousore, 413 Mich 898; 319 NW2d 1 (1982); People v Sylvester, 413 Mich 899; 319 NW2d 2 (1982); People v Young, 413 Mich 900; 319 NW2d 537 (1982); People v McGee, 413 Mich 928 (1982); People v Bomers, 413 Mich 928 (1982); People v Crigler, 413 Mich 931 (1982); People v Roy Clay, 413 Mich 932 (1982), and People v Lloyd, 413 Mich 932 (1982).
To prevent the issue from arising on remand, we will briefly deal with another issue raised by defendant. At sentencing, the judge stated:
"I think the order of sentence should also contain a provision that you are not to be granted any parole until such time as the physicians are satisfied that you no longer have a mental illness. And it will require the permission of either myself or my successor.”
The order of sentence contained the provision specified by the judge.
A judge has only those sentencing powers conferred by statute. People v Neil, 99 Mich App 677, 680-681; 299 NW2d 23 (1980). No statute gives the sentencing judge the power to impose such a condition as that imposed here. Under the indeterminate sentencing law, the power to grant or deny parole is vested in the parole board. People v Burton, 396 Mich 238, 243; 240 NW2d 239 (1976). The condition imposed here infringes upon the parole board’s jurisdiction. While in some circumstances parole may not be granted if the sentencing judge or his successor objects, MCL 791.234(4); MSA 28.2304(4), we hold that the judge’s discretion in that regard must be exercised at the time the question of parole arises and in light of the circumstances then presented.
Reversed and remanded. | [
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Per Curiam.
On June 25, 1981, the trial judge granted summary judgment against plaintifs under GCR 1963, 117.2(1). They appeal as of right.
On May 14, 1980, plaintiffs filed a compláint in Marquette County Circuit Court against the Alger-Marquette Community Mental Health Board and others alleging that plaintiff Wayne Applebaum had been wrongfully discharged from his position as a full-time psychologist at the Alger-Marquette Community Mental Health Center. Half a year later, they filed the complaint in this case alleging, in particular, that:
"[T]he Department of Mental Health in fact exercises complete control and supervision over its statutory agents aforesaid, in the areas of budget, programming, mental health care standards, employment standards and terms and conditions of employment, treatment standards and protocol, patient rights, level of services, and virtually every other facet involved in the operation of the Alger-Marquette Community Mental Health Board, and as principal is liable for the wrongful acts of its agents * * (Emphasis added.)
In addition to this factual allegation, they also alleged that the statutes, MCL 330.1001 et seq.; MSA 14.800(1) et seq., impose liability on defendant.
In reviewing a grant of a motion for summary judgment under GCR 1963, 117.2(1), this Court accepts as true all factual allegations, along with any inferences or conclusions which may fairly be drawn from the facts alleged. McCallister v Sun Valley Pools, Inc, 100 Mich App 131; 298 NW2d 687 (1980), lv den 411 Mich 905 (1981).
We do not believe that plaintiffs’ complaint alleges a sufficient basis for liability. They are alleging no more than the general supervisory control that defendant exercises over the county mental health services. This allegation is not enough. Because plaintiffs are not alleging that defendant itself committed the "unlawful acts”, they can prevail only on an agency theory. But liability based on an agency relationship requires a right to control. Chester v World Football League, 75 Mich App 455; 255 NW2d 643 (1977). The statutory framework, by itself, does not supply the necessary right of control.
On the one hand, defendant does have extensive power over the mental health services. It must designate by rule the minimum types and scopes of the mental health services to be provided. MCL 330.1206; MSA 14.800(206). It reviews each county service’s annual plan and budget. MCL 330.1232; MSA 14.800(232). It has the power to coordinate and integrate state services, review the "relevancy, quality, effectiveness and efficiency of county programs”, collect information, provide consultative services, audit expenditures, establish financial liability schedules, and promulgate rules. MCL 330.1244; MSA 14.800(244). Furthermore, the state has the responsibility to financially support the county mental health services. MCL 330.1202; MSA 14.800(202).
But these powers do not mean that defendant has the right to control all aspects of the county mental health services. While it gives the state the duty to fund and general supervisory powers, the act clearly provides for local control. MCL 330.1204; MSA 14.800(204) states: "A county community mental health program established under this chapter shall be an official county agency”. In fact, its employees are county employees. OAG, 1978, 5269, p 362 (February 23, 1978). The county program is established by a majority vote of the county board of commissioners. MCL 330.1210; MSA 14.800(210). The county community mental health board is appointed by the county board of commissioners. MCL 330.1212; MSA 14.800(212). MCL 330.1214; MSA 14.800(214) states: "When a single county establishes a board, all board members shall be representatives of that county.” Board members may be removed by the appointing board of commissioners. MCL 330.1224; MSA 14.800(224). Local control is clearly retained. Such matters as hiring and firing are local matters outside defendant’s general jurisdiction.
Merely alleging that defendant establishes the employment qualifications is insufficient to establish the agency relationship. To avoid a summary judgment, plaintiffs instead had to allege facts outside the general supervisory power, i.e., defendant did something in this case that led to the dismissal or defendant has control over the actual hiring and firing. As such, the summary judgment was properly entered.
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Per Curiam.
Defendant pled guilty to arson of real property. MCL 750.73; MSA 28.268. Sentenced to from 6-1/2 to 10 years, he appeals by right.
The facts relevant to this appeal, so far as we can determine, are as follows. Defendant was ar rested in June, 1978. He was given a preliminary examination on June 29, 1978, and was bound over to circuit court. At that time, defendant was represented by appointed counsel. Within ten days, defendant filed a notice of insanity defense. The trial court, on July 10, ordered the defendant committed for a diagnostic examination to determine competency to stand trial and his responsibility for the offense. On that date, the trial court also appointed new counsel for defendant. Shortly thereafter, the defendant was removed from the county jail to the Kalamazoo Regional Psychiatric Hospital due to his behavior problems. The next two years are something of a mystery unilluminated by the record. Apparently, the defendant was civilly committed to the Kalamazoo Regional Psychiatric Hospital on September 17, 1978. At some point during his stay at the hospital, the defendant escaped; however, the duration of his absence is unclear. The defendant claims that he left the hospital on July 6, 1979, and returned on February 8, 1980. The record suggests — but does not establish — a longer absence. Nevertheless, by June 26, 1980, it had become clear that the defendant had not been given a forensic examination and, on that date, the trial court ordered a second commitment for a diagnostic examination. The psychiatric report was filed on September 8, 1980, and, on the same day, defendant was found incompetent, after a hearing. The trial court also appointed a new attorney for defendant. Defendant was later re-examined for competency and, on December 17, 1980, the trial court found him competent to stand trial. Defendant pled guilty but mentally ill to arson of real property on March 10, 1981. On April 3, 1981, defendant petitioned for appointment of appellate counsel. The trial court granted the petition on January 14, 1982.
Defendant raises four issues on appeal which we discuss in the order presented.
First, defendant argues that the two-year delay between the original order for commitment for forensic examination and the administration of the examination requires reversal. Defendant advances three arguments. Initially, he contends that the delay violated MCL 330.2044; MSA 14.800(1044). That statute provides in pertinent part:
"(1) The charges against a defendant determined incompetent to stand trial shall be dismissed:
"(b) Fifteen months after the date on which the defendant was originally determined incompetent to stand trial.”
Defendant’s reliance on that statute is misplaced. The 15-month statutory period begins to run after an accused is adjudicated incompetent, not after he is ordered committed for diagnostic examination. While more than 15 months elapsed between the trial court’s first order for commitment and defendant’s conviction, only 6 months separated the adjudication of his incompetence and his guilty plea. Thus, the statute did not require dismissal of the charge against defendant. Next, defendant maintains that the delay violated MCL 330.2028; MSA 14.800(1028). That statute mandates that a forensic examination shall be performed "within 60 days of the date of the order” to undergo such a procedure. Defendant’s examination was conducted well after the 60-day period had elapsed. We cannot agree with defendant, however, that that delay alone requires reversal on due process grounds. While the delay may have impaired defendant’s ability to develop his insanity defense to some extent, the delay would not have prohibited defendant from securing a fair trial. Finally, defendant contends that certain United States Supreme Court cases require reversal of his conviction. In Jackson v Indiana, 406 US 715; 92 S Ct 1845; 32 L Ed 2d 435 (1972), the Court held that substantive and procedural safeguards must be followed to commit an accused who has been determined incompetent where the commitment is virtually permanent. In McNeil v Director, Patuxent Institution, 407 US 245; 92 S Ct 2083; 32 L Ed 2d 719 (1972), the Court held that an individual cannot be committed "for observation” for a long period of time without a due process hearing. These cases establish that an individual may not be committed to a psychiatric institution for an extended period except after a due process hearing. The record, as we noted above, does not affirmatively disclose that defendant was formally committed in September, 1978. If he was not, defendant’s extended institutionalization would have been a denial of due process. Nevertheless, defendant’s current incarceration is not a result of his commitment; it is the product of his conviction on a plea of guilty. Any defect in the validity of the commitment did not infect the validity of defendant’s conviction.
Second, defendant argues that he was denied his right to a speedy trial. The people contend that defendant has waived this claim by pleading guilty, citing People v Parshay, 104 Mich App 411; 304 NW2d 593 (1981), Iv den 411 Mich 1081 (1981). We disagree with Parshay and hold that a speedy trial claim is not waived by a guilty plea. A guilty plea does not waive jurisdictional defenses. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), cert den 429 US 951; 97 S Ct 370; 50 L Ed 2d 319 (1976). A jurisdictional defense is a com píete defense, that is, a defense that would bar conviction even if the people prove their case. People v Reid, 113 Mich App 262; 317 NW2d 589 (1982); People v Riley, 88 Mich App 727; 279 NW2d 303 (1979). A defendant who has been denied a speedy trial may not be properly convicted and, if convicted, the conviction must be reversed and the defendant discharged. See People v Bennett, 84 Mich App 408; 269 NW2d 618 (1978). Consequently, a claim of denial of the right to a speedy trial is a complete defense and is not waived by a guilty plea.
We next proceed to the merits of defendant’s speedy trial claim. The right, to a speedy trial is guaranteed to a criminal defendant by both the federal and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. In People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), the Michigan Supreme Court adopted the four-factor inquiry into a denial of speedy trial claim announced by the United States Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). The four factors to be considered are: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his speedy trial right, and (4) prejudice to the defendant. Applying this analysis to the present case, we find as follows:
Length of delay: The purpose of this factor was well stated in Barker v Wingo, supra:
" 'The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance.’ ” 407 US 514, 530, quoted in People v Collins, 388 Mich 680, 688-689; 202 NW2d 769 (1972).
The Michigan Supreme Court has long held that an 18-month delay is presumptively prejudicial. See People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948); People v Grimmett, supra; People v Collins, supra. The delay in the present case exceeded 31 months. We must presume that defendant was prejudiced by this protracted postponement and proceed to consider the other factors.
Reason for delay: This factor calls on us to examine the extent to which the delay was justified. Our inquiry is hampered, however, by a record that fails to disclose the reasons underlying the delay. In particular, we are uncertain why defendant’s second diagnostic examination was delayed for two years. The record suggests that during most of this period the defendant was away from Kalamazoo Regional Psychiatric Hospital without permission. The record, however, is not definite on this point. Accordingly, we remand to the trial court to conduct an evidentiary hearing and make findings of fact as to the reasons for the delay in defendant’s prosecution. Within 60 days from the release date of this opinion the trial court shall conduct this hearing and file with this Court the hearing transcript along with the trial court’s findings of fact.
The record need not be amplified to consider the remaining two factors.
Defendant’s assertion of speedy trial right: The defendant did not assert his right to a speedy trial. His failure to do so, however, should not be weighted too heavily in the balance of factors. From the time of his arrest until the time of his conviction, defendant was apparently psychologically disturbed. At one point he was adjudicated incompetent to stand trial and eventually was convicted on a plea of guilty but mentally ill. He spent some time in Kalamazoo Regional Psychiat ric Hospital. We doubt that defendant had the mental capacity to understand that he could assert his right to a speedy trial. Compare People v Collins, supra, in which the defendant was sufficiently aware of his rights to file a grievance against his attorney.
Prejudice to the defendant: Because the delay exceeded 18 months, we presume that defendant was prejudiced. After 18 months, the prosecution has the burden of showing that the defendant was not prejudiced by the delay. People v Collins, supra, p 695; People v Bennett, supra, p 411. The people have not even attempted to show that defendant was not prejudiced. Consequently, we conclude that the defendant was prejudiced by the 31-month delay between his arrest and conviction.
Our final disposition of defendant’s speedy trial claim must await the trial court’s findings as to the reasons for the delay. Defendant’s remaining issues, however, may be resolved without further proceedings below.
Defendant alleges that he was denied effective assistance of counsel because he was appointed, in succession, three different attorneys. An ineffective assistance of counsel claim is reviewable after a guilty plea. People v McDonnell, 91 Mich App 458; 283 NW2d 773 (1979), lv den 407 Mich 938 (1979); People v Snyder, 108 Mich App 754; 310 NW2d 868 (1981). In People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), the Supreme Court announced a two-part test for evaluating ineffective assistance of counsel claims. In the first part, we measure defense counsel’s conduct against the standard of competence put forth in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974):
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conficting considerations.”
In the second part, we must consider whether defense counsel made a "serious mistake” and, if so, whether "but for this mistake defendant would have had a reasonably likely chance of acquittal.” People v Garcia, supra, p 266.
Defendant asserts that he was denied effective assistance of counsel because he was represented by three separate attorneys over a 2-1/2 year period. He argues that these changes precluded him from developing a normal attorney-client relationship. Under appropriate facts, we would not hesitate to hold that an attorney who failed to consult with his client did not live up to the Beasley standard or made a "serious mistake” requiring reversal. But we cannot infer such facts from two changes in defendant’s counsel over a 2-1/2 year period. It is entirely possible that defendant developed a normal relationship with each of his attorneys. The record, at least, does not disclose otherwise. Consequently, we must reject defendant’s argument that he was denied effective assistance of counsel.
Finally, defendant argues that the nine-month delay between his petition for appellate counsel and the trial court’s grant of that petition denied him due process of law. Defendant admits that no authority requires a trial court to rule on a prisoner’s petition for appointment of appellate counsel within a specific period of time. We believe that this rests with the trial court’s discretion. Defendant has not established that the trial court abused its discretion in postponing its ruling on defendant’s petition for nine months.
Remanded for proceedings consistent with this opinion. We retain jurisdiction. | [
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Per Curiam.
Plaintiff was an employee of General Motors Corporation (GMC) until she chose voluntary early retirement on September 27, 1972. Ms. Strachura was insured under a group life insurance policy (policy) negotiated between GMC, Metropolitan Life Insurance Company, and the International Union, United Automobile Workers of America. The policy allows the insureds to draw against their own life insurance proceeds, in installments, provided certain conditions are met, namely:
1. The employee becomes totally and permanently disabled;
2. while insured under the group policy;
3. prior to the insured’s sixtieth birthday;
4. if the insured has at least ten years of partici-' pation under the group policy;
5. upon satisfactory written proof of disability; and
6. if the employee so elects.
The option is quoted from Part X of the policy:
"If the Employe becomes totally and permanently disabled, while insured under the Group Policy and prior to the end of the calendar month in which his 60th birthday occurs, and if he has credit for at least ten Years of Participation under the Group Policy on the last day of the month in which he becomes so disabled and provided that satisfactory written proof of such disability is submitted, as required herein, and provided the Employe so elects, the Insurance Company shall discontinue the Life Insurance on the life of said Employe and will commence to pay to the Employe, in lieu of the payment of Life Insurance at his death, monthly instálments at the rate of two per cent per month of the amount of the Employe’s Life Insurance under the Group Policy at the date of commencement of such disability and continue to make such payments during the period of such disability until the aggregate of the instalments paid during such period of total and permanent disability and the amount of the instalments paid during any previous period or periods of total and permanent disability equals the amount of the Employe’s Life Insurance in force under the Group Policy at the date of commencement of such disability.”
Plaintiff filed a claim with Metropolitan on July 24, 1979, claiming she was totally and permanently disabled on or before her last day at work with GMC. Metropolitan denied the claim on September 19, 1979. Plaintiff filed suit. The district court granted defendant’s motion for accelerated judgment on the basis that the six-year statute of limitations, MCL 600.5807(8); MSA 27A.5807(8), had run. The circuit court affirmed. We granted leave to appeal to resolve conflicting lower court decisions interpreting this policy.
The statute of limitations begins to run from the date the insured has an enforceable claim against the insurer. Although the statute may be tolled from the date a claim is made to the date it is denied, The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976); Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), no such consideration applies here since the claim was not made until more than six years after plaintiff became disabled. The only issue presented is whether plaintiff’s claim became enforceable at the time of her injury, or at some later time.
Normally the statute will not begin to run until all contractual preconditions are met, i.e., until plaintiff has a legally enforceable claim. This generally occurs when the loss takes place. Traverse City State Bank v Ranger Ins Co, 72 Mich App 150; 249 NW2d 333 (1976). However, it is plaintiff’s position that all the elements of her cause of action did not accrue until she elected to take the disability benefits and only at that time did the statute of limitations begin to run. We disagree.
The election provision in this policy did not prevent plaintiff from making a claim or bringing suit in the typical "no cause of action shall lie until” language. Traverse City State Bank, supra. It merely served to indicate that plaintiff had a choice, to collect disability or to maintain a constant level of life insurance.
Arguably, the election is not a precondition to the claim. Filing the claim exercises the option. Even if the election is viewed as a precondition, it does not have enough independent legal significance to be considered necessary for the claim to accure.
After plaintiff suffered her total and permanent disability, which should have been discovered immediately, all she needed to do to collect her insurance proceeds was file a claim. Her loss "accrued” on the first day she could have filed. Plaintiff waited for more than six years before she notified the insurance company. Therefore, plaintiff’s claim is barred by the statute of limitations. Accelerated judgment was the proper disposition of this case.
Affirmed. | [
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V. J. Brennan, P. J.
This case appears before us on remand from the Supreme Court for reconsider ation. In its order, the Supreme Court stated, "The opinion of the Court of Appeals does not provide an adequate basis for substituting that Court’s judgment for that of the arbitrator and of the trial judge who entered judgment on the award”. 413 Mich 937 (1982). We agree and affirm the arbitrator’s findings and the confirmation of those findings by the trial judge.
In this case, Gropman, the appellee, was the attorney at one time for the Granaders, the appellants, and filed a motion in circuit court for $9,020.70 in attorney fees in addition to what the Granaders had already paid to him. The Granaders denied that they owed attorney fees to Gropman. Thereafter, the parties agreed to submit the dispute regarding attorney fees to arbitration. The arbitrator found that Gropman was entitled to an additional $33,000 in attorney fees. The trial judge then entered a judgment for the amount awarded by the arbitrator. On appeal, the Granaders claimed that the arbitrator exceeded his authority. In our previous opinion, City National Bank of Detroit v Westland Towers Apartments, 107 Mich App 213, 234-235; 309 NW2d 209 (1981) (Judge Brennan, dissenting), the majority reduced the attorney fee award to $9,020.70. We now reinstate the arbitrator’s award.
An arbitrator’s award will not be set aside unless the one attacking the award offers proof that the basis of the award was without sufficient factual background. In the present case, appellants have not presented evidence that would be sufficient for us to set aside the arbitrator’s findings. Appellants have not sustained their burden. The arbitrator and the trial judge had an adequate factual basis to establish the attorney fees here.
"In any dispute regarding costs or fees, the amounts submitted for settlement are usually figures for which the parties are willing to settle without the necessity of litigation or extended hassle. The figures usually represent amounts for less than the party thinks actually is owing. In short, they represent an offer of compromise.
"However, once either party decides to reject the compromised settlement offer, and actual litigation becomes necessary to resolve the dispute, these settlement figures cease to be the guidelines for determination of the actual dispute. The trier must now look to the actual value of the services to determine the disputed fee.
" 'The reason for the rule is that the law is said to favor peaceful settlements and that to admit unaccepted offers of compromise or ineffective attempts to reach a settlement would reach quite the opposite result and serve to encourage legal war rather than peace in the settlement of claims already in or headed for litigation. Thus the above source [5 Callaghan’s Michigan Pleading & Practice, § 36.507] indicates that evidence of a compromise or settlement offer may not be received * * * as an admission of a disputed fact.’ Thirlby v Mandeloff, 352 Mich 501, 505; 90 NW2d 476 (1958).
"My perusal of the record persuades me that this is applicable to the instant case. Upon going to actual arbitration, the earlier figure was rendered nugatory. Instead, the arbitrator was ordered to act 'for the purpose of determining the reasonable value of fees due’. The order provided further that '* * * the Arbitrator shall make his determination of the reasonable value of the legal services based on the arbitrator’s knowledge and experience of these and similar matters’.
"Based upon persuasive, competent and undisputed evidence, the arbitrator determined, and the trial court upheld, the reasonable value of the services in setting the disputed attorney’s fees.” Dissenting opinion of Judge Brennan in City National Bank of Detroit v Westland Towers Apartments, supra, pp 235-236.
Affirmed as to the arbitrator’s findings and the confirmation of those findings by the trial judge.
M. F. Cavanagh, J., concurred. | [
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Per Curiam.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to imprisonment for life and appeals by right.
Defendant first argues that life imprisonment for armed robbery is cruel and unusual punishment in violation of US Const, Am VIII and Const 1963, art 1, § 16. The dominant test controlling determination of cruel and unusual punishment under both constitutional provisions is whether the punishment is in excess of any that would be suitable to fit the crime. People v Lorentzen, 387 Mich 167, 176; 194 NW2d 827 (1972); People v Stewart (On Rehearing), 400 Mich 540, 554; 256 NW2d 31 (1977). Armed robbery is a crime of violence which creates a serious risk of death or great bodily harm to the victims. In view of the violent nature of the crime, we cannot say that life imprisonment is a punishment in excess of any suitable to fit the crime or that it shocks the conscience of the Court.
In Lorentzen, supra, pp 176-177, the Court noted that the mandatory minimum sentence for sale of marijuana was disproportionately long when compared to the sentences for other crimes involving the sale of harmful substances or for various crimes of violence. Here, we note that sentences of life imprisonment are available for other crimes involving a level of violence or a potential for harm to others analogous to that involved in armed robbery. See MCL 750.83; MSA 28.278 (assault with intent to murder), MCL 750.89; MSA 28.284 (assault with intent to rob while armed), MCL 750.209; MSA 28.406 (placing explosives with intent to destroy and cause injury to another person), MCL 750.349; MSA 28.581 (kidnapping), MCL 750.349a; MSA 28.581(1) (taking of hostages by a prison inmate), MCL 750.422; MSA 28.664 (perjury in a trial for a capital crime), MCL 750.436; MSA 28.691 (poisoning food, drink, medicine, or wells), MCL 750.511; MSA 28.779 (attempt to wreck railroad train), MCL 750.516; MSA 28.784 (forcible detention of a railroad train), and MCL 750.520b; MSA 28.788(2) (first-degree criminal sexual conduct).
Defendant points out that the Lorentzen Court emphasized the need of short sentences to serve the goal of rehabilitation; however, this aspect of the test was stated as follows, Lorentzen, 180-181:
"This test looks to a consideration of the modern policy factors underlying criminal penalties — rehabilitation of the individual offender, society’s need to deter similar proscribed behavior in others, and the need to prevent the individual offender from causing further injury to society.
"Experts on penology and criminal corrections tend to be of the opinion that, except for extremely serious crimes or unusually disturbed persons, the goal of rehabilitating offenders with maximum effectiveness can best be reached by short sentences of less than five years’ imprisonment.” (Footnote omitted; emphasis added.)
In view of the • extremely serious nature of the crime at issue here, we cannot say that the policy favoring rehabilitation should outweigh the policies favoring deterrence and the protection of society from the offender.
Defendant also complains of the failure of the sentencing judge to articulate on the record the factors considered in imposing sentence. Although the Court in People v Lee, 391 Mich 618, 638; 218 NW2d 655 (1974), stated that such an explanation would be useful, no court has ever held such an explanation to be required. See People v Green, 113 Mich App 699, 707; 318 NW2d 547 (1982). Because defendant’s sentence falls within the limits permitted by the statute, we must decline defendant’s invitation to review the trial judge’s exercise of his sentencing discretion. See People v Malkowski, 385 Mich 244, 247-248; 188 NW2d 559 (1971), and People v Burton, 396 Mich 238, 243; 240 NW2d 239 (1976).
Defendant also asks us to declare the effect of MCL 791.233b[l]; MSA 28.2303(2) (1978 Initiated Proposal B) on his sentence. No such issue was before the trial court or could have been raised before the trial court in this action, and our reso lution of such an issue would make no difference as to whether defendant’s conviction and sentence is affirmed or reversed. Appellate courts do not issue abstract opinions of purely academic interest or reach out to anticipate and decide controversies which may arise in future litigation. Hughes v Detroit, 217 Mich 567, 574; 187 NW 530 (1922); Sullivan v Michigan State Bd of Dentistry, 268 Mich 427, 429-430; 256 NW 471 (1934); In re Phillips, 305 Mich 636, 640; 9 NW2d 872 (1943); Detroit v Killingsworth, 48 Mich App 181, 183-184; 210 NW2d 249 (1973). The construction of MCL 791.233b[l]; MSA 28.2303(2) is a collateral matter having no bearing on the merits of defendant’s appeal and we decline to issue an advisory opinion concerning it.
Affirmed. | [
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Per Curiam.
Following trial by jury, defendant was convicted of breaking and entering an occupied dwelling with the intent to commit a larceny, MCL 750.110; MSA 28.305. Defendant was found not guilty of malicious destruction of police property, MCL 750.377b; MSA 28.609(2). Defendant was sentenced to a two-year probation period, with the first 60 days to be served in jail. He appeals as of right.
At trial, Michigan State Police Detective Sergeant Larry Squires testified that at. approximately 2:45 a.m. on the morning of September 28, 1980, he and two other officers were watching a house located at 5943 Hickory Road in Hickory Corners, Michigan. The surveillance was part of an arson investigation to which defendant was not connected. Squires observed a pickup truck pull into the driveway and stop in front of the house. Two men carrying flashlights exited from the truck and walked around the house until they were eventually out of Squires’ line of vision. Squires soon saw lights inside the house. He told one of the other officers that he would confront the men when they returned to their truck. When the men came out of the house, defendant was carrying a carpet.
As the men approached the truck, Squires stepped out and announced "state police”. Both men attempted to get in their truck. Squires was able to detain the other man, but the defendant backed the truck out of the driveway, hitting a police car which had been positioned behind the truck, and drove across the yard out onto Hickory Road. Squires later inspected the house and discovered an open door on the southeast corner. That door was closed when Squires inspected the premises earlier that evening.
Michigan State Police Officer Donald Betts testified that he was with Squires in the early morning hours of September 28, 1980. He essentially confirmed the testimony of Squires. Betts testified further, however, that he fired three shots at defendant’s truck as defendant drove away after colliding with Betts’ car, which had been positioned behind the truck.
Michigan State Police Officer Joseph Bouchard testified that he was the third officer present on September 28,. 1980, and had been positioned to view the road in front of the house. Bouchard observed what he believed to be defendant’s pickup truck pass by the house an hour or two before it pulled into the driveway. After being informed over a walkie-talkie that two men had entered the house and were on their way out, Bouchard pulled his police car in front of defendant’s truck and pointed his gun at defendant, yelling "state police”. When defendant drove across the yard, Bouchard fired a couple of shots at defendant’s tires. Bouchard attempted to follow defendant down Hickory Road but eventually lost sight of the truck.
Mr. Ralph Backus testified that he owned the dwelling located at 5943 Hickory Road and had resided there until September 17, 1980, when he temporarily went into a nursing home because of heart trouble. While in the nursing home, Mr. Backus’ barn caught on fire and, a few days after that, part of his house caught on fire. Backus intended to return to his home when he was in better health.
Three other witnesses testified that sometime after the fires, but before September 28, 1980, they removed most of Mr. Backus’ household goods and furnishings to protect them against any further fires.
The trial court denied defendant’s motion for a directed verdict after the prosecution rested its case. Defendant then testified that on the evening of September 27, 1980, he had been out drinking rather heavily, celebrating with a friend who had just asked him to be his best man in his wedding ceremony. As they were driving down a road, defendant decided on the spur of the moment to go inside the Backus house and "see what it was like”. Defendant liked old houses and believed that the Backus residence had always been abandoned. The two men entered the house and, upon returning to the truck, defendant heard someone yell. He looked to his left and saw a gun pointed at him within six inches of his window. Although the defendant heard the word "police”, the man pointing the gun was not dressed in uniform and defendant believed that he was just a citizen. Defendant began to drive his truck forward out of the driveway, when he was confronted with another car entering the driveway in front of him. Defendant then backed up, not realizing that another car had been positioned behind him, collided with that vehicle, and drove across the yard out onto Hickory Road. Defendant testified that he did not intend to steal the rug when he entered the Backus house, but did so after seeing it lying crumpled up on the floor, believing that no one had any use for it.
Mr. Bernard LeBlond and Mr. Phillip Wunderlin each testified that defendant had a reputation in the community for honesty and integrity.
On appeal, defendant argues first that the Backus house was not an "occupied dwelling” within the meaning of MCL 750.110; MSA 28.305. Defendant cites to evidence that the house had been vacated nearly two weeks before his entry, that the home had suffered fire damage, and that neighbors had removed most of the household goods and furnishings and to his testimony at trial that he felt the house was "always abandoned and unused”.
MCL 750.110; MSA 28.305 provides that an occupied dwelling does not require the physical presence of an occupant at the time of the breaking and entering as long as the dwelling is "habitually used as a place of abode”. Mr. Backus, the owner of the dwelling, testified he intended to return to his home when he was in better health.
"When an inhabitant intends to remain in a dwelling as his residence, and has left it for a temporary purpose, such absence does not change the dwelling into an unoccupied one in the eyes of the law. The intent to return following an absence controls; the duration of the absence is not material. Nor is the structure’s habitability germane.” People v Traylor, 100 Mich App 248, 252; 298 NW2d 719 (1980).
Backus’ testimony was sufficient evidence that the house was an "occupied dwelling”.
Defendant argues next that he did not have the specific intent to commit a larceny when he entered the Backus house. To be convicted of breaking and entering an occupied dwelling with the intent to commit a larceny, defendant must have had the intent to commit a larceny at the time of the breaking and entering. See People v Tilliard, 98 Mich App 17, 18-19; 296 NW2d 180 (1980). A presumption of an intent to steal does hot arise solely from proof of a breaking and entering. People v Palmer, 42 Mich App 549, 552; 202 NW2d 536 (1972). Rather, there must be evidence of some circumstance reasonably leading to the conclusion that a larceny was intended. Palmer, supra, p 552.
In the instant case, there are circumstances beyond the breaking and entering from which a rational trier of fact could infer that defendant had the intent to commit a larceny at the time of his breaking and entering. Defendant entered the dwelling at 2:45 a.m. He and his companion carried flashlights. They did in fact commit a larceny. Upon approach by the police, defendant rammed a police car and made his escape. These facts justify the jury’s finding that beyond a reasonable doubt defendant had the intent to commit a larceny at the time of his breaking and entering.
Defendant alleges error next in the trial court’s instructions to the jury on the issue of intent. In its initial instructions, the court informed the jury that "at the time of the breaking and entering the dwelling, the defendant must have intended to commit the crime of larceny therein”. After the jury began deliberations, it asked the court to redefine "intent”. The court orally defined intent and stated further that the burden rested upon the people "to show beyond a reasonable doubt that the defendant at the time of doing the alleged act had that wrongful intent”. Subsequently, the jury asked for a written definition of intent. The trial court gave the jury a written definition of the concept, adding that defendant could not be convicted of any of the charged offenses unless "the defendant at the time of doing the alleged act had that wrongful intent”. Defense counsel did not object to the substance of the trial court’s oral or written instructions on intent. On appeal, defendant argues that the instructions were so erroneous as to require reversal, since the instructions did not make it clear when the specific intent had to be formed.
Several factors lead us to find that the trial court’s instructions did not result in error requiring reversal. The trial court did inform the jury in its original instructions that the defendant had to have had the necessary specific intent at the time of the breaking and entering. The jury did not request instructions on when the intent had to be formed but asked only for the definition of intent, which was accurately given. Further, the trial court’s statement that defendant had to have had the necessary specific intent "at the time of doing the act” was not ambiguous. The court gave this instruction after listing the charged offense and the five lesser included offenses on which the jury could have returned a guilty verdict. The "time of doing the alleged act” instruction clearly indicated that defendant needed to have had the necessary specific intent at the time he committed any one of the six offenses. No error requiring reversal occurred in this instruction.
Defendant’s final argument is that the trial court erred in refusing to instruct the jury on the lesser included offense of entry without permission. The trial court did not err in refusing to instruct on entry without permission. Such an instruction is barred by People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), wherein the Supreme Court held:
"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.”
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Per Curiam.
A judgment of divorce between the parties was entered on November 14, 1979. A property settlement agreement had been reached prior to the hearing. Defendant moved for rehearing on December 20, 1979. This motion was granted on January 17, 1980. After a lengthy evidentiary hearing and the filing of briefs by the parties, the trial court granted defendant’s motion to modify the property settlement on December 31, 1980. The amended judgment was filed on January 15, 1981. Plaintiff now appeals by right from the modification of the judgment.
The divorce judgment originally provided that plaintiff was to receive from defendant an 11% interest in the Ferney-Villadsen Insurance Agency, Inc., a Michigan corporation, or, in the alternative, if defendant chose to retain his stock, $41,250 in cash. Defendant owned 42% of the stock in the corporation. Both parties expressed their approval of the property settlement containing this provision at the hearing on the divorce judgment.
At the hearing on the defendant’s petition for rehearing, defendant argued that the judgment should be modified because of the parties’ alleged mutual mistake as to the value of defendant’s share of the insurance agency. An evidentiary hearing was held on defendant’s motion to modify the judgment on August 29, 1980.
