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Marston, J.
This is a suit in chancery for the fore••closure of a mortgage.
Atwood, who was the owner of certain real estate, with -a saw-mill situate thereon, entered into a written agreement with Jesse W. Turner upon the 18th day of July 1866,. whereby he agreed to sell and convey the same by a good and sufficient warranty deed so soon as a survey of the same could be made. In consideration'thereof Turner agreed to-pay “the sum of eight thousand dollars as follows, to-wit: four "thousand dollars at date, and the balance in four equal annual payments, with interest annually, to be paid in sawing and lumber, at the mill on said premises, at market price for same.”
The property was afterwards conveyed and upon the-26th day of July, 1866, a mortgage in the usual form given to secure payment of a note of which the following is a. copy:
“$4,000. Kalamazoo, Mich., July 26, 1866.
For value received we promise to pay to Benjamin Atwood, or bearer, four thousand dollars in sawing and lumber, at the saw-mill this day bought of him, on sec. 11, town 4 south of range 9 west, as follows, to-wit: in four-equal annual payments from and after the date hereof, or before, with interest annually on all sums unpaid. This-, note secured by mortgage which is duly stamped.
J. W. Turner, Sally Turner.”
The parties are not agreed as to the correct construction, of this instrument. Complainant claims that the note and mortgage having been made payable in equal annual instalments, in sawing and lumber at the mill, the instalmentsseverally fell due on the 26th day of July in each year, and that it was the duty of the mortgagor to elect whether he would pay in sawing or lumber, or if in both the proportionate amount of each, and to be prepared as each instalment became due, at the proper place, with the goods-specially set apart and designated to deliver to the creditor, which would vest the title thereto in the creditor even although he did not attend to receive them.
It is somewhat difficult to adopt and follow any arbitrary rule in the construction of such instruments. Slight-changes in the phraseology of the instrument will ■ necessi- • tate a modification of the general rule applicable to chattel notes, in order to effectually carry out the evident intention ■of the parties, and to give effect to the entire instrument. A note or an instalment payable in sawing, no matter whether it is expressed to be due or payable on a day certain or not, very evidently cannot be paid or a tender made, or any thing set apart or designated, upon that day, where from all the circumstances it is apparent that the sawing could not possibly be done at such time. In such case there is no definite specific article capable of being set apart or designated. The evident intention is that previous to such date logs will be furnished which the other party will saw or manufacture into lumber, and if he is' ready and willing to manufacture such logs into lumber, but the same are not furnished at the mill by the mortgagee in sufficient quantities and in time to enable the mortgagor, taking into consideration the capacity of his mill, and his obligations with others, to have them manufactured by the time fixed, clearly the default in such case would not be that of the mortgagor but of the mortgagee.
What then is the proper construction of this instrument? The promise is to pay four thousand dollars in sawing and lumber at the mill, in four equal annual payments from the date thereof or before, with interest annually on all sums unpaid. The promise is not to pay in lumber or sawing at the option of either party, nor is any thing in the instrument itself, or in the record, to enable us to ascertain or determine the proportion to be paid in sawing, or the kind, quantity or quality of lumber that was to be delivered. It was evidently the understanding of the parties that the mortgagee should deliver at the mill logs to be manufactured into lumber, although the quantity to be delivered each year was not mentioned. The logs so to be delivered were to be manufactured from time to time each year, and if sufficient were not delivered and cut each year to pay the instalment falling due that year, the balance was to be paid in merchantable lumber at market prices, at all events by the 26th of July. And where as in a case like the present the note is payable in sawing and lumber and the parties cannot agree upon the proportion of each, neither’ party haying the right to determine the amount, the law will apportion it equally, requiring one-half the amount to be paid in sawing and the balance in lumber.
Another question arises upon the construction of this instrument. The principal is to be paid in four equal annual payments from the date thereof, or before, with interest annually on all sums unpaid. As it was clearly contemplated that each several instalment would, in part if not fully, be paid in sawing and lumber during the year before it became due, we are of opinion that at least so long as the mortgagor was not in default such instalment would not draw interest. The parties did not intend that an instalment should continue to draw interest after it had been extinguished by payment. The sawing of logs or delivery of lumber would be a payment pro tanto, and if such payments were equally distributed over the entire year the instalment would thus in part be paid long before it became due. Wilcox v. Allen, 36 Mich., 160.
Having thus given our view of the proper construction of the instrument, the conclusion we deduce from the facts is:
That so far as the mortgage debt was payable in sawing, complainant has lost his right to payment by failure to call for the labor at the time specified.
That as to the remainder he is entitled to payment according to the terms of the mortgage, and should have decree of foreclosure therefore in default of payment within a reasonable time to be named.
And that complainant should recover costs of the court below, but the appellants should have the costs of this court, to be offset against the costs of complainant.
And the decree should be modified in accordance with these views.
The other Justices concurred. | [
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Cooley, C. J.
The careful presentation of this case on the part of the plaintiff in error, has merited and received at our hands an equally careful examination of the record and the points made; but we axe not satisfied that any error appears which would justify a reversal of the judgment. Neither are there any legal questions which demand an examination on authorities. The principles involved are simple, and the questions are of their proper application to the facts. The record indeed fails to explain why, when the judge denied a motion for a new trial on condition that the plaintiff should remit from the verdict a certain sum, the full sum was not remitted, but as the denial was matter of discretion, we cannot reverse the judgment because the judge failed to hold the plaintiff strictly to the condition. It is not by the record made clear to our minds that the remitter was demandable because of any previous error.
Affirmed.
The other Justices concurred. | [
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] |
Cooley, C. J.