Guy Merskin, a CPA and the accountant for Ferney-Villadsen Insurance Agency, Inc., testified that the gross annual commissions for the agency for fiscal 1978 totaled $155,925 and that corporate profits were $17,938 for that year. He presented a simplified balance sheet for the corporation, which may be summarized as follows:
Assets Liabilities
Cash $32,142 Accounts Payable $52,277
Accounts Receivable, Trade, Notes 51,636 Other Liabilities 18,380
Equipment Minus Depreciation 5,192 Stock 1,000
Retained Earnings 17,363
Total $88,970 $88,970
As accountant for Ferney-Villadsen Insurance Agency, Inc., Merskin merely accepted the figures presented to him. He was not responsible for day-to-day bookkeeping.
Robert Ferney, the second owner and president of Ferney-Villadsen Insurance Agency, Inc., and father of the plaintiff, presented figures which had been prepared by the corporation’s bookkeeper. He testified that on August 1, 1979, the amount of accounts payable was actually between $83,000 and $84,000 rather than $52,000 as represented above. This discrepancy was caused by the use of different accounting methods by Guy Merskin and the corporation’s regular bookkeeper. He testified that defendant’s share of the total value of the business was $162,750.
Defendant testified that he had access to the accounts and records of the Ferney-Villadsen Insurance Agency, Inc., at all times. For purposes of the pre-settlement negotiations, the parties had stipulated that the value of the agency was equal to 2.5 times the value of the gross annual commissions received in the fiscal year 1978. Defendant did not become worried about the state of the business’s accounts until negotiations for the property settlement were over. At the time the judgment incorporating the settlement was entered, he had reason to believe that the value of the agency had been overstated. All of the figures used during settlement negotiations were provided by the corporate bookkeeper. Defendant did an independent examination of the corporate books in August, 1979. He discovered, as a result of his examination, that Ferney-Villadsen Insurance Agency, Inc.’s, total accounts payable as of August 1, 1979, were $83,265.07, as Ferney had testified, and accounts receivable were $36,897.44, rather than $51,636, as the accountant had reported. Defendant argued that because these figures differed substantially from those to which the corporate accountant testified, the difference between accounts payable and receivable should be deducted from the value of the agency as calculated under the formula of 2.5 times gross commissions. Plaintiff’s share in value of the agency would, according to his calculations, then equal $17,201, rather than $41,250, as provided by the divorce judgment.
Guy Merskin again took the witness stand to respond to defendant’s testimony and testified that the figures mentioned by defendant for accounts payable and receivable were irrelevant to the valuation of the agency as a whole as based upon the formula relating to gross annual commissions.
The trial court modified the judgment in an order entered on January 15, 1981, holding that plaintiff’s share of the value of the agency was $17,234.25. He found that there had been a mutual mistake of fact as to the value of the agency. The trial judge denied plaintiff’s motion for rehearing or new trial.
Plaintiff here argues that the trial court’s decision to modify the property settlement was reversible error. We agree.
Lower court orders modifying divorce judgments are reviewed by this Court de novo. Great consideration should be given to the findings of the trial judge. His position should not be reversed unless this Court would have reached a different conclusion had it been in his place. Bickham v Bickham, 113 Mich App 408, 412; 317 NW2d 642 (1982). Property settlements may not be modified in the absence of fraud, mistake or gross inequity. Alexander v Alexander, 103 Mich App 263, 266-267; 303 NW2d 202 (1981); Chisnell v Chisnell, 99 Mich App 311, 317; 297 NW2d 909 (1980). The party seeking modification has the burden of going forward with evidence that will justify the proposed change. Bickham, supra.
GCR 1963, 528.3 provides that relief from a final judgment may be provided in cases of mistake or newly discovered evidence which could with due diligence have been discovered in time for a mo tion for a new trial. "Mutual mistake is where the parties have a common intention, but it is induced by a common [error].” Black’s Law Dictionary (4th ed), p 1153. Once the trial court has found that both parties share a mistaken belief which led to their consent to a settlement, it has the power to vacate the judgment. Gordon v Warren Planning & Urban Renewal Comm, 388 Mich 82, 89; 199 NW2d 465 (1972). However, where the party seeking modification or his counsel made "ill-advised or careless decisions”, and alleges mistake, no relief can be granted. Lark v The Detroit Edison Co, 99 Mich App 280, 283; 297 NW2d 653 (1980). If, at the time of the settlement, the parties had access to the information on which the allegations of error or fraud are now based, their compromise should not be disturbed. Harrison v Dewey, 46 Mich 173, 175-176; 9 NW 152 (1881).
Defendant here had full access to the books of the corporation at all times, and even suggested that he was aware of irregularities at the time the property settlement was entered into. Although defendant had no legal duty to examine the accounts, we believe it is inequitable to penalize plaintiff for his failure to do so. Defendant presented no evidence of fraud, and did not allege at the hearing that the facts were newly discovered. We therefore reverse the trial court’s decision to modify the judgment.
Discussion of the other issues raised by plaintiff is unnecessary.
Reversed. Plaintiff may tax costs. | [
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Per Curiam.
Defendant was convicted by a jury of burning real property, MCL 750.73; MSA 28.268. He appeals and we affirm.
The prosecution’s case consisted entirely of circumstantial evidence. The prosecutor’s theory of the case was that defendant had set fire to his restaurant in order to get out of debt. Although defendant could not have received any insurance proceeds from the fire, because his indebtedness exceeded his coverage, the prosecution argued that defendant would have benefited by disposing of many of his financial obligations while retaining the real estate and the restaurant’s liquor license.
Defendant claims that the prosecutor committed error by questioning him regarding the value of the liquor license. Specifically, on cross-examination, the prosecutor asked defendant over defense counsel’s objection:
"Are you aware, Mr. Pearson, that currently, in this community, a liquor license — just the license itself — is of a value of approximately 25 to 30 thousand dollars?”
Defendant stated that he believed he paid $5,000 for the "good will” of the business, meaning the liquor license. Following this answer, the defendant acknowledged that defense exhibit "A”, the closing statement from the purchase of the business, reflected that defendant had paid $30,000 for "personal property and good will”.
The prosecution may not attempt to inject unfounded prejudicial innuendo into the proceedings. People v DiPaolo, 366 Mich 394; 115 NW2d 78 (1962); People v Moreno, 112 Mich App 631; 317 NW2d 201 (1981). However, if a prosecutor’s question is based upon prior testimony, it is not an impermissible injection of innuendo. People v Williams #2, 45 Mich App 630; 207 NW2d 180 (1973); People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971).
Because defendant had previously adduced evidence regarding the value of the liquor license, the prosecutor’s cross-examination in the instant case was based on prior evidence and was not improper. Therefore, no error occurred.
Affirmed. | [
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] |
D. E. Holbrook, P. J.
On March 23, 1973, the defendant, Rita G. Pulig, was insured under two policies of insurance (Hanover Insurance Company and DAIIE) and suffered injuries in an accident with an uninsured motorist. The defendant was a guest passenger in the vehicle driven by her husband. After investigation it was determined that the uninsured motorist was negligent and responsible for the accident. The accident-involved vehicle was covered by a policy of insurance issued by Hanover and the other vehicle owned by defendant and her husband was insured by DAIIE.
The defendant requested an arbitration of her claim under the terms of the insurance contract with Hanover and pursuant thereto an award was duly made by the arbitrator in favor of defendant for $16,000. This amount we understand has been paid.
The defendant then requested that an arbitrator be appointed to hear the claims of defendant for damages under the terms of the insurance contract issued by DAIIE, apparently claiming that the award received from Hanover did not satisfy all of her claims for damages.
In November 1976, plaintiff filed this suit against defendant for declaratory judgment claiming: (1) defendant had already received fair and just compensation for her injuries, (2) plaintiff was entitled to an injunction prohibiting arbitration, and (3) allowance of an order staying arbitration.
Defendant answered the complaint and demanded arbitration and moved for summary judgment. Plaintiff then filed for a summary judgment and a motion to dismiss the arbitration. On February 10, 1977, an order was entered by the circuit court granting summary judgment in favor of plaintiff and dismissing the arbitration. Defendant appeals as of right.
The subject insurance policy was issued on June 16, 1972. In a pre-MCLA 500.3010; MSA 24.13010 case, Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562; 153 NW2d 655 (1967), the Court denied stacking of recoveries. Thereafter, the Legislature passed MCLA 500.3010; MSA 24.13010, which took effect October 25, 1965, and was effective until its repeal by the Michigan no-fault insurance act, MCLA 500.3101 et seq.; MSA 24.13101 et seq., effective October 1, 1973. The policy of insurance in the instant case was effective on the date of the accident and, therefore, the cases following the enactment of MCLA 500.3010; MSA 24.13010 govern. Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich 476, 479; 201 NW2d 792 (1972).
The Michigan Supreme Court in a triology of 1972 cases dealt with the general question of the extent to which a person injured in an accident by an uninsured motorist was permitted to recover on more than one policy. The Court held that "stacking of uninsured motorist coverage was proper until the judicially determined loss has been satisfied”. Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464; 201 NW2d 786 (1972), Boettner v State Farm Mutual Insurance Co, 388 Mich 482; 201 NW2d 795 (1972).
Plaintiff asserts that the mere fact that Mrs. Pulig might have $40,000 protection available to her does not mean that she can litigate her claim under the two policies until she recovers the maximum amount of benefits under the policies. Such a situation was specifically prohibited in Blakeslee:
" 'If an insured’s loss has been totally compensated by other insurance he is no longer "legally entitled” to recover damages.’ Collins * * * v [Motorists Mutual Insurance Co, 36 Mich App 424, 432-433; 194 NW2d 148 (1971)]. That is, the insured may pyramid recovery until his judicially determined loss has been satisfied.” Blakeslee at 475. (Emphasis added.)
This action was not brought under GCR 1963, 769 and it is not applicable in any event in the first instance because an issue herein is whether stacking is permitted in this matter and if it is, to what extent is it allowed.
In the arbitration proceeding brought against Hanover Insurance Company the arbitrator awarded $16,000 to defendant. We are faced with the question, did this award of $16,000 totally compensate defendant for her loss? Also, was this a judicially determined loss?
Upon the record presented, we are unable to answer these questions with certainty. We do not have the terms of the Hanover contract, which may disclose exceptions or limitations to recovery of losses thereunder. If there were no reservations, then it must be determined whether all the claims of defendant were permitted to be presented to the arbitrator. For guidance see, Kallos v Community-Service Insurance Co, 41 Mich App 652; 200 NW2d 470 (1972). Another question that we cannot answer, did the Hanover contract provide that the award by the arbitrator could be affirmed and enforced by the circuit court, in accordance with MCLA 600.501; MSA 27A.501 and MCLA 600.525; MSA 27A.525? Stowe v Mutual Home Builders Corp, 252 Mich 492; 233 NW 391 (1930).
We are cognizant of the ruling by our Court in the case of P R Post Corp v Maryland Casualty Co, 68 Mich App 182; 242 NW2d 62 (1976). That case did not involve stacking and there were other issues present therein that are not present in this case.
The summary judgment rendered by the trial court is premature. The issues should be resolved in a trial on the merits.
Reversed and remanded, costs to defendant.
Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464; 201 NW2d 786 (1972), Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich 476, 479; 201 NW2d 792 (1972), Boettner v State Farm Mutual Insurance Co, 388 Mich 482; 201 NW2d 795 (1972). | [
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] |
R. B. Burns, P. J.
This is an action to collect on two promissory notes. The trial court denied de fendants’ motions for change of venue, and granted plaintiff’s motion for summary judgments against the maker of the notes, Meadowbrook Heights, Inc., against the guarantors of the notes, Mr. and Mrs. Wilkinson, jointly, and against Mr. Wilkinson, severally. Mrs. Wilkinson interposed a defense of coverture as to her several liability, but, following a trial on the merits, the trial court granted plaintiff’s renewed motion for summary judgment against Mrs. Wilkinson, severally. Mr. and Mrs. Wilkinson appeal and we affirm as to venue and reverse as to Mrs. Wilkinson’s several liability.
Meadowbrook Heights, Inc., is a close corporation owned and operated solely by Mr. Wilkinson, and was engaged in an attempt to build an apartment complex in Oakland County. To this end Meadowbrook obtained a $30,000 loan from plaintiff, in exchange for which it gave a promissory note signed by its president, Mr. Wilkinson. When the note came due, Mr. Wilkinson sought an extension plus an additional loan of $20,000. Plaintiff determined that neither Meadowbrook nor Mr. Wilkinson individually qualified for an extension or additional credit. Plaintiff, aware that Mrs. Wilkinson had assets separate from those of her husband, and acting upon Mr. Wilkinson’s representation that his wife’s sole and separate estate would benefit from the extension and additional loan, informed Mr. Wilkinson that it would allow the extension and the additional loan if Mrs. Wilkinson guaranteed both. Plaintiff prepared for the signatures of Mr. and Mrs. Wilkinson the following "letter of consideration”:
"We wish to take this opportunity to advise you that we are both very concerned about the success of Meadowbrook Heights, Inc., as we have invested heavily in this corporation the same will have a noted effect on our joint and several estates.
"We therefore are requesting that every consideration be given in the extension [sic] of credit and loans. To assure a proper line of credit and financial resources to the corporation in protection of our individual holdings we will be most happy to personally guarantee all required notes. We do so in consideration of your making the necessary funds available to Meadowbrook Heights, Inc.”
In his testimony, Mr. Wilkinson denied telling plaintiff that his wife’s sole and separate estate would benefit from the loan. Instead, plaintiff informed him that he and his wife had to sign the letter and guarantees or he would not get the loans. He did not understand the legal significance of the letter. Mrs. Wilkinson testified that, except for their house, she had always kept her property separate from that of her husband and had never commingled their separate assets. She did not expect to derive any benefit from the loans to the corporation. At the time her husband brought the "letter of consideration” to her, she was ill, and did not read it, although she did sign it. She routinely signed documents presented by her husband without reading them.
At the close of proofs, Mrs. Wilkinson moved to dismiss, and plaintiff renewed its motion for summary judgment. In an opinion delivered from the bench, the trial court ruled that Mr. and Mrs. Wilkinson’s assertions that they did not understand the significance of the letter which they were signing were not credible. Although plaintiff was "slipshod” in not pinning down Mrs. Wilkinson as to how the loans would benefit her separate estate, it did rely upon the letter to its detriment, so that it would be inequitable to permit Mrs. Wilkinson to deny that her sole and separate estate would be benefited. The court therefore granted summary judgment against Mrs. Wilkinson, severally.
In reaching its decision, the trial court resolved several factual disputes. Its decision, incorrectly labeled summary judgment, GCR 1963, 117.2(3), was actually a decision on the merits following trial. We therefore review to determine whether the trial court’s findings of fact are clearly erroneous, giving regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. GCR 1963, 517.1. The record indicates that both Mr. and Mrs. Wilkinson are experienced businesspersons, and had made a practice of keeping Mrs. Wilkinson’s assets separate from those of Mr. Wilkinson. From this, coupled with his determination that Mr. and Mrs. Wilkinson were not credible, the trial court reasonably concluded that they were aware of the significance of the "letter of consideration”. There was testimony that plaintiff relied upon the letter in extending credit, even though it knew that the proceeds of the loan would go to the corporation, and that Mrs. Wilkinson was not a shareholder of the corporation. We find no clear error in the trial court’s findings of fact. We therefore disregard defendants’ contention on appeal that Mrs. Wilkinson was the innocent victim of overreaching by her husband and plaintiff, and assume for purposes of analysis that all parties were aware of the law of coverture, and that the suretyship was the result of reasoned consideration of each party’s best interest.
The primary issue on appeal is whether equitable estoppel precludes Mrs. Wilkinson from asserting as a defense to her liability as a surety the disability of coverture.
The married women’s act of 1855 was passed to protect married women from the improvidence or predations of their husbands and from the husbands’ creditors. Artman v Ferguson, 73 Mich 146, 150; 40 NW 907, 909 (1888), Tong v Marvin, 15 Mich 60, 71 (1866), Note, The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit, 74 Mich L Rev 76 (1975). The act, MCLA 557.1 et seq.; MSA 26.161 et seq., provides that married women may acquire, hold, and devise property separate from their husbands’ influence and not subject to their husbands’ debts, with "like effect as if * * * [they] were unmarried”, MCLA 557.1; MSA 26.161, and may be held liable on any contract made in relation to their sole property, MCLA 557.4; MSA 26.163. The act did not confer upon married women a general power to contract. West v Laraway, 28 Mich 464, 465 (1874). In order to hold a married woman liable on a contract, a plaintiff must prove that the contract directly concerned the married woman’s separate estate. See, e.g., Koengeter v Holzbaugh, 332 Mich 280, 283; 50 NW2d 778, 779 (1952), Judd v Judd, 187 Mich 612, 615; 154 NW 31, 32 (1915), Kenton Insurance Co of Kentucky v McClellan, 43 Mich 564, 565; 6 NW 88 (1880). In Koengeter v Holzbaugh, supra, a married woman was held not severally liable on a note she made with her husband, where the makers told the holders of the note that the loan was to provide working capital for a corporation of which the wife was the sole stockholder. The Court held that the contract was for the benefit of the corporation and, absent fraud or misuse of the corporate device, the contract was not for the benefit of the woman’s separate estate. In Monroe State Savings Bank v Orloff, 232 Mich 486, 490; 205 NW 596, 597 (1925), the Court stated that a married woman "may not bind her estate by any obligation in the nature of suretyship, or by a promise to pay the debt of another”. Accord, West v Laraway, supra. Such a contract does not concern her separate estate.
In the instant case it was undisputed that Mrs. Wilkinson signed as a surety, and that the loan went to a corporation owned by her husband, for the purpose of attempting to build an apartment complex. Mrs. Wilkinson lacked capacity to make this contract, and the contract is therefore void. Judd v Judd, supra.
A married woman may be precluded from asserting her disability through operation of equitable estoppel. See National Lumberman’s Bank v Miller, 131 Mich 564, 567; 91 NW 1024, 1025 (1902), overruled on other grounds, Judd v Judd, supra, Detroit Newspaper Industrial Credit Union v McDonald, 9 Mich App 146; 156 NW2d 62 (1967).
"It is a familiar rule of law that an estoppel arises when one by his acts, representations, or admissions, * * * intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.” Kole v Lampen, 191 Mich 156, 157-158; 157 NW 392, 393 (1916).
"One who is cognizant of all the material facts can claim nothing by estoppel.” Cudahy Brothers Co v West Michigan Dock & Market Corp, 285 Mich 18, 26; 280 NW 93, 96 (1938).
Plaintiffs reliance upon Mrs. Wilkinson’s "letter of consideration” cannot be said to be rightful, in light of its knowledge that she was acting as a surety, and that the loan was going to Meadow-brook, in which she was not even a stockholder. Plaintiff must be charged with knowledge of facts from which it could have deduced Mrs. Wilkinson lacked capacity to make the contract. In dealing with a person presumptively lacking capacity to contract, see Judd v Judd, supra, a lender who ignores such facts may not rely upon equitable estoppel in order to defeat the protectionist policy of the married women’s act. Since Mrs. Wilkinson is not estopped from denying her incapacity to contract, plaintiff may not recover against her separate estate.
The second issue on appeal is whether we may review the trial court’s grant of summary judgment against Mr. and Mrs. Wilkinson, jointly. This judgment is labeled as a consent judgment in the lower court record. As a general rule a consent judgment may not be set aside without the consent of the parties thereto, and therefore may not be reviewed on appeal. Sauer v Rhoades, 338 Mich 679, 681; 62 NW2d 634, 635 (1954), In re Estate of Meredith, 275 Mich 278, 289; 266 NW 351, 354; 104 ALR 348, 352 (1936). The issue of whether defendants intended the judgment to be a consent judgment is one of fact, and should have been raised in the trial court. GCR 1963, 528.3. "This Court is limited on review to the issues decided by the trial court.” Hernandez v Consumers Power Co, 51 Mich App 288, 291; 214 NW2d 846, 848 (1974). We therefore accept the record as it stands, and decline to review this grant of summary judgment.
The third issue on appeal is whether the trial court erred by not granting defendants’ motions for change of venue. This issue is moot as to Mrs. Wilkinson’s several liability because of our disposition of the first issue, and we do not reach the issue as to Mr. and Mrs. Wilkinson’s joint liability because of our resolution of the second issue. The motions were based upon a factual dispute as to whether Meadowbrook was doing business in Oakland County. If it was, then venue was proper as to all defendants. MCLA 600.1621; MSA 27A.1621, MCLA 600.1625(b)(iv); MSA 27A.1625(b)(iv), MCLA 600.1641; MSA 27A.1641. Mr. Wilkinson made no record on this issue; hence, we have nothing to review. Improper venue alone may not be the basis for disturbing a judgment. MCLA 600.1645; MSA 27A.1645. We therefore detect no prejudice which would require remand for supplementation of the record.
Affirmed in part; reversed in part. No costs, neither side prevailing in full.
An additional statutory abrogation of the common law permits a married woman to become jointly liable on a contract with her husband, MCLA 557.51-557.52; MSA 26.181-26.182, but limits liability to property owned jointly with him. MCLA 557.53; MSA 26.183. Except as to venue, Mrs. Wilkinson did not contest her joint liability as a surety.
Had Mrs. Wilkinson’s testimony that she signed the "letter of consideration” without reading it been accepted by the trial court as true, the misrepresentation would have been a result of culpable negligence, so that, had all other elements of equitable estoppel been shown, the doctrine would apply. See Collateral Liquidation, Inc v Manning, 287 Mich 568, 572; 283 NW 691, 692-693 (1939).
This statute was amended after this suit was begun. 1976 PA 375.
This statute was repealed after this suit was begun. 1976 PA 375.
Although the trial transcript reveals Meadowbrook was doing business in Oakland County, Mr. Wilkinson and Meadowbrook were not parties to that trial and therefore are not bound by it. | [
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] |
C. L. Bosman, J.
Defendant was charged with felonious assault, MCLA 750.82; MSA 28.277. On April 18, 1975, a jury found defendant guilty as charged and on May 2, 1975, he was sentenced to a term of 2 years and 8 months to 4 years imprisonment. He now appeals by right and we reverse.
The charge in this case arose out of events occurring on September 8, 1974. The complainant Angela Bowen, a 3-year-old girl had been playing with Kimberly Owens, a 7-year-old girl, outside of the apartment complex where they both lived. A man, identified as defendant, approached the girls and told Kimberly Owens that her mother wanted him to take the girls home. Defendant walked both girls inside the apartment building and down the steps to the basement at which point he grabbed them and shoved them inside a dark room. Defendant placed his hand around Kimberly’s mouth and nose so that she could not breathe and with his other hand held the complainant. He told both girls to be quiet or he would kill them. The two girls struggled and complainant succeeded in freeing herself from defendant’s grasp, kicking the door down, and running into the hallway. Defendant pursued and Kimberly promptly escaped and found her parents.
Defendant was subsequently apprehended. At trial, Kimberly testified that he had not had a knife, gun, or other weapon. Neither child bore any marks of physical injury; however, Kimberly was hysterical for several days after the incident.
Defendant’s main contention of error is that he should not have been charged with felonious assault because the use of bare hands does not constitute a deadly weapon within the meaning of the statute. MCLA 750.82; MSA 28.277. This statute provides:
"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.”
The Michigan Supreme Court has ruled that the statute is not restricted to weapons of the same type and kind enumerated in the statute. People v Goolsby, 284 Mich 375, 378-379; 279 NW 867, 869 (1938). In determining if a weapon can be classified as dangerous for purposes of the statute, the Court ruled:
"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.” Id. at 378; 279 NW at 868-869.
Under this test, this Court has ruled that many items may be dangerous weapons, including a booted foot. People v Buford, 69 Mich App 27; 244 NW2d 351 (1976). We have not had occasion, however, to determine if a bare hand can constitute a dangerous weapon.
Courts in other jurisdictions have ruled on this issue while construing their own statutes and have reached various results — some courts have held that a bare hand or fist can never be classified as a dangerous or deadly weapon, while others have held or inferred that under the proper circumstances a hand can become a dangerous weapon; however, it is not dangerous per se. It is this Court’s opinion that, while these decisions are worth noting, they offer very little guidance in resolving the instant case. Instead, we believe that the answer lies in an examination of Michigan’s various laws dealing with assault.
Michigan has at least ten statutes relating to assault upon private persons; among these are "Assault and simple assault”, MCLA 750.81; MSA 28.276, and "Assault and infliction of serious injury” (commonly referred to as aggravated assault), MCLA 750.81a; MSA 28.276(1), both misdemeanors, and "Assault with intent to do great bodily harm less than murder”, MCLA 750.84; MSA 28.279, and "Assault with intent to commit murder”, MCLA 750.83; MSA 28.278, both felonies. None of these four statutes require that the actor perpetrate the assault with a dangerous weapon. Bare hands are sufficient. What distinguishes the misdemeanors, simple assault and aggravated assault, from the felonies, assault with intent to do great bodily harm less than murder and assault with intent to murder, is the actor’s intended result. What distinguishes felonious assault, MCLA 750.82; MSA 28.277, from simple assault and aggravated assault is the use of a dangerous weapon in the perpetration of the assault.
"The evil, under legislative consideration, was that of assaults, aggravated by use of dangerous weapons and, expressive of such purpose, certain instrumentalities were mentioned, not to the exclusion of other potentially dangerous weapons, but inclusion thereof by the omnibus term 'or other dangerous weapon.’ ” People v Goolsby, supra, p 379.
It is this Court’s belief that this distinction based on the use of a weapon evidences a legislative intent that bare hands were not to be included as a dangerous weapon. Instead, an assault with bare hands without a specifically intended result is to be treated as one without a weapon and is to be prosecuted as either a simple assault and battery or as an aggravated assault.
If we were to rule that bare hands could be a dangerous weapon, it would lead to anomalous results, for practically every assault that would qualify as an aggravated assault, MCLA 750.81a; MSA 28.276(1), would also be capable of prosecution as an assault with a dangerous weapon, MCLA 750.82; MSA 28.277. It is our belief that the Legislature did not contemplate this result but instead intended that the statutes should be distinct and separate. To fulfill the Legislature’s intent, it is our opinion that the term "dangerous weapon” cannot be construed to include the bare hand.
Defendant’s conviction is reversed.
A boot (People v Buford, 69 Mich App 27; 244 NW2d 351 [1976]); an automobile (People v Blacksmith, 66 Mich App 216; 238 NW2d 810 [1975]); a chair (People v Sanders, 58 Mich App 512; 228 NW2d 439 [1975]); a pool cue (People v Bates, 55 Mich App 1; 222 NW2d 6 [1974]); lighter fluid (People v Morgan, 50 Mich App 288; 213 NW2d 276 [1973]); a broom stick (People v Knapp, 34 Mich App 325; 191 NW2d 155 [1971]); a beer bottle (People v Kildow, 19 Mich App 194; 172 NW2d 492 [1969]); and a flashlight (People v Ragland, 14 Mich App 425; 165 NW2d 639 [1968]).
Berfield v State, 458 P2d 1008 (Alas, 1969), Dickson v State, 230 Ark 491; 323 SW2d 432 (1959), Johnsen v State, 249 So 2d 452 (Fla App, 1971), Williams v State, 127 Ga App 386; 193 SE2d 633 (1972), State v Calvin, 209 La 257; 24 So 2d 467 (1945), Bean v State, 77 Okla Crim 73; 183 P2d 563 (1943), State v Hariott, 210 SC 290; 42 SE2d 385 (1947).
Gonns v United States, 231 F2d 907 (CA 10, 1956) (Construing California Penal Code, § 245), State v Gillespie, 336 SW2d 677 (Mo, 1960). | [
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] |
Per Curiam.
Defendant was charged with breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. He pled guilty to that charge on October 4, 1976, and was sentenced to from 2 to 15 years. The plea bargain stated on the record was that defendant agreed to plead guilty to the one breaking and entering charge in return for the prosecution’s promise not to charge him for five related breaking and enterings. Defendant appeals as of right, raising three issues.
Defendant first contends that his plea was involuntary because it was induced by the threat of subsequent charges on five alleged crimes. The plea bargain was stated on the record and acknowledged by defendant, his attorney, and the prosecutor. GCR 1963, 785.7(2) and 785.7(5) were strictly complied with. There has been no allegation that the plea bargain has not been fulfilled.
We have found no Michigan cases which deal with a plea bargain in which defendant agrees to plead guilty in exchange for the prosecutor’s promise not to charge unrelated offenses. An agreement not to prosecute uncharged crimes, however, is no less voluntary than an agreement not to prosecute charged crimes. Defendant is protected in either case by the agreement on the record. Generally, a fulfilled promise not to prosecute does not render a plea involuntary, even if it induces the plea. People v Norman, 44 Mich App 366; 205 NW2d 209 (1973). Other authorities have recognized the validity of pleas pursuant to bargains not to prosecute uncharged offenses. See, e.g., Mallon v State, 49 Wis 2d 185; 181 NW2d 364 (1970), ABA Project on Minimum Standards for Criminal Justice, Pleas of Guilty, § 3.1(b) (Approved Draft, 1968).
We hold that the guilty plea in the instant case, entered pursuant to a fulfilled agreement not to prosecute uncharged offenses, was not involuntary.
Defendant’s next contention is that his convic tion must be reversed because he was denied effective assistance of counsel.
As defendant was indigent, the court appointed counsel to represent him. Appointed counsel moved to withdraw on the basis that the crime charged took place in the City of Houghton, that counsel and his firm represented the City of Houghton as retained counsel in criminal misdemeanor prosecutions and that he and his firm had worked closely in the past with the investigating officers and complaining witnesses. This request to withdraw was denied by the trial court without further inquiry. The request to withdraw was renewed just before defendant pled guilty and again denied.
Defendant does not offer any proof of prejudice, but contends that such a conflict of interest amounts to ineffective assistance of counsel per se.
We decline to hold that the conflict of interest present in the instant case amounts to ineffective assistance of counsel per se.
This Court has refused to apply a per se rule in similar cases where no motion to withdraw was made. In People v LaPine, 61 Mich App 345; 232 NW2d 401 (1975), the Court held that appointment of a county prosecutor as defense counsel contrary to statute did not require reversal absent a show ing of prejudice. In People v Adams, 76 Mich App 384; 256 NW2d 605 (1977), appointed defense counsel also represented a police officers’ association of which investigating officers and witnesses were members. Again, the Court held that absent some showing of prejudice arising from the conflict of interest, defendant was not denied effective assistance of counsel. Cf. Michigan State Bar Formal Ethics Opinion C-215, Michigan State Bar Journal, April, 1977, p 204.
Federal courts also have refused to apply a per se rule to the representation of an indigent defendant by an attorney who prosecutes misdemeanor cases for a city. See Dawson v Cowan, 531 F2d 1374 (CA 6, 1976), Harris v Thomas, 341 F2d 560 (CA 6, 1965).
We recognize the difficulty in some circumstances of proving prejudice arising from a conflict of interest. Here, however, defendant has not even alleged prejudice. We hold that defendant was not denied effective assistance of counsel. Cf. People v McIntyre, 74 Mich App 661; 254 NW2d 603 (1977).
Defendant’s third contention is that the factual basis for his guilty plea, adduced by the trial judge pursuant to GCR 1963, 785.7(3), was insufficient to establish three elements of the crime to which he pled guilty: that he entered "an occupied dwelling house”, that he had the specific intent to commit a felony or larceny therein, and that he committed a "breaking”.
The first two elements were sufficiently established:
"Q. Mr. Kyllonen, I want to ask you again, when you entered the Plowe residence do you remember doing it?
"A. I knew I was going into it. I just don’t remember doing it. Because, see, we were supposed to leave on a— we were going to go down to Lansing the next day and I wanted to get some money from somewhere so — I was on my way up to Hurontown so I wanted to stop, you know. I figured there would be money inside so I — I just don’t remember going in.
"Q. You do distinctly recall, Mr. Kyllonen, that when you went into the Plowe — or your reason for going into the Plowe residence was to obtain some money, is that right?
"A. Yes, sir.”
Even a presently unoccupied residence is an "occupied dwelling house” for purposes of the statute, MCLA 750.110; MSA 28.305. Also, as the requisite intent could reasonably be inferred by a jury on the facts admitted by the defendant, the factual basis for the intent element was sufficient. People v Haack, 396 Mich 367; 240 NW2d 704 (1976).
The plea transcript fails, however, to establish a "breaking”. The facts elicited do not show that any force at all was used to enter:
"Q. All right. At this time I’m going to request that you give me a factual narration of just what happened on September 10th of ’76. What did you do at the Plowe residence?
"A. Well, the first thing I remember is coming into the building — I’m not sure, I think it was through a window.
"Q. How did you get through the window?
"A. I don’t remember.”
No other mention was made of the entry; there are no facts from which a breaking can be inferred. See People v Haack, supra, People v Stewart, 69 Mich App 528; 245 NW2d 121 (1976).
Defendant’s plea-based conviction therefore is reversed and this case is remanded for further proceedings.
On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7(4). Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975), People v Stewart, supra.
The prosecution did not file a brief in the instant case. Consequently, the issue of whether the guilty plea waiver doctrine applies to an ineffective assistance of counsel claim has not been argued before us. See generally People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). We do not decide if the waiver doctrine applies or not to the instant case; we rest our decision on other grounds. However, we note that under Federal law, an ineffective assistance of counsel claim is reviewable after a guilty plea. See McMann v Richardson, 397 US 759, 770, 771, n 14, 775, n 1; 90 S Ct 1441; 25 L Ed 2d 763 (1970).
For ethical considerations arising from appointment of municipal attorneys to represent indigent defendants, see generally American Bar Association Formal Opinions. 55, 186.
MCLA 776.14; MSA 28.1271. | [
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] |
Per Curiam.
This is an appeal by leave from a decision of the Workmen’s Compensation Appeal Board reversing a referee’s denial of compensation benefits and awarding plaintiff continuing disability compensation benefits for physical and psychological disability arising out of his employment. The appeal board’s opinion was signed by two of the five board members. Three members concurred in result only. The order awarding benefits was signed by all five members. The sole issue on appeal is whether a majority of the five-member board must join in a written opinion.
MCLA 418.261; MSA 17.237(261) provides in part:
"A matter pending on review shall be assigned to a panel of 5 members of the board for disposition. * * * The decision reached by a majority of the assigned 5 members shall be the final decision of the board. If a majority of the assigned 5 members are unable to agree, the matter shall be reviewed by the entire workmen’s compensation appeal board.”
The board’s order, not its written opinion, is its final decision under this section. Kozlowski v Chrysler Corp, 54 Mich App 100; 220 NW2d 319 (1974). In the case at bar, all five board members agreed on the order. Therefore, the board fully complied with MCLA 418.261; MSA 17.237(261). Nothing in that section requires a majority to join in a written opinion. Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960).
Under MCLA 418.861; MSA 17.237(861), this Court is empowered to review questions of law involved in a final order of the board. Implicit in this statutory scope of review is the obligation of the board to set forth "the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion”. McClary v Wagoner, 16 Mich App 326, 328; 167 NW2d 800 (1969). See, also, Carter v Detroit Board of Education, 66 Mich App 128; 238 NW2d 419 (1975), Gibbs v Keebler Co, 56 Mich App 690; 224 NW2d 698 (1974), Moore v Gundelfinger, 56 Mich App 73; 223 NW2d 643 (1974).
The opinion of the board in the case at bar satisfies the McClary requirement. The legal standard, testimony adopted and conclusion reached were meticulously set out in member Marshall’s opinion. Thus, this Court has a basis for reviewing any question of law raised by the case at bar.
Affirmed. Costs to appellee.
The board’s findings of fact are conclusive, absent fraud. MCLA 418.861; MSA 17.237(861).
Appellant does not contend and we do not find that the board applied an erroneous legal standard. | [
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V. J. Brennan, J.
Plaintiff Muayed M. Rayis appeals a verdict of no cause of action determined by jury verdict in Macomb County Circuit Court, Judge Raymond R. Cashen presiding. The case came to trial on March 3, 1976. At the close of proofs, plaintiff and defendant moved for directed verdict; both motions were denied by the trial court. The case went to the jury, which returned its verdict of no cause of action. Plaintiff now appeals as of right under GCR 1963, 806.1.
The facts of this case bear statement. Plaintiff’s cousin purchased a Hungry Jack Restaurant in East Detroit for $7,500 in June, 1974. Plaintiff then became his cousin’s partner by reimbursing his cousin one-half of the $500 downpayment. Plaintiff then purchased his cousin’s share for $40,000 on November 7, 1974, although a bill of sale was dated November 19, 1974. Plaintiff alleged his cousin’s share was worth $40,000 because the business was returning substantial income. In addition, his cousin had told plaintiff "any time you don’t make it just give it back to me”. Plaintiff paid his cousin an initial installment of $5,000. The sale price of $40,000 did not include the building. Plaintiff leased the building.
When plaintiff and his cousin owned the restaurant as partners, they did not maintain insurance. Plaintiff applied for coverage with defendant on or about November 3, 1974. Plaintiff later received a policy with fire coverage for $40,000 and business interruption coverage for $20,000, the policy taking effect on November 7, 1974.
Plaintiff testified as to how he obtained his insurance policy from defendant. According to plaintiffs testimony, his initial contact with defendant’s agent was by telephone. Plaintiff told the agent how much insurance he needed, the figure being in the vicinity of $40,000. Plaintiff did not disclose to the agent the amount he had paid for the business. At some point between this initial contact and the date the policy was delivered to plaintiff on November 21, 1974, the agent stopped by the restaurant to observe the premises.
Plaintiff received his copy of the policy on November 21, 1974. Early in the morning of November 29, 1974, the restaurant burned. The inside of the building was completely destroyed. Two five-gallon gasoline tanks, one round, one sqaure, were found in the building. The police lab test on various articles found in the restaurant showed the presence of gasoline. Police testimony indicated, "It was a set fire”.
Plaintiff testified he was not familiar with the filing of an insurance claim; so he hired someone to assist him. Plaintiff signed a sworn proof of loss on February 5, 1975, after the preparer explained the procedure to him. Plaintiff claimed $40,000 in inventory and equipment loss and $20,000 business interruption, the full limits of the policy.
Defendant notified plaintiff by letter, dated March 4, 1975, that the insurance company would not accept plaintiffs proof of loss for six reasons, among Which Were fraud áñd arson. Plaintiff filed suit in circuit court in April, 1975. Defendant alleged fraüd and arson in its answer.
The damage issue was submitted to an apr praiser, who determined plaintiff’s actual losses to be $8,500 for equipment, $900 for inventory, and $2,400 for business interruption, making a total of $11,800. The case came to trial on March 3, 1976.
Plaintiff produced Only two Witnesses at trial, and he alone addressed the issues pertinent to this appeal. At the close of plaintiff’s case, defendant moved for a directed verdict on two grounds, one being the substantial discrepancy between the amount claimed by plaintiff under the policy and the amount established by the appraiser as actual loss. After hearing plaintiff’s argument, the trial court denied defendant’s motion on the fraud question.
Defendant then presented three witnesses. Leroy Einkorn testified to plaintiff’s appearance at his Marathon station on November 28, 1974, the night before the fire at plaintiffs restaurant, for the purpose of purchasing ten gallons of gasoline. He stated that plaintiff and another man carried the gasoline away in two five-gallon gas containers, one being round and the other being square. Defendant’s other two witnesses were police officers who testified to the deliberate setting of the fire and the acceleration of the damage by the gasoline. At the close of its case, defendant again moved for a directed verdict, which was again denied.
Plaintiff then moved for a directed verdict on the basis that defendant had not submitted sufficient evidence to get to the jury on either fraud or arson. The trial judge denied plaintiffs motion, finding jury questions on both fraud and arson.
The trial judge instructed the jury on defendant’s theory of the case as defendant had requested, including both the arson defense and the fraud defense. However, he also instructed on a third distinct defense, plaintiffs fraudulent procurement of the insurance policy. The trial court then explained the elements of each defense. Both parties had some objection to the trial court’s charge, but neither party objected to the judge’s statement that defendant had three defenses and his explanation of those defenses. The jury returned a verdict of no cause of action in defendant’s favor.
On appeal, plaintiff raises a single allegation of error. He contends that the trial court erred reversibly in submitting the case to the jury with ah instruction oh plaintiff’s fraudulent procurement of the insurance policy. We do not believe reversible error occurred.
We might observe at the outset that the fraudulent procurement defense was hot specifically submitted by defendant in his proposed instructions, but was given by the trial court on the basis of the record evidence. Defendant thus contends the trial court erred in even instructing on this defense. With this proposition we do not agree. First of all, neither party objected specifically to the giving of the fraudulent procurement defense to the jury for consideration. This fact alone speaks strongly to affirming the trial court in its decision to submit the defense to the jury. Hunt v Deming, 375 Mich 581, 584-585; 134 NW2d 662 (1965). See GCR 1963, 516.2.
Nevertheless, we also find sufficient justification in the record for separating defendant’s allegations of fraud into fraudulent procurement and fraudulent proof of loss. For instance, defendant isolates such fraudulent procurement in his opening statement. Consequently, we will not reverse the trial court simply because it distinguished the fraudulent procurement defense from fraudulent proof of loss. Fraudulent procurement has all the normal fraud elements, while fraudulent proof of loss, also called "false swearing”, does not have justifiable reliance as one of its elements. See Campbell v Great Lakes Insurance Co, 228 Mich 636, 638; 200 NW 457 (1924).
Having thus found the trial court was not in error by separating the defenses in its instructions, we must now decide if evidence of such procurement appeared to justify sending the defense as separated to the jury. Plaintiff has correctly conceded both the arson and the fraudulent proof of loss questions.
We hold that a jury-submissible case on fraudu lent procurement was established. The defense has been characterized in the following way:
"To void a policy because the insured has wilfully misrepresented a material fact it must be shown that (1) the misrepresentation was material, (2) that it was false, (3) that the insured knew that it was false at the time he made the representation or that it was made recklessly, without any knowledge of its truth, and (4) that the insured made the material misrepresentation with the intention that the insurer would act upon it.” West v Farm Bureau Insurance Company of Michigan, 63 Mich App 279, 282; 234 NW2d 485 (1975).
As noted, the element of justifiable reliance is what distinguishes fraudulent procurement from fraudulent proof of loss. Bernadich v Bernadich, 287 Mich 137, 143; 283 NW 5 (1938). Regarding fraudulent proof of loss, see Campbell v Great Lakes Ins Co, supra at 638.
We find evidence which would support inferences as to all the required elements in this case. We hold in the first instance that plaintiffs request for $40,000 coverage on the equipment and inventory of his restaurant constituted a misrepresentation of value. Evidence of this fact could reasonably b'fe draWn. fróíri plaintiff’s tfestimoñy thát his request for $40,000 coverage was based on the price he had paid his cousin.
We find the misrepresentation material in view of the appraiser’s total property valuation of $9,-400 for equipment and inventory subsequent to loss. Further, thoügh thfe appraiser’s valuation of the equipment and inventory cannot be taken as proof that plaintiff knew the representation he made to dfefendant was false, certainly the original sale price of $7,500 paid by plaintiff’s cousin shortly before plaintiff’s own purchase would provide a reasonable basis for an inference that plaintiff did knowingly misrepresent the true value of the property to defendant shortly afterward. Alternatively, no evidence was presented at trial which would prevent the inference that the representation was made recklessly and without any knowledge of its truth. Plaintiff made no showing that the $40,000 figuré was based on fact. Even the purported sale price agreed upon by plaintiff and his cousin is left without testimony connecting this figure with any trufe cost basis. In short, the court committed no error by allowing the jury to infer plaintiff’s knowledge of the falseness of this representation.
Regarding the element of reliance, we find that by specifically requesting the policy for $40,000 plaintiff intended that defendant would rely upon this figure in issuing its policy. We see no reason why defendant’s investigation would have raised grave doubts as to a $40,000 figure on such a policy. An inference of defendant’s reliance was justified.
We thus find substantial basis for the jury’s inference of a fraudulent procurement defense. Evidence does appear which would allow an inference of such fraudulent procurement by the jury. As such evidence did exist, the trial court was not in error in submitting such a defense to the jury. The jury’s verdict of no cause of action was justified. We find no reversible error.
Affirmed.
The transcript discloses the following statement by defense counsel in opening argument:
"* * * he wilfully over-valued his property within that restaurant, and he did it on two occasions.
"First, when he went down there to obtain the policy or when he obtained the policy, * *
On the arson issue, proof that the fire was deliberately set was overwhelming. If the jury believed Einkorn’s testimony that plaintiff and a companion purchased gasoline on the evening before the fire, they could properly have inferred plaintiff was the one who set the fire. One of the police officers testified that forcible entry had been made. One testified that no forcible entry occurred. See Cipriano v Mercantile Insurance Co, 284 Mich 346; 279 NW 855 (1938), holding that circumstantial evidence is sufficient to present a jury question on whether plaintiff had set a fire for which he claimed losses against an insurer. In Cipriano, the fact that the fire was clearly incendiary, together with evidence that outside doors had not been forced, was sufficient to present a jury question as to whether plaintiff land owner had set the fire or caused the fire to be set.
Defendant also presented a jury submissible case on fraudulent proof of loss. Defendant could avoid payment if plaintiff was guilty of "false swearing”, which includes the element that the swearing was false as well as wilful, knowing and with intent to defraud. Campbell v Great Lakes Insurance Co, supra at 638. The evidentiary rule for this defense is as follows: The mere fact that plaintiffs loss is determined to be less than his stated claim is not proof of fraud. In the usual case, the fact that plaintiff has overstated his loss creates a question of fact for the jury. The jury then determines whether plaintiff’s over-valuation was made in good faith or with intent to defraud the insurer. If the difference between the proof of loss and actual loss is negligible, the case should not be submitted to the jury. However, were the difference extreme, fraud may be inferred by law and the judge should direct a verdict for the insurer. See 14 Couch on Insurance 2d, § 49:576; Anno: Overvaluation in Proof of Loss of Property Insured as Fraud Avoiding Fire Insurance Policy, 16 ALR3d 774, §§ 24, 25. A jury question was created in this case simply by the showing that the appraiser had determined plaintiff’s losses were $11,800, while plaintiff had filed a claim for $60,000.
The record discloses the following testimony by plaintiff Rayis:
"Question: Did you know what kind of coverage were available to you if you wanted to by (sic) insurance at that time?
"Answer: Well, the only thing I know coverage would be for the equipment.
"Question: Now, what did you say to your agent in terms of what you wanted?
"Answér: I told him give me á fire policy.
"Question: And did you tell him how much in terms of dollars?
"Answer: Yes. He asked me how much.
"Question: And what did you tell him?
"Answer: I said about $40,000.00.
"Question: And how did you arrive át the value of $40,000?
"Answer: Because I bought the share from my cousin for $40,000.” | [
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P. R. Mahinske, J.
Defendant was convicted by a jury of receiving and concealing stolen property in violation of MCLA 750.535; MSA 28.803. He appeals as of right, contending that the evidence adduced at the preliminary examination was insufficient to show that the property allegedly received and concealed was the same property as that stolen. We disagree.
Defendant’s conviction resulted from his possession of certain high performance component bicycle parts which resembled those stolen from a bicycle shop in a July, 1975, breaking and entering. At the preliminary examination, the manager of the bicycle shop gave a detailed description of the unusual combination of relatively rare items stolen. He identified the components found in defendant’s possession and stated that they were "identical” to those stolen from his shop. However, since the parts stolen had no serial numbers, the witness could not be certain that they were indeed the same parts.
Other preliminary examination evidence included the following statement made by defendant to police:
"You know the — the stuff I stole — I mean, the stuff I bought from [the bicycle shop] doesn’t have serial numbers on it, anyway.”
On appeal defendant contends that the trial court erred in denying his motion to quash the information. Defendant states that the prosecutor failed to establish the element of identity at the preliminary examination, and bases his claim on certain language in People v Martinovich, 18 Mich App 253, 257-258; 170 NW2d 899 (1969):
"The identity of the exact goods seized from the trunk must be proven to be the same as the goods alleged to have been stolen. Probable cause to believe that the goods were those stolen is not enough. Proof that the goods found in defendants’ possession were the same as the goods alleged to have been stolen must be introduced to supply a basis for the findings of probable cause required of the magistrate at the preliminary examination.”
We reject defendant’s contention that the above language somehow abrogates the usual probable cause standard. Our review of the cases convinces us that there is no requirement of "conclusive proof’ at the preliminary examination for the element of identity. If this were the case, then how could the trial judge instruct at trial that each element of the crime must be proven beyond a reasonable doubt? The cases do not require a standard greater than reasonable doubt at any stage of the proceedings. See People v Moloney, 113 Mich 536, 537-538; 71 NW 866 (1897), People v Tillman, 59 Mich App 768, 771-772; 229 NW2d 922 (1975), People v McLott, 55 Mich App 198, 202-203; 222 NW2d 178 (1974). In a prosecution for receiving and concealing stolen property, as in any other prosecution, at the preliminary examination the people must show that a crime has been committed and that there is probable cause to believe the defendant committed it. MCLA 766.13; MSA 28.931, People v Asta, 337 Mich 590, 609-610; 60 NW2d 472 (1953). In the present case the people did so. Compare Martinovich, supra, where the people failed to produce either the items allegedly received and concealed or a witness who could state that the items were the same as those found in defendant’s possession.
Here the evidence adduced at the preliminary examination was quite sufficient to bind over the defendant. In addition to the evidence referred to above, it included 1) testimony from the manager of the bicycle shop that defendant had for some time expressed an interest in components of the type taken in the breaking and entering,, and that after the breaking and entering defendant no longer visited the store, 2) testimony of an acquaintance of defendant that defendant’s bicycle underwent a change of components over the summer, and 3) testimony of another acquaintance that defendant had sold certain bicycle components — matching the description of some of those stolen — to him at a price less than retail. This evidence, coupled with defendant’s slip of the tongue and the manager’s identification, was a sufficient preliminary examination showing on the element of identity.
Defendant also contends that the trial court abused its discretion in admitting evidence that defendant’s bicycle frame had been stolen. We find no merit in this argument. The evidence tended to show a plan to build a customized bicycle with stolen parts, and was properly admitted under MCLA 768.27; MSA 28.1050. See People v Fleish, 306 Mich 8, 11; 9 NW2d 905 (1943), People v Di Pietro, 214 Mich 507, 511-512; 183 NW 22 (1921).
Affirmed.
D. C. Riley, P. J., concurs in the result only. | [
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Beasley, J.
On May 28, 1970, plaintiff, then just short of 16 years old, was very seriously injured when he dove into a swimming pool manufactured by defendant Anthony Pools, Inc. On April 13, 1972, plaintiff started this suit for damages, claiming that the proximate cause of his permanent injuries was negligent design of the pool and breach of the implied warranty of fitness for the purpose intended. Plaintiff settled his claims against the residential property owners who owned the swimming pool and went to a lengthy trial against the defendant. The jury found that plaintiff had no cause of action against defendant. After his motion for new trial was denied, plaintiff appeals as of right, raising several issues that he claims require reversal and remand for a new trial.
First, plaintiff claims the court did not sufficiently indicate to the jury that the defense of contributory negligence only applies to the claim of negligent design and not to the claim of breach of implied warranty. In general, contributory negligence is only available as a defense to claims of negligence. The somewhat comparable defense where breach of implied warranty is claimed is labeled abuse of product or misuse of product. In Kujawski v Cohen, this Court approved a refusal to instruct on abuse or misuse of product because there was no evidence upon which to support such a claim. In this case, the trial court did not instruct regarding misuse of product, but did, at the request of plaintiff, supplement the instruction as follows:
"THE COURT: Well, members of the jury, I want to clarify or maybe somewhat alter two instructions that I gave you. Now, one is that in regard to the breach of warranty theory by the plaintiff in this case, I would advise you that contributory negligence as I have defined it to you is not a defense to a breach of warranty action. Something more than mere negligence must be shown to bar recovery. Something approaching a disregard of a known danger.”
We do not find this supplemental instruction prejudicial to plaintiff. On the contrary, the evidence may well have supported an instruction regarding abuse or misuse of product which, perhaps, would have been more beneficial to defendant than that given.
Plaintiff also claims that, under Funk v General Motors Corp, it was error to give any contributory negligence instruction. Plaintiff misconstrues Funk. There, the Court said:
"Courts have found the defense of ordinary contributory negligence inapposite to a claim predicated on a breach of a legislatively-imposed safety regulation:
" 'Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They 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 the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified.’ * * *
"We discern no reason why the same principle 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.” (Footnote and citations omitted.)
We do not believe that the Funk rationale was intended to be extended to the case of residential swimming pools where there is no similar existing statutory scheme of safety requirements. The evidence in this case was sufficient to justify the giving of an instruction regarding contributory negligence. Therefore, we reject plaintiffs claim that it Was error for the trial court to give an instruction regarding contributory negligence with respect to plaintiffs claim of negligent design.
Plaintiff next argues that the 1969 NSPI (National Swimming Pool Institute) standards were éhácted after the pool in question was designed and installed, that plaintiff had attempted, by a motion in limine, to prevent the standards from being introduced, that plaintiff’s experts were from other states so that it would be difficult to recall them if defendant introduced the 1969 standards, and that plaintiffs own use of the 1969 standards in his case in chief was in reliance on an order of the court which, although it denied the order in limine, also stated:
"IT IS FURTHER ORDERED that upon plaintiff introducing the 1969 NSPI Standards in his case in chief, he shall not waive rights to assert appropriate objections to use of or introduction of said Standards by defendant in defendant’s case in chief.”
Defendant answers by saying that plaintiff opened the door as to the evidence in question, and that there was testimony that the pool in question was a 1969 model for which the 1969 standards would be relevant.
We have reviewed the record in detail and have retraced the convoluted path that this issue took, both during trial and during pretrial when, for example, the plaintiff attempted to wrestle meaningful discovery from the defendant.
As would be expected in a prolonged struggle between determined advocates, isolated portions of the record can be selected in support of either the plaintiffs or the defendant’s arguments. However, a reading of the record, as a whole, also shows that plaintiff and defendant shared the responsibility for the initial introduction of this evidence to the jury. Therefore, on this record, plaintiff cannot now prevail on a claim that the introduction of this evidence was reversible error.
Plaintiff further claims that the trial court erred in admitting evidence that similarly-designed pools had a history of use without any accident claims being asserted. After extended oral argument, the trial court had ruled with respect to this issue as follows:
"With the understanding that the Court will upon proper request instruct the jury as to what probative value such evidence has, and the fact that it is not conclusive evidence but something that they may take into consideration, I will allow such evidence of safe history only for the purpose of foreseeability and notice inasmuch as those are issues that have been presented in the plaintiffs case.”
In Freed v Simon, the Court said:
"We accept these cases as settling the question and reaffirm the holding thereof that 'evidence of prior accidents has always been admissible to show defendant’s notice or knowledge of the defective or dangerous condition alleged to have caused the accident’ and that 'the rule now seems to be established that evidence of prior accidents at the same place and arising from the same cause is admissible not only to show defendant’s notice or knowledge of the defective or dangerous condi tion alleged to have caused the accident, but to show the defendant’s negligence on the theory defendant, having notice or knowledge of the defect, is held to the duty of exercising such care as would a reasonably prudent person having such notice or knowledge’.” (Emphasis in Freed.)
In Farr v Wheeler Manufacturing Corp, the Court said:
"We would also state that it is persuasive evidence that the duty to design safely was not breached, to show that a large number of the product were used without injury. This evidence is not, however, conclusive proof that the product is reasonably safe.”
Further support for this view may be found in Savage v Peterson Distributing Co, Inc.
As a matter of fact, in his brief, plaintiff says:
"Thus, the court correctly ruled that evidence of a safe claims history under Michigan law is admissible only where foreseeability and notice are issues.”
However, plaintiff claims that the evidence of a lack of claims arising out of design was used improperly and repeatedly so as to prejudice his case. The record does not support plaintiff’s claims in this regard. We believe the evidence was admissible and are satisfied that the use of such evidence was not abused and, thus, did not prejudice plaintiff’s claim.
Plaintiff’s other claims of error are without merit.
Affirmed, with costs.
56 Mich App 533; 224 NW2d 908 (1974).
392 Mich 91, 113-114; 220 NW2d 641 (1974).
See, Olweean v Wayne County Road Commission, 385 Mich 698; 190 NW2d 108 (1971).
370 Mich 473, 475; 122 NW2d 813 (1963); see, footnote on p 475 including the amended portion emphasized therein.
24 Mich App 379, 386-87; 180 NW2d 311, 315 (1970), lv den, 385 Mich 773 (1971).
379 Mich 197; 150 NW2d 804 (1967). | [
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] |
M. F. Cavanagh, J.
After being injured by an automobile, the plaintiff was entitled to receive benefits under two different insurance policies, one of which was carried by her parents and one of which was carried by her employer and had been issued by the defendant. Plaintiff collected payments for her hospital and medical expenses under the insurance policy carried by her parents and then filed a claim with the defendant to collect for these expenses under the defendant’s policy. Defendant refused to pay the claim, citing the coordination of benefits clause contained within its master policy. Plaintiff filed suit against the defendant, and both parties moved for summary judgment. The trial court granted a summary judgment in favor of the plaintiff and also granted penalty interest, pursuant to MCL 500.2006; MSA 24.12006. Defendant appeals by right.
Defendant raises two issues on appeal. First, the defendant argues that its coordination of benefits clause is valid and enforceable and requires that any benefits owed to the plaintiff be reduced by the amount the plaintiff received under her parents’ insurance policy. Second, the defendant argues that the trial court improperly assessed the penalty interest provided for in MCL 500.2006; MSA 24.12006. We disagree and affirm.
The insurance policy in question is subject to the provisions of the uniform disability insurance policy provisions law, MCL 500.3400 et seq.; MSA 24.13400 et seq. The purpose of this law is to provide for standardized language within insurance clauses so that disability insurance policies will be substantially uniform throughout the states.
The disability insurance clauses provided for in the act can be divided into two categories. First, the act provides for mandatory provisions which must appear in each policy issued to any person within this state, and these provisions must be stated in the words which appear in the relevant sections. See MCL 500.3407-500.3424; MSA 24.13407-24.13424. Second, the act provides for optional provisions which, although their inclusion in a policy is optional, must also be stated in the words which appear in the relevant sections of the act. See MCL 500.3430; MSA 24.13430, and MCL 500.3432-500.3454; MSA 24.13432-24.13454.
In comparing the defendant’s coordination of benefits clause with the act’s sections setting forth the language dealing with this matter, MCL 500.3438, 500.3440; MSA 24.13438, 24.13440, it is apparent that they are not the same. While the language of these optional clauses may be varied with the insurance commissioner’s approval, the record indicates that such approval was not requested or granted in this case. We conclude that the defendant’s failure to include in its insurance policy the explicit statutory language pertaining to coordination of benefits clauses renders the policy’s coordination of benefits clause invalid.
In light of our conclusion that the coordination of benefits clause in the defendant’s insurance policy is invalid under the uniform disability insurance policy provisions law, we hold that the defendant is not entitled to reduce the benefits owed the plaintiff under its policy by the amount the plaintiff received under her parents’ insurance policy. Plaintiff is entitled to collect the full benefits payable pursuant to the provisions of the defendant’s disability insurance policy.
Defendant next argues that the trial court erroneously assessed a 12% interest penalty against the defendant, pursuant to MCL 500.2006; MSA 24.12006. Defendant reasons that it should not be penalized as a recalcitrant insurer when it was only reasonably asserting that it was not liable for the benefits because of its coordination óf benefits clause.
MCL 500.2006; MSA 24.12006 provides in pertinent part:
"(1) * * * Failure to pay [insurance] claims on a timely basis or to pay interest on claims as provided in subsection (4) is an unfair trade practice unless the claim is reasonably in dispute.
"(4) When benefits are not paid on a timely basis the benefits paid shall bear simple interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% per annum, if the claimant is the insured or an individual or entity directly entitled to benefits under the insured’s contract of insurance.”
Thus, under the statute, an insurer may refuse to pay a claim and be relieved of paying interest on the claim only when "the claim is reasonably in dispute”. Otherwise, an insured is entitled to 12% interest where an insurer does not timely pay the benefits owed to the insured. Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439, 445; 264 NW2d 19 (1978). The question we must answer is whether the facts of this case show that the claim was reasonably in dispute.
Cases which have construed the above section have involved claims in which the amount of loss or the accuracy of the account was in dispute. See O J Enterprises, Inc v Ins Co of North America, 96 Mich App 271; 292 NW2d 207 (1980). Here, the defendant declined to pay benefits on the basis of its coordination of benefits clause contained in its policy; the defendant never questioned the amount of loss nor the accuracy of the account. We do not think the plaintiff’s claim for benefits was "reasonably” in dispute when the defendant refused to pay based on its invalid contract clause. Defendant may not include a contract clause in its insurance policy which is invalid in light of explicit statutory requirements, of which the defendant is deemed to be aware, and then claim it reasonably denied liability for benefits based upon such an invalid clause. The defendant rejected this claim at its own risk; its interpretation of the statutory requirements relating to its insurance policy being erroneous, the defendant properly owes the plaintiff interest on her claim pursuant to MCL 500.2006; MSA 24.12006. See Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568; 327 NW2d 521 (1982). Furthermore, "[i]f this result seems harsh, it must be remembered that the defendant had full and unimpeded use of the sum involved during this dispute”. Nash, supra, p 573.
Affirmed. Costs to plaintiff. | [
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Per Curiam.
Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). Thereafter sentenced to two terms of life imprisonment on the murder and assault charges and two years on the felony-firearm charge, defendant appeals as of right.
First defendant claims that the trial court erred in allowing rebuttal evidence which did not contradict the exact testimony of an earlier witness. Defendant presented six alibi witnesses, one of whom was Roosevelt Hunt. They all testified that they were present with defendant at defendant’s residence on the evening in question. The prosecutor asked Hunt if he remembered certain of the alibi witnesses being at the house. However, he did not ask Hunt if he remembered Ronnie Armstrong’s being there. Officer Belote testified in rebuttal to Hunt’s testimony. The prosecutor asked Belote if Hunt had given him a statement as to the whereabouts of Ronnie Armstrong. At this point, defense counsel objected on the grounds of improper hearsay and rebuttal. Belote then stated that Hunt previously told him Ronnie Armstrong was at defendant’s home on the evening of January 16. In closing argument, the prosecutor used the alleged inconsistency in Hunt’s testimony to impeach his credibility. Defense counsel did not object to these remarks.
Belote’s testimony was improper rebuttal evidence. As stated above, Hunt was never asked as to the whereabouts of Armstrong. It was therefore improper to question Belote as to Hunt’s statement in which he allegedly said that Armstrong had been present. Generally, the only type of contradictory evidence admissible on rebuttal is that which directly tends to disprove the exact testimony given by a witness. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974); People v Lee Dyson, 106 Mich App 90; 307 NW2d 739 (1981).
The standard of review of improperly admitted rebuttal testimony is whether the error was so egregious as to result in a miscarriage of justice. People v Bell, 101 Mich App 779; 300 NW2d 691 (1980). We hold there was no reversible error. There was no evidence of lack of good faith by the prosecutor and the remark, occurring after a seven-day jury trial, should more properly be construed as inadvertent and isolated, rather than deliberately or grossly prejudicial. Furthermore, five other alibi witnesses testified for defendant; Hunt was not defendant’s only alibi witness. His testimony was not as crucial as defendant contends it to be on appeal.
Second, defendant claims that the prosecutor’s misstatement of the evidence during closing argument requires reversal of his conviction. Defense counsel failed to object to the prosecutor’s misstatement. Hence, appellate review is precluded absent a miscarriage of justice. People v LaPorte, 103 Mich App 444; 303 NW2d 222 (1981). Although it is true that the prosecutor misstated the circumstances surrounding the physical lineup, the misstatements were indeed minor. Instead of stating that Nancy Edwards identified defendant when individual #5 stepped forward, the prosecutor stated that she interrupted the proceedings when individual #3 stepped forward. This statement was untrue; however, it is undisputed from reviewing the record that Nancy identified defendant and was positive of her identification. We hold the error to be harmless.
Finally, defendant claims that the trial court erred in refusing to instruct the jury on attempted felony-firearm and attempted assault with intent to commit murder.
With regard to attempted felony-firearm, there was no reversible error. An instruction under the general attempt statute, MCL 750.92; MSA 28.287, is appropriate only where no express provision for attempt exists in the statute under which a defendant is charged. People v Kamin, 405 Mich 482; 275 NW2d 777 (1979); People v Denmark, 74 Mich App 402, 416; 254 NW2d 61 (1977). The felony-firearm statute proscribes the carrying or possession of a firearm during the commission or attempted commission of any felony. Moreover, since the Legislature clearly intended to punish possession of a firearm during an abortive felony, it could have additionally made attempted possession of a firearm a crime. It did not do so. Hence, we hold there is no such offense as attempted felony-firearm.
Additionally, we hold there is no error in the court’s refusal to instruct on attempted assault with intent to commit murder. In People v Banks, 51 Mich App 685; 216 NW2d 461 (1974), and People v Patskan, 29 Mich App 354; 185 NW2d 398 (1971), rev’d on other grounds 387 Mich 701; 199 NW2d 458 (1972), the notion of attempt to assault was rejected. These cases defined assault as an attempt to offer with force and violence to do bodily hurt to another with the present means of accomplishing the hurt. In other words, an attempted battery. Therefore, an attempt to assault would, by definition, include an attempt to attempt or offer. Patskan, supra, 357.
The Supreme Court’s recent definition of assault in People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), may in some circumstances make an attempt to assault instruction appropriate. The Court defines an assault as either an attempted battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery. A trial court would be required, upon timely request, to give an instruction on the necessarily lesser included offense of the "attempted unlawful act” type of assault if such crime actually existed. See People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).
In our case, however, defendant was charged with assault with intent to commit murder, which is of the "attempted battery” type, not of the "unlawful act” type. Joeseype Johnson, supra, does not change prior law with respect to the "attempted battery” type of assault but merely expands the definition of assault. Hence, failure to instruct on attempted assault with intent to commit murder herein was not reversible error.
Affirmed. | [
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] |
D. C. Riley, P.J.
Following a two week jury trial in Oakland County Circuit Court of plaintiffs wrongful death action, the jury returned a verdict in favor of defendant of no cause of action. Plaintiff appeals as of right.
I
Facts
On January 23, 1972, plaintiff’s decedent, David Hewitt, then 55 years old, was at home with plaintiff, to whom he had been married for 35 years. When Mrs. Hewitt left their home to attend a baby shower that afternoon, Mr. Hewitt appeared to be in good spirits. Shortly thereafter, Mr. Hewitt left their Oak Park home and drove to a drug store in Royal Oak. He purchased a newspaper and a few incidentals and chatted for a few minutes with the store owner who was a friend of his. The store owner testified that he noticed nothing unusual about Mr. Hewitt. Mr. Hewitt left the store sometime between 3 and 3:30 p.m. Shortly thereafter, between 3:30 and 4 p.m., Mr. Hewitt was killed when he was struck by a train owned by defendant near the Fifth Street pedestrian crossing in Royal Oak.
Plaintiff alleged that Mr. Hewitt was knocked into the train when he was struck by a broken metal band that defendant had negligently allowed to extend over the edge of the train. The evidence at trial indicated that the band had been used to secure a load of wooden crates on a flatcar • near the caboose. Some of the crates had collapsed causing the load to shift, which in turn caused the metal band to break from the added pressure.
Defendant’s theory of the case, on the other hand, was that Mr. Hewitt jumped into the train, in effect, taking his own life. The only known eyewitnesses were two boys, 14 or 15 years old. Although neither eyewitness was available at trial, one had been deposed and his deposition was admitted into evidence and read to the jury. The deposition revealed that as the boys were throwing snowballs and watching the train go by, they noticed Mr. Hewitt standing approximately six feet from the passing train and about ten feet south of the pedestrian crossing. Mr. Hewitt’s car was parked on the other side of the tracks. The deponent’s attention was next drawn to Mr. Hewitt when the other witness exclaimed, "Hey, look at that guy. He just got hit by the train”. The deponent stated emphatically that he couldn’t tell whether Mr. Hewitt had either walked or jumped into the train, as Mr. Hewitt was already in motion and was being struck by the caboose by the time he looked over.