Smith sued Pettibone in case for the diversion of a stream of water upon which Smith owned land below where the diversion was caused. The stream was a very small one, — so small that a question was seriously contested on the trial whether the defendant had the right, as against those below him, to detain by a dam sufficient of the water to permit of his washing his sheep therein. The diversion consisted in taking it out of its natural channel for some distance, and then returning it again before it reached the land of Smith; and the real complaint was, not of the diversion itself, but that the artificial channel cut for the purpose was allowed to become obstructed, so that the water soaked away and evaporated instead of flowing on in its accustomed volume. The original diversion was not caused by Pettibone, but he now owns the land on which is the obstruction that causes it, and keeps this up. This statement is sufficient to enable the legal questions to be understood.
On the trial there was evidence that less water now flowed to the plaintiff’s land than formerly, and at times-the stream was entirely dry. Smith claimed that this was due to the action of Pettibone, while the latter sought to show that it was in part if not wholly due to a succession of dry seasons. For this among other things he called as a witness one Ingraham, who testified, that he had known the stream a great many years, and lived on the adjoining section when the change in the direction of the stream was made. He examined the stream last fall. He was then asked how the flow of water at that time was as compared with what it was when he lived there. This was objected to as immaterial, and ruled out. We do not understand how this could be held immaterial without assuming the very fact to be established, namely, that the action of the defendant in continuing the diversion had caused the deficiency below. One Goyer, another witness, who was supervisor of the township, was also asked what effect such seasons as the last four or five would have on such streams. This was objected to and ruled out, and it is suggested here that if relevant, it merely called for the opinion of one who was not shown to have any knowledge of the stream in question. We think, however, that this question, as well as that addressed to Ingraham, bore directly upon the issue, and that any man selected by the electors of a township to be its supervisor may fairly be assumed to have sufficient intelligence to speak with some confidence concerning the effect of dry seasons upon streams in his township.
In giving instructions to the jury the judge submitted to them the question whether the defendant had not diminished the flow of the water to those below him by a use of it for his own farming purposes, which was relatively more than he was entitled to. This was error, because no such grievance was counted on, and the defendant could not be supposed to be prepared to controvert such a case.
The judge also instructed the jury as follows: If you find that the defendant unlawfully diverted the stream from its accustomed channel, and did not return it to its accustomed channel before it came to the plaintiff’s land, the plaintiff if injured is entitled to recover. This charge was objectionable for two reasons. First, as stating a mere truism without any explanation of the bearing it could have on the case at bar. Of course, if one unlawfully does an act to the injury of another the latter has his remedy. But what is an unlawful diversion? We look in vain through the instructions for any explanation; and every juror seems to have been left at liberty to decide for himself what constituted an unlawful diversion. Second, the instruction was misleading because it implied that there was a showing in the case that the stream was not returned to its channel before it reached the plaintiff’s land. All the evidence was the other way. If what the judge meant was merely this: that if by reason of the course the stream was compelled by defendant’s action to take, its waters were lost before they reached the land of the plaintiff, the defendant would be responsible in damages, then he should have given in the same connection the instruction requested by the defendant, that if the change in the course of the stream had not materially diminished the quantity of water that reached the plaintiff’s land, then no cause of action arises from the change. In other words he should have told them that a mere change in the course of »the stream above the plaintiff’s land, like that shown, was not wrongful or unlawful in itself unless it materially diminished the flow of water to the plaintiff. On the instructions given they might perhaps suppose that any change in the course of the stream was unlawful and presumptively injurious.
Our attention is called to the answers of the jury to certain special questions which were put to them, and it is said that it is manifest from these that the errors complained of, if errors they were, could not have prejudiced the defendant. Those we have mentioned, however, are not relieved by any thing in the case, and we think it not important to consider any others.
The judgment must be reversed with costs, and a new trial ordered.
Campbell and Graves, JJ., concurred.
Marston, J., did not sit in this case. | [
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Cooley, C. J.
The plaintiff in error, who was duly elected treasurer of Gladwin county at the last general election, complains of the action of the board of supervisors of that county in removing him from office and appointing another to his place. It appears from the records of the supervisors, which have been sent up here in response to a writ of certiorari, that the plaintiff in error filed his official bond, which was approved by the board, but that subsequently a new bond was required of him, and that he was given until June 26, 1877, to file it. On the day last mentioned the time for filing it was extended to July 17. The board was in session July 17, and on motion of one of the supervisors a resolution was unanimously adopted declaring the office of county treasurer vacant. The record does not show that plaintiff in error was present at this meeting, or that he was notified thereof, or notified that any action against him was proposed. The writ of certiorari having been sued out and served, the board return that the new bond was demanded because it was found the sureties in the first were not responsible. They also return that plaintiff in error was notified of the demand, and appeared before the board and stated that he would give the bond required if he could procure sureties, but that he failed to do so, and stated that he was unable: whereupon the board proceeded to remove him. The sufficiency of this return as an answer to the writ is the question before us.
My brethren think that before the board could proceed to a removal it should have appeared from their own records that all the facts existed which would authorize the board to take action. These would embrace some finding or resolution that the existing bond was insufficient, the requirement of a new bond, notification to the defendant of that fact, a failure on his part to comply, and proceedings subsequently for his removal, of which he should have notice and an opportunity to make defense. They also think that the deficiencies in the record in this regard cannot be supplied by return to a writ of certiorari. The removal from a public office is a matter of serious consequence, and it is plain that all the facts which would justify it ought properly to be of record, and my brethren think it essential.
Some complaint is made by the plaintiff in error that an excessive bond was required, but we cannot say that such is the fact. The amount and sufficiency of the bond are questions entrusted to the discretion of the board of supervisors, — Comp. L., §§ 512, 477, — and we cannot sup pose they will abuse their discretion in that regard. And on this writ we have nothing to do but to quash the proceedings, leaving the case as if none had been taken. We have not considered the objection that was taken to our jurisdiction on this writ, deeming that sufficiently determined in other cases. People v. Brighton, 20 Mich., 51; Crawford v. Scio, etc., 22 Mich., 405, and many others are in point here.