Although it would appear that the other eyewitness was not deposed, he made a statement to a police officer who was investigating the accident. The officer testified that, although he had absolutely no recollection of the interview with the witness, he made notes of the interview from which he subsequently prepared an accident report, which the officer admitted on voir dire was not a verbatim account of the witnesses’ statements. This accident report stated that "as the caboose was approaching the crossing, the compatent [sic] jumped into the side of the train”.
At the conclusion of the trial, the case was, submitted to the jury pursuant to a special verdict form. The jury found that the defendant was negligent but that its negligence was not the proximate cause of plaintiffs injuries. Plaintiff’s sole contention on appeal is that the officer’s accident report was admitted in violation of the hearsay rule, MRE 802.
II
Trial Court Ruling
Defense counsel offered the accident report as an exception to the hearsay rule pursuant to MRE 803(1), present sense impression; MRE 803(2), excited utterance; and MRE 803(5), recorded recollection. In ruling that the report was admissible, the trial court did not specify which exception was applicable, rather the court merely stated that:
"* * * [the witnesses’ statements] were made within a reasonable length of time in this particular matter and I think it comes within the exception to the hearsay rule and I think the officer’s, the way he recorded the particular matter, would not allow me to strike or not allow it into evidence at this time.”
Ill
The Hearsay Rule
There is no question that the report in question was hearsay. In fact, the report constituted multiple hearsay or "hearsay within hearsay”. MRE 801(c) defines "hearsay” as:
"[A] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
In the case at bar, the report was an out of court statement, MRE 801(a), offered in evidence to prove the truth of the matter asserted, i.e., that Mr. Hewitt jumped into the train. Similarly, the report itself was based on the officer’s hearsay notes which in turn were based on the hearsay statements of the witnesses. In order for such hearsay within hearsay to be admissible, each part of the combined statement must conform with an exception to the hearsay rule. MRE 805. Henson v Veterans Cab Co of Flint, 384 Mich 486, 495; 185 NW2d 383 (1971); People v Kirtdoll, 391 Mich 370, 395-396, fn 15; 217 NW2d 37; 69 ALR3d 1 (1974). Our analysis then necessarily begins with an examination of the witnesses’ statements to the investigating officer at the scene of the accident. Inasmuch as the witnesses’ statements to the investigating officer formed the basis from which the report in question was ultimately derived, we must determine whether their statements fell within one of the enumerated exceptions to the hearsay rule.
IV
Hearsay Exceptions
A
Present Sense Impression
MRE 803 provides in part as follows:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
"(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
MRE 803(1) is identical to FRE 803(1). The Federal Advisory Committee Note to FRE 803 states:
"The underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepre sentation. * * * Morgan, Basic Problems of Evidence 340-341 (1962).”
In United States v Narciso, 446 F Supp 252, 288 (ED Mich, 1977), the court discussed the "present sense impression” exception:
"Underlying Rule 803(1) is the assumption that statements of perception substantially contemporaneous with an event are highly trustworthy because: (1) the statement being simultaneous with the event there is no memory problem; (2) there is little or no time for calculated misstatement; and (3) the statement is usually made to one who had equal opportunity to observe and check misstatements.” (Quoting Weinstein and Berger, Weinstein’s Evidence, |f 803(1)[01].) (Emphasis added.)
In the case at bar, as in Narciso, supra, all of these requirements are lacking. The statements were not made while the witnesses saw Mr. Hewitt being struck by the train or even "immediately thereafter”. While the record is not clear, it is apparent that at least several, and possibly as many as 30, minutes passed before the officer took the witnesses’ statements. Moreover, the reporting officer could in no way corroborate the truth of the witnesses’ statements since he was not present at the scene of the accident until after the fact. While our conclusion in this regard could perhaps be viewed as imposing an unduly restrictive interpretation of the phrase "immediately thereafter”, a more expansive interpretation would only serve to further blur the distinction between the "present sense impression” exception and the "excited utterance” exception which we have concluded, as discussed below, is also inapplicable. The purpose and intent of subrule 803(1) can be served most effectively by limiting the scope of that exception to statements made while describing the event or condition or instantly thereafter.
B
Excited Utterance
Defendant also urged the trial court to admit the report as a hearsay exception pursuant to MRE 803(2), which provides as follows:
"(2) Excited utterance. 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.”
The rationale underlying this exception is "the special reliability which is regarded as furnished by the excitement suspending the declarant’s powers of reflection and fabrication”. McCormick, Evidence (2d ed), § 297, p 704. Stated another way, it is the emotional shock produced by the startling event which "stills the reflective faculties and removes their control” that is the gravemen of the exception. People v Ivory Thomas, 14 Mich App 642, 649; 165 NW2d 879 (1968) (Levin, J., concurring), quoting 6 Wigmore on Evidence (3d ed), § 1747, p 135.
Although the elements of the excited utterance exception to the hearsay rule have been variously defined, the definition set forth in People v Gee, 406 Mich 279; 278 NW2d 304 (1979), has gained general acceptance:
"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 circum stances of the startling occasion.” (Footnote omitted.) Gee, p 282.
However the elements of this exception are defined, it is clear that the statement must have been made while the declarant was still in a state of nervous excitement. People v Carson, 87 Mich App 163; 274 NW2d 3 (1978). As the court stated in Narciso, supra, p 286:
"In order to come within the rule there must be a startling event or condition and a statement made by a person who was under the stress of excitement both while perceiving the event and when the statement was made.” (Emphasis added.)
As the proponent of the evidence in question, it was incumbent upon defendant to establish the foundational elements of this hearsay exception. Sanborn v Income Guaranty Co, 244 Mich 99, 107; 221 NW 162 (1928). In the case at bar, the reporting officer was questioned on voir dire with regard to the circumstances surrounding the witnesses’ statements. The officer testified that he was unable to recall anything remarkable about the witnesses’ demeanor when they made their statements to him. In the absence of some evidence that the witnesses were excited or under particular nervous stress when they made the alleged statements, we cannot conclude that the statements in question fell within the excited utterance exception. Narciso, supra, p 288. Further, we find that none of the other exceptions to the hearsay rule apply to the witnesses’ statements.
As discussed above, under MRE 805, hearsay included within hearsay is inadmissible unless each part of a combined statement falls within an exception to the hearsay rule. Inasmuch as we have concluded that the report in question contained inadmissible hearsay statements, we need go no further to hold that the trial court erred in allowing its admission into evidence. Nevertheless, we are persuaded that the report itself, aside from the statements contained therein, was also inadmissible hearsay.
C
Recorded Recollection
The recorded recollection exception to the hearsay rule, MRE 803(5), provides as follows:
"A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.”
It is generally accepted that there are four elements that must be established as a prerequisite to the admission of a record pursuant to this exception:
"(1) the witness must have had fírsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.” (Emphasis added; footnote omitted.) McCormick, Evidence (2d ed), § 299, p 712.
The quoted language is consistent with prior decisions of Michigan courts. In Jaxon v Detroit, 379 Mich 405, 413; 151 NW2d 813 (1967), the Court held that:
"To qualify a writing otherwise objectionable as hearsay to be admitted in evidence as a past recollection recorded, a proper foundation must be laid. That foundation should consist in the following: (a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness’ memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible.” (Emphasis added.)
Although Jaxon, supra, predates the adoption of the Michigan Rules of Evidence, MRE 803(5) is generally consistent with prior Michigan law. See Michigan Court Rules Annotated, Evidence Rules (1979), MRE 803, Committee Note, Exception 803(5), p 675. Moreover, this Court has subsequently adopted the foundational elements listed by the Jaxon Court as being the proper test for determining the admissibility of a document under MRE 803(5). Echols v Rule, 105 Mich App 405, 410-411; 306 NW2d 530 (1981).
We agree with the plaintiff that the defendant failed to establish all of these foundational elements. First, defendant failed to give the officer an opportunity to refresh his recollection by reviewing the report. More importantly, however, there was no showing that the report was based on the officer’s personal observations. In cases such as the one at bar, where the author of a report or memo randum is not the declarant of the pertinent statement, the declarant must examine the report and indicate that it accurately reflects the events that transpired. People v Kubasiak, 98 Mich App 529; 296 NW2d 298 (1980). This procedure was not followed in the present case.
Finally, and most importantly, the Supreme Court has held that where a report such as the one involved in the case at bar, which is based upon fragmentary notes, is offered into evidence as an exception to the hearsay rule pursuant to MRE 803(5), the report may not be admitted unless it is accompanied by the notes:
"We conclude that if the reports of the officers prepared at the end of a day’s work are to be allowed in evidence, they must be accompanied by the fragmentary notes from which each report was prepared. Only in this fashion will it be possible for counsel for a defendant to proceed with a meaningful cross-examination of the officer.” People v Rosborough, 387 Mich 183, 194-195; 195 NW2d 255 (1972).
This Court has subsequently held that the rule of Rosborough, supra, is applicable to civil as well as criminal cases. Sponick v Detroit Police Dep’t, 49 Mich App 162; 211 NW2d 674 (1973). Thus, we conclude that the report , in question was not admissible as the officer’s recorded recollection.
D
Records of Regularly Conducted Activities
Defendant contends for the first time on appeal that the report was admissible as an exception to the hearsay rule pursuant to MRE 803(6), records of regularly conducted activity. It is well settled that failure to raise an issue in the trial court waives the issue on appeal. Shelby Twp Fire Dep’t v Shields, 115 Mich App 98, 104; 320 NW2d 306 (1982); Hudson v Maher, 55 Mich App 90, 93; 222 NW2d 47 (1974). However, as the issue may arise on remand, we briefly address it here.
MRE 803(6) provides:
"(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, or events, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
McCormick’s treatise on the law of evidence explains the rationale behind this exception as follows:
"The exception is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance-striking, because the very regularity and continuity of the records is calculated to train the recordkeeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.” McCormick, Evidence (2d ed), § 306, p 720.
A brief reading of the Federal Advisory Committee Note to FRE 803(6) sufficiently demonstrates why this rationale is inapplicable to the case at bar:
"Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short 'in the regular course of business’. If, however; the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v Lutz, 253 NY 124; 170 NE 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision. Gencarella v Fyfe, 171 F2d 419 (CA 1, 1948); Gordon v Robinson, 210 F2d 192 (CA 3, 1954); Standard Oil Co of California v Moore, 251 F2d 188, 214 (CA 9, 1957), cert den 356 US 975; 78 S Ct 1139; 2 L Ed 2d 1148 (1958); Yates v Bair Transport, Inc, 249 F Supp 681 (SD NY, 1965); Anno: 69 ALR2d 1148. Cf. Hawkins v Gorea Motor Express, Inc, 360 F2d 933 (CA 2, 1966). Contra, 5 Wigmore, § 1530a, fn 1, pp 391-392.” (Emphasis added.) Michigan Court Rules Annotated, Evidence Rules (1979), MRE 803, Federal Advisory Committee Note, p 683.
This principle discussed in the language quoted above is reflected in Michigan case law. In Moncrief v Detroit, 398 Mich 181, 189-190; 247 NW2d 783 (1976), the Supreme Court rejected the suggestion that a police accident report was admissible into evidence under the business records exception to the hearsay rule. In so holding, the Court discussed some "first principles”:
"Because police reports are generally offered to prove the truth of their contents, their use as evidence at trial constitutes hearsay. Therefore, before they may be admitted into evidence, read into the record, or read to the fact finder by a witness in the course of his testimony, the proponent of the evidence must lay a foundation which establishes an exception to the hearsay rule.
"The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the 'nature’ of police business and the circumstances under which such reports are usually made, the possibility of .police reports so qualifying is unlikely.” (Citing, Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 [1943]; McCormick, Evidence [2d ed], § 308.)
In this case, we conclude that the accident report was not admissible as a "business record” because the primary foundational requirement that the declarants or informants must be acting in the regular course of their business when making the statements was lacking. This foundational element is critical as the business records exception is premised on the assumption that the statements of a declarant acting in the regular course of his or her business are inherently trustworthy.
E
Public Records and Reports
Finally, defendant contends, again for the first time on appeal, that the accident report was admissible as a "public record or report”, MRE 803(8). This issue has also been waived for purposes of this appeal, Shelby Twp Fire Dep’t, supra. Nevertheless, we briefly discuss why we believe the accident report was not admissible under the public records and reports exception.
MRE 803(8) provides:
"(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, and subject to the limitations of MCL 257.624; MSA 9.2324.”
We note that the principles of double or multiple hearsay discussed above are equally applicable to this exception. McCormick’s treatise on the law of evidence explains the purpose, scope and justification for this exception:
"The special trustworthiness of official written statements is found in the declarant’s official duty and the high probability that the duty to make an accurate report has been performed * * *.
"A special need for this category of hearsay is found in the inconvenience of requiring public officials to appear in court and testify concerning the subject matter of their statements. Not only would this disrupt the administration of public affairs, but it almost certainly would create a class of official witnesses. Moreover, given the volume of business in public officers, the official written statement will usually be more reliable than the official’s present memory.” McCormick, Evidence (2d ed), § 315, pp 735-736.
Subrule 803(8)(A) is inapplicable to the case at bar as the accident report is in no way related to the activities per se of the police agency. Cf., Joba Construction Co, Inc v Burns & Roe, Inc, 121 Mich App 615; 329 NW2d 760 (1982) (transcript of a meeting of a city agency held to have set forth the activities of that agency). MRE 803(8)(B) is also inapplicable as the information contained in the report can in no way be said to have included an activity as to which there was a duty to report. Gilliland v Baldwin-Lima-Hamilton Corp, 52 Mich App 489; 218 NW2d 63 (1974).
Moreover, we find that the report in question did not fall within the public records and reports exception as the reporting officer had no firsthand knowledge of the facts contained therein. Gilliland, supra.
V
Prejudice
We conclude by noting that there is no question that the admission of the report in question cannot be considered harmless error. As noted above, defendant’s theory of the case was that Mr. Hewitt took his own life by jumping into the train. During both opening statement and closing argument, defense counsel repeatedly stated that the witnesses observed Mr. Hewitt "jump” into the train. Indeed, a review of the record indicates that during closing argument defense counsel stated to the jury no less than 11 times that the witnesses observed Mr. Hewitt jump into the train. The only evidence supporting this position was the inherently untrustworthy accident report which was admitted into evidence in violation of the hearsay rule, MRE 802. The jury’s finding that the defendant’s negligence was not the proximate cause of the decedent’s death leads us to the inescapable conclusion that they agreed with defendant’s theory of the case.
We cannot conclude that the other evidence that was properly introduced in accordance with the rules of evidence was so overwhelmingly supportive of defendant’s position that the erroneous admission of the accident report was rendered harmless.
Reversed and remanded for a new trial.
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D. F. Walsh, J.
Plaintiffs, Jose Baudelio Zavala and his wife Maria Zavala, appeal from the circuit court’s entry of summary judgment in favor of defendants Sergeant Andrea Zinser, Officer Freida Y. Harris, and the City of Detroit. GCR 1963, 117.2a).
This controversy arose out of the shooting of plaintiff Jose Zavala outside a Detroit bar in the early morning hours of November 2, 1975. As Mr. Zavala left the bar that morning, he encountered a large group of people in front of the building; some of the people, including Mr. Zavala’s brother, were fighting. After shouting at his brother to stop fighting, Mr. Zavala was shot and seriously injured by one of the participants in the fight. At the time of the incident, defendants Zinser and Harris, City of Detroit police officers, were sitting nearby in their marked police vehicle.
Plaintiffs sued several of the participants in the fight. They were later granted permission to amend their complaint to add defendants Zinser, Harris, and the City of Detroit. They alleged that defendants Zinser and Harris had been negligent in failing to stop the fight, in failing to stop Mr. Zavala’s assailant from shooting him, and in generally failing to uphold or enforce the law. They alleged a "special relationship” between Mr. Zavala and defendant police officers giving rise to a duty of due care toward him. Plaintiffs further alleged the vicarious liability of defendant City of Detroit for the negligent conduct of its employees.
Defendants Zinser, Harris, and the City of Detroit moved for summary judgment under GCR 1963, 117.2(1). The court ruled that plaintiffs’ claims against defendant city were barred by governmental immunity, and that any duties owed by defendant police officers in this case had been owed to the public generally and not to Mr. Zavala individually. The motion for summary judgment was, therefore, granted.
On appeal, plaintiffs challenge the court’s determination that defendant police officers did not owe a "private” duty to Mr. Zavala. After careful examination of the pleadings and studied consideration of plaintiffs’ arguments, however, we are persuaded that the court’s ruling was correct.
In essence, plaintiffs alleged no more than that defendant police officers had breached their duty to preserve the peace. It is well settled that the duty of a law enforcement officer to preserve the peace is one which is owed to the public generally and not to particular individuals; for breach of that duty an officer is not liable to any particular individual but only to the public. South v Maryland, 59 US (18 How) 396; 15 L Ed 433 (1855); Annala v McLeod, 122 Mont 498; 206 P2d 811 (1949); Commercial Union Ins Co of New York v Wichita, 217 Kan 44; 536 P2d 54 (1975); Trautman v Stamford, 32 Conn Supp 258; 350 A2d 782 (1975); 70 Am Jur 2d, Sheriffs, Police, and Constables, § 54, p 170; Anno: Personal Liability of Policeman, Sheriff, or Similar Peace Officer or His Bond, for Injury Suffered as a Result of Failure to Enforce Law or Arrest Lawbreaker, 41 ALR3d 700. See, generally, 2 Cooley on Torts (4th ed), § 295 et seq.; Massengill v Yuma County, 104 Ariz 518; 456 P2d 376 (1969); Doe v Hendricks, 92 NM 499; 590 P2d 647 (1979); Shore v Stonington, 187 Conn 147; 444 A2d 1379 (1982).
The determination of whether a duty was owed by a defendant to an individual plaintiff is a question of law for the court to decide. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977); Doe v Hendricks, supra. In this case, no facts were pleaded which showed a duty owed to these plaintiffs. Since an essential element of actionable negligence was missing, therefore, the court properly granted summary judgment for defendant police officers.
Summary judgment was also properly entered for defendant City of Detroit. The operation of a police department is a governmental function. MCL 691.1407; MSA 3.996(107); Fiser v Ann Arbor, 107 Mich App 367; 309 NW2d 552 (1981), lv gtd on other grounds 412 Mich 915 (1982); Walkowski v Macomb County Sheriff, 64 Mich App 460; 236 NW2d 516 (1975). The trial court also correctly found that there had been no allegation of intentional tortious conduct. Compare, Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979); McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976).
Plaintiffs also argue on appeal that the court abused its discretion in denying their request to amend their complaint to allege defendants’ violation of 42 USC 1983. The record does not disclose the findings underlying the court’s discretionary ruling; appellate review is impossible in this case without such findings. See LaBar v Cooper, 376 Mich 401; 137 NW2d 136 (1965); Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). Accordingly, we remand to the circuit court for supplementation of the record. The court shall make the necessary findings and shall return the supplemented record to this Court within 30 days of the effective date of this opinion.
Affirmed in part and remanded for further proceedings consistent with this opnion. We retain jurisdiction.
D. C. Riley, P.J., concurred.
Although the circuit court’s order states that summary judgment was granted under "GCR 1963, 117.23”, it is clear that the order was entered pursuant to GCR. 1963, 117.2(1).
The record suggests that, following a jury trial, a judgment was entered in plaintiffs’ favor against defendant Victor Guerra in the amount of $1,209,726. | [
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] |
M. Warshawsky, J.
Plaintiff suffered the near total loss of vision in one eye when a capped beer bottle exploded close to his face. At a bench trial in Wayne County Circuit Court, plaintiff sought to show negligence and breach of implied warranty on the part of defendant brewery. The trial judge granted defendant’s motion for involuntary dismissal under GCR 1963, 504.2.
Plaintiff worked as a busboy at a restaurant and bar in April, 1973. At this bench trial in May, 1978, plaintiff described the careful manner with which he removed several cases of beer from a locked and dry storage room and placed them next to coolers behind the bar. After about a 15-minute break, plaintiff returned to remove the bottles from their cases to stock the coolers. Plaintiff testified that, while carefully removing and not bumping bottles of Stroh’s beer, one bottle exploded in his hand about six to nine inches from his head, causing lacerations to his nose and right eye. The top portion of the bottle with the cap still on it, which had been saved, disappeared from plaintiff’s attorney’s office, apparently through the diligent efforts of a custodian. The bottle was never produced at trial.
Plaintiff’s proofs concerning the condition of the bottle when it arrived at the restaurant were vague. Plaintiff and the kitchen manager were uncertain whether an agent of defendant or an independent distributor delivered the beer to the restaurant. Plaintiff testified that the beer could have been delivered by a salesman, a Stroh’s truck, or another beer truck. The kitchen manager testified he believed the beer had been delivered by a distributor named Powell.
At the close of plaintiff’s proofs, defendant moved for involuntary dismissal. In granting the motion, the trial court ruled that, where there are intervening handlers of the bottle from the time it leaves the bottler until it reaches its destination, plaintiff must make some showing that the bottle was not mishandled in the interim.
Plaintiff contends on appeal that he need only show that the bottle exploded and that it was not mishandled by him. The burden of showing the absence of mishandling, plaintiff argues, should lie with the defendant, especially where, as here, it was asserted as an affirmative defense.
A trial court’s decision to grant a motion to dismiss in a bench trial under GCR 1963, 504.2, will not be overturned on appeal unless clearly erroneous. Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386, 389; 239 NW2d 380 (1976). Unlike the motion for directed verdict, GCR 1963, 515.1, a motion for involuntary dismissal calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inferences. Plaintiff is not given the advantage of the most favorable interpretation of the evidence. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 332-333.
To recover under either theory asserted in the present case, breach of implied warranty or negligence, plaintiff must trace the defect into the hands of the defendant. Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975). As between negligence and breach of implied warranty, the former theory calls for proof that the defect was caused by defendant’s negligence, while the latter requires showing that the defect was attributable to the defendant. Smith v E R Squibb & Sons, Inc, 405 Mich 79, 89; 273 NW2d 476 (1979); Caldwell, supra, 410; Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965). "[P]laintiff has the burden of establishing that when the product left the manufacturer it was defective.” Holloway v General Motors Corp (On Rehearing), 403 Mich 614, 621; 271 NW2d 777 (1978).
The evidence need not be conclusive; it is enough if plaintiff "produces sufficient evidence of careful handling in general, and of the absence of unusual incidents, to permit reasonable men to conclude that, more likely than not, the event was due to the defendant’s negligence”. Prosser, Torts (4th ed), § 39, p 219. See 63 Am Jur 2d, Products Liability, § 10, p 20.
"[Plaintiff] is not, however, obliged to eliminate all possible causes of the accident consistent with the view that there was no manufacturing defect. He sustains his burden when he establishes with direct or circumstantial evidence a reasonable probability that the defect is attributable to the manufacturer.” Holloway, supra, p 621 (footnotes omitted).
In the present case, plaintiff needed to connect the alleged defect with the defendant. In order to do that, plaintiff had to overcome testimony in the case that it might have been a third party who delivered the bottle or show that the third party did not mishandle the bottle.
Plaintiff produced some evidence of a defect in the bottle leading to the explosion; however, there was inadequate proof to connect the defect with the defendant. Plaintiff’s showing of careful handling of the bottle after its arrival at the restaurant and his own care in removing the bottle from its case does not extend far enough to trace the defect to the defendant. The alleged defect could easily have been caused by someone handling the bottles after they left defendant’s custody and control. The bottle or the case containing the bottle could have been dropped or kicked by the distributor before delivery to the restaurant. Had plaintiff established that the bottle was delivered by an agent of defendant, a different question would be presented. At this point, however, it is a mystery who delivered the bottle to the restaurant. Under these circumstances and under the scope of review afforded by an order for involuntary dismissal by the trial judge sitting as trier of fact, we are not persuaded that the trial judge’s finding was clearly erroneous.
The trial judge correctly ruled in the present case that plaintiff needed to show the absence of mishandling by others after the bottle left the defendant’s brewery. Because we agree with the trial judge that plaintiff failed to connect the alleged defect in the bottle to the defendant, we need not decide whether the trial judge’s additional finding that an independent distributor delivered the bottle was clearly erroneous. In addition, defendant’s assertion of negligence by others as an affirmative defense could not change the burden of proof.
The cases cited by plaintiff either do not discuss the present question, Pattinson v Coca-Cola Bottling Co of Port Huron, 333 Mich 253; 52 NW2d 688 (1952), or noted that the evidence showed the defendant delivered the bottle, Cusumano v The Stroh Brewery Co, 26 Mich App 549; 182 NW2d 787 (1970), lv den 384 Mich 795 (1971). Plaintiff’s reliance on the rule of circumstantial evidence of negligence, Burghardt v Detroit United Railway, 206 Mich 545; 173 NW 360; 5 ALR 1333 (1919), is misplaced because, "[ejven though there is beyond all probable doubt negligence in the air, it is still necessary to bring it home to the defendant”. Prosser, Torts (4th ed), § 39, p 218. The mere naming of a party defendant and proof of someone’s negligence or breach of implied warranty is insufficient, without more, to trace the defect to the named defendant.
Plaintiff also argues that the trial judge abused his discretion in denying his motion for a new trial on the grounds of manifest injustice resulting from surprise, newly discovered evidence, misconduct of the defendant, and the trial court’s failure to grant a continuance or reopening of the proofs. The grant or denial of a new trial lies within the sound discretion of the trial court. Kailimai v Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). The burden is on the party moving for a new trial to persuade the trial court of an error of sufficient magnitude to cause the trial court to grant a new trial in the exercise of its discretion. Lemanski v Ford Motor Co, 82 Mich App 244; 266 NW2d 775 (1978), lv den 405 Mich 811 (1979).
We are not persuaded that the trial judge abused his discretion on the grounds asserted by plaintiff. A party claiming a new trial on the ground of surprise must indicate surprise because of the testimony at the time it is given. Great American Ins Co v Michigan Consolidated Gas Co, 13 Mich App 410, 424; 164 NW2d 575 (1968). In the present case, plaintiff’s counsel appeared to be satisfied with the testimony as given and did not claim surprise until after defendant moved for involuntary dismissal. The claim of newly discovered evidence, GCR 1963, 527.1(6), is much like the one of surprise. Ordinarily, evidence is not newly discovered unless discovered after the verdict is rendered. 6 Callaghan’s Michigan Pleading & Practice, § 41.21, p 388. Moreover, it is difficult to conclude that plaintiff, exercising reasonable diligence, could not have discovered who delivered the beer bottle to the restaurant. 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 113-114. The trial judge also did not abuse his discretion in denying the motion for a continuance. Such a motion must be made as soon as possible after ascertaining the facts; a continuance shall be granted only if the trial court finds the evidence material and diligent efforts were made to secure the witnesses or evidence. See GCR 1963, 503.2. We find Kornicks v Lindy’s Supermarket, 24 Mich App 668; 180 NW2d 847 (1970), lv den 384 Mich 771 (1970), distinguishable. Lastly, we find no support for plaintiff’s claim that the deficiency in the proofs was due to misconduct by defendant.
Affirmed.
R. M. Maher, J., concurred. | [
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Per Curiam.
Defendant pled guilty to attempted larceny in a building, MCL 750.360, 750.92; MSA 28.592, 28.287. Defendant was sentenced to a two-year term of probation which included payment of a fine and restitution in the amount of $2,265.66. Defendant appeals by right.
Defendant first argues that the amount of restitution he was ordered to pay was in excess of the loss caused by his personal conduct. Although the defendant was involved in the larceny from the building, the record from the plea-taking procedure indicates that he was not actively involved in the breaking and entering. It appears that the amount of restitution ordered included both the damage to the building and the loss of property from the building. We find no error. There is no question but that the defendant’s attempted larceny involved his entry into the building and that this entry was facilitated by the "breaking” of his companions. Thus, the defendant was involved in a course of criminal activity and the total resulting damages from that activity were properly assessable against him.
Defendant next argues that the trial court erroneously allowed the probation officer to impose additional conditions of probation on him. This argument is not supported by the record. At sentencing, the court merely invited the probation officer to point out any additional specifics of the probation order. All the conditions pointed out by the probation officer are contained in the order of probation which was signed by the sentencing judge.
Lastly, the defendant argues that he was denied the effective assistance of counsel because his attorney also represented his two accomplices in other, unrelated matters. Since the defendant failed to object at the trial level to this joint representation, on appeal he must demonstrate that an actual conflict of interest affected his attorney’s performance and that he was actually prejudiced as a result. People v London Williams, 117 Mich App 262; 323 NW2d 663 (1982); People v Villarreal, 100 Mich App 379, 389-390; 298 NW2d 738 (1980). Defendant has failed to persuade us that such a conflict of interest and actual prejudice occurred, especially since the parties were not codefendants.
Affirmed. | [
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] |
M. F. Cavanagh, J.
The trial court granted an accelerated judgment for the defendant on the basis of lack of jurisdiction. Plaintiffs’ motion for reconsideration was denied; they now appeal as of right.
Plaintiffs sued the defendant for medical malpractice in Gogebic County Circuit Court based upon a vasectomy that the defendant performed upon plaintiff George Smith. Both the plaintiffs and the defendant are residents of Michigan, but the alleged tort occurred in Wisconsin, where one of the defendant’s offices is located. Defendant moved to dismiss the case for lack of jurisdiction because the plaintiffs had failed to submit their claim to mediation pursuant to the Wisconsin medical malpractice act of 1975, Wis Stats 655.001 . et seq. Defendant maintained that under the principle of lex loci delicti Wisconsin law applied to the case since the situs of the alleged tort was in Wisconsin. The trial court treated the motion to dismiss as one for an accelerated judgment and agreed, holding that the plaintiffs’ action must be mediated before it can be heard in court. We reverse.
The lex loci delicti rule stands for the proposition that, where an injury is sustained in a foreign jurisdiction, the substantive law of that jurisdiction will govern the rights of the parties. Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969). This doctrine has, however, experienced a gradual but consistent erosion in the years following the Abendschein decision, and these incremental departures were recently consolidated by the Michigan Supreme Court in Sexton v Ryder Truck Rental, Inc, 413 Mich 406; 320 NW2d 843 (1982).
In Sexton, the Court considered two fact situations involving parties who were residents of Michigan or corporations doing business in Michigan and an injury sustained in a foreign jurisdiction. The Court began by observing that:
"Review of these matters convinces us that not only has there been a major retreat from the doctrine of lex loci delicti among scholars and the state courts, but that in Michigan itself the doctrine is at least as much honored in the breach as observed. Furthermore, both Abendschein and Kaiser v North, 292 Mich 49; 289 NW 325 (1939), on which Abendschein so strongly relied, have been seriously eroded, and Kaiser has in effect been overruled.
"As a consequence, not following lex loci delicti in these cases does not flout stare decisis.” Sexton, supra, p 413.
The Court went on to note that the doctrine of lex loci delicti has been avoided in the past principally by the use of two devices: (1) characterization of the law in conflict as procedural, to which the doctrine does not apply, Papizzo v O Robertson Transport, Ltd, 401 F Supp 540 (ED Mich, 1975), and (2) refusal to apply the relevant foreign substantive law on the grounds that to do so would contravene Michigan "public policy”, Sweeney v Sweeney, 402 Mich 234; 262 NW2d 625 (1978).
Three distinct attitudes toward the doctrine emerged in Sexton, none of which garnered a majority of the justices. Justice Williams, with Justices Levin and Moody concurring, would hold that when two residents, or two corporations doing business in the state, or any combination thereof, are involved in an accident in another state, the forum would apply its own law. Sexton, p 413. Justice Kavanagh, with Justices Levin and Fitzgerald concurring, would hold that the lex fori would govern, absent a reason for applying the law of another state. Justice Levin wrote separately, noting that while he concurred with both opinions previously referred to, he favored that chosen by Justice Kavanagh. Sexton, p 442. Justice Ryan dissented, joined by Chief Justice Coleman, and indicated that he would adhere to the traditional lex loci delicti analysis articulated in Abendschein, supra. Sexton, supra, p 443.
Thus, despite the absence of a majority position, it appears that a majority of the justices are no longer willing to apply the substantive law of another state merely because that state was the situs of the wrong at issue. In finding that the lex loci delicti rule may no longer be justified in terms of its original rationale, Justice Williams noted in Sexton, supra, pp 421-423:
"The traditional advantages advanced on behalf of the lex loci rule have included discouraging forum shopping and furthering the goals of certainty and predictability through its ease of application, thus simplifying the task of both lawyers and the courts.
"Despite these reputed advantages, modern scholars and about half or more of the states have rejected its rigidity since the rule often produced obvious rather than just results through its failure to consider the interests of other jurisdictions in the litigated matter.” (Footnotes omitted.)
We agree that the lex loci delicti rule should no longer be mechanically applied. Ease of administration and predictability should not alone justify results which are arbitrary or unfair and which do not reflect the interests of the forum state. Such injustice is most pronounced where, as here, the parties to the lawsuit are Michigan residents. In this case, the economic consequences of the tort will be felt most strongly in the forum state rather than in the state of the injury. In addition, the virtue of uniformity that the rule allegedly provides has been severely undercut by the frequent departures from the rule made by our courts.
Lastly, we agree with the Sexton Court’s rationale concerning the forum shopping argument made in favor of the doctrine. The Court stated:
"The other argument in favor of lex loci delicti, avoidance of forum shopping, is not a strong argument as against citizens of the forum state who presumably have every reason of convenience and economy to be entitled to service in their own state. To this, of course, can be added the fact that the forum state generally has an interest in seeing that its injured citizens are well-served and that its citizen defendants are afforded every protection that such citizens would have in their own state. Additionally, where both the plaintiff and the defendant are citizens of the forum state, the state where the wrong took place will normally have no interest in the litigation.” Sexton, supra, pp 432-433.
In light of the foregoing analysis, we conclude that the lex loci delicti rule should be modified, and we favor the aproach advanced by Justice Kavanagh in his concurring opinion in Sexton, supra, and embraced in Justice Levin’s separate concurrence. We hold that, in a tort action commenced in this state, the law of this state is to be applied unless the court determines that a superior foreign state interest exists which calls for the application of the foreign law in order to reach a just resolution of the controversy. We think the presumption of lex fori is a logical and reasonable approach in that the fact that a Michigan court can obtain jurisdiction over the parties involved generally corresponds with a substantial level of state interest in the outcome of the litigation. However, the state which is the situs of the injury is entitled to a consideration of any disproportionate interest it may have in the controversy in order to avoid any injustice resulting from the application of lex fori.
In applying these principles to the instant case, we conclude that the substantive law of Michigan should control. All parties are residents of Michigan, and a state has a significant interest in applying its own substantive law to its citizens. On the other hand, we find no superior Wisconsin interest in having its substantive law applied, especially since the injury did not affect any Wisconsin residents or property.
The accelerated judgment in favor of the defendant is reversed, and the case is remanded back to the trial court for proceedings consistent with this opinion. Plaintiffs may tax costs. | [
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R. B. Burns, J.
Defendant was charged with robbery unarmed, MCL 750.530; 28.798. The alleged offense occurred November 23, 1975. He pled guilty to attempted robbery unarmed, MCL 750.92; MSA 28.287, on December 8, 1975. The court set January 5, 1976, for sentencing.
Since December 8, 1975, the defendant has been incarcerated on other charges, and he was not sentenced on this conviction until January 11, 1982. At the time of sentencing the trial judge stated:
"You pled guilty to attempt robbery not armed. That carries a maximum of five, as you know. We had an updated pre-sentence report that initially had been prepared in April, ’79, or April — yes, initially back in ’76. Then up-dated in ’79 when I believe it was Macomb County sentenced you, but they didn’t — they failed to notify us of your presence or we could have done the whole thing then.
"Then you have escape status on your hands. I don’t know that they’ll do with you on that. You kind of walked away from a halfway house.”
The judge sentenced defendant to a term of two to five years in prison and gave him credit for 28 days spent in the county jail.
On appeal, defendant claims that he is entitled to credit for time served since April 18, 1979, when he was sentenced by the Macomb County Circuit Court.
We agree with the defendant that he should have credit in this case for time served under the Macomb County sentence. MCL 769.11b; MSA 28.1083(2); People v Parisi, 46 Mich App 322; 208 NW2d 70 (1973), rev’d on other grounds 393 Mich 31; 222 NW2d 757 (1974).
Defendant is to receive credit in this case back to April 18, 1979.
Reversed.
M. F. Cavanagh, P.J., concurred. | [
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Fellows, J.
(after stating the facts). 1. To my mind the serious question presented on this record is involved in the first ground urged. The bill alleges' in substance that the Fords agreed that the Lelands should be the managers of the new corporation and should be elected to its board of directors. It also alleges that the agreement, which was an oral one, contemplated a settlement with the Lelands and stockholders other than brokers, others who had bought stock at $3 per share- or less, and other than those who purchased stock after the appointment of the receiver. It was not alleged in the bill that there were stockholders of these classes, and for this reason the trial judge declined to consider this question. I think thé question of the validity of the contract which is sought to be enforced is before us and should be decided. The contract upon its face excluded certain classes of stockholders who for want of a better name we will style minority stockholders ; if there were no such stockholders, there was no necessity for considering them in the agreement, and if there were none of such classes, plaintiffs should have so stated in their bill. If the agreement by the Fords to vote for the Lelands for directors and managers of the corporation was invalid and the agreement contemplating the exclusion of minority stockholders was a fraud upon them and rendered the contract invalid, and defendants may be heard in a court of equity to assert such invalidity, it should be so held upon this appeal. I shall consider the points separately.
(a) The bill alleges that the Lelands were president and vice-president respectively of the old cor poration, and that they were to have the management and control of the new company and were to have important and probably lucrative positions in it. It alleg’es that after it was organized they were given such positions but were later relieved of them. ■ Of this they complain, and it is patent that they construe the contract to require their continued employment, and their continued election to their respective offices.
In West v. Camden, 135 U. S. 507 (10 Sup. Ct. 838), it was held (quoting from the syllabus):
“An agreement by a director of a corporation to keep another person permanently in place as an officer of the corporation is void as against public policy, even though there was not to be any direct private gain to the promisor.”
This case was followed and exhaustively quoted from in Scripps v. Sweeney, 160 Mich. 148. In Wilbur v. Stoepel, 82 Mich. 344 (21 Am. St. Rep. 568), the same rule was recognized, and it was held that the contract was not a severable one and the invalid provision permeated the whole of it and rendered it unenforceable. There is no allegation in the bill that it was agreed that the reorganized corporation was to be a close corporation. It had to have more than two stockholders. Act No. 84, Pub. Acts 1921, §1 (Comp. Laws Supp. 1922, § 9053 [1]). It is alleged that as organized the defendants Ford own all its stock, but that one share is in the name of defendant Craig for organization purposes. Whether the rule announced in the cases above cited should obtain in the case if it was agreed that the new corporation was to be a close corporation is not before us. Possibly leave should be granted to apply to the court below for permission to amend in this particular.
(b) The bill shows that directors of the old company other than the Lelands had decided that a reorganization of the company was necessary, and that the Lelands opposed snch plan and that the appointment of a receiver was obtained by snch othér interests. The bill alleges that after the receiver was appointed the Lelands publicly announced that such action was against their protest and that they proposed to secure a reorganization which would protect the creditors and stockholders from loss, and that many of the stockholders, relying on such announcement, took no steps to protect themselves. After making this public announcement with the reliance on it by the stockholders, the Lelands proceeded to make a contract with defendants Ford, which, if carried out, insured them continued employment and important positions, insured them and a part of the stockholders a return of their money invested in the company, and left the minority stockholders out in the cold. We need not disagree with plaintiffs ’ counsel in their contention that, when the receiver was appointed, the officers, including plaintiffs, ceased to function.. We may, for the purposes of the case, hold that upon the appointment of a receiver they owed no legal duty to help the stockholders or any one else in reorganizing the company. What we do hold, and it is all that the purposes of the case require, is that after they publicly announced that they were going to look after the interest of the stockholders, if they acted at all, their duty required them to act for all, not for a portion of the stockholders. A contract for the reorganization of a corporation which contemplates the taking care of a portion only of the stockholders, and the exclusion of another portion from the benefits of the reorganization, is fraudulent and cannot stand. This ques tion has been before this court and is settled by Sparrow v. E. Bement & Sons, 142 Mich. 441 (10 L. R. A. [N. S.] 725). In Bank of China v. Morse, 168 N. Y. 458, 478 (61 N. E. 774, 56 L. R. A. 139, 85 Am. St. Rep. 676)( it was said:
“The equal and ratable distribution of the assets and the equal and ratable enforcement of the liabilities of a company, according to the interest of shareholders therein, is equitable and should be enforced, so that each shareholder may receive an equal proportion of the assets and contribute only an equal proportion to discharge its liabilities. This principle, we think, applies as well to the proceeds of calls as to property already in hand. In other words, shareholders have equal rights and must bear equal burdens.”
The man who bought a share of stock for $3 acquired the same interest in the company as the man who paid $50 for his share of stock. It is possible that this question could be eliminated by an amendment alleging, if true, that there were no stockholders of the classes mentioned.
(c) May the defendants in this action urge that the contract sought to be enforced and to which they were parties is invalid because contrary to public policy and because fraudulent? The case is in equity, but the maxim “he who comes into equity must come with clean hands” does not apply to defendants ; they have not come into a court of equity seeking any relief, they were brought there by plaintiffs. Klosowski v. Klosowski, 266 Ill. 360 (107 N. E. 634); Hayes v. Schall, 229 Mo. 114 (129 S. W. 222); McIver v. Clarke, 69 Miss. 408 (10 South. 581). On the other hand, plaintiffs seek in a court of equity the enforcement of a contract made with the defendants which in one particular is contrary to public policy, and in another in fraud of third parties. Plaintiffs and defendants are in pari delicto. The general rule is thus stated in 2 Pomeroy’s Equity Jurisprudence (4th Ed.), §940:
“The proposition is universal that no action arises, in equity or at law, from an illegal contract; no suit can be maintained for its specific performance, or to recover the property agreed to be sold or delivered, dr the money agreed to be paid, or damages for its violation.”
And in section 401 of the same work, it is said:
“If a contract has been entered into through fraud, or to accomplish any fraudulent purpose, a court of equity will not, at the suit of one of the fraudulent parties, — a particeps doli, — while the ■ agreement is still executory, either compel its execution or decree its cancellation, nor after it has been executed, set it aside, and thus restore the plaintiff to the property or other interests which he had fraudulently transferred. Equity will leave such parties in exactly the positions in which they have placed' themselves, refusing all affirmative aid to either of the fraudulent participants. The only equitable remedies which they can obtain are purely defensive.”
And further in section 402, it is said:
“Wherever a contract or other transaction is illegal, and the parties thereto are, in contemplation of law, in pari delicto, it is a well-settled rule,'subject only to a few special exceptions depending upon other consideration of policy, that a court of equity will not aid a particeps criminis, either by enforcing the contract ,of obligation while it is yet executory, nor by relieving him against it, by setting it aside, or by enabling him to recover the title to property which he has parted with by its means.”
Quite likely at first blush we react against such a rule. A deeds to B his farm to defraud his creditors with an agreement that B shall reconvey when re- . quested. We do not admire the sportsmanship of B when he refuses to reconvey, and it may be that we are reluctant to refuse specific performance to A. But if the rule were otherwise, it would be an open invitation to all kinds of fraudulent contracts. Courts should not be eager to find that contracts fall within the prohibited class, or to find that the parties are in pari delicto, but when once satisfied that the contract is permeated with illegality and conceived in fraud, and even though the fraud is aimed at a third person, courts should refuse relief to either and leave the parties where, by their fraudulent conduct, they have left themselves. The reason and purpose of the rule is quite well stated in an early Wisconsin case. In Clemens v. Clemens, 28 Wis. 637, 654 (9 Am. Rep. 520), it was said:
“The principle or policy of the law, therefore, is to reject the suit of and reprove the plaintiff for his wrong, not to reward the defendant. The plaintiff must be punished, even though it be at the expense of allowing the defendant, an equally guilty party, to obtain most unjust and unfair advantage for him■self. This looks like punishing one party and rewarding the other for the same immoral or illegal act or contract. But fraud and immorality must be rebuked and discouraged, and this object can not be accomplished in any other way. The suit of the party compelled to seek the aid of the courts, in order to obtain the fruits of his fraud or wrong, must be dismissed, although it may result in unjustly giving to the other equally culpable party the entire benefit of them.”
In speaking of the rule, Justice Shauck said in Kinner v. Railway Co., 69 Ohio St. 339, 344 (69 N. E. 614):
“It denies all relief to a suitor, however well founded his claim to equitable relief may otherwise be if, in granting the relief which he seeks, the court would be required, by implication even, to affirm the validity of an unlawful agreement or give its approval to inequitable conduct on his part.”
In Barnes v. Starr, 64 Conn. 136, 155 (28 Atl. 980), it was said: -
“A very numerous class of cases coming within the same equitable doctrine is, where the contract or other act is substantially a fraud upon the rights, interests, or intentions of third parties. . In a case of this kind, relief is refused to a plaintiff on the ground that he does not come into court with clean hands. The general rule is that the parties to a contract must act not only bona fide between themselves, but they shall not act mala fide in respect to other persons who stand in such a relation to either as to be affected by the contract or its consequences. ”
The same thought was conveyed by Mr. Justice Grant in Dakin v. Rumsey, 104 Mich. 636, where he said:
■ “He, therefore, was willing and believed that he was participating in a fraud upon Rumsey. Since he has participated in a supposed fraud upon another for his own gain, equity will not lend its aid to assist him, even if he were the defrauded party.”
In Reynolds v. Boland, 202 Pa. 642, 647 (52 Atl. 19), it.was said:
“Equity springs from conscience and is administered through it. He who would reach the con science of a chancellor must come with his own void of-offense for ‘He that hath committed iniquity shall not have equity.’ 1 Pomeroy’s Equity Jur. 434-443; Bisham’s Equity, 60, 61. Specific performance is here prayed for; but it is of grace and not of right. Pennock v. Freeman, 1 Watts, 409; Henderson v. Hays, 2 Watts, 148; Orne v. Kittanning Coal Co., 114 Pa. 172 (6 Atl. 358); Datz v. Phillips, 26 W. N. C. 512; Brown v. Pitcairn, 148 Pa. 387 (24 Atl. 52). From the lips of this complainant, who sues for grace, along.with his prayer for a decree that the defendant specifically perform his agreement there comes a confession that its purpose was to deceive, and the ear of the chancellor will not hear the prayer. Into hands soiled by a contract, equity will not place her decree for its enforcement ‘The doors are shut against one, who, in his prior conduct in the very subject-matter at issue, has violated good conscience, good faith or fair dealing. ’ Orne v. Kittanning Coal Co., supra. * * *
“It is not pretended that, in the agreement of June 3, 1899, Reynolds and Boland tried to take advantage of each other, or that either was attempting any fraud upon the other. Its sole purpose was the deception of Stetler, to enable Reynolds to accomplish through it what was apparently impossible without it. - But this does not relieve it from its baseness, and in it there is no equity for the plaintiff. * * * Stetler is to be wronged. The compact of June 3, 1899, was for that purpose. It still is executory, and equity frowns at the mere suggestion of its enforcement. Both parties to it are parties to its iniquity, and neither has any equity against the other. ‘Who comes into equity must come with clean hands. In pari delicto melior est conditio defendentis. These are the principles which stand in the plaintiff’s way. * * * Who does iniquity shall not have equity; equity has no relief for a party who, in the practice of one fraud, has become the victim of another.’ Hershey v. Weiting, 50 Pa. 240.”
In the early day the equity side of the exchequer, in the case of Everet v. Williams, dealt most severely with those in pari clelicto — who sought its aid. The hill set up a partnership between the parties and that the parties:
“ ‘dealt with several gentlemen for divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles, and other things to the value of £200 and upwards; ’ and how there was a gentleman at Black-heath who had several things of this sort to dispose of, which defendant represented ‘might be had for little or no money, in case they could prevail on the said gentlemen to part with the said things;’ and how, ‘after some small discourse with the said gentleman,’ the said things were dealt for ‘at a very cheap rate.’ The bill further recites that the parties’ joint dealings were carried on at Bag1 shot, Salisbury, Hampstead, and elsewhere, to the amount of £2,000 and upwards; and that the defendant would not come to a fair account with the plaintiff touching and concerning the said partnership.”
A reference was had to the master, where it developed that the parties were highwaymen, and the partnership property referred to in the bill was their loot. The bill was dismissed, the counsel who signed it, Jonathan Collins, was required to pay the costs, the solicitors for the plaintiff, William White and William Wreathock, were each fined 50 pounds. Later the parties to the suit were hanged. For resume of this interesting case, see 2 Pothier on Obligations, 2, note; Lindley on Partnership (9th Ed.), p. 124; 9 Law Quarterly Beview, 197; Burrows v. Rhodes, 1 Q. B. Div. (1899) 816.
As we shall remand the case with permission to apply to the circuit court for leave to amend in the particulars noted, we should dispose of the other questions.
2. We are not concerned with the alleged promise of the Fords to pay the creditors of the corporation; they have all been paid. Stockholders are not creditors of the' corporation as that word is generally understood. In 7 R. C. L. p. 201, it is said:
“There is one sense in which stockholders, common as well as preferred, are creditors. It is in the sense that a corporation includes all its capital stock among its liabilities, but it is a liability which is postponed to every other liability. -As such a creditor, a stockholder is subordinate to every other creditor of the corporation. In the ordinary sense, however, a stockholder cannot be a creditor of the corporation by virtue of his ownership of stock.”
The case relied upon by defendants’ counsel, Gansey v. Orr, 173 Mo. 532 (73 S. W. 477), involved the construction of the word “miscarriage” in the statute of frauds of that State, and it was held to include mismanagement of corporate affairs. The case has been criticized by other courts. The allegations of the bill before us assert in effect that the Fords promised as part of the purchase price to pay the stockholders the amount they had invested in the company; this was a primary obligation. If it was entered into the statute of frauds does not prevent its enforcement.
3. Agreements which stifle competitive bidding, or chill the sale, as it is sometimes called, are, generally, contrary to public policy. This is not always so. Cases frequently arise in receivers’ sales where no sale could be made except by a combination of interests. Receivers’ sales of railroads and of large corporations are of this class. There are but few men in the country with enough money to buy the property offered. There must be a combination of capital, or many interests, in order to effectuate a sale of large properties. Take a railroad receivership: there are usually several mortgages differing in seniority; there are usually several issues of equipment obligations, common stock, preferred stock, possibly different classes of debentures, unsecured claims, etc. These different interests are usually represented by committees who finally get together and work out a reorganization plan, and it is agreed in advance that the property be sold to a purchasing committee at an agreed figure. Such an agreement is not against public policy and void. Unless such agreements may be made few railroads could ever be sold at receivers’ sales. What has been said about railroads is equally-applicable to large corporations. The instant case is illustrative. The property as a going concern was worth many millions, but there were few men in the country with enough money to buy or with disposition to buy even if they had the money. Quite likely but little would have been realized even by creditors if an arrangement had not been made with the Fords or others of means in advance of a public sale. The courts have to deal with practical problems, and have, therefore, recognized that agreements made in good faith, which do not operate to chill the sale, but on the contrary produce the- best results obtainable, are not contrary to public policy and are not void. In 2 E. C. L. p. 1133, the rule is thus stated:
“While the rights of the vendor and others interested in the property are to be protected, nevertheless prospective purchasers have the right to consult and promote their own interests so long as they do not resort to any fraudulent artifice for that purpose. It is true that in every association formed to bid at a sale whereby one is designated to bid in behalf of the rest, there is an agreement, express or implied, that no other member will participate in the bidding; and hence in one sense it may be said to have the effect of preventing competition. But it by no means necessarily follows that if the association had not been formed, and each member left to bid on his own account, the competition at the sale would be as strong and efficient as it would by reason of the joint bid for the benefit and upon the responsibility of all. The doctrine which would prohibit associations of individuals to bid, as preventing competition, however specious in theory, is too narrow and limited for the practical business of life, and would oftentimes lead inevitably to the evil consequences it was intended to avoid. Sales in many instances could be effected only after a sacrifice of the value to bring the price within the reach of the means of the individual bidders. Consequently not every combination or association of bidders will invalidate the sale. The courts will look to the intention of the parties, and if that is fair and honest and the primary purpose is not to suppress competition, but to protect their own rights or advance their own interests, and there is no fraudulent purpose to injure or defraud others interested in the result of the sale, the agreement may be upheld. This is especially true in the case of a union of several persons formed on account of the magnitude of the sale, or where the quantity offered to a single bidder exceeds the amount which individuals might wish to purchase on their own account. The intention with which the parties enter into such an agreement is a question of fact for the determination of the jury.” '
And in 6 C. J. p. 831, it is said:
“Sales which are effected by combinations of interests or agreements not to bid are voidable or not, according to the object for which parties enter into the agreements. If the purpose is to chill the sale and purchase property for less than its market value, the seller may avoid the sale. If on the other hand, the agreement is made without any design to commit a fraud, but to enable the parties to' the agreement to purchase conveniently, or if the agreement is for any -honest purpose, the sale will be valid.”
From the face of the bill, and that is all we have before us, it is patent that the agreement was not entered into to chill the sale, and to allow a purchase of the property below its actual value. It is quite evident that the sale brought more money and better results for the creditors and interested parties than would have resulted had the receivership run its course.
The bill before us will be dismissed, and the case ■remanded with leave to plaintiffs to apply for permission to file an amended bill as indicated in this opinion. Defendants will have costs of this court.
North, C. J., and Fead, McDonald, and Potter, JJ., concurred with Fellows, J.
Sharpe, J.
1. The provisions in the alleged contract, as set forth in the bill of complaint, do not, in my opinion, sustain the claim that the promise of the Lelands to continue in the service of the corporation to be organized by the defendants was for their “advantage and benefit.” Such promise on their part but secured .to the defendants the benefit of the skill and ability of the Lelands and the use of their name as designers and manufacturers of high grade automobiles. This offer on their part, and it was no more than an offer, to remain with the new corporation for the purpose stated, was made as an. inducement to the defendants to make the purchase of the assets of the old corporation. It was not made, as I read the contract, as set out in the bill of complaint, to secure any personal advantage to the Lelands. It is not averred therein that the defendants in any way' bound themselves to retain their services for any stated length of time, nor do the Lelands ask for any relief for a breach thereof. The amended bill alleges that the Lelands—
“further explained that they, said Lelands, were primarily interested in the protection of the creditors and stockholders of said corporation, and proposed to exert every effort to' effect a reorganization upon a basis that would insure the accomplishment of that purpose.”
The agreement further provided that- — •
“a.new company would be formed to take over the assets of said corporation, which company would continue the business of said corporation and would continue its selling organization and would be under the direction and control of said Lelands; that said Lelands would accept the control and direction of said new company and would operate same so as to maintain the high manufacturing standards and ideals of the former company and the high quality of its products.”
The understanding of the parties is apparent. The Lelands, as a consideration for the obligations assumed by the defendants, promised to aid them in the conduct of the reorganized corporation to the extent possible on their part.
The bill further alleges that the new corporation began operating under the direction and control of the Lelands and that thereby “the high standing of the products” was given recognition and the “good will of said business was fully maintained, ’ ’ and that after its success had been “definitely assured” the defendants took control thereof and have since continued to direct the same. I find no allegation there in of an “agreement by the Fords to vote for the Le-lands for directors and managers of the corporation” to be organized by the defendants. The services which the Lelands agreed to render, and did render, were understood to be and were for the benefit and advantage of the defendants. In my opinion the record does not sustain the conclusion reached that the contract was unenforceable for this reason.
2. Is it unenforceable because the interests of what are termed the “minority stockholders” were not protected therein? No question of public policy is here involved. The rights said to be affected are those of the holders of certain certificates of stock in the old company. If it be conceded that the agreement operated as a fraud upon them, may the defendants rely thereon as a defense to this suit? They make no claim of injury by reason thereof. Their rights were in no way affected thereby. They have received all the benefits and advantages secured to them in the agreement, and, if relieved from the obligation therein assumed by them, they will profit to the extent of several millions of dollars.
In an early case in this court (Quirk v. Thomas, 6 Mich. 76, 107), Mr. Justice Christiancy said:
“And if a court of equity cannot grant relief in such a case, it must be deplorably infirm in the administration of remedial justice. Just reasoning should lead to just results; and any course of reasoning which leads'to a result opposed to the just rights of the parties, should, at least, be carefully scrutinized before it is admitted as established law.”
Where the element of fraud enters into a contract, it is not void; it is only voidable. Hall Lumber Co. v. Gustin, 54 Mich. 624, 632. That which is here claimed to render it so is of no concern to the de fendants. They surely would not contend that they understood the contract was unenforceable for this reason at the time they entered into it and that they permitted the Lelands to be deceived thereby. In Mott v. Rowland, 85 Mich. 561, 566, it was said:
“It cannot be presumed that the parties intended to enter into an illegal contract. The presumption is rather in favor of its validity. The law will presume an honest intention, unless there is something in the nature of the transaction'or in the proofs to establish the contrary.”
Full performance on the part of the Lelands is alleged. Payment as agreed by the defendants is all that remains to be done. In Richardson v. Welch, 47 Mich. 309, 312, the court said:
“Even in cases where public and not merely private interests were involved, courts have refused to relieve parties who' had the monéy of other people in their hands, against accounting, when there was no question of public policy to be involved in that transaction;” citing Willson v. Owen, 30 Mich. 474.
As presented here, there is no claim on the part of the defendants that any deception was practiced upon them. They entered into the contract with full knowledge of its terms and of the purpose sought to be accomplished by the Lelands thereby. That of which they complain has in no way operated prejudicially on their rights under the contract. Its only effect, if their claim be sustained, is to relieve them from the obligation they assumed thereunder. They assert that by reason thereof they may resist payment as agreed.
“The fraud which should give one rights must be a fraud which in some way concerns his own interest.” Judge v. Vogel, 38 Mich. 569, 573.
Quoting further from Richardson v. Welch, supra, (page 312):
“The rule is general that when contracts are legal except as against persons in adverse interest, courts will not listen to complaints' of persons not injured. Conveyances fraudulent as against creditors can only be attached by creditors, and the principle is general as applied to private frauds. It is no doubt competent for courts of equity to use some discretion when asked to become instruments in helping parties to the fruits of fraud.”
In City of Marquette v. Wilkinson, 119 Mich. 413 (43 L. R. A. 840), the defendant had executed to the city a bond for^the safe keeping of its funds. The officials of two other banks became sureties on this bond under an agreement with Wilkinson that their banks would bid less for the deposits and that Wilkinson should keep one-third of the deposits in each bank. On Wilkinson’s death the city sought to reach* the money deposited in the other banks. As to the agreement among the banks it was said:
“It is urged that this agreement is void as against public policy. If this be granted, neither Wilkinson, nor the banks, nor the bondsmen could take advantage of it. The city alone could rescind it on this account. It. has not chosen to do so, and no other party can complain.”
Except that the question of public policy was there involved, this holding was but in accord with the general rule that—
“contracts which are valid, except as against those in adverse interest, cannot be assailed by persons not prejudiced thereby.” Baldwin v. Burt, 43 Neb. 245, 254 (61 N. W. 601).
There is, I think, a clear distinction between a contract prohibited by statute, or which is void be cause against public policy, and a private contract such as is here considered. The rule of nonenforcement of the former at the suit of a party thereto is well established. But, as to the latter, one who has received the benefits secured to him thereunder is estopped from asserting its invalidity as a defense. He may not retain that which he has received and resist the performance of obligations fixed therein because such performance will, in effect, operate as a fraud upon others not parties thereto. The rule forbidding it is clearly stated in Bigelow on Estoppel (6th Ed.), pp. 597 and 746, as follows:
“A similar rule of law applies to employees and contracting parties generally; they cannot accept the benefits of the contract and yet, when called upon to perform their duties under it, repudiate it as made without right, or as otherwise wanting in force, if it is not actually in violation of law, or wholly void.”
” 1 ‘ Though a contract be in fact wholly invalid when executed, still (supposing it not to be prohibited-by law as relating to some illegal transaction), if it be acted upon afterwards by the parties to it as valid, they will, if sui juris, be estopped thereafter to allege its invalidity.”
In 21 C. J. p. 1209, it is said:
“One of the most familiar applications of the rule relating to the acceptance of benefits arises in the case of contracts. It has been repeatedly held that a person by the acceptance of benefits may be es-topped from questioning the existence, validity, and effect of a contract.”
' The effect of the receipt and retention of benefits under a voidable contract is well illustrated in Foster v. Rowley, 110 Mich. 63. See, also, Hamburger v. Berman, 203 Mich. 78.
The holding in Sparrow v. E. Bement & Sons, 142 Mich. 441 (10 L. R. A. [N. S.] 725), is, I think, in no way decisive of the question here presented. It involved the action of the old Bement company in transferring its assets to a new company and the right of the plaintiff as a stockholder in the old company to participate therein. This conrt held that “the two companies were identical so far as the rights of complainant are concerned,” and ordered the issue to him of preferred stock in the new company of the value of that held by him in the old company.
The order of the circuit court denying the motion to dismiss should be affirmed, with costs to appellees. | [
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Fellows, J.
Solely because of local rule 3 of the circuit court for the county of Ottawa, the defendant circuit judge declined to permit the plaintiff to proceed in an action in tort brought by him against the township of Jamestown because of his failure to give security for costs. The rule reads as follows:
“When the plaintiff in any ease, after being required by order of the court to give security for costs, and when such security shall be required by statute, shall file an affidavit to the effect that he has a good and meritorious cause of action, but is unable to procure security for costs and desires to proceed to trial of his case without furnishing such security, his attorney of record shall sign and file with such affidavit a stipulation to the effect that no agreement or understanding has been entered into between them for a division or share of, or interest in the judgment, and that no assignment of any judgment or decree that may be secured therein shall be made prior to the final disposition of the case. The stipulation shall further provide that when final decree or judgment is obtained the proceeds thereof shall be paid into the hands of the clerk of the court, there to remain until disposed of by the court as follows:
“First, the costs shall be paid; next, the attorney for the plaintiff shall be paid for his services a sum to be fixed by the court; and the remainder shall then be paid to the plaintiff.”
There was a showing that plaintiff had a meritorious cause of action, and that he was unable to give security for costs.
The rule before us in its practical operation and iii effect inhibits the making of contracts between attorneys and their clients which this State has recognized as valid and enforceable, and empowers the circuit judge to arbitrarily fix the compensation of attorneys without providing for any hearing on the subject; it adopts a public policy on the question of contingent fees of attorneys for the county of Ottawa in conflict with the public policy on that subject in every other county in the State, and does all this under a rule ostensibly prescribing the method of procedure in that court. The rule before us goes much beyond prescribing a method of procedure or practice, and. attempts to define the public policy of the State as effective in that county, and to fix the substantive rights of parties and their attorneys in that county different from such rights in other counties in the State. We shall take neither time nor space in discussing the relative powers of this and circuit courts in the making of rules of procedure, as the rule before us cannot be sustained under the rule-making power of either this or the circuit court. Contracts for contingent fees probably have their faults, and possibly there may be many of them, but if they are to be outlawed by a declaration of a change of public policy, that declaration should be made by the legislative department for the whole State, not by a local rule of one court in one .of the counties in the State.
The rule before us to such a marked degree deprives parties of their substantive right to . contract that it must fall of its own weight. In 7 R. C. L. p. 1024, it is said:
“Again, it is clear, whether any statute directly controls the subject or not, that a litigant can not by rule of court be deprived of a substantial right, or so embarrassed in its exercise that he may be deprived without his fault of its benefit. ”
In Saylor v. Taylor, 77 Fed. 476, the district court had made a rule regulating the priority of claims in admiralty in that district. In holding that such rule was invalid, it was said by the circuit court of appeals for the fourth circuit:
“By virtue of this section the courts may make rules of practice, but they cannot create rules of law. They cannot divest or displace rights or liens which owe their existence, not to its process, but to the general maritime law. Rights acquired under the statutes of the United States, or under the general maritime law, which these courts are created to administer, are rules of property, and it is beyond the potency of judicial power to alter them, or take them away by rules of practice.”
In Washington-Southern Nav. Co. v. Steamboat Co., 263 U. S. 629 (44 Sup. Ct. 220), it was held (quoting from the syllabus):
‘ ‘ The function of rules of court is to regulate the practice of the court and facilitate the transaction of its business.
“A rule of court cannot enlarge or restrict jurisdiction, or abrogate or modify the substantive law.”
See, also, Ward v. Chamberlain, 2 Black (U S.), 430, 437; 8 Am. & Eng. Enc. Law (2d Ed.), pp. 29, 30; State, ex rel. Tooreau, v. Posey, 17 La. Ann. 252 (87 Am. Dec. 525); State v. Bryant, 55 Mo. 75; Cates v. Mack, 6 Colo. 401; Hickernell v. National Bank, 62 Pa. St. 146; Covey v. Williamson, 286 Fed. 459; State v. Gideon, 41 Am. St. Rep. 634, and note (119 Mo. 94, 24 S. W. 748).
The writ will issue as prayed, with costs' against the defendant in the original suit.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Wiest, J.
November 1, 1923, Charles Wohlfeil executed his will and devised and bequeathed all of his estate, real and personal, to Emma Wohlfeil, his wife. He died April 29, 1925, without issue. The will was admitted to probate June 10,1925. June 20, 1925, Michael Wohlfeil, father of the deceased, gave notice of appeal to the circuit court, alleging the testator was mentally incompetent to execute the will, and that it was the result of undue influence exercised by the beneficiary. June 23, 1925, the appeal was allowed, and July 3, 1925, duly docketed in the circuit court. The appeal was not prosecuted in the circuit court, and, January 31, 1928, Emma Wohlfeil moved for its dismissal and the affirmance of the action in the probate court. The appeal was dismissed for failure of contestant to prosecute his appeal with reasonable diligence, and the action in the probate court was affirmed. No excuse appears for the delay. We review by writ of error.
Relative to'appeals from the probate court the statute (3 Comp. Laws 1915, §14162), provides:
“If the appellant shall fail to prosecute his appeal with reasonable diligence, the circuit court, upon evidence that such appeal was taken, and on the motion of any person interested in the case, shall affirm the decree or action appealed from, and. may allow costs against the appellant,’-’
Appellant contends that this statute does not ap- • ply to perfected appeals. It must be conceded that the wording of the statute might have been improved, but the meaning is apparent. When action in the probate court is affirmed in the circuit, there must exist a perfected appeal, otherwise there could be no more than a dismissal for failure to perfect. The statute is intended to spur the appealing party to diligence in prosecuting the appeal. There was inexcusable want of diligence, and the order in the circuit was right. It is also urged that appellee, by not pressing trial of the appeal, waived right to invoke the statute and have affirmance of the probate order. This, if sanctioned, would nullify the statute, for then its provisions could never be operative. The statute places the duty of prosecuting the appeal upon the appellant. If he is dilatory the appellee is entitled to judgment of affirmance. This right, given by the statute, does not call for any pressing to trial by appellee, for he may sit by until want of prosecution by appellant brings the statute into operation and authorizes affirmance.
The order in the circuit court is affirmed, with costs.
Fead, C. J., and Forth, Fellows, Clark, Mo. Donald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
Plaintiff seeks review by writ of error of a judgment entered on a directed verdict in favor of both defendants in an action for damages for personal injury. The facts stated in the manner most favorable to plaintiff’s claim are as follows:
On August 26, 1924, the plaintiff boarded a passenger motor bus, properly lighted, with the name of the defendant transit company upon it, and, after it had proceeded a little distance, it stopped on the right side of the street to pick up two passengers. When it stopped, its front end was about a foot and its rear end about three feet from the edge of the pavement. A very short time after it had started, and before it got up much speed, a truck, bearing a license plate No. 229-425, struck it in the rear. There was evidence that plaintiff sustained injury from the effects of the collision.
1. Negligence of the Bus Company. It is urged' that the driver of the bus was negligent in stopping it with the rear end about three feet from the edge of the pavement. The width of the paving was 20 feet and that of the bus seven and a half feet. The bus was not parked within the meaning of that word as used in Act No. 96, Pub. Acts 1923. Sahms v. Marcus, 239 Mich. 682. The trial court was clearly right in holding that no actionable negligence on the part of the driver of the bus was proven.