The proceedings must be quashed.
Graves and Campbell, JJ., concurred.
Marston, J., did not sit in this ease. | [
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Graves, J,
When the order of the circuit court was set aside in this case the usual order for costs to the plaintiff in error was entered, but subsequent proceedings bringing the facts more fully to our notice, and Mr. Gott on behalf of Mr. Beakes having suggested that the latter desired to move for a change of the judgment in that regard, proceedings were stayed for the purpose. Motion is now made to set aside the stay, and as that only affects the question of costs, the "whole is now before us.
The facts appear to be these: Pray presented to the commissioners on the Buchoz estate a contingent claim. Regarding the precise shape the controversy assumed there, there is contradiction; -but the showing satisfies us that the claimant presented to the commissioners a draft of such a finding as he was entitled to from them and which would simply have returned the evidence to the probate court as is required by law. This two of the commissioners refused to sign, insisting upon a disallowance of the claim; and Judge Ninde, the third commissioner, while rightly construing the statute to require simply the certifying of the evidence to the probate court, finally united in the disallowance, apparently supposing that in view of the action of the other commissioners it would be necessary for the claimant to have an opportunity to appeal to the circuit court in order to protect his rights. The claimant did appeal, and the circuit court set aside the disallowance, but it also went further, and allowed the claim as a contingent claim, payable only on the contingency occurring.
Now costs are usually awarded against the party who is found to be legally in the wrong; . and at this stage of the proceedings, if the circuit court erred in allowing the claim, as it is now conceded it did, then it is difficult to perceive that at this stage of the proceedings either party had any just claim for costs against the other. The claimant might be justified in taking action to get rid of the disallowance of his claim, but he had exceeded his right in taking an order for contingent allowance.
Subsequently the administrator brought the ease here, where the order of the circuit court was reversed, and if that proceeding stood alone, the administrator should have the costs of this court. But as already stated, the error which has caused all this litigation and made all these costs, originated with the commissioners, and in order to correct it, it now became necessary to re'sort to a proceeding by mandamus to compel them to do what they should have done, and what Judge Ninde, the legal member of the commission, advised should be done when the case was before them. On this application the facts for the first time are fully presented here.
The two commissioners who had originally refused to certify the proofs to the probate court, contested the application, and applied for time for the purposes of an argument on the technical ground that having made their report they could no longer be compelled to act. The application, however, was granted. Any contest of that sort must usually be deemed to be in the interest of the party adverse to the relator, and is usually made by the counsel for that party, who, after the decision of any tribunal has been made in his favor, may very properly appear and take any lawful steps necessary to support it. And in such a case if costs are awarded on issuing the mandamus, it will not usually be against the tribunal itself, but against the party who had the benefit of its action.
All these proceedings are enumerated for the purpose of showing that when all are taken into account, the administrator ca.n have no just claim to-costs. The original error which has made all the costs necessary was not that of the claimant, and since that time the responsibility for error has been very evenly divided. "We think justice will be accomplished as nearly as is possible under the circumstances by leaving each party to pay his own costs, and allowing the stay to stand. The order of the circuit court which was reversed was not a judgment in any proper sense, but an anomalous and contingent order, and we know of no method of adjusting equities between the parties more just than is here indicated.
Cooley, C. J., and Campbell, J., concurred.
Marston, J., did not sit. | [
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] |
Graves, J.
In March, 1873, complainant owned lot 9 in block 50 in the village of Sturgis, and defendant David Brown held two notes made to him by one "Warren E. Salisbury and an accompanying mortgage also made to him by Salisbury and wife.
The papers bore date December 24, 1874. The notes were for $900 each with interest, and one was drawn payable in one year and the other in two. The mortgage was on an eighty acre lot in Antwerp, Van Burén county. Complainant traded with defendant David Brown the lot in Sturgis for the $900 note payable in two years and a corresponding interest in the mortgage, but on Brown’s request the deed was made to his wife Delila.
The note and mortgage interest were assigned.
Subsequently complainant alleged that he had been defrauded in the trade and he demanded rescission, which was refused. This bill was then filed to set aside the transfer to Mrs 'Brown, and after answer and proofs the court granted the relief. The defendants appealed.
The bill was pretty freely criticised at the hearing, out we regard it as good in substance. We think it states a case proper to be considered on the facts.
It was objected that complainant had been guilty of laches and that relief should be refused on that ground. We cannot say there was unreasonable and fatal delay. The transaction occurred in the spring of 1873, rescission was claimed in August, 1874, and the bill was filed in the following October, and we discover nothing in the meantime to give the objection any real color. It was further observed that complainant after the trade acquired the other $900 note payable in one year, and that he could not be entitled to reclaim his lot without surrendering this noto as well as that for which the lot was exchanged, and that the scheme of the case did not contemplate or the decree require such surrender.
Whatever may have been complainant’s motive for obtaining this note, and whatever inferences might possibly be drawn from it concerning - another aspect of the case, it is plain the getting of it was a separate transaction and not so interwoven or connected with the trade complained of as to require the cancellation of both or neither or to require the surrender of the last mentioned note as a condition of relief against the transaction in which the other was acquired.
All parties admit that the passage of the note payable in a year was neither a part of the consideration or in any way connected with the consideration for the lot in Sturgis, and all admit that the note "was not negotiated, or purchased until some time after the principal trade.