2. Oionership of the Truck. ’ The trial court held that no competent evidence had been submitted that the defendant Birch was the owner of the truck. There was no error in so holding. Plaintiff put in evidence a certificate under the hand and seal of the secretary of State, stating—
“that on the 4th day of March, A. D. 1924, motor vehicle license Number 229-425, for the year 1924, was in the name of W. S. Birch of E.- No. 2, Plymouth, Michigan, on a Eeo Speedwagon, according to the records of this department.”
Certified transcripts, of public records are admissible as evidence. 3 Comp. Laws 1915, § 12507. The certificate did not assume to be a transcript compared with the original. Had the original record, or a transcript duly certified, as required by the statute, been offered, it would have been prima facie evidence of defendant’s ownership. Hatter v. Dodge Brothers, 202 Mich. 97.
Jack W. Wilson, a witness produced by plaintiff, stated that after the accident, and while the driver of the truck was still in his seat, he spoke to him, and he was then asked “-whether or not anything wds said in reference to the owner of the truck.” On objection he was not permitted to state the answer made by the driver. Error is assigned on this ruling.
Where a personal injury results from a collision, as in this case, one of the facts to be determined on which liability may be predicated is, What caused the collision? Statements made by those present, incidental thereto and explanatory thereof, termed the res gestee, are admissible, although in fact hearsay. But, as was said in Rogers v. Railway Co., 187 Mich. 490, 494:
“It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it, 3 Wigmore on Evidence, § 1750 et seq.”
The statements made in such cases must be voluntary and the spontaneous outgrowth of the occurrence (Bernard v. Paper Box Co., 170 Mich. 238 [42 L. R. A. (N. S.) 930]), and, as said in the Rogers Case, “must relate to the circumstances of the occurrence preceding it.” The rule thus stated was quoted with approval in the more recent case of Stone v. Refining Co., 225 Mich. 344, 350. The answer of the driver, if responsive to the question asked by "Wilson, would in no way have related to the cause of the collision and would not have been a part of the res gestae.
In our opinion there is another reason why the answer was not admissible. It was no doubt expected to show thereby that the defendant Birch was the owner of the truck. If so, the driver was at that time in his employ, acting as his servant or agent. While the testimony of an agent is competent to establish the existence of the agency, his declarations or admissions are not. In Gutterson v. Dilley, 201 Mich. 579, 586, it was said:
“An agent cannot prove his agency or its extent by his own declarations. It is hardly necessary to cite authority upon so elementary a proposition. * * * A person certainly cannot confer authority upon himself or make himself agent, merely by saying he is one.”
Plaintiff’s attorney relies on Hatter v. Dodge Brothers, supra, .and Wald v. Packard Motor Car Co., 204 Mich. 147. In the first of these it appeared that the statement of the driver as to his employer was admitted without objection. In the latter the court was evenly divided.
No error appearing, the judgment is affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Wiest, J.
In this ease, owners of property in a residence district in the city of Kalamazoo seek to restrain defendant from operating a cash and carry ice supply service station, on its premises, in their neighborhood. In the circuit court the bill was dismissed, and plaintiffs appealed.
August 11, 1924, defendant purchased the lot at the northeast corner of Park and Dutton streets, tore down an old residence standing thereon, leveled the ground, and, January 5, 1925, placed thereon a small building for use as an ice service station and commenced the use of it June 5, 1925. That corner is in an old-established residence and church district. At the station, ice is served to customers and carried away in automobiles, carts, baby cabs, upon lawn mowers and sometimes dragged along the sidewalk. January 26, 1925, the city of Kalamazoo adopted a zoning ordinance, designating therein the locality here involved as a residence district, excluded entry thereafter of business like defendant’s, but saved existing nonconforming uses from its operation.
It is urged in behalf of plaintiffs that defendant, anticipating the enactment of the zoning ordinance, placed the ice station building on the premises. The evidence affords support to this claim, but when plaintiffs appealed to the ordinance for protection, defendant had a right to mate lite appeal. The ordinance excepts from its restrictive provisions existing nonconforming uses, but, even if it did not contain snch an exception, we cannot hold its restrictions retroactive, though defendant, anticipating its enactment, purchased the property and placed its small distributing building thereon. Threatened invasion of a residence district by business may be an impelling reason for affording protection by way of a zoning ordinance, but such an ordinance may not operate to remove business found there. The legitimate purpose of a zoning ordinance, in its restrictive provisions relative to a residence district, is to preserve and not to disrupt existing conditions.
Defendant’s use of the station is seasonal. When defendant became owner of the premises, removed the old building, fitted the ground for and placed its ice station building thereon and only awaited the ice demand season to serve the public, it occupied the premises in fact and for use in selling ice, and such was a lawful úse of the premises existing at the time of the adoption of the zoning ordinance and a nonconforming úse expressly excepted from its provisions. Where an occupational use of the premises is seasonal, and the means for use are installed, and the opening of the season only awaited, there exists lawful occupational use of the same nature as periods of inactivity between seasons.
Plaintiffs concede that an ice distributing station is not a nuisance per se, but contend that this one is a nuisance per accidens. If the ice station is a nuisance by reason of method of its operation, then regulation, if adequate, and not abatement, is the' remedy.
It is claimed that ice is delivered at the station in large blocks and unloaded with noise; patrons drive to the street curb and toot automobile horns to attract attention of the attendant, call out their orders, and, in stopping and starting the cars, gases are emitted to such an extent as to require windows in the vicinity to be kept closed, and that the noise, disturbance, and odors, interfere with the health of residents and the enjoyment of their homes, every day, inclusive of Sunday, and the values of their properties have been depreciated.
While the court of equity has power to abate nuisanees in protection of property rights, and to conserve the enjoyment, health, comfort, and welfare of individuals, it moves with caution, deciding each case upon its particular facts, and accords protection against injury only in cases where an action at law would afford no adequate redress. If a nuisance is private and arises out of a particular manner of operating a legitimate business, the court will do no more than point to the nuisance and decree adoption of methods calculated to eliminate the injurious features.
The little building is unsightly, but is not in any sense a nuisance. Water from melted ice, unless stagnant and a menace to health, is not a nuisance. Automobiles, stopped and started in the street with usual noise and emission of smoke and gas fumes, cannot be declared a nuisance. To so hold would be far reaching in its application. The business streets, and many residence streets, in live cities, are lined every day with parked automobiles, and, to insure frequent movement thereof, limited time of parking is fixed by ordinance. If it is a nuisance to stop and start many automobiles upon the streets, may store keepers and pedestrians upon streets, lined by cars, continually stopping and starting, aver physical or mental discomfort and have such use of the street declared a nuisance? Hardly! Automobiles, few or many, may be parked, stopped, and started upon business and residence streets subject, however, to reasonable regulations and the discomfort, if any, occasioned thereby must be accepted as but an incident of modern times.
Plaintiffs rightly complain of the annoyances we mention later in this opinion. In the answer, and at the hearing in the circuit court, defendant averred a willingness to conform to reasonable regulations. Measures must be adopted by defendant, under which the cakes of ice will be delivered quietly at the station and patrons enabled and required to attract the attention of the attendant without tooting automobile horns.
To such end the decree in the circuit will be modified by decree here, without costs to either party.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
(after stating the facts). We have concluded that the judgment should be affirmed for two reasons, which we shall presently state, but our duty requires us to consider the reasons urged by plaintiff for reversal, and to state why such reasons do not require or justify a reversal. Before taking up the two reasons referred to, we shall consider the other questions discussed.
1. The trial judge signed defendant’s proposed findings of fact and conclusions of law. He refused to find as requested by plaintiff’s counsel on any of the facts, and likewise refused all his requests for conclusions of law. He also refused to amend any of defendant’s findings or conclusions. Plaintiff’s counsel are justified in part at least in their criticism of this course; a few of the findings are without any evidential support, some of the conclusions of law would have been more appropriate under the findings of fact and vice versa. But if such findings as have evidential support do support the judgment and are not against the clear weight of the evidence, the judgment should be affirmed. Plaintiff’s counsel most seriously criticize the refusal of the court to find that the consideration of the deed from plaintiff to the Terminal company was nominal. Prom plaintiff’s viewpoint, this was an important fact. Numerous cases hold that conditions are not favored in the law, and numerous other cases hold that in case of voluntary conveyances, where the condition furnishes the only consideration, the courts will not hesitate about enforcing conditions or in finding that a conditional estate exists. Plaintiff testified that the consideration was nominal, and no one testified to the contrary. There was no testimony that the value of the 10 lots was more or less than the $1,500 named in the deed. Possibly the trial judge was justified in refusing to find as requested on this subject on the ground that the witness’ testimony was a conclusion rather than a statement of fact. But, as we shall presently see, the result would have been the same had plaintiff’s requested finding been signed.
. Much space is taken in both briefs in the consideration of the question of whether the language used in the instrument before us created a conditional fee, a base fee, a determinable fee — a condition subsequent. In three of our own cases (Hickox v. Railway Co., 78 Mich. 615; Epworth Assembly v. Railway, 236 Mich. 565; County of Oakland v. Mack, 243 Mich. 279), this court has held that a conditional fee was created with the right or possibility of reverter. In two of these cases., the conveyances were voluntary, without consideration other than the performance of the condition, and in all of them the right of reentry for breach of condition was expressly reserved. Numerous cases are called to our attention holding that in the absence of.language in the instrument giving1 the right of re-entry, that the remedy at law is for breach of covenant; that the language is to be treated as establishing a covenant rather than a condition subsequent. Numerous cases to the contrary are also cited. We need not decide the question. For the purposes of this case only, we may assume that plaintiff’s contention is correct, i. e., that the language used created a condition subsequent.
2. The trial judge found facts justifying the application of the doctrine of estoppel if such doctrine is available as a defense in an action of ejectment, and held as matter of law, that it was available in such action. The record does not clearly show the dates when all the improvements were made on the premises, but we are persuaded that it does justify the finding that such improvements were made over a long period of .years, from 1917 on. One witness testified that the classification yard was built before 1917, and that other extensions have been made since. The proofs show that sheds, loading docks, paving, an oil reservoir, oil distributing systemj and other plant facilities have been erected by defendant, some of them on the land in question and others so connected with it that all of such improvements would be of little value if plaintiff recovered the lots here involved; a corner of one of the main buildings erected many years ago rests on a portion of one of the lots. The finding that plaintiff knew or should have known that money was being expended and the improvements were being made by defendant, and that for many years he made no protest and asserted no rights is sustained by the testimony. The rule is thus stated in 3 Thompson on Real Property, § 2053:
“A condition may be waived by acts as well as by express release. If the grantor permits the property to be used in violation of the condition, and especially if he stands by and allows valuable improvements to be made thereon, he will not be allowed to insist upon a forfeiture, and thus acquire the improvements made upon the strength of his acquiescence.”
And see Barrie v. Smith, 47 Mich. 130.
Early cases tend to sustain plaintiff’s contention that the defense of estoppel is not available in an action of ejectment. But the recent case of Sliwinski v. Gootstein, 234 Mich. 74, definitely commits this court to the contrary rule. This case followed and was sustained by Treat v. Railway, 157 Mich. 320 (133 Am. St. Rep. 347).
3. This brings us to the final reason urged against the right of plaintiff to maintain this action. We have noted that the deed did not by express terms reserve to the grantor the right of re-entry for breach of condition; there had been mo notice or claim of forfeiture served on defendant; there had been no re-entry nor had there been any notice or claim of right of re-entry served. In the Treat Case there was reserved the right of re-entry for breach of condition, but the court held 'we quote the syllabus) :
“Real property conveyed subject to a condition subsequent, whereby title shall revest upon failure to perform the condition, may not be regained by ejectment proceedings without a notice of the particular cause of forfeiture, and of the intention to claim the right, and a reasonable length of time in which to comply.”
We quote with approval from Memphis, etc., R. Co. v. Neighbors, 51 Miss. 412, 417. It was there said:
“Subsequent conditions are those which operate upon an estate already vested, and render it liable to be defeated. Under the modern system of conveyancing, the estate of' freehold passes to the grantee as completely as by the deed, as by the ancient formula of livery of seizin, and remains in him, when subject to defeasance, until resumed by the grantor or his heirs for condition broken. The mere nonperformance of the condition does not defeat the estate. It is in the election of him who has a right to its enforcement, to insist upon a forfeiture or raise it. Notwithstanding the breach, the estate abides in the grantee until it is put an end to by entry, or some act by the grantor which is equivalent to it. Until that is done, it loses none of its original qualities or incidents.”
The judgment will be affirmed for two reasons: (1) That plaintiff is now estopped from asserting a breach of condition subsequent, and (2) that the suit is prematurely brought.
Fead,. C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred, | [
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Potter, J.
Plaintiff sued defendants for malicious prosecution and false imprisonment. There was judgment for plaintiff against defendant Croff and judgment for defendant Moote. Plaintiff brings error.
Defendant Croff, at the time the cause of action is said to have arisen, operated a dance hall in the vicinity of Ensley Center, Newaygo county. There had been disturbance there by reason of intoxication of frequenters of the place. On the night in question, when plaintiff was there, a deputy sheriff of Newaygo county was in attendance. On account of parties being drunk and disorderly, the deputy called defendant Moote, sheriff, who, with another deputy, visited the place. Some arrests were made. Defendant Moote made inquiry as to who had caused the disturbance. He told Croff unless he cleaned up the place he (the sheriff) would. It is claimed reference was made to people living in different localities, as the “Grand Rapids bunch” and others. Plaintiff called defendant Moote as well as defendant Croff for cross-examination under the statute (3 Comp. Laws 1915, § 12554). Such witnesses were thereby made witnesses of plaintiff, and plaintiff is bound by their testimony, except in so far as such testimony is disputed. Under the statute the plaintiff is not estopped from disputing the testimony of the opposite party called on cross-examination, by reason of having called him and made him a witness for himself, but, in the consideration of the testimony of the opposite party, she cannot select isolated por tions of that testimony and claim a force and effect for it which the whole testimony of the witness does not warrant. Jones v. Railroad Co., 168 Mich. 1; Cook v. Railroad Co., 189 Mich. 456; Steele v. City of Ionia, 209 Mich. 595; O’Dell v. Day, 214 Mich. 566; Waller v. Sloan, 225 Mich. 600. Defendant Moote testified he did not, prior to receiving a warrant for plaintiff’s arrest, know anything about her and did not know she existed, and gave no directions to defendant Croff to make a complaint against her, but told him he should make a complaint against the parties who had been intoxicated at the dance hall and made the disturbance. Defendant Croff made inquiry as to who the persons were who had made the disturbance, and went to White Cloud, the county seat of Newaygo county, and in the absence of defendant Moote, and without his knowledge, laid the facts before the prosecuting attorney of the county, who, with a justice of the peace, looked after making the complaints and issuing the warrants. These warrants were placed in the hands of defendant Moote. He made inquiry as to where .defendants named therein lived; subsequently they were brought to White Cloud; an investigation was made by defendant Moote; some of the parties arrested pleaded guilty, others were convicted upon trial in justice’s court, and, after appeal, in the circuit court. Plaintiff was dismissed without trial. Croff’s testimony is relied upon as being contradictory of that of.defendant Moote. Croff testified:
“I told him there had been different ones coming there and kind of causing a little disturbance, and stated the case to him that I wanted to get the place cleaned up.
“Q. You didn’t mention any names, did you?
“A. No, sir.
“Q. All right; what did he tell you?
“A. Well, he told me to find out the names and come over there and swear the warrants out and he would look after it and take care of it.
“Q. He told you that he could not arrest anybody without a warrant?
“A. He said I would have to make a complaint in the case.
“Q. He told you you would have to come over to White Cloud and make complaint of the-parties that were disturbing the peace over there?
“A. Yes, sir.
“Q. You didn’t know who the parties were at that time, did you?
“A. No, sir.
“ Q. And he told you that unless you cleaned out that place over there that he would go before the town board and see that your license was revoked?
“A. Yes, sir.
. ‘£ Q. Or did he tell you that he would go before the court and ask for an order enjoining you from running that place?
“A. Well, I don’t know just how that would affect it. He told me he could close up the dance hall if I didn’t clean it up.
“The Court: Is that the substance of what he said, that he would close up the dance hall; is that in substance what he said?
“A. Well, he told me that he would close the dance hall up if I didn’t come over and swear out warrants for the ones that was making the trouble.
“Q. Well, did he tell you you would have to clean that up yourself or he would have” to do it?
“A. He told me that I would have to come over and enter complaints or he would close it up.
“Q. In other words, you would have to bring the parties to justice who were disturbing the peace over there, or he would close it up?
“A, Yes, sir.
“Q. You didn’t know who was disturbing the peace — you didn’t talk about any particular parties?
■ “A. No, sir.
“Q. You didn’t know who was disturbing the peace because you didn’t know the names?
“A. I didn’t know the names.
“Q. Now, from that time on you never talked with Mr. Moote about it until after the warrants were issued?
“A. He told me to come over to White Cloud.
“Q. No, no, after you talked with him the night of.the 19th of June, and he told you you.would have to clean up your place or he would do it, and you would have to get the names of the parties and come over to White Cloud and make a complaint, you did not have any talk with him until after these parties were arrested?
“A. No, I did not.”
There was no error in the order of the trial court directing a verdict as tó the defendant Moote, and judgment of the trial court is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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26
] |
Fead, C. J.
March 3, 1924, by written agreement, defendant A. J. Stuart Land Company employed Harold S. Baker and Frank Gr. Van Dyke, real estate brokers, to sell some 800 lots of a subdivision on a commission basis of 25 per cent, of the selling price, the brokers to make collections on land contracts and the commissions to be payable out of collections. Baker and Van Dyke formed plaintiff corporation, assigned the contract to it in payment for stock, sold $199,700 worth of the lots, collected $47,873.17 on land contracts, paid defendant over $18,000, and charged certain expenses to it. The land contracts were executed by defendant. Most of them carried down payments of 10 per cent, of the purchase price, and deferred payment of one per cent, per month. In January and February, 1925, plaintiff sold about $80,000 worth of the lots, on nearly all of which only the down payment of ten per cent, has been made. Some time later trouble arose between the parties and plaintiff finally ceased operations under the contract.
Claiming that it had been prevented from further performance of the contract by defendant’s refusal to make certain improvements in the subdivision which it had agreed to make, plaintiff brought suit on the common counts in assumpsit and on special count for loss of profits. Upon the close of proofs, the court directed a verdict for defendants A. J. and Mary Stuart, who composed defendant corporation, had transferred the subdivision property to it and later taken it back, rejected plaintiff’s claim for profits, and submitted to the jury only its right to commissions on sales already made, on the theory that plaintiff was entitled to recover for commissions then earned and due, if prevented by defendant from performance. Plaintiff had verdict for $21,745.06, $4,000 of which was later remitted. This verdict evidently allowed plaintiff full commissions on all sales made by it. Defendant alone brought error. This confines the questions here to those pertinent to the issue upon which the case was submitted to the jury.
Defendant contends plaintiff cannot recover because the contract was for personal services and not assignable. Baker and Van Dyke testified that when the contract was executed defendant understood they would form a corporation to perform it and afterward received checks from the corporation and otherwise dealt with it in connection with the contract. The court submitted the question of novation to' the jury with full instructions which are not challenged. The testimony was ample to carry the issue to the jury. There is also much merit in plaintiff’s contention that, as the issue finally submitted covered only money earned and due, the assignment was valid without novation. 5 C. J. p. 883; 2 R. C. L. p. 602.
Besides the sales made in January and February, 1925, other contracts are more or less delinquent. Some suits for rescission have been commenced. Defendant contends commissions were not earned except out of collections on land contracts, under the following clause:
“The said party of the first part agrees to pay the said parties of the second part,' as a compensation for selling the above lots, a commission of twenty-five per cent. (25%) of the selling price of each lot sold, according to terms and restrictions as determined by owner, and the said commission shall be payable, one-half of all the moneys received on each lot until the full amount of the said commission shall have been paid. In case of forfeiture of any contract for the sale of any lot, the said lots shall be immediately returned to the parties of the secr ond part for resale and such resale shall be construed as a new or original sale and subject to conditions covered in this contract for original sale, provided, if one-half of the sum received on any sale at the time of the forfeiture of any contract therefor shall be less than such twenty-five per cent. (25%) commission, then such one-half so received shall lie in full of such commission.”
We agree with the circuit judge that the effect of this clause was to limit commissions earned to a proportion of collections on contracts of sale. Ordinarily, if a broker acts in good faith, his commission is earned when the owner and the purchaser enter into a binding contract of sale. 9 C. J. p. 591. But this may be changed by the contract. The above. clause does not merely defer time of payment of commissions, it limits those earned to a proportion of collections. Hanley v. Porter, 238 Mich. 617; Boysen v. Frink, 80 Ark. 254 (96 S. W. 1056). Under such contract, the owner does not unequivocally accept the purchaser by execution of land contract, and, in order to recover on the basis of collections earned but not actually made, the broker has- the burden of showing that the purchasers were able and willing to perform their contracts and that failure to collect was due to defendant’s fault. Plaintiff made no such showing except as to a few contracts representing a small part of the verdict. Its claims as to those were disputed by the defendant and presented issues for the jury. They were not submitted in harmony with the above rules.
Judgment reversed and new trial ordered, with costs to defendant.
North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. Clark, J., did not sit. | [
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Fellows, J.
Section 1 of chapter 37 of Act No. 319, Pub. Acts 1927, entitled:
“An act to provide a system of public instruction and primary schools; to provide for the classification, organization, regulation and maintenance of schools and school districts; to prescribe their rights, powers, duties and privileges; to prescribe penalties for violations of the provisions of this act; and to repeal all acts inconsistent herewith,”
by its terms repeals Act No. 174, Pub. Acts 1915 (2 Comp. Laws 1915, § 5767 et seq.), commonly called “the teachers’ pension act.” Defendants are members .of the board created by the act of 1915, as amended,-to administer its provisions, and assumed to function after the act of 1927 became effective, claiming that the repealing act is unconstitutional. The attorney general filed this information in the nature of quo warranto to determine that question.
The record discloses that the fund to be administered by defendants now amounts to around $700,000. Some of this has come from the school districts from teachers’ salaries, some has come from bequests and donations, some from contributions by teachers to render them eligible to participation in the benefits of the act. What proportion has come from each source does not appear. Defendants, of course, must at some time and in some proceeding account for the fund under their control. This, however, is not the proper case to settle that question as it is only here sought to have determined whether they may function under the • act. If the provision repealing the act of 1915 is unconstitutional, they may continue to act; if not, judgment of ouster should be entered.
Briefly stated, it is contended on behalf of defendants, (1) that the relations between the State and the teachers are contractual and beyond the power of the legislature to impair; (2) that the title to the act of 1927 is not broad enough to permit the provision; and (3) that the repeal was due to a clerical error.
A careful examination of the opinion in Attorney General v. Connolly, 193 Mich. 499, together with the record and hriefs in that case, disclose that this court in sustaining the act of 1915 there committed itself to doctrines contrary to those now contended for in behalf of the teachers, and that it so committed itself upon the argument and insistence of those then representing the teachers. Indeed, it is very doubtful if this court had then accepted the views now advanced on behalf of the teachers that the act of 1915 could have been sustained. It was urged against the law that it deprived the teacher of his or her property without due process of law. This was replied to by the claim that the contributions exacted by section 6 of the act were not from the money of the teacher, but were appropriations of public money, and the court sustained this contention. It was urged against the act that, if it was public money, it could not be appropriated for a private purpose. This was combated by the claim that the purpose was a public purpose, a part of the general scheme of educational development to encourage persons to make teaching their life work for the benefit of the cause of education, and this court accepted such contention.
Now, if the contributions to the fund provided for by section 6 of the act are not contributions by the teachers of their money, but are appropriations of public money, and this court so held in the Connolly Case, it must be manifest that a contract has not been made between the State and the teacher, and the question of impairment of contracts must be deemed to be settled by that case. While we are doubtless committed by the Connolly Case, attention should be called to the recent case of People, ex rel. Donovan, v. Benefit Fund, 326 Ill. 579 (158 N. E. 220), and the valuable and exhaustive note following the report of the case in 54 A. L. R. beginning at page 943.
In so far as teachers have made payments from their individual funds to render them eligible to retirement, their right to an interest in the fund, if such right existed, may, as we have indicated, be taken care of in an accounting by defendants as trustees. It is apparent that it must be but an insignificant part of the fund of $700,000, which defendants are claiming the right to administer by virtue of the act of 1915, which they insist is still in force, and the exercise of which right is here involved and should be determined.
It is insisted that the act of 1927,' in so far as it repeals the act of 1915, offends the following provision found in section 21, article 5, of the Constitution :
“No law shall embrace more than one object, which shall be expressed in its title.”
Pew provisions of our Constitution are called tb our attention more frequently than is this provision, and our decisions dealing with it are numerous. Its purpose has been pointed out in many cases, to a few of which attention will be called. In Commerce-Guardian Trust & Savings Bank v. State of Michigan, 228 Mich. 316, it was held (quoting from the syllabus):
“The purpose of Art. 5, § 21, of the State Constitution, requiring that ‘no law shall embrace more than one object, which shall be expressed in its title,’ was, first, to prevent the bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and, second, to challenge the attention of those affected by the act to its provisions.”
In People v. Blumrich, 183 Mich. 133, it was held (again quoting from the syllabus):
11 That the title of an act is general, is not ground of -objection to it so long as the enactment does not cover legislation that is incongruous, or that cannot be construed to be connected with it, by fair intendment.”
And in Westgate v. Township of Adrian, 161 Mich. 333, the holding was-thus expressed in the syllabus:
“Any provisions germane to the' subject expressed in the title may properly be included in the act or added thereto by amendment, and it is sufficient if the title fairly expressed the subject or is sufficiently comprehensive to include the several provisions relating to or connected with that subject.”
Mr. Justice Steere, speaking for the court in Loomis v. Rogers, 197 Mich. 265, 271, said:
“A title is but a descriptive caption, directing attention to the subject-matter which follows. It is obvious that one reading the title would readily understand that the general object of the law was a measure for constructing and improving highways by some method not already fully provided, for which purpose money might be borrowed and taxes assessed and collected within certain limits, and that to ascertain the particulars of the method by which the object is to be accomplished, resort must naturally be fiad to the body of the act. ’ ’
A case which is seemingly quite in point is Connecticut Mut. Life Ins. Co. v. State Treasurer, 31 Mich. 6. The act there involved was entitled: “An act to establish an insurance bureau.” Under such title many provisions were found, including the one involved in the case then before the court providing for the collection of a specific tax. It was held that the provision assailed was within the title.
The most casual follower of legislative proceeding reading the title of the act of 1927 would at once conclude that it was intended to revise the school laws and consolidate the acts dealing with our educational department. The act is commonly called the school code. That the act of 1915 served a public purpose and was distinctly an aid to education is apparent from the language found in the majority opinion in the Connolly Case. It is obvious that under the title now before us it would have been competent for the legislature to have provided for and established a comprehensive scheme and system of teachers’ pensions, such as is found in the act of 1915. It must be equally manifest that if, under such a title, it could establish such a scheme or system, it could under such a title discontinue one. If the creation of such a system was germane to the title, its discontinuance was likewise germane to the title. ' The act of 1927 is not invalid for this reason.
It is further urged that it was a “clerical error” and “a mistake in identification” of the legislature in repealing Act No. 174 of the Public Acts of 1915, ?.nd attention has been called to authorities holding that, where the court is satisfied beyond a reasonable doubt from the face of the act or when read in connection with other acts in pari materia, a mistake has been made, the court may correct it. Attention is called to the fact that the legislature at the same session amended the act of 1915 (see Act No. 135, Pub. Acts 1927), and it is suggested that quite likely the legislature intended to repeal Act No. 152, Pub. Acts 1923. Cases may arise where the mistake of the legislature is so palpable a one as to require the court to act, but they will of necessity be cases which are beyond conjecture or speculation. To strike out of section 1 of chapter 37 of Act No. 319, Pub. Acts 1927, the provision repealing Act No. 174, Pub. Acts 1915, would at best be judicial legislation, which should not be indulged, even in a good cause. If this was a mistake, clerical or otherwise, the legislature, which will soon be in session, can correct it. We must decline so to do.
Defendants will be ousted from discharging duties under Act No. 174, Pub. Acts 1915, but the rights of parties to the funds under their control are not hereby adjudicated. As the question is of public importance, no costs will be awarded.
North, C. J., and Fead, Wiest, Clark, and Sharpe, JJ., concurred. McDonald and Potter, JJ., did not sit. | [
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Fead, C. J.
Defendant was convicted of carrying two pistols concealed in an automobile, contrary to the provisions of Act No. 372, Pub. Acts 1927. The weapons were found on search of his car by officers. By objections to admission of testimony on the preliminary examination before the magistrate, by mo tion in the circuit court to dismiss the cause for the reason that there had been no competent testimony produced at the examination to justify his being held for trial, and by motion to suppress the evidence so obtained by the officer, he properly challenged the validity of the search. This presents the only question in the case.
The testimony taken at the examination constituted the whole showing on the motion to suppress. The determination of the motions to dismiss and to suppress rests upon such showing. Testimony later taken on the trial, amplifying the circumstances of the search, cannot be considered.
Only one witness, the undersheriff, was sworn on the examination. He testified that it had been reported to the officers that a Chrysler car without license plates had been left in a farmyard. He went there about midnight, observed that the car had no license plates, thought it might have been stolen, found it locked, pried the window open, searched, and found two pistols in a small compartment under the floor board. He stated that the car was not in a highway but was in a farmyard. The defendant was not present. The officer returned the next day and found defendant working on his car. At that time defendant told him he had had trouble with it and had hired the farmer to draw it into the yard. The officer did not give the source of his original information nor identify his informant. The record did not indicate that he made any inquiry of the owner of the premises before searching. The reason for the search was thus stated by the officer:
“Well, the fact that the' car had no license plates and the car was left down there in a man’s yard within a mile of a garage where it could be parked. Where it was it would have been a very easy matter to come along and strip the car and all these facts led us to believe it was a stolen car, and we have a number of cards showing Chryslers stolen and what we really thought at that time was that it was a stolen car and that was our reason for searching it. To get some identification who the car belonged to.”
Except where special restrictions are imposed by statute, the test of the legality of a search, without a warrant, is whether it is reasonable. People v. Case, 220 Mich. 379 (27 A. L. R. 686). In applying the test to modern conditions, this court has held that an officer, charged with enforcement of the law, may search an automobile on the highway or in a public place when, from the exercise of his own senses or acting upon information received from sources apparently reliable, a prudent and careful person, having due regard for the rights of others, would be induced to the honest belief that a felony was being committed in such automobile. People v. Kamhout, 227 Mich. 172. Anonymous information does not meet the test. People v. Guertins, 224 Mich. 8.
It is only á misdemeanor to drive an automobile without license plates on a highway. It is not a violation of law to so have it on private premises. Before proceeding to the farm, ..the officer had no information of the commission of a felony which would justify a search. At most, what was told him merely raised a suspicion that the car might have been stolen and indicated a situation which warranted investigation. His legitimate investigation disclosed no evidence of crime, nor was it of such character as would raise his suspicion to the dignity of honest belief in a prudent person, induced by reasonable and reliable information. He made no inquiry of the owner of the premises to ascertain the circumstances under which the car was left or the identity of its owner. By lifting the hood of the car he conld have obtained the engine number and would have discovered that it was not on his list of stolen cars. With these means of reliable information ready at 'hand, and unused, he had no more solid ground than general suspicion to justify search of the interior of the car. It was not sufficient.
The judgment is reversed, and, as without the evidence obtained by illegal search the defendant was not properly put on trial, he is discharged.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
This is a suit in equity to reform two land contracts and have foreclosure. Defendants Rubin held a land contract for the purchase of a. lot and a half in a subdivision in Wayne county, and defendants Kaplan held a similar contract for the purchase of the adjoining lot and half lot. They desired to erect on each lot and a half a four-family apartment house, and arranged with plaintiff to furnish materials, and agreed that, when the buildings were erected and they received deeds, they would mortgage each parcel for not more than $15,000, and then each deed to plaintiff, subject to mortgage, and take back land contracts calling for payment of the amount due plaintiff for materials. The materials were furnished, the apartment buildings erected, deeds obtained, mortgages on each parcel given for $15,000, and deeds then executed and delivered by the Rubins (who had acquired the Kaplan interest), subject to the mortgages, and two land contracts were given by plaintiff to the Rubins, each calling for payment to plaintiff of $5,000 in one year with interest at the rate of 7 per cent, per annum. There was due plaintiff $10,000 for materials. The deeds to plaintiff were intended,to secure payment for materials furnished. The two apartment buildings were worth between $60,000 and $70,000 at the time they were deeded to plaintiff and the land contracts given the Rubins, leaving a margin, above the two mortgages and plaintiff’s security, of about $20,000. The land contracts given the Rubins each provided that upon the payment of $5,000, with interest and taxes, plaintiff would execute and deliver to Peter and Annie Rubin, or to their assigns, good and sufficient conveyances in fee simple, “of said described lands, free and clear of and from all liens and incumbrances, except such as may have accrued thereon subsequent to the date hereof, by or through the acts or negligence of said party of the second part or their assigns.”
Plaintiff had just received deeds from the Rubins stating each of the premises was subject to a $15,000 mortgage, but assumed no obligation to pay the same and it is inconceivable that the land contracts, intended to secure plaintiff’s $10,000 for materials, should be drawn to require plaintiff, upon payment of the $10,000, to at once pay $30,000 to satisfy the mortgages and thereby suffer a loss of $20,000 in order to give deeds in accord with the contracts as written. The written agreement, under which the materials were furnished, the deeds from the Rubins to plaintiff, and every circumstance establish the fact of a mutual mistake in the land contracts.
But at this point defendant Kanagur comes forward and seeks to stay reformation of the contracts under the claim that he purchased from the Rubins their land contract interests for a valuable con sideration, relying in good faith upon the verity thereof, without knowledge of any mistake therein and without suspicion of the rights of plaintiff. Mr. Eubin was evidently not aware of the mistake in the land contracts, for, at the expiration of the year, he was unable to páy plaintiff and asked for an extension of time, which plaintiff was willing to grant, but before reduced to form he met Kanagur and Kanagur shrewdly saw the mistake and hoped to profit thereby. We are not at all impressed that Mr. Kanagur, in good faith, purchased without knowledge or suspicion of the true rights of plaintiff. We think he knew that the premises were covered by mortgages amounting to $30,000, and was aware that the contracts, as they read, not only wiped out plaintiff’s claim but as well saddled upon plaintiff a liability of $20,000.
Defendant Kanagur is a realtor, with years of experience, and claims he purchased from the Eubins, without an abstract or examination of the records, and paid $30,000 in cash for the apartment properties, obtained the money from his safety deposit box, where he had kept it for five years, and it was money given his wife by her mother. Kanagur had but slight acquaintance with Mr. Eubin. It would take a strong faith in Mr. Kanagur to accept his version, and it appears the circuit judge had no such faith. Kanagur’s acts and efforts, right after he succeeded to the Eubins’ rights, in setting up right to pay plaintiff $10,000 and have deeds under which plaintiff would havé to satisfy mortgages amounting to $30,000, show shrewdness rather than a disclosure of good faith. Kanagur was not such a simpleton, nor so uninquisitive about the state of the title as he- would have us believe. He thought he saw a chance, if he could make it appear that he was within the protection accorded purchasers in good faith, to make plaintiff lose $20,000, and such loss would be his gain. He overlooked, the power of equity to correct mutual mistakes by reformation of contracts.
Kanagur has had possession of the apartment houses, collected the rents, and has not paid the taxes, nor any interest upon the land contracts or the mortgages of $30,000. Plaintiff, to protect its interest, has paid the taxes, interest, and some of the principal on the first mortgages, in all to the amount of $8,235.92.
The decree in the circuit court found there was due plaintiff, on the land contracts and interest and taxes paid, together with payments on the mortgages, the sum of $20,635.44. The decree reformed the contracts, making them call for deeds warranting the title against the acts of plaintiff only. The decree also granted foreclosure of the land contracts if the sum found due was not paid within 30 days, and, after the 30 days, if the sum found due was not paid, then plaintiff was to have possession of the premises with right to collect the rents and profits, apply the same against the indebtedness due it, and defendant Kanagur was required to deliver up possession. The decree also provided for sale by a commissioner, and found defendant Kanagur personally liable for the amount due and for deficiency, if any, upon sale.
The court had no power to dispossess Kanagur and to place plaintiff in possession pending foreclosure. The rights of plaintiff are no greater than those of a. mortgagee, and, upon foreclosure, the court may not, pending sale and the statutory period of redemption, dispossess a mortgagor and place the mortgagee in' full possession. This part of the decree is reversed.
In the assignment of the land contracts by the Rubins to Kanagnr he assumed the obligations of the contracts, and this required payment of $10,000' to plaintiff, with interest, and the payment of taxes. The assumption by Kanagnr of such liability cannot be extended to hold him for sums paid by plaintiff upon the mortgages. This part of the decree is also reversed.
With the modifications mentioned, the decree is affirmed, with costs to plaintiff.
Fead, C. J., and North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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North, J.
This suit was brought March 12, 1927, in justice’s court on the following note:
“March 6, 1920.
“On demand after date, I promise to pay to the Thomas Farm Bureau Local, the sum of one hundred dollars ($100). For value received, without interest. Payable at the office of the organization.
“Charles Rugenstein.
“Limit of liability of this note $100.”
The foregoing note bore the general indorsement of the payee. The statute of limitations was pleaded. On appeal to the circuit court a verdict in favor of the defendant was directed. The plaintiff reviews the judgment entered by case-made.
The defendant and others in the vicinity of the village of Thomas, Michigan, organized the Thomas Farm Bureau Local for the purpose of operating an elevator and buying and selling produce. Incident to the organization, each member signed -a. demand note similar in form and amount to that above quoted. These notes were placed in the possession of the secretary and treasurer of the association on the 6th of March, 1920, tó be used as collateral in borrowing money to carry on the business of the association at any time it should be in need of funds. The notes of the defendant and two other members were delivered to the plaintiff as collateral to secure a loan obtained from him by the association on April 3, 1923. The association’s note was not paid, and the plaintiff sought satisfaction of the obligation through the collateral notes. The two other notes given as collateral were paid, but the defendant refused to pay on the ground that the statute of limitations had run before suit was instituted (March 12, 1927). This claim was resisted on the theory that nothing was due on the note until it was deposited as collateral on April 3, 1923. If plaintiff’s contention in this regard is well founded, the statute of limitations had not run when suit was brought.
The Michigan statute provides:
“All actions in any of the courts of this State shall be commenced within six years next after the cause of action shall accrue and not afterwards, except as hereinafter specified.” * * * 3 Comp. Laws 1915, § 12323.
The controlling question is: When did a cause of action accrue on the defendant’s note? This note is payable on demand. The general rule is that suit may be brought on a demand note immediately after delivery, and therefore the statute of limitations begins to run from the day of delivery. Palmer v. Palmer, 36 Mich. 487 (24 Am. Rep. 605); In re King’s Estate, 94 Mich. 411, 425; 2 Daniel on Negotiable Instruments (6th Ed.), § 1215, and many cases cited. But the note herein involved was given to the payee as an accommodation note only. So long as it remained in the hands of the payee it was without consideration, it could have been withdrawn or canceled by the maker, and no cause of action accrued thereon. Runciman v. Brown, 223 Mich. 298. It may be shown by parol evidence that a promissory note, unconditional in terms, was conditionally delivered and was not to become a binding obligation until the happening of a certain event. Central Savings Bank v. O’Connor, 132 Mich. 578 (102 Am. St. Rep. 433). This does not violate the rule against varying instruments by oral testimony. It is merely showing that the contract has not come into actual being or that it did not become a contract in praesenti until the happening of the event. 3 E. C. L. p. 862. Accommodation paper has no validity until it is discounted, or until it passes for value to the hands of a third party. Second Nat. Bank of St. Paul v. Howe, 40 Minn. 390 (42 N. W. 200, 12 Am. St. Rep. 744), cited in Runciman v. Brown, supra; 1 Daniel on Negotiable Instruments (6th Ed.), § 191. No cause of action accrued on the note here in suit until it was delivered as collateral incident to the loan made by the plaintiff. The only fair inference to be drawn from the record is that such delivery occurred April 3, 1923. The statute of limitations began to run against this note on the day of its delivery to the plaintiff and not before, notwithstanding it bore a prior date. Webber v. Webber, 146 Mich. 31. Suit was brought within six years after the delivery, and hence before the right of action was barred by the statute. Eelative to delivery of a negotiable instrument, see the provisions of the uniform negotiable instruments act (2 Comp. Laws 1915, § 6057). '
The judgment of the lower court is set aside and a new trial ordered. The appellant will have costs of this court.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. ' | [
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Fellows, J.
The plaintiff is a common carrier of merchandise. He owns several trucks and vans which are used to transport such merchandise on the highways. He desired indemnity insurance which would reimburse him for amounts he might be required to pay shippers for losses occurring in transporting such goods. He did not seek and did not receive a fire insurance policy. He received an indemnity policy, referred to in the record as a “floater” and as “transportation and marine.” It indemnified him for losses he was required to pay on goods destroyed in transit while being carried on one of his trucks. This policy was issued through-Osborn & Lange, general agents of defendant at Chicago, and was signed by Charles G. Olds, State agent and attorney at Detroit. It was procured for plaintiff by the Schwahn-Khuen agency at Saginaw. Some of the provisions of the policy become important. It was issued to plaintiff:
“On lawful goods and merchandise the property of others for which the assured may be legally liable while in the custody of the assured but only while contained in or on the following specified motor truck or trucks, while in ordinary course of transit.
Trade Name: G. M. C.
Year built: 1922.
Factory Motor Number: Motor No. 14965.
Tonnage: 3%.
Limit of insurance: $3,000.00.
Rate: 2 per cent. ’ ’
The transfer and assignment of the insurance was only permitted with the written consent of the company, as appears by the following language:
“And it is also agreed that no assignment, | or transfer hereof shall, in any. case, relieve the insured of'the property hereby insured from any or all of the conditions expressed in this policy, and that this policy shall be void in case of its being assigned or transferred without the written consent of this company indorsed thereon. ’ ’
As to the relation of the broker to the parties, it was agreed:
“It is a condition of this policy that any broker, person, firm or corporation who shall procure this insurance to be taken by this company, shall be deemed to’be exclusively the agent of the insured in any and all notices, transactions and representations relating to this insurance or connected with or arising out of the same during its continuance. ’ ’
Plaintiff claims that after their policy had been issued and delivered to him, he called up the office of the Schwahn-Khuen agency, and being unable to get either partner, requested the girl who answered the ’phone to transfer the insurance from the Gf. M. C. truck' to a Union truck, which she agreed to do, and that afterwards Mr. Schwahn informed him it had been done. The Union truck was the one destroyed with its load. Mr. Schwahn, who was called for cross-examination under the statute, denies this conversation. Upon the subject of the authority of the agency, he testified (and he is the only witness who testified on the subject):
“Q. Well, when a transfer was to be made, how was that done? . .
“A, We would write in for it.
“Q. To the Glens Falls Insurance Company for their consent?
“A. Yes, sir.
“The Court: It was not the custom to transfer ' from one truck to another without getting the company’s indorsement?
“A. No, sir.
“The Court: You had no authority to do that yourself ?
“A. No, sir. We would send it to the general agent at Chicago. Then it would come back to Detroit and. the agent there would sign it to make it legal and it would come back to Detroit for the State agent, he is both State agent and attorney to countersign it. I acted as a broker for Henne & Company. And doing that I was acting differently then on the issuing of insurance on a house. In one case I issue the policy to them and in the latter case I am broker for the assured and acting as agent for the assured.' And at that time I did everything I could for Mr. Henne to effect the insurance he wanted me to get for him. I acted for him in this matter as his broker.
“The Court: Did you have a certificate from the Glens Falls Insurance Company giving you the authority to represent them?
“A. Just fire insurance. We had no authority in this kind of insurance.
“Q. You were not their agent for this kind of insurance?
“A. No, sir.
“Q. And the policy provides itself, you are the agent for the assured in this kind of an insurance?
“A. Yes, sir.”
The certificate • of authority issued by defendant to the agency gave the agency and only gave the agency:
# * * “full power and authority to receive proposals for insurance against loss or damage by fire, lightning and tornado in Saginaw, aforesaid and vicinity to fix and determine rates of premium, to receive and receipt for moneys, to countersign, issue, renew, consent to the transfer change by indorsement in writing and to cancel policies of insurance signed by the president and secretary of said company, subject always to the rules and regulations of said company and to such instructions as may be given from time to time by its officers or authorized representatives. This appointment to continue during the pleasure of said company.”
The Schwahn-Khuen agency had the usual license issued by the insurance commissioner on request of defendant.
My Brother construes section 6, chap. 3, pt. 2, Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100[92]) to inhibit one from acting as insurance broker in Michigan. The section cited does not expressly prohibit the conduct of a brokerage business, and section 13 of the same chapter (§9100 [99]) expressly authorizes the licensing of brokerage business in unauthorized companies. But whether such construction is the proper construction of this section is unimportant. If the Schwahn-Khuen agency violated the statute when it acted as broker for plaintiff, and I do not desire to be understood as so holding, that fact would not render defendant liable on a contract of insurance it never entered into, upon another truck than the one named in the policy which it actually issued. If the agency acted as broker for plaintiff in procuring the insurance, and the only testimony in the case is to that effect, it is manifest that it could not by its acts bind the defendant company which was not its principal. Bonewell v. Insurance Co., 167 Mich. 274 (Ann. Cas. 1913A, 847); Leach v. Insurance Co., 239 Mich. 10.
Let us lay aside the question of rights of the parties if the agency acted as a broker, and consider the rights of the parties if the agency acted as local agent for the company, and in no way acted for or represented the insured. Let us see what the legal rights are if the agency was agent for the company and not broker for the plaintiff. Let us accept plaintiff’s premises and see if his conclusions are right. Plaintiff claims that he requested the girl in the agency’s office to transfer the policy from the G. M. C. truck to the Union truck and that Mr. Schwahn afterwards told him this had been done. The policy, which was the contract between the parties, as appears by the provision I have quoted, required that such transfer could not be made without the written consent of the company indorsed on the policy, and provided unless it was so done, the transfer should be void. It is admitted the transfer was not so made. So that unless a local agent, who solicits insurance, writes and issues policies, collects and remits premiums, with the authority usually incident to a local agency, may bind jffie company by waiving such important provisions of the contract, such transfer in the language of the policy “shall be void.” That a local agent, who is authorized to solicit insurance, sign and issue policies, collect and receipt for premiums, has not the authority to waive the express provisions of the policy, has long been the settled holding of this court. Barry & Finan Lumber Co. v. Insurance Co., 136 Mich. 42; Fisk v. Insurance Co., 198 Mich. 270; Gambino v. Insurance Co., 232 Mich. 561, (on rehearing) 234 Mich. 651; Serbinoff v. Insurance Co., 242 Mich. 394. If some of the language used in Coverdill v. Insurance Co., 243 Mich. 395, is to be construed as going as far as plaintiff’s counsel insists, it must be regarded not only as out of1 accord with these cases but also to be in conflict with the following language from section 1, chap. 3, pt. 2, Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, §9100 [87]):
“A solicitor is hereby defined as any person acting under express authority from an agent, having authority to appoint solicitors, to solicit insurance for such agent, but without the power or authority to issue or countersign policies or otherwise bind any company of which such agent may be the duly authorised representative.”
It cannot be claimed on this record that the defendant company in any way held the agency out as possessing authority to change or modify its policies or to waive any of their provisions. Nor is the company estopped from asserting that its policy issued on a G. M. C. truck did not cover a Union truck. In Ruddock v. Insurance Co., 209 Mich. 638, 654, in holding that a contract of insurance contrary- to the express terms of the policy could not be created by estoppel, it was said:
“To apply the doctrine of estoppel and waiver here would make this contract of insurance cover a loss it never covered by its terms, to create a liability not created by the contract and never assumed by the defendant under the terms of the policy. In other words; by invoking the doctrine of estoppel and waiver it is sought to bring into existence a contract not made by the parties, to create a liability contrary to the express provisions of the contract the parties did make.”
The judgment is affirmed.
North, C. J., and Fead, Wiest, and Sharpe, JJ., concurred with Fellows, J. | [
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] |
North, J.
The plaintiff herein seeks the rescission of a transaction whereby she purchased the rights of the defendants, Mr. and Mrs. Jennings, the vendors in a land contract covering a house and lot in Alma, Michigan. The transaction was consummated through the defendants Washburn and Parker, who were cashier and assistant cashier respectively of the defendant bank. The vendees in the land contract were a Mr. and Mrs. Stearns. The plaintiff does not claim actual fraudulent misrepresentations were made to her incident to the transaction ; but it is claimed by her that she had been a customer of the bank for years, that she sought a safe investment through Mr. Washburn, and because thereof a confidential fiduciary relation arose, and notwithstanding the fiduciary relation the defendant Washburn neglected and failed to fully advise the plaintiff of all the facts involved in the transaction, and by reason thereof the plaintiff was deceived and defrauded. The plaintiff asserts that this “was a breach of trust on the part of said Carl H. Wash-burn and committed with the full knowledge and consent of said Frank O. Parker.” More than 16 months after the bill was filed Mr. and Mrs. Jennings were made parties defendant on the theory that Parker had acted as their agent. Prior to this amendment the plaintiff had proceeded on the theory that Parker had purchased the contract interest of Mr. and Mrs. Jennings and had sold it to the plaintiff through the agency of Washburn. The proof failed as to this latter claim. It is stated in appellant’s brief the bank was made a party defendant in order that whatever interest it had in the transaction itself or in the real estate involved might be protected. The relief sought is a cancellation of the deed and of the assignment of the contract to the plaintiff and an accounting by the defendants. In. the circuit court a decree dismissing the bill of complaint was entered, and the plaintiff has appealed.
Mr. and Mrs. Jennings were planning to move away from Alma and desired to dispose of their interest in the property covered by the contract. This equity amounted to $1,500. They took the matter up with Mr. Parker and informed him they would accept $1,300 for their interest. He testified that he thought his mother, who was then out of town, might purchase this contract. He told Mr. and Mrs. Jennings “he could see his way clear to handle it and make a little money off of it.” About this time the plaintiff informed Mr. Washburn that she had some money which she would like to loan. On August 7, 1920, Mr. and Mrs. Jennings signed a deed to the premises in question and also made an assignment of their interest as vendors in the land contract. They left these papers with the defendant Parker. The deed was executed in blank as to the grantee and the assignment was also blank as to the assignee. At this time Mr. Parker advanced to Mr. and Mrs. Jennings $600. Mr. Washburn had some talk with the plaintiff about this opportunity to invest her money, telling her she could buy the contract interest of Mr. and Mrs. Jennings for $1,400, that‘a bonus of $100 would bring the rate of interest up to substantially 9 per cent. Plaintiff decided to make the investment and paid the $1,400 asked. One hundred dollars was divided as commission between Washburn and Parker, the balance, after deducting the $600 previously advanced, was paid to Mr. and Mrs. Jennings. Thereupon, on' August 18, 1920, the plaintiff’s name was written in the deed as the grantee and in the assignment as the assignee. The deed was witnessed and acknowledged by the grantors. Mr. Washburn caused the deed to be recorded for the plaintiff and thereafter retained at the bank her papers relating to this transaction. Monthly payments of $40 were made on the contract at the bank until June 27, 1921. Mr., Stearns, one of the contract purchasers, died February 13, 1921; and Mrs. Stearns, not being able to keep up the monthly payments, vacated the premises in September, 1921, and in the following month, at the request of Mr. Washburn, she signed in blank an assignment of her interest as vendee in the land contract. The bank at this time held two mortgages aggregating $1,500 against this property. In the deed from Mr. and Mrs. Jennings the plaintiff assumed and agreed to pay these mortgages. The plaintiff claims she did not know that she purchased the land or that she was obligating herself to pay the mortgages thereon, and that the purchase of the contract was not such an investment as she had told Mr. Washburn she desired; and she asserts that as soon as she became advised of the facts, November 20,1923, she served on the defendants Washburn and Parker a notice of her determination to rescind the transaction as fraudulent and void.
A careful consideration of the record satisfies us that the alleged fiduciary relation between the plaintiff and Mr. Washburn has not been established. In ■this particular the case is much like Armstrong v. Rachow, 205 Mich. 168. There being no fiduciary relation, it follows that the plaintiff cannot be granted relief on the theory of a constructive fraud. Nor does the proof establish an actual fraud or deceit in consequence of which the plaintiff is entitled to relief. Her own testimony discloses that she was informed by Mr. Washburn and she understood she was purchasing a vendor’s interest in a $1,500 land contract for $1,400, and that the property was subject to two mortgages which were prior to the contract. The circuit judge was clearly justified by the proofs in his findings wherein he stated:
“She admits that she knew prior to the time of the payment of the money to the bank that there were two mortgages upon the premises in question amounting to $1,500; * * * and it seems that no challenge as to the validity of said transaction was ever made by said plaintiff until after the time of the default in the payments by the Stearns upon said contract, -and when the so-called boom- in the city of Alma had commenced to recede. * * *
“She was a lady of considerable business experience, and by her own efforts and business acumen had accumulated nearly $10,000; she had accumulated these moneys from loans on doubtful securities, securing bonuses and high rates of interest; she did not seek the advice of the defendant Wash-burn as to the character of the investment, and she admits that upon the occasion in question the matter had been gone over thoroughly between them, and he had figured to her that her investment in this contract with the discount of $100 would yield to her about 9 per cent.; she never made any claim that she ha,d been defrauded by anyone until the default came and the property was receding in value; she informed the defendant Washburn, that she knew the Cheeseman property (the property in question). * # #
“Even according to her own claim she later learned that she had a deed of said premises; that she used the moneys which were deposited to her credit, arising from the payments upon said contract; that she paid the interest upon said mortgages thereafter; that she paid the taxes upon said premises thereafter; that she paid the insurance upon said premises thereafter, said house being insured for the sum of $2,500 and during all of which time she never made any claim of having been defrauded by . said defendants in the premises. She was not unsophisticated in business affairs, she must have known that she was the owner of the title to said premises when she paid the taxes thereon and paid the insurance thereon in February, 1923; she must have known that she had a deed to said premises subject to the mortgages when she paid the interest thereon in December, 1922. And she continued in such attitude and conduct until November 23, 1923, one. year after she had learned that she had a deed of said premises and was the owner of said property, at which time, in November, 1923, she withdrew all of the papers from said bank and took them to her attorney, and thereafter, gave notice of the rescission of said transaction because of the fraud of said defendants. * * * The transaction appears to the court to have been fair; the plaintiff was seeking a security producing a high rate of interest, which she received; the value of the property was ample, and during the time of the carrying out of the terms and provisions of the land contract there was no necessity for complaint, and no complaint was made until a considerable time later,' when plaintiff became aware of the fact that said premises were not worth what they were at the time of the purchase of the contract in question.”
It would serve no good purpose to review the record in more detail or to further discuss the contentions of the plaintiff. We have given them consideration and are satisfied that they1 are without merit. Neither actual nor constructive fraud has been established as to the defendants Washburn or Parker; and without such proof the case must fail as to the other defendants who are made parties only on the theory hereinbefore indicated.
The decree dismissing the bill of complaint is affirmed, with costs to the appellees.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
Morris Janower filed a bill of complaint to restrain F. M. Sibley Lumber Company, a Michigan corporation, from foreclosing’ by advertisement a mortgage given to it by him on premises, an apartment house, to which he had title. The mortgagee filed answer and cross-bill for foreclosure. Plaintiff’s bill was dismissed. Decree of foreclosure was granted May 27, 1927, and the—
“decree provided, in substance, that the plaintiff, Morris, Janower, was indebted to F. M. Sibley Lumber Company in the sum of $48,461 upon the mortgage set forth in the cross-bill of complaint of F. M. Sibley Lumber Company, and upon which F. M. Sibley Lumber Company had prayed foreclosure; and the decree further provided that unless said sum was paid on or before twenty days from the date of the decree that the premises should be sold at public auction at any time after October 27, 1927, and that any of the parties to the suit might become the purchaser, and that the proceeds of such sale be used to pay the claim of F. M. Sibley Lumber Company, and that said sale should be subject to the first mortgage of the Federal Bond & Mortgage Company.
“The decree further provided that unless the plaintiff redeemed within six months after such sale, the plaintiff be foreclosed of any right or equity of redemption in and to the said premises; and further provided that after the expiration of six months from said sale, the purchaser at said sale should be let into possession thereto. * * *
“Pursuant to the terms of this decree, the premises were sold by the circuit court commissioner on January 17,1928, for the sum of $52,394.25 to F. M. Sibley Lumber Company, being the full sum of principal, interest, and costs found due by the decree. Attached to the report of sale was a receipt signed by Ralph E. Routier, attorney for F, M. Sibley Lumber Company, receipting in full for tbe amount due under the decree, and the recapitulation shows that the sale produced sufficient moneys to pay F. M. Sibley Lumber Company’s claim in full. * * *
“The report of sale was filed on January 20,1928, and on the same day an order confirming the sale was entered by Judge Marschner, and no objections were filed to the confirmation of the sale.”
On February 15,1928, the purchaser at such mortgage sale, F. M. Sibley Lumber Company, filed in the cause a petition for the appointment of a receiver, to have rents and profits and to prevent waste, meaning, to make necessary repairs and to pay taxes, alleging taxes due and unpaid and sale of the premises therefor imminent, and alleging that the premises were not clean and were out of repair. A receiver was appointed, and the order is here on appeal of Irvin Cohn, trustee in bankruptcy of Morris Janower.
The record shows no different condition of the premises as to cleanliness and lack of repair from what had existed when petitioner purchased at the foreclosure sale. It shows no other tax or tax liens on the property than those attached at the time petitioner became such purchaser.
The rule of caveat emptor applies with full force to this judicial sale. The petitioner, purchaser, took (35 C. J. p. 75) “subject to defects, liens, and incumbrances of which he has notice or of which he could obtain knowledge under his duty to inform himself. ’ ’ It purchased subject to the very tax liens of which it complains, and the premises in the condition of which it complains, and it bid the full amount due. There can be no decree for deficiency. This court has held that foreclosure of mortgage is not a matter of general equitable cognizance, but a statu tory proceeding (Union Trust Co. v. Detroit Trust Co., 243 Mich. 451). Whether in any case of mortgage foreclosure a receiver may be appointed to prevent waste after sale at the instance of the purchaser, it is not necessary to discuss, for we find in fact here no showing of waste of which the purchaser has any right to complain, and no case made for appointment of receiver. See 26 A. L. R. 33, note, where the authorities relative to right of mortgagee to receiver in case of waste and in other cases are very fully reviewed. The right of a mortgagor to the rents and profits of the mortgaged premises until such time as his title is divested by perfected foreclosure is fully discussed in Wagar v. Stone, 36 Mich. 364; Hazeltine v. Granger, 44 Mich. 503; and Lowrie & Robinson Lumber Co. v. Rubin, ante, 224.
Order set aside, with costs to- appellant.
North, O. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Potter,, J.
July 16, 1926, plaintiffs filed a bill in chancery, in the circuit court for Wayne county, to restrain defendants from enforcing against them the so-called “jitney ordinance” of the city of Detroit, No. 56-B. On the same day, an order to show cause and temporary restraining order was issued which provided that defendants desist and refrain from enforcing or attempting to enforce the alleged ordinance of the city of Detroit known as the “jitney ordinance” or any section thereof, or from interfering with or molesting in any manner, whether in the use of their loading stations or otherwise, any of the members of the plaintiff, in conducting and operating their business as jitney drivers upon the streets and avenues of the city of Detroit. Subsequently an independent proceeding was instituted by petition, and an order was issued July 29, 1926, directed to defendants in the chancery proceeding, to show cause why they should not be punished for contempt for their wilful and continued violations of the restraining order before issued. This order to show cause also provided defendants be restrained from in any way or manner interfering with the loading and unloading of passengers to and from plaintiffs’ jitneys in the manner in which passengers had been loaded and unloaded in the business, and from towing or impounding any of said jitney cars, and from issuing to said passengers and the drivers and owners of jitneys, any of the so-called tickets of the “violation bureau” so-called, for violation of said ordinance; and on July 30,1926, a sim ilar order was issued. Owing to the sickness of Judge Dingeman, who issued the temporary restraining order and the orders to show cause why defendants should not be punished for contempt for violation of the temporary restraining order, or other cause or causes, no action was taken by either plaintiffs or defendants upon said orders to show causé until Januáry, 1928, when a motion was made to dismiss plaintiffs’ bill of complaint as amended and dissolve the restraining orders made by Judge Dingeman on the 29th and 30th days of July, 1926. This motion to dismiss and dissolve came on to be heard before Judge Clyde I. Webster. An order was entered by him, January 31, 1928, reciting:
“It is ordered that defendants’ motion to dismiss plaintiffs’ bill of complaint as amended, and defendants’ motion to dissolve certain restraining orders signed, filed and entered by the Honorable Harry J. Dingeman, circuit judge, on' the 29th and 30th day of July, 1926, together with all other motions in that respect, be and the same are hereby denied.”
By the same order Judge Webster provided that:
* * * “defendants herein having failed to show cause why a temporary injunction should not issue as prayed in plaintiffs ’ bill of complaint as amended, it is ordered that a temporary writ of injunction issue forthwith out of and under the seal of this honorable- court, directed to the defendants and each of them, their certain attorneys, agents, servants and all persons acting under their direction, therein and thereby restraining them and each of them from in any way or manner enforcing a certain ordinance of the city of Detroit, known as 56-B. * * * or any section thereof, or interfering with, hindering or stopping jitney, service on any of the streets or boulevards of the city of Detroit.”
Subsequently an order to show cause was issued by Judge Merriam requiring defendants to show cause why they should not be punished for contempt for violating the temporary restraining orders issued by Judge Dingeman on July 29 and July 30, 1926. Upon the hearing of this contempt proceeding, Judge Merriam held that plaintiffs were not entitled to relief, and that the temporary injunction by Judge Webster, January 31, 1928, after hearing all parties, superseded the ex parte restraining orders issued by Judge Dingeman and in effect prior to the issuance of the injunction.
This proceeding is brought for mandamus to require Judge Merriam to set aside, vacate, and hold for naught his order of August 13, 1928, quashing the contempt proceedings, and requiring him to proceed to a hearing and taking of testimony as to the matters set forth in the petition quashing said pro- ■ ceedings and that the restraining orders of July 29, 1926, and July 30, 1926, made by Judge Dingeman, be ordered to be in full force and effect pending the determination of these mandamus proceedings.
This presents the only important question in the case. If these temporary restraining orders are in full force and effect, then plaintiffs are entitled to proceed in the contempt proceeding. If such temporary restraining orders were superseded by the order of Judge Webster of January 31, 1928, plaintiffs are not entitled to so proceed.
The original orders to show cause were in the nature of substitutes for motions to advance the hearing for a temporary injunction. They were granted by Judge Dingeman, ex parte. Defendants had no notice or opportunity to be heard prior to their issuance. Such temporary restraining orders continued in full force and effect until cause was shown by the defendants against whom they were directed why they should be dissolved. The defendants treated such temporary restraining orders as in full force and effect, and subsequently made a motion before Judge Webster to dismiss plaintiffs’ bill of complaint and dissolve such temporary restraining orders. Judge Webster refused to dismiss plaintiffs’ bill of complaint and denied the defendants’ application to dissolve the temporary restraining orders; but he did not stop there — had he done so, undoubtedly plaintiffs would have been correct in their position before Judge Merriam — but Judge Webster proceeded to grant a new and substitute temporary injunction by his order of January 31, 1928, the terms of which are specifically mentioned and set forth therein. What was the effect of Judge Webster’s order denying defendants’ motion to dissolve the temporary restraining orders granted by Judge Dingeman? The order of Judge Webster, though it denied defendants’ motion to dissolve such temporary restraining orders, did not, by its terms, purport to continue such temporary • restraining orders in full force and effect. It left such temporary restraining orders to the performance of their usual and ordinary function, to restrain defendants from the performance- of certain conduct until after a hearing and disposition of the motion to dissolve. 32 C. J. p. 27; 14 R. C. L. p. 306. When the motion to dissolve such temporary restraining orders was heard and disposed of by Judge Webster, his order above referred to was substituted in the place and stead of the temporary restraining orders whose force and effect ceased by the issuance of the order of Judge Webster granting a temporary injunction and setting forth the terms and conditions thereof. If defendants thereafter were guilty of conduct wbicb, had they continued in force, would have violated tbe terms of sucb temporary restraining orders, they must be punished, if at all, for a violation, not of sucb temporary restraining orders, but of tbe new and substitute order of Judge Webster temporarily enjoining tbe defendants from doing those things. Jurisdiction to punish defendants must be based upon Judge Webster’s order and not upon tbe temporary restraining orders wbicb were superseded thereby. Judge Merriam held tbe temporary injunction of Judge Webster superseded tbe ex parte temporary restraining orders issued by Judge Dingeman and in force prior to tbe issuance of sucb temporary injunction by bis order of January 31, 1928, and in this we think be was correct.
Application denied, with costs.
North, C. J., and Feajd, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Clark, J.
Plaintiffs Roland C. Baxter and Iva Thompson Morse' are son and daughter of defendant Alfred E. Baxter, by his first wife. Hattie M. Baxter, the other defendant, is the second wife. The first Mrs. Baxter died having record title to a piece of land. Although defendant Alfred E. Baxter contended that the equitable title, by virtue of certain lost and unrecorded deeds, was held by the husband and wife as tenants by the entireties, and that upon her death he survived, equitably, to the whole title, he was advised, to perfect record title, to procure a deed from the children^ plaintiffs, which he did on January 12,1927. This bill is to set aside such deed on the ground of fraud. The son came to an understanding with the father and dropped out of this case a few days after the bill was filed. The daughter prosecuted the matter to hearing and had decree, from which defendants have appealed.
Plaintiff, the daughter, testified that she signed a “paper” to help the father out, to save him money; that she did not know it to be a quitclaim deed; that she did not look at the paper; that.her sight was good, and that if she had looked at it she probably would have known what it was. However, she made in testimony the significant and contradictory statement that her father first approached her “with reference to a quitclaim deed in December, 1926.” She was the only witness in her bebalf. The defendants gave consistent and convincing testimony- to the effect that no fraud was practiced toward the daughter. Such plaintiff has not sustained the burden of proof upon her with respect to her allegations of fraud.
Reversed and bill dismissed. Costs to defendants.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fead, C. J.
This is appeal from a decree enjoining defendants from constructing a railroad grade on certain premises without first purchasing plaintiffs’ interests therein or acquiring them in accordance. with the statutes governing exercise of the right of eminent domain. It involves a phase of the Woodward avenue condemnation proceedings, other aspects of which are reported in Fitzsimons & Galvin v. Rogers, 243 Mich. 649, in which several of the questions here raised were determined.
Under Act No. 340, Pub. Acts 1927, the State has contracted to acquire a new right of way for the Detroit, Grand Haven & Milwaukee Railway Company in exchange for the present right of way to be taken for highway purposes. The new right of way runs through Bloomfield Estates subdivision in Oakland county. By general plan, adopted by the com mon owner in 1915, and evidenced by recorded instrument under seal, tbe subdivision is restricted exclusively to residences of stated minimum cost, with setback and other requirements. In pursuance of condemnation statutes, the State has purchased several of the lots from the original owner and is proceeding to take others from individual owners for such right of way. Except as to one lot, the conveyances on purchase are made subject to the restrictive covenants. Plaintiffs own lots in the subdivision, located 66 feet or more from the right of way, none of which is being taken by the State. It is conceded that the use to be made of the lots purchased and condemned by the State will constitute a violation of the building restrictions applicable to all the lots.
Parties interested in other subdivisions traversed by the new right of way have intervened and filed briefs. The instruments and conditions affecting their interests are not before us and we pass upon them only in so far as they may fit into the situation here set out.
The principal question is whether, because of the proposed violation of the restrictions, the State must pay compensation to the owners of other lots in the subdivision, whose land is not actually and physically taken, under our Constitution, art. 13, § 1, which prohibits the taking of private property for public use without just compensation therefor.