Again, it is said the complainant after having acquired the whole mortgage interest allowed the mortgaged premises to be returned for the taxes of 1873 and to be sold thereafter for them, and that he does not propose or offer to restore the mortgage security unaffected by the tax-title and is not in a situation to do so. And this circumstance it is urged ought to preclude rescission. The record shows a sale of the mortgaged premises for the taxes of 1873, the deed bearing date December first, 1875, and more than a year after the bill was filed. And it also appears as before mentioned that the demand for rescission was back in August, 1874, and sometime before the period for redemption had expired, and as the tax was not against complainant or due from him and the call on defendants for rescission was in season to allow them to make payment, it would not be equitable to deny relief on account of the effect of the tax proceeding on the title. The demand imported an election that both parties should be remitted to their original rights and duties and it was notice to defendants to take steps to avert the sale, and they cannot complain of the consequence of their omission. The complainant was under no equitable duty to defendants to expend money to protect the title from this tax after their refusal, and it was not incumbent on him to make such expenditure in order to preserve his right to get back what he had previously given. If he was defrauded, as he alleged, it was the duty of defendants to at once yield to his demand and without requiring him to clear off this tax which he had never incurred or assumed or become liable for on any principle, legal or equitable. We do not consider it expedient to discuss the evidence. The argument at the bar upon it was very full and we have re-examined it since the hearing. In some parts it is not entirely clear and in others it is conflicting. But we cannot avoid the impression which it seems to have made on the mind of the circuit judge.
He came to the conclusion that the proofs made out a case for relief, and we are inclined to take the same view.
The decree should be affirmed with costs and the cause remanded for all other necessary proceedings.
Cooley, O. J. and Campbell, J., concurred.
Marston, J., did not sit in this case. | [
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Graves, J.
This is a case made after judgment.
The plaintiffs sued'in trover for certain water-wheels in use in defendant’s grist-mill. The court heard the evidence and made a special finding of facts and thereupon awarded judgment for the plaintiffs for $440.06 damages. The defendant contends that the judgment for the plaintiffs is not warranted by the facts.
The principal matters found appear to be these:
On the first of October, 1S74, Benjamin F. Trimmer owned the mill. His son Edwin Trimmer, v'ho was in partnership with one Thomas J. Staley, held a lease of it, and the firm were running it. The plaintiffs then bargained and delivered the wheels in question to the firm and with the express understanding that they were to be put in the mill and used there; as a part of the arrangement it was stipulated, however, on the part of the firm, that no property in the wheels should vest in them until acceptance and payment. The agreed price was $635, and no part of it has been paid.
The firm received the wheels and against objection by Benjamin Trimmer, the lessor, removed those already in and set up these in their stead.
They were attached to the building ^and the flume was built up around them in such manner as to prevent their being removed without injury to the building to the extent of from one to two hundred dollars.
After the wheels were so put in, the firm kept on running the mill until about March 11, 1875, at which time the lease was given up to the lessor, Benjamin Trimmer, and’ he shortly thereafter leased to one Lemuel Miller, who had been in the service of the firm, and Miller then ran the mill until it was sold to defendant.
On the 9tli of August, 1875, Benjamin Trimmer sold and conveyed the mill to the defendant for $10,000, which the defendant páid. On this sale there was no reservation except of the old wheels, which were lying unused in the mill basement, and the defendant had no notice of any claim against or on account of the wheels. The defendant received possession of the mill, including the wheels, as grantee, and proceeded to use the property, and the plaintiffs in a short time thereafter required the defendant to pay for the ryheels or surrender them. But the defendant insisted that he had bought the mill and the wheels and machinery connected with it without any notice of any claim on the part of the plaintiffs and that the title to the whole as real estate was vested in him, and that the plaintiffs were not entitled to claim the wheels as against him.
This action was then brought.
The circuit judge was of opinion that the stipulation by the firm to the plaintiffs that the title should not pass until payment of the purchase price, had the effect to preserve the right of property in the plaintiffs and prevent the wheels from ceasing to be considered as personal chattels, and that defendant, although a Iona fide purchaser, could not hold against the plaintiffs who were the real owners, and he relied on Crippen v. Morrison, 13 Mich., 23, as sustaining this position.
That case is clearly distinguishable and is not pertinent to the question which is presented by the finding here. Orippen, who had become owner of the mill and who set up a claim to the machinery as being part of the realty, was not a purchaser without notice of the separate right to the machinery, and this circumstance was properly considered by the court as one of importance and was so mentioned. He was not a Iona fide purchaser, and was not led by the course of the parties claiming the machinery to suppose that it was in fact a portion of the real estate and grantable accordingly.
Here, however, it is found expressly that the plaintiffs actually contemplated that the wheels should be incorporated with the building, and furnished them to Staley and young Trimmer with the design that they should be annexed as they were annexed, that is, so perfectly and firmly that they would work properly and afford and convey the power necessary for the running of the mill. And it is likewise found that Johnson bought after the wheels had been so put in and when they appeared to be as much a part of the realty as the building itself, and that he had no notice of any outside interest or claim.
Now, as between the plaintiffs and Staley and Trimmer, or between the plaintiffs and Benjamin Trimmer, or between them and any other person taking with notice of the right secured by the agreement, it may be admitted that the plaintiffs would be entitled to say that they had never parted with their property in the wheels and had ex pressly stipulated for the right to reclaim them in case of non-payment and were therefore entitled to pursue them and sue for their conversion as personal chattels, and still it does not follow by any means that the same position can be taken as against the defendant. So far from it, the circumstances enable him to insist that the private arrangements by the plaintiffs, by which the wheel were made to appear as realty and the property of Benjamin Trimmer and to he grantahle hy the latter as a part of the mill, cannot now, after his purchase on the faith of the appearances and without notice that they were in any respect deceptive, be set up to show that the wheels after all belonged to them and were not in fact a part of the mill, but were removable at their instance.
The plaintiffs deliberately agreed that the water-wheels should be converted in all outward appearance into real property, and they thereby put it in the power of Trimmer to make sale of the wheels as part of the mill. He sold accordingly. The defendant purchased. He acted in good faith and was guilty of no want of care. "When the plaintiffs allowed the wheels to be worked into the mill they assumed risks, and among them such a result as has occurred, and it would be contrary to justice to allow them to save themselves by casting the consequences upon the defendant. The principle is clear, and the authorities in support of it are numerous. Many of them are collected in the brief of defendant’s counsel.
The judgment should be reversed and one entered here for defendant, with the costs of both courts.
The other Justices concurred. | [
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] |
Campbell, J.
Gregory sued plaintiffs in error upon the common counts and gave them a bill of particulars showing his claim to rest on a balance due for work done under a contract made by himself and one Thomas Brown with plaintiffs in error on which a settlement had been made and balance struck at 81,255.36, and showing that Brown had assigned his interest to Gregory.
On the trial it was objected that the declaration should have been special, and should have averred the assignment. In Kelly v. Waters, 31 Mich., 405, we decided otherwise. The defendant when sued on the common counts can always be informed as fully by demanding a bill of particulars as by averments in the declaration, and that is all that is needed for his protection. This case is one which is plainer than Kelly v. Waters, because here the recovery was upon an account stated and balance agreed upon.
The plaintiff below proved a part of his case by calling Snell, one of the plaintiffs in error, and was allowed upon some points to contradict him by other evidence. This is alleged as error, it being claimed to have been a violation of the rule forbidding the impeachment of witnesses by those who call them.
There is nothing in any known rule of evidence to prevent a party from contradicting his own witnesses, and it would be a very dangerous thing to introduce such a rule. Every one would then be at the mercy of his own witnesses, and if the first witness sworn should swear against him he would lose the testimony of all the rest. This would be a perversion of justice. It is claimed, however, that where an adverse party is called, he should not be contradicted even although a witness might be. This would lead to the singular result of giving a person less protection against an adverse witness than against an indifferent one. When parties are called on for discovery in equity, they may always be contradicted, and common justice requires that they should be subject to this. The rules of evidence should be so framed as to draw out and not conceal the truth.
There is no error in the record, and the judgment must be affirmed with costs.
Cooley, C. J., and Graves, J., concurred.
Marston, J., did not sit in this case. | [
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] |
Marston, J.
This was an action of trespass brought against Raynor for entering upon certain premises and forcibly removing Nims, his family and goods from the dwelling house and premises in December, 1874.
The only question raised relates to that part of the charge which instructs the jury “that in view of all the circumstances surrounding the commission of the trespass alleged, in case they found a verdict for the plaintiff, they might add to the actual, exemplary damages” without defining or explaining what exemplary damages were, and without submitting to the jury the question of malice at all, and in assuming that the defendant acted maliciously.
They were instructed to take into consideration, in estimating such damages, the circumstances under which the plaintiff and his family were put out, the condition and size of his family, the season of the year, the state of the weather, and the extent of the malice and oppression on the part of the defendant, and the court, after calling their attention to other circumstances, added, “in short, you are to take a broad, common-sense view of all the circumstances, and determine as near as you can, what amount in justice ought to be allowed.” We think this was much clearer and better, much more practical and likely to be understood, than any abstract explanation or definition that could have been given. It was indeed a practical explanation as applied to the case at bar which clearly instructed the jury and doubtless was of some real use to them in their deliberations.
Did then the court have a right to assume that it was a case proper to be considered as calling for exemplary damages? It is said that it was not, because the defendant was acting upon his supposed legal rights, and under the advice of counsel which would rebut any idea of malice on his part. It is admitted that the question, whether the defendant had a right to the possession of the premises, was fairly submitted to the jury and found against him. Where a party who is actually in the wrong, although believing otherwise under advice, acts in an oppressive or cruel manner, his belief in his right so to do, will not protect him. If a person, claiming the right, undertakes to, and actually does, forcibly turn a man and his family out of doors, under such circumstances and at such a season that they must, suffer on account of the inclemency of the weather, when by delaying, a more mild and humane course, and one equally efficient, might have been adopted, he must be held responsible therefor, in case it turns out he was in the wrong, no-matter what, he may have supposed his legal rights were. He acts at his peril, and a jury may well be instructed in such a case, that in case they find him a trespasser, then in estimating the damages sustained, they may take into consideration the unnecessary suffering occasioned and under all the circumstances, determine as near as they can what amount in justice ought to be allowed. Elliott v. Van Buren, 33 Mich., 56; Welch v. Ware, 32 Mich., 77, and cases cited.
We are of opinion that the judgment should be affirmed,, with costs.
The other'Justices concurred. | [
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Graves, J.
This record exhibits a conflict between proceedings under the statute to institute and enforce a lien against saw logs and proceedings by replevin for the same logs.
One Frank B. Seeley employed Henry Whitney, to fall, cut into logs, haul, bank and place in Sand lake over two million and a quarter feet of logs. Whitney claimed to have completed the job on or about October 6th, 1876, and on the 17th of that month he filed his petition under the second section of the act. 1 Sess. L., 1873, p. 466. He stated the amount due him for getting out the logs to be $2441.25, and insisted upon a lien therefor. October 24th, 1876, he procured an attachment to enforce the lien, and on the 27th of that month the defendant in error, who was the sheriff, seized a large amount of the logs pursuant to the attachment.
November 11th, 1876, the plaintiff in error, claiming as purchaser from Seeley, sued out a writ of replevin against the sheriff for the logs, and on the 13th of that month they were taken from him by the coroner pursuant to the writ of replevin.