In Allen v. City of Detroit, 167 Mich. 464 (36 L. R. A. [N. S.] 890), the city purchased a lot in a subdivision restricted to residences and undertook to build a fire hall thereon. This court held that the city could not erect a building which would be in violation of the restrictions, without release from other lot owners or condemnation of their inter ests. Speaking for the court, Mr. Justice Steere said:
“Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest. * * *
“The contention that the city under its genera] police power may ignore this building restriction, and erect its fire engine house within the restricted district because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power, and becomes an act of eminent domain governed by the appropriate condemnation laws. Police power is regulative and restrictive only, limiting and dictating the owner’s use of property for public safety, but never extends to depriving him of it for public benefit.”
This opinion has been cited with approval by this and other courts many times, and has been regarded as announcing settled law of the State. Defendants, however, urge that the opinion is not in harmony with authority and principle, and should be overruled. Because of the importance of the question, we will re-examine it.
There are not many cases in point. Defendants have cited and rely upon United States v. Certain Lands, 112 Fed. 622, and Doan v. Railway Co., 92 Ohio St. 461 (112 N. E. 505), which deny compensation to owners whose lands are not physically taken but are covered by common restrictions applying also to lands condemned.
In United States v. Certain Lands, supra, the deeds contained restrictions prohibiting the use of the property for certain specified industrial purposes, for the liquor traffic, and for ‘ ‘ other noxious, dangerous, or offensive trade or business.” The government condemned some of the land for coast defense fortification. The district court held that owners of other lands subject to the common restrictions were not entitled to compensation because:
“I think this case might well be put upon the ground that the right acquired by the government does not appear to be in any substantial particular inconsistent with the provisions of this condition, or destructive thereof, and that for this reason there is no taking of the claimants’ property in this particular. ’ ’
The court recognized that:
“Were we dealing with a condition of a different character, such as a building restriction appurtenant to the claimants’ estates, whereby their value was greatly enhanced through the fact that light and air could not be cut off, or perhaps a fine prospect destroyed, a different question would be presented.”
The court entered upon a discussion of public policy in connection with restrictions, and observed :
“The more reasonable view would seem to be that, if a number of summer residents choose to locate their houses upon those points of land which command the approaches by sea, they take the risk that such natural points for defense will at some time be occupied by the government; and, while they may be entitled to such increased values as result from the expectation that private persons will not carry on offensive occupations on the tract, they are not entitled to the value of a belief or expectation that the government will not apply these natural points of defense to the public use. "While the owners may so contract as to control private business, and thereby increase the values of their estates, they are not entitled so to contract as to control the action of the government, or to increase the values of their lands by any expectation or belief that the government will not carry on public works in their vicinity, or that in case it does, it will compensate them for the loss due to, the defeat of their expectation that it would not. * * * Each landowner holds his es-' tate subject to the public necessity for the exercise of the right of eminent domain for public purposes. He cannot evade this by any agreement with his neighbor, nor can his neighbor' acquire a right from a private individual which imposes a new burden upon the public in the exercise of the right of eminent domain.”
The case was reviewed by the circuit court of appeals in Wharton v. United States, 153 Fed. 876, and was disposed of upon the ground that:
“The purpose of the United States in acquiring the property does not appear to be in any substantial- particular inconsistent with the conditions of the deeds or destructive thereof.”
The court passed by the discussion of the district court upon the subject of public policy with the comment that the general outlook of conditions is in that direction, and also suggested that building restrictions are probably not true easements or hereditaments.
In Doan v. Railway Co., supra, the property was restricted to residence purposes. Defendants purchased some of the lots and proceeded to construct a four-track embankment 25 feet high on them. The gist of the decision was:
“If such restriction is not to be construed as preventing the use of the property for public purposes, then of course there is no violation on the part of the defendant, and it follows that no recovery can he had. If, on the other hand, it is to he construed as prohibiting the use of the property for any purpose other than that of residences, it would prevent a public use of the lots and thereby defeat the right of eminent domain. No covenant in a deed restricting the real estate conveyed to certain uses and preventing other uses can operate to prevent the State, or any body politic or corporate having the authority to exercise the right' of eminent domain, from devoting such property to a public use. The right of eminent domain rests upon public necessity, and a contract or covenant or plan of allotment which attempts to prevent the exercise of that right is clearly against public policy and is therefore illegal and void. Plaintiff’s right to compensation, if it exists, must be based upon the restrictive covenant in the deeds and the general plan adopted. To give to plaintiff this right we would be compelled to recognize a right existing under what we hold to be an' invalid restriction.”
We cannot approve the application made in these cases of the doctrine of public policy. The usual conveyance or contract affecting real estate contemplates its use by persons to the exclusion of all other persons and the public. In the right of use lies its value. The reasoning pursued, by reading the exclusive purpose out of the instrument as illegal, would read into it an exception of public use. In direct point, it would enable the State to destroy a common-law negative easement of light, air, and prospect without compensation. By analogy, it would deny payment for the destruction of an easement of way, an unexpired rental term, increased values due to attractive leases or uses, and, if pursued to its conclusion, injury to the residue of a freehold when part is taken. All the authorities agree that these interests are compensable.
Especially as applied to residence restrictions is the syllogism unacceptable. Restrictions for residence purposes, if clearly established by proper instruments, are favored by definite public policy. The courts have long and vigorously enforced them by specific mandate. This court has expressly recognized that the right of privacy for homes is a valuable right. Signaigo v. Begun, 234 Mich. 246. Of late, the executive and legislative branches of the government have declared the necessity for such restrictions through the enactment of zoning laws, an important purpose of which is to preserve to the home, home advantages, privacy, and atmosphere. The United States department of commerce has prepared a standard State zoning enabling act. The act has been adopted in whole or in part by 25 States; 18 others have enacted enabling laws; a total of 43 States have authorized cities to zone. In December, 1926, there were 456 zoned cities, with a population of about 30,000,000 people, — more than half the urban residents of the country. Baker on Legal Aspects .of Zoning, 39. Michigan has an enabling act, Act No. 207, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 3480 [3] et seq.), and some 20 cities, with a population of over half a million, have adopted zoning ordinances. In the construction of contracts whose purpose has such definite approval of the State, the reading of illegality into them in aid of the power of eminent domain would not be justifiable.
Nor is there anything in our laws, system of government, or the spirit of our institutions which curtails the genius of a citizen in creating or enhancing values in his property in any lawful way, by physical improvement, psychological inducement, con tract, or otherwise. His obligation to recognize the power of eminent domain and the possibility of its exercise in nowise restricts his right to legitimate profit. He may view the power in its constitutional entirety, with its comitant requisite of just compensation, and order his affairs within the law with assurance that if the State takes his property, it will pay him the value of what it takes, of whatever that value may consist, so it is measured by the market. Anything less is confiscation.
The position of this court in Allen v. City of Detroit, supra, is supported by Hayes v. Railroad Co., 51 N. J. Eq. 345 (27 Atl. 648), involving the building of a railroad embankment contrary to restrictions, which, however, permitted a railroad on the level of the street; Flynn v. Railway Co., 218 N. Y. 140 (112 N. E. 913, Ann. Cas. 1918B, 588), covering the construction of a railroad track; partly on an embankment and partly in an open cut, in a district restricted exclusively to residences; Peters v. Buckner, 288 Mo. 618 (232 S. W. 1024, 17 A. L. R. 543), where land, restricted to residence purposes, was taken for a schoolhouse; and Ladd v. City of Boston, 151 Mass. 585 (24 N. E. 858, 21 Am. St. Rep. 481), in which the court held that setback restrictions constituted an easement of light, air, and prospect, and found plaintiff entitled to damages for destruction of such easement by the erection of a court house, although no part of his land was actually taken. The basis of these decisions was that the owner of each lot in a restricted district has an interest in each other lot and the taking of such other lot for public use is a taking of his interest therein, for which he is entitled to compensation under the Constitution.
There can be no doubt that, if plaintiffs have property interests in the lots purchased or con demned by the State, the use of such lots for purposes, in violation of the restrictions would work destruction of those interests and be' a taking of property in the constitutional sense. So the basic question in the case is whether plaintiffs have such interest.
In England, building restrictions are apparently regarded as contractual and are enforced in chancery upon the principle that it would be inequitable to permit violation of mutual covenants. Catt v. Tourle, 4 Ch. App. Cas. 654. But see Long Eaton Recreation Grounds Co. v. Railway Co., 49 L. R. (K. B.) 574, in which the court held that destruction of the restriction injuriously affects the land to which it is attached and gives right to damages under the lands clauses act; and opinion of Mathew, L. J., in which he designated the restriction a negative easement.
New Jersey has approved the contractual view, DeGray v. Club House Co., 50 N. J. Eq. 329 (24 Atl. 388), and, to the contrary, has held that the restriction “is a right of amenity in the land * * * in the nature of an easement or servitude appurtenant to the remaining land,” for the destruction of which for public use, compensation must be made.' Hayes v. Railroad Co., supra; Herr v. Board of Education, 82 N. J. Law, 610 (83 Atl. 173); Lamonte v. Orlando, 97 N. J. Eq. 425 (129 Atl. 442).
Rhode Island holds the instrument creating restrictions a grant in fee to each owner of a negative easement in all the other lands, capable of enforcement both in equity and at law. Greene v. Creighton, 7 R. I. 1.
Missouri has also identified the interest as an easement. Peters v. Buckner, supra.
In Riverbank Improvement Co. v. Chadwick, 228 Mass. 242 (117 N. E. 244, L. R. A. 1918B, 55), after reviewing earlier cases, the court said:
“It is a necessary corollary of these decisions defining the nature of equitable restrictions that they are real estate. They are part and parcel of the land to which they are attached and with which they pass by conveyance.”
Other courts have designated the right created by building restrictions as a negative easement, reciprocal negative easement, property right, equitable interest in the nature of, or analogous to, an easement or negative easement, and otherwise. "Whatever the name, all American authorities we have been able to discover, which have attempted definite statement of the effect of building restrictions adopted in furtherance of a general plan, hold that they constitute equitable interests or property rights in each lot for the benefit of and appurtenant to each other lot covered by the same restrictions, at least when the instrument creating them evidences the purpose that they shall run with tlie land and not he purely personal. The following citations are indicative of the jurisdictions which have so held; hut are not exhaustive of the cases therein: Webb v. Robbins, 77 Ala. 176; Strong v. Hancock, 201 Cal. 530 (258 Pac. 60); Baker v. Lunde, 96 Conn. 530 (114 Atl. 673); Clem v. Valentine (Md.), 141 Atl. 710; Tinker v. Forbes, 136 Ill. 221 (26 N. E. 503); Clark v. McGee, 159 Ill. 518 (42 N. E. 965); Chapin v. Dougherty, 165 Ill. App. 426; Whitney v. Railway Co., 11 Gray (Mass.), 359 (71 Am. Dec. 715); Riverbank Improvement Co. v. Chadwick, 228 Mass. 242 (117 N. E. 244, L. R. A. 1918B, 55); Bolin v. Investment Co., 273 Mo. 257 (200 S. W. 1059, L. R. A. 1918C, 869); Trustees of Columbia College v. Lynch, 70 N. Y. 440 (26 Am. Rep. 615); Raynor v. Lyon, 46 Hun (N. Y.), 227 (11 N. Y. St. Rep. 500); Hart v. Little, 171 N. Y. Supp. 6; Ludgate v. Somerville, 121 Or. 643 (256 Pac. 1043, 54 A. L. R. 837); Muzzarelli v. Hulshizer, 163 Pa. 643 (30 Atl. 291); Fuller v. Arms, 45 Vt. 400; Hennen v. Deveny, 7l W. Va. 629 (77 S. E. 142, L. R. A. 1917A, 524). See, also, Gale on Easements (10th. Ed.), 30; 4 Thompson on Real Property, 524-526; 37 L. R. A. (N. S.) 36, and note; 21 A. L. R. 1324; Boyden v. Roberts, 131 Wis. 659 (111 N. W. 701); Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461 (43 N. W. 469, 6 L. R. A. 111); Simpson v. Mikkelsen, 196 Ill. 575 (63 N. E. 1036); Fisher v. Beard, 32 Iowa, 346.
As further indication of their character, the courts are in harmony that building restrictions unknown to the purchaser constitute breach of covenant against incumbrances. 4 Thompson on Real Property, 617; Manpin on Marketable Title to Beal Estate, 301; 15 C. J. p. 1277; Williams v. Hewitt, 57 Wash. 62 (106 Pac. 496). And in Sprague v. Kimball, 213 Mass. 380 (100 N. E. 622, 45 L. R. A. [N. S.] 962, Ann. Cas. 1914A, 431), it was held that a building restriction is within a statute of frauds requiring conveyance of equitable as well as of legal interests in land to be evidenced by written instruments.
There will also be found running through some of the cases the thread of a distinction between the contractual nature of the covenant and its effect as a conveyance of an equitable interest in real estate. This distinction chiefly concerns the right of action at law for damages' or breach of covenant.
The position of this court on the effect of a building restriction, originally taken before -the subdivision at bar was platted, has been uniform. Misch v. Lehman, 178 Mich. 225; McQuade v. Wilcox, 215 Mich. 302 (16 A. L. R. 997); Harley v. Zack, 217 Mich. 549; Signaigo v. Begun, 234 Mich. 246.
In Sanborn v. McLean, 233 Mich. 227, Mr. Justice Wiest denoted its characteristics:
“It runs with the land sold by virtue of express fastening and abides with the land retained until loosened by expiration .of its period of service or by events working its destruction. It is not personal to owners but operative upon use of the land by any owner having actual or constructive notice thereof. It is an easement passing its benefits and carrying its obligations to all purchasers of land subject to its affirmative or negative mandates. It originates for mutual benefit and exists with vigor sufficient to work its ends.” .
It is doubtless true that building restrictions did not constitute easements known to the common law. The house of lords, however, has stated that the category of easements must expand with the circumstances of mankind. Gale on Easements, 20. A restriction of the' use of premises' exclusively for residences, especially if with setback requirements, is not foreign to the principle of common-law negative easement of air, light, and view. As 'the right to restrict the use of real estate is an invasion of ownership, it would seem logical that it is done by virtue of a right or interest in such real estate. Holding it an easement is no more than a fair expansion of the category of easements. However, a right in the nature of an easement need not have been known to the common law as an easement in order to carry compensation for its destruction. The so-called easement of light, air, and access in property abutting on a public street is not a common-law easement, but its impairment by public use in the street is a taking of property. In re Forty-Second Street Spur of the Manhattan R. Co., 216 N. Y. Supp. 2. See, also, Ranson v. City of Sault Ste. Marie, 143 Mich. 661 (15 L. R. A. [N. S.] 49).
No good cause ’ appears for overruling Allen v. City of Detroit, supra. The rule there announced is a settled property law of the State, is supported by the weight of authority, and is founded upon principles approved by the practically unanimous judicial opinion of the country. If there is danger that the rule may have the untoward consequences upon future public improvements prophesied by counsel, judicious legislation can both guard against evils and maintain the just rights of property owners.
The rules for admeasurement of compensation foi destruction of restrictive covenants in property ' taken for public use appear to have been considered in only two States.
In New Jersey the rule seems to be that the measure of compensation is the value of the servitude without regard to the effect of its destruction on other lots. Apparently only nominal damages are recoverable unless the servitude decreases the value of the land physically taken, in which case the decrease would measure the value of all outstanding easements. Herr v. Board of Education, supra; Hayes v. Railroad Co., supra.
In Flynn v. Railway Co., supra, the New York court said:
“These restrictive covenants create a property right and make direct and compensational the damages which otherwise would be consequential and non-compensational. * * * The right of the property owner is measured by the depreciation in value which his land sustains, including such depreciation as will be sustained by reason of the use to which the railroad puts its property, the difference in value between his land with and without the railroad in operation.”
This disagreement induces further general inquiry into the subject.
While the condemnation proceedings at bar are conducted by the State under the highway law (Act No. 352, Pub. Acts 1925; Act No. 340, Pub. Acts 1927), in Fitzsimons & Galvin v. Rogers, supra, Mr. Justice North pointed out that:
“In the present case, as in an ordinary proceeding for condemning a right of way for a railroad, it will be the duty of the commissioners ‘to compensate the owner for what his landed interest will suffer from the use proposed to be made of it by the railroad company.’ Barnes v. Railway Co., 65 Mich. 251.”
It is the rule that where the whole of land is taken, the compensation to be made is the fair value of the land. Where only part of a parcel is taken, just compensation is not measured by proportionate acreage but by the amount to which the value of the property from which it is taken is diminished. Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393. The value of the part actually taken is allowed as direct compensation; but the decreased value of the residue of the parcel, on account of the use made of the land taken, is ■ also allowable as compensation even though it is strictly consequential damage in nature. Sharpe v. United States, 191 U. S. 341 (24 Sup. Ct. 114); 2 Nichols on Eminent Domain (2d Ed.), §236.
The effect of the application of these rules is that the diminution in value of plaintiffs’ premises, as a result of the destruction of the restrictions, would be the measure of compensation because restrictive covenants constitute an interest in the land taken, part of and appurtenant to such premises. See South Buffalo R. Co. v. Kirkover, 176 N. Y. 301 (68 N. E. 366).
In Newman v. Railway Co., 118 N. Y. 618 (23 N. E. 187, 7 L. R. A. 289), where so-called easements of access, light, and air were impaired by the construction of an elevated railway in the public street, no part of plaintiffs’ premises having been actually taken, the court said:
“The easement is the property taken by the railroad company. But in estimating its value it is impossible to consider it as a piece of property, separate and distinct from the land to which it is appurtenant, and the right of the owner to compensation is measured, not by the value of the easement in the street separate from his abutting property, but by the damages which the abutting property sustains as a result or consequence of the loss of the easement.”
In Bohm v. Railway Co., 129 N. Y. 576 (29 N. E. 802, 14 L. R. A. 344), the court stated the obvious in remarking that easements have no value of themselves and the real and only damage is consequential, the effect produced on land to which they are appurtenant.
This is also the rule for destruction of common-law easements, the analogy of which to the interests at bar is clear.
In United States v. Welch, 217 U. S. 333 (30 Sup. Ct. 527, 28 L. R. A. [N. S.] 385, 19 Ann. Cas. 680), the government permanently flooded a three-acre strip contiguous to other land of plaintiffs. The latter had a right of way over other lands of different ownership to a county road. The flooding of the strip destroyed access to the right of way. The court held them entitled to compensation, not only for the three acres flooded, hut also for the diminished value of their other land caused by the destruction of their use of the right of way, saying.:
“A private right of. way is an easement and is land. We perceive no reason why it should not be held to be acquired by the United States as incident to the fee for which it admits that it must pay. But if it were only destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end. Miller v. Horton, 152 Mass. 540, 547 (26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850). The same' reasoning that allows a recovery for the taking of land by permanent occupation allows it for a right of way taken in the same manner, and the value of the easement cannot be ascertained without reference to the dominant estate to which it was attached.”
Under the highway act, benefits are considered in determining the amount of compensation. Under the railroad act, they are not. This distinction is of importance only where real estate is physically taken. In determining plaintiffs’ compensation, the benefits to their property, if any, arising from the construction and operation of the railroad, are proper to be considered, not upon the theory that benefits may be deducted from damages, but in ascertaining how much, if any, plaintiffs’ property has been actually reduced in value. Newman v. Railway Co., supra; Page v. Railway Co., 70 Ill. 324.
The claim of counsel for defendants that the destruction of the easements at bar is by virtue of police power and not under the power of eminent domain is answered by Allen v. City of Detroit, supra. Their contention that there is a difference in the character and effect of the power of eminent domain when exercised by the State than when used by municipality-is not tenable. It is the same attribute of sovereignty, whatever the agency through which it is exercised. The authorities to the effect that a change of grade in a highway, when author-v ized by the legislature, or in a railroad, is not a taking of property of abutting owners, within the meaning of the Constitution, as damages to such property therefrom are purely consequential, are not applicable. Plaintiffs are not merely abutting owners. Their right to damages rests ’ upon the physical-taking, by destruction, of their negative easements in land actually taken and the injury to other land is compensable only because such easements are appurtenant to and part of such other land. Defendant railway company’s argument that the restrictions at bar are not subsisting because taking of land for railroad purposes changes the character of the neighborhood is sufficiently met-by the suggestion that the change cannot so occur until after plaintiffs’ property has been taken. The other contentions of defendants have been fully covered or are specifically answered by the above authorities.
It is therefore held that owners of property in a subdivision in which, under a general plan, the property is restricted to specified uses, and in which the restrictions are valid, subsisting, and enforceable against the lands in the hands of private owners, are entitled to compensation upon the taking of any part of such subdivision for public use in violation of such restrictions; that, aside from nominal damages for destruction of the easement, the compensation is measured by the actual diminution in value of the premises of such owner as a result of the use to which the property taken is put; and that, in de termining such diminution, the effect, by way of benefit as well as by way of injury, of such use is to be taken into account.
Since the above was written, attention has been called to Town of Stamford v. Vuono (Conn.), 143 Atl. 245, recently decided. The restrictions were to residence purposes. The proceedings were condemnation for a high school. The court refused to follow United States v. Certain Lands and Doan v. Railway Co., supra, and, in discussing the contention that restrictions are against public policy so far as they prohibit public buildings upon restricted property, said:
“The argument in support of this contention is that no contractual agreement between the owners of property should be permitted to prevent the use of that property by an agency of the State when its use is required in the exercise of a governmental function, that to require the State to make compensation for the right taken would interfere with this governmental function, and therefore should not be permitted. The fallacy of the argument lies in the assumption of its minor premise that the requirement that the State compensate the owner of the dominant tenement for the taking of his. interest in the servient tenement actually interferes with the exercise of any governmental function. There is, of course, a clear distinction between the rights of the private owner of land which is subject to a restrictive easement and those of a governmental agency which requires for public purposes the use of the land in violation of the restriction. The private owner may not violate the restriction; if he attempts to do so, he may be restrained by injunction. The governmental agency may not be restrained from making such use of the property as the public purpose for which it is acquired may require, but, if that involves the taking of private property, it must make compensation for the same. When, therefore, property subject to a restrictive easement is taken for a public use, it has been held that the owner of the property for whose benefit the restriction is imposed is entitled to compensation.”
The court further declared:
“Such restrictions are in the nature of an easement constituting an interest in the land upon which they are imposed.”
And, in holding defendant entitled to compensation for the taking of her equitable easements, stated the rule of damages:
“The just compensation to which the property owner is entitled when his land is taken is ordinarily measured by the market value of the land taken. When an easement appurtenant to land is taken, the measure of damages is the depreciation in the market value of the dominant tenement. Neff v. Railroad Co., 202 Pa. 371 (51 Atl. 1038). This is shown by the difference in the fair market value of the property before and after the taking.”
The conclusions of the circuit court upon the law are affirmed. We also agree with its view that the remedy should restrain violation of the restrictions until the plaintiffs have released them or condemnation proceedings have proceeded to the point where they are assured of compensation. We think, however, that this may be done without the necessity of requiring the State to negotiate for releases, both because it is obvious such negotiations would be futile and because specific performance of building-restrictions by injunction is not a matter of absolute legal right, but is governed by equitable considerations. Baxter v. Ogooshevitz, 205 Mich. 249. The condemnation proceedings now pending afford plain tiffs ample opportunity for full compensation for injury to their property on account of destruction of their restrictions. An important and desirable public improvement is being delayed with inconvenience to the public and great cost to defendants.
Section 4, Act No. 92, Pub. Acts 1927, provides for determination by the State highway commissioner of the damages which should be paid as compensation for the talcing of each parcel of property. This determination with payment, tender, or deposit of the award for the benefit of the owner is the basis for the State’s talcing possession. Subsequent proceedings for final appraisal of compensation by commissioners appointed by a court follow in due course. The determination by the State highway commissioner will so establish the condemnation proceedings as to insure plaintiffs and all others similarly situated an opportunity to obtain adequate' compensation. The decree will be modified to restrain destruction of plaintiffs’ restrictive easements until the State highway commissioner has made such determination and payment, tender, or deposit. The statutory notice of the proceedings for such determination should be served on .all persons interested in the subdivision as provided by statute, and any others claiming interests will have an opportunity to intervene in the proceedings at any proper stage for the protection of their rights.
The decree will be modified- in accordance with this opinion, without costs.
North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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"Wiest, J.
Under an information charging defendant, in one count with bribery and in another count (involving the same instance and circumstances) with attempt to bribe, he was convicted, by verdict of a jury, of an attempt to bribe. Review is by writ of error.
The information charged that defendant acted in concert with others named therein. Defendant was tried separately. It is said that one other, so named in the information, pleaded guilty to bribery, and another, upon trial, was convicted of bribery. Inasmuch as it was claimed by the prosecution that all persons named in the information were acting in concert, we are urged by counsel for defendant to hold that he should have been convicted, if at all, of bribery, and, under the evidence, it was error to submit both counts to the jury. The prosecution was wise in laying the charge in two counts, for there was evidence tending to show bribery consummated, and also an abortive attempt to bribe.
Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner, 300 Ill. 264 (133 N. E. 375). But the rule is not general, and does not prevail in this.jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense.’ People v. Miller, 96 Mich. 119; People v. Blanchard, 136 Mich. 146. Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.
In People v. Hoover, 243 Mich. 534, defendant was convicted of an assault, and it was urged “that, under the proofs, defendant was either guilty of taking indecent liberties (the charge) or not guilty of any offense.” We made answer: “This argument has been made before, but not with success;” citing People v. Martin, 208 Mich. 109; People v. Garner, 211 Mich. 44.
Defendant testified that there was no attempt to bribe Oscar B. Frye, and no bribery committed. Oscar B. Frye testified that no bribe was offered him, and no attempt was made to bribe him so far as he knew. Testimony in behalf of the prosecution tended to show a concerted action by defendant and others to bribe Oscar B. Frye and of bribery consummated.
The prosecuting attorney claims that, under an information charging bribery consummated, there may be a conviction of bribery attempted. That question is not presented by this record, and we express no opinion thereon. An information may charge the crime of consummated bribery in one count and attempt to bribe in another, and if some of the evidence at the trial shows bribery consummated, and other evidence shows an attempt to bribe only, an accused may be convicted of either offense as the jury may find.
At the close of proof in behalf of the prosecution, counsel then representing defendant moved the court to dismiss the count for bribery, and, at the close of all the proofs, requested the court to instruct the jury that there was no bribery shown, and to limit consideration to the issue of attempt to bribe. The court refused the motion and the request. It is now claimed that, under the evidence, defendant was guilty, if at all, of bribery. The jury found defendant guilty of an attempt to bribe, and by such verdict disclosed elimination of the charge of bribery and consideration of the case exactly within the limit contended by counsel for defendant at the trial. There is no merit in the point urged.
In cross-examining witnesses called by the defense, the prosecutor had the aid and advantage of a transcript of their testimony given in a proceeding for discovery of the crimes here charged. Counsel for defendant claimed the right to also have the aid thereof in redireet-examination of such witnesses. The court ruled that counsel could not have the transcript until it was proved by the stenographer who took the testimony. The stenographer was the last witness called by the prosecution in rebuttal, and the transcript was then of no use to counsel for defendant, except in argument to the jury. Of course, the transcript could not be introduced in evidence until proven by the stenographer, but the use thereof, in reading therefrom and incorporating extracts in questions to witnesses, was just as deadly as though then introduced. The ruling of the court, however, finds support in People v. Salsbury, 134 Mich. 537, 574; People v. Prevost, 219 Mich. 233; People v. Butler, 221 Mich. 626, and we cannot hold there was reversible error in following the opinions of this court. Were the question an open one, the writer of this opinion would have more to say on the subject. ■ •
It is claimed that the trial judge did not, in defining the crime of attempt to bribe, state as an essential element thereof the failure to consummate bribery. Counsel urge the technical definition of an attempt to bribe, and it must be conceded that it would have been well to have specifically informed the jury that an attempt to bribe means bribery not consummated but, we think, the trial judge covered the point in laying before the jury the count chárg-' ing the attempt to bribe and in the following instruction :
“If you do not convict him of the main charge but you are satisfied from the evidence in this case and beyond a reasonable doubt that at the time and place alleged, the respondent, Archie W. Baxter, did then and there corruptly attempt to commit the offense of bribing Oscar B. Frye, and did then and there do any act towards the commission of such offense of bribery, but failed to actually commit the crime of bribery, then he is guilty of the attempt to bribe, and if you so find you should convict him of attempt to bribe, and if you fail to so find, then you should acquit him.”
It would seem that any juror instinctively knows, without solemn instruction, that an attempt to bribe carries the meaning that bribery was attempted and not consummated. While bribery is an attempt consummated, and an attempt to bribe is bribery not consummated, any ordinary mind ought to grasp the fact that an attempt only negatives consummation of the attempt.
Errors assigned upon rulings admitting and excluding evidence have been examined and found not to have been such as to control the result or to have occasioned a miscarriage of justice, and only two call for special mention.
The contradiction or impeachment of witness Frye on a collateral matter should not have been permitted, but was not reversible error.
It is claimed that statements made by others charged as having conspired with defendant to commit the crimes alleged were inadmissible, because the information did not charge conspiracy and some of such statements were made after the scheme, if it ever was contemplated, was abandoned. Defendant was not charged with conspiracy to commit the crimes, but with crimes committed in carrying out the common purpose of himself and others acting in concert and as coconspirators. It was not necessary, in the information, to charge the crime of conspiracy to commit the crimes, but was sufficient in charging the crimes of bribery and attempt to bribe to aver that defendant, acting in concert with others named, in the accomplishment of a common purpose, committed the crimes charged. The question of whether statements made by alleged coconspirators, and not in the presence of defendant, were made during the activities toward the end sought, or after abandonment of the purpose, was left to the jury with the following instruction:
‘ ‘ The defendant is not here on trial for conspiracy, but after a prima facie showing of such conspiracy or confederating together for an unlawful purpose has been shown, the acts or statements of any one of the parties thereto is admissible against any of the others, provided such acts or statements are in furtherance of the unlawful purpose and after it was commenced and before it was finished. But to entitle you to consider the acts and statements of any such person other than the defendant, where it was not done or said in his presence or with his knowledge, you must be satisfied with the evidence, beyond a reasonable doubt, that such conspiracy existed and that the defendant was a party thereto and the acts and statement's of others not in the presence or with the knowledge of the defendant, to be considered by you as bearing on the guilt of the defendant, must have been done or spoken in furtherance of the purpose of the conspiracy and after it was formed and before it was ended.
“If you fail to find the fact of such conspiracy and the defendant’s connection therewith beyond a reasonable doubt, then the acts and declarations of other persons alleged to have been engaged with the defendant in such conspiracy, which were not done or said in his presence or with his knowledge, cannot be used against him to establish his guilt or to bind him. ’ ’
No reversible error. Affirmed.
Fead, C. J., and North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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Potter, J.
Plaintiff and defendant are brothers-in-law and were partners in the bakery business. They lost substantial sums of money. A bill was filed for dissolution of the partnership, accounting, and a receiver. Defendant objected to the appointment of a receiver, and alleged he was willing to give a bond conditioned upon the payment to plaintiff of any sum which might be found due to plaintiff on a final hearing of the case, and asked that he be permitted to continue the business without appointment of a receiver. He objected to the appointing of a receiver on the trial, and, through his attorney, alleged he was willing to pay over whatever the accounting showed belonged to plaintiff. He testified to the same thing upon the stand. The dispute arises over the assets of the partnership. Both plaintiff’s audit and defendant’s audit admit the total liabilities of the partnership were $19,347.14. Plaintiff claims the total assets are $25,942.11. Defendant claims the total assets are $21,036.47. Upon plaintiff’s claim, the difference between the total assets and liabilities is $6,594.97. Plaintiff loaned to the partnership $1,462.55, which, added to one-half of the total net assets would make the amount due plaintiff $4,760.03. On defendant’s basis, the total net worth of the partnership is $1,689.33, and plaintiff’s loan of $1,462.55 added to $844.67, one-half this amount, would be $2,307.22. The principal item in dispute is the reserve for depreciation in defendant’s exhibit. There was no proof of actual depreciation or the approximate amount to be set up for reserve. Such reserve for depreciation was set up by the auditor, who testifies he arrived at the depreciation by using the standard rate used in auditing. Building improvement 10%, driveway 10%, horses and wagons 20%, machinery 10%, trucks 25%, fur niture and fixtures 10%. Defendant claims the court allowed plaintiff too much and there should be a deduction of the amount due plaintiff of $840. Plaintiff rented a house of defendant for $70 a month. The testimony was taken April 25, 1928. At that time plaintiff testified he had lived in defendant’s house for 15 months and owed for 11 months’ rent a,t $70 a month. The decree, was not signed until July 13, 1928. Whether plaintiff continued to live in defendant’s house does nót appear, but defendant’s brief alleges plaintiff admits he owes defendant $840. The rule is well settled that claims growing out of individual transactions between partners, having nothing to do with partnership affairs, are not to be included in the partnership accounting, and consequently this item of house rent due from plaintiff to defendant cannot be considered in the determination of the amount due growing out of the partnership relations which existed between the plaintiff and the defendant. 30 Cyc. p. 688; Gilmore on Partnership, § 136; Reid v. McQuesten, 61 N. H. 421; Goldthwait v. Day, 149 Mass. 185 (21 N. E. 359); Caldwell v. Leiber, 7 Paige Ch. (N. Y.) 483; Looney v. Gillenwaters, 58 Tenn. 133; Nims v. Nims, 23 Fla. 69 (1 South. 527); Berry v. Powell, 18 Ill. 98.
The trial court found defendant owed plaintiff $1,110 less than plaintiff claimed, and $1,344.78 more than defendant claimed. The amount found due was clearly within the proof. When we consider the reserve for depreciation was an arbitrary amount; that defendant retained control of the real estate which had for a .long time been used for the same purpose, that the real estate was substantially improved at the expense of the partnership, and that in so keeping it and continuing the business he re- tamed the use and benefit of the good will of the partnership and the expenses of a receiver’s sale were avoided, we are of the opinion the conclusion of the trial judge ought not to be disturbed.
The decree will be affirmed, with costs.
Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. North, C. J., did not sit. | [
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