Whitney subsequently carried on proceedings in the attachment case, ostensibly under the lien law, and took a personal judgment in the usual form against Seeley for $3,269.78. Subsequently to this the replevin suit was brought to trial and the jury found that Haifley was the general owner of the logs subject to the lien of Whitney for $2,335.76, under which lien and the attachment proceedings the sheriff, Haynes, had a special property amounting to seven hundred dollars; and the logs seized having been delivered to Haifley on' the writ judgment was awarded against him in favor of Haynes for the amount of the special property, seven hundred dollars.
The date of the judgment in the attachment proceeding-does not appear in the printed record. Neither does the date of the issue in the replevin suit. But this is not now important. Haifley alone brought error. Haynes acquiesced. Several questions of some difficulty were raised on the trial, and are discussed in the briefs of counsel. We shall not examine them. In view of the peculiar scope and character of this lieu law and in view of the entanglements in the two cases, — the bearing of the objections against setting up the lien proceedings against Haifley, and considering the theory of Haynes’ defense we feel compelled to notice a difficulty in Whitney’s claim which cannot be overcome. Even if we should generally concur with counsel on the part of Haynes it would be needful at last to consider this point. The difficulty in question lies on the face of the proceedings. It was distinctly explained in the petition. This was right. The fact itself could not be avoided. No form of statement could help it, and it was the better course to present it fairly by the petition. It is there declared as matter of fact and hence admitted that previous to the petition Seeley had sold 1250 of the logs to Haifley and had given him possession and had transferred the balance to Norman Carpenter. It was therefore shown by the petition that all right and title had previously passed from Seeley to purchasers, and that at the very time of making the petition to notify the public according to the statute no right or interest existed in Seeley. It is plain that justice and policy as well as precedent require a rigid construction of this statute to hinder its operation so far as may be against valuable rights, and especially where a contrary view would imperil the rights and interests of innocent third parties. The act is very imperfect, and great difficulty must be expected in any attempt to administer its provisions in cáses much complicated and where adverse and repugnant interests and interfering rights and claims require to be settled. The first section declares that a lien shall exist in the cases mentioned and that it shall take precedence over all other claims upon the property. But the second and third sections prescribe limits. Although the first section says there shall be a lien, the others provide that it shall not exist, first, at the expiration “of thirty days after the completion or last day of such labor or services ” if within that time no statement or petition is made and filed; and second, notwithstanding such petition or statement may have been seasonably filed it shall not exist at the end of three months from such filing unless meanwhile a suit to enforce the lien is commenced. These provisions are positive and fundamental. Unless the prescribed conditions are complied with'the lien is absolutely gone. But while these conditions are imposed and made indispensable under all circumstances and in all cases to the continued existence of any lien, there is no express provision on the other hand that in the mean time no statement or petition need be filed and that without it the lien will exist and stand and override the rights of honest purchasers who have no means, of knowing any thing about it. No doubt the frame work of the act would allow this to be implied if any thing short of a very close construction could be safely indulged. No doubt the act is abstractly susceptible of an implication that a party may without any writing or possession and without giving notice by record or otherwise, maintain and assert a right of lien paramount to the title of a bona fide purchaser from the actual owner and possessor. But when the question is upon the existence of so extravagant a regulation, a provision so replete with danger, and as part of a scheme quite imperfect in itself, it is the duty of the court to pause for an explicit, an express enactment by the Legislature. Now the party entitled is not required to wait. He can file his statement or petition without any delay. He need not defer until third parties have purchased. And as it is, the only safe view to be taken is to consider the law to mean that as against purchasers at any rate from the debtor (the claimant not being in possession) the lien will not stand at all if at the time of purchase after completion of the work there is no statement or petition on file. The purchaser may infer that no lien is insisted on. As already stated, Whitney’s petition showed that Haifley had previously purchased. It therefore showed that the case did not enable him to assert any lien against Haifley. He had allowed this change of title to take place without having possession and without asserting any claim under the statute and in the mode contemplated by the statute and Haifley was entitled to act upon the supposition that there was no incumbrance under this statute.
If this view is correct it follows that Haynes’ justification failed, that the allowance of it was error and that the judgment should be reversed with costs and a new trial ordered.
Cooley, C. J., and Campbell, J., eoncúrred.
Marston, J., did not sit in this case. | [
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Graves, J.
Mann, as holder of a note of the following tenor, brought this suit against the plaintiffs in error as endorsers to recover the amount it called for:
“$700. Flint, Mich., Feb. IS, 1875.
' ££ One year after date I promise to pay to the order of H. M. Bradley & Go. seven hundred dollars at value received, ivith interest at ten per cent.
II. WillTTLESFT. ’ ’
On the back was written ££H. M. Bradley & Co.”
The instrument was prepared by filling up a printed blank, and the parts in italics were written, the rest printed.
The Bradleys were in business at Bay City as partners under the firm name of ££H. M. Bradley & Co.,” and Whittlesey, who appeared as maker, was in business at Flint.
Mann’s father held an over-due note for seven hundred, dollars of principal, and seventy dollars of interest, made by Whittlesey and endorsed by the Bradley firm for Whittlesey’s accommodation, and the present note was prepared at Whittlesey’s request to take up the first. It was drawn at Bay City under the direction of H. M. Bradley, and was then and there endorsed with the firm name, and sent by mail to Whittlesey at Flint. As thus drawn and endorsed' it was complete except that it lacked the maker’s name and did not contain the provision for interest which appears after the words for ££ value received,”
On its receipt from the Bradleys by Whittlesey he added his nanie as maker, and at the same time added this interest clause. He then gave his own note to the elder Mann for the seventy dollars of interest, and defendant in error' paid to his father the principal, being seven hundred dollars, and received the old note and surrendered it to Whittlesey for the note in suit.
On the trial the plaintiffs in error urged, among other things, that they, having endorsed the paper in- the shape in which they had drawn it, and as calling for seven hundred dollars and no more, the addition made afterwards byWhittlesey without their consent, whereby it was so changed as to call for the further sum of seventy dollars, rendered it invalid as against them. And the defendant in error urged, among other things, that he was a Iona fide holder for value, and that as the addition made by Whittlesey occurred while the note was still in his hands as maker, and before delivery, the enlargement of the amount afforded no defense to the plaintiffs in error as endorsers.
In the course of his charge, the learned judge observed as follows: “Now, although the alteration of a note after it goes into the hands of a third person who may bring a suit upon it as payee or endorsee, would vitiate it ; yet, while it is in an unfinished state, before it has been delivered, before it has become a promissory note in the hands of such holder, alterations may be made; and an alteration of an accommodation note, made by the maker under such circumstances, after having procured it to be endorsed, would not in general vitiate the note in the hands of a person who purchased it in good faith and. for a valuable consideration.”
The jury found in Mann’s favor for the amount of the note.
Some question is made upon the sufficiency of the exceptions and charges of error, but we think there is no real foundation for it.
We are constrained to regard this charge as incorrect and misleading. The undertaking of the plaintiffs in error in regard to the amount was not left open and in blank, but was defined and settled when they prepared, endorsed and sent the instrument to Whittlesey, and they could not be made liable as upon a different undertaking without their consent. The moment he made the alteration in the amount there remained nothing to which their endorsement was applicable, no engagement they had consented to be liable upon, and it is their undertaking and not that of Whittlesey which is in question. The circumstance that the instrument had not left Whittlesey’s hands and assumed the legal character of a finished note, or the fact, if it was so, that it was meant for Whittlesey’s accommodation simply, could have no force to make his unauthorized alteration binding on them without their assent, or to invest him with right to vary the extent of the liability they had predetermined for themselves. 'When the paper left their hands the amount of the obligation they assumed was as securely liquidated to preclude change without their consent, as it would have been if the instrument had then become effective, and the endorsement had been as the defendant in error insists it was, and as it may. have been, á non-accommodation one. The authorities are so full and distinct against the doctrine of the charge that it is only necessary t'o cite them. Miller v. Finley, 26 Mich., 249; Holmes v. Trumper, 22 Mich., 427; Wait v. Pomeroy, 20 Mich., 425; Trigg v. Taylor, 27 Mo., 245; Waterman v. Vose, 43 Me., 504; Fay v. Smith, 1 Allen, 477; Draper v. Wood, 112 Mass., 315; McGrath v. Clark, 56 N. Y., 34; Benedict v. Cowden, 49 N. Y., 396; Fulmer v. Seitz et al, 68 Penn. St., 237; Wood v. Steele, 6 Wall., 80; Ætna National Bank v. Winchester, 43 Conn., 391; Schnewind v. Hacket, 54 Ind., 248.
Another point is mentioned in the'brief, but it does not appear very well grounded, and there is no occasion to discuss it.
The judgment should be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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] |
Marston, J.
The question raised comes up upon a case made from the Kent circuit. Plaintiff brought ejectment, claiming in fee an undivided one-fifth of the' premises described. The defendant pleaded the general issue, and filed therewith a claim in writing under §§ 6252 and 6253 of the Compiled Laws as amended by act No. 180, p. 207 of the Session Laws of 1875, to recover the value of certain improvements made by him, and which consisted in clearing the land, fencing and ditching the same and in the removal of stumps.
The counsel for the plaintiff, to maintain and prove the issue on his part, gave in evidence to show that Michael Cusick died on or about the 7th day of January, 1864, intestate, leaving no wife, children, father or mother; that his sole and '"only heirs at law were Martin Cusick, his brother, and Mary O’Conner, the wife of the defendant, Winefred Ouples, Bridget Duffield, and the plaintiff Catharine Martin; that the said Michael Cusick was, at the time of his death, the owner and in possession of the land in question; that in the year 1864, and after the death of said Michael Cusick, the said Martin Cusick and Winefred -Cuplés conveyed all their interest in said land, as heirs at law of said Michael Cusick, deceased, by quit-claim deed to said defendant; that the plaintiff is a sister and one of the heirs of said Michael Cusick, and resided in Ireland, in the kingdom of Great Britain, until the year 1872, since which time she has been a resident of the city of New York; that the said defendant, after the execution and delivery of the quit-claim deeds aforesaid, and in the year 1864, entered into the possession of said land in question, and was so in possession up to the time of the commencement of this suit; that in the month of April, 1876, and before the commencement of this suit, Martin Cusick, having authority from the plaintiff so to do, demanded possession of her share as heir at law of Michael Cusick, deceased, from John O’ Conner, but that he refused to deliver up possession thereof to the plaintiff.
And the said defendant, to maintain and prove the issue on his part, offered to show in evidence that in the year 1864, and more than six years before the commencement of this suit, and after the death of said Michael Cusick, the .said defendant entered into the possession of the land in question, and remained in the actual and peaceable possession thereof until the year 1876, and made prior to the demand of the said plaintiff for the possession of her share as heir at law valuable improvements, as already stated.
Counsel for plaintiff objected to the evidence offered to show improvements made for the reason, second, because the possession of the defendant was not adverse to the plaintiff until demand and ouster, but that he was a tenant in common with said plaintiff, and the statute under which the proposed proof is offered does not apply to such ease of tenants in common. This objection the court sustained, and thus arises the only question in the case.
Up to 1875 the statutes of this State have provided that when the defendant in ejectment, or those through whom he claimed title, had been in actual possession of the premises for six successive years or more, claiming title by virtue of a sale made by an executor, administrator or guardian, or under a sale made for non-payment of taxes, he should be allowed a compensation for any buildings and improvements made on the premises by him or any person through whom he claimed title. In 1875 the Legislature amended the statute by omitting in its re-enactment all reference to the source from whence the defendant derived or claimed title, and authorized compensation for improvements to be allowed where the defendant, or those through whom he claimed, had been in actual possession six years, or where occupied for a less time under a color of title and in good faith.
This section, as it now stands', is broad and general, and at first reading would seem to include and embrace all classes and cases in ejectment. Taken as it reads, literally, and it would allow the defendant in this case, to the full extent that such improvements have increased the present value of the premises, even although the plaintiff claims and recovers only an undivided one-fifth. So that if the defendant had not previously purchased the interest of some of the other heirs in and to these premises, and they severally had brought ejectment to recover, each one-fifth, upon the theory of this case, the defendant in each separate case would have recovered the increased value of the premises on account of such improvements, and yet have retained an undivided one-fifth interest in the premises and improvements.
The bare statement of such a result shows that the statute cannot receive the construction which its general language would at first blush seem to warrant. It is evident to my mind that the framers of this statute did not, and that the Legislature in enacting it, did not contemplate a case like the present, and others somewhat similar in character, all of which might be considered exceptional on account of the peculiar relations existing between the parties, and their legal rights, duties and liabilities arising therefrom. Any attempt on our part to constru'e this statute to meet this class of cases would be unwarranted. A radical and important change would be required in this section and others in connection therewith, in order that cases like the present might be included within its provisions.
As there was no error in the ruling, the judgment must, be affirmed with costs, and the record remanded for farther proceedings.
The other Justices concurred. | [
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Cooley, C. J.
I. The defendant in error recovered judgment in the court below for a special injury occasioned to her by the obstruction of what she claimed was a public highway. The principal contention on the trial was over the question, whether there was in fact a public way; the plaintiff in the suit maintaining that one had become established by user, and the defendants denying this. The special damage for which the plaintiff claimed to recover arose from her being prevented from drawing and marketing wood. She testified that she sold and delivered to the Michigan Central Railroad Company in the winter of 1875-6 twenty-one cords, and in tfie following winter one hundred cords. She was then asked how much she could have gotten out if she could have had the unobstructed use of this road. The question was objected to as incompetent, irrelevant and immaterial, but was allowed, and she replied, two hundred or three hundred cords. We think this question was objectionable, because it suggested a basis for the recovery of damages which was no basis at all. What she might have done was of no importance unless she showed not only that she desired to get out more, but could and would have sold and delivered it but for the obstruction. She gave no evidence that covered this ground. But the judge in his instructions to the jury cured any error which was committed in receiving this evidence; for he expressly told them that they must not allow the plaintiff damages for wood she had neither cut nor sold, and which she did not show she could have sold. But the point is also made in this court that the evidence covered a period of time after the commencement of suit, and therefore was inadmissible. If this be so, the attention of the circuit judge should have been called to the fact by the objection made. It is too late to have the benefit of it now.
II. On the question whether the locus in quo was a public highway considerable latitude was allowed in the examination of witnesses, and we think very properly. As already stated, user was relied upon to establish the public character of the way, and as the occasions for its use appear to have been very infrequent, the' plaintiff supplemented proof of these by evidence tending to show an understanding in the community that the way was public. In connection with evidence of the use we think this was competent; it went to characterize what was done and to negative any supposition ■or inference that the use was by license or sufferance merely.
III. Among other facts shown by the plaintiff was this: that in one season the overseer of highways had allowed her husband to work out a road tax on the disputed line. Upon this the defendants requested the court to charge the jury that the act of the overseer did not make the strip of land 'a public highway; and his refusal to do so is assigned for error. But it appears from the bill of exceptions that he did give the instruction, with the addition that the fact might nevertheless be considered as bearing upon the question in dispute. No reasonable objection can be made to this; it was very fair and entirely correct.
IV. It is also objected that the instructions of the judge left it to the jury to find whether or not there had been a ten years’ use of the way as a public way, so as to establish it as such under the statute (Comp. L., § 1268) when there was no evidence tending to prove a user for that length of time. Upon this we can only say that the bill of exceptions does not expressly negative the giving of such evidence, and we must suppose the instruction was warranted until the contrary is shown.
V. The question whether the plaintiff did not have .another route for taking off her wood, by a town line road, was mooted on the trial, and the defendants requested the court to submit to the jury the question whether there was on the town line a public highway. This was done with the following explanation: “You will determine from the evidence whether the road was open or not. I will say to you that as far as this question is concerned, that it could not have been a public highway unless it was open to public travel so that people might have traveled through on the road if they saw fit to do so.” This was objected to, and it is correctly said that there might have been a public highway whether it was capable of being used or not. But the instruction must be examined in the light of the facts ■in this case, and of the point in dispute. It was immaterial whether there was in fact a highway on the town line or not, if it was not open to use. The question was whether the plaintiff had another available road to market after the defendants had obstructed the road in dispute; and when the court told the jury that “so far as this question was concerned,” the town line road'was no public way unless it was in condition for use, we do not understand him to have intended any thing more than this: that it was no highway for plaintiff’s use if in fact it could not be used. Whether a highway was lawfully laid out there, was of no importance whatever to this controversy, unless it was also susceptible of being used.
We have noticed all the exceptions that seem to us to-require attention, and find none of them well taken.
The judgment must be affirmed with costs.
Campbell and Graves, JJ., concurred.
Marston, J., did not sit in this case. | [
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] |
Marston, J.
Gallagher brought an action of assumpsit to recover the price and value of services claimed to have been rendered by him in and about breaking a rollway of logs, made up in part of his own logs, and in part of defendants’ logs. Defendants pleaded the general issue and attached thereto a notice of set-off, and also of recoupment.
Upon the trial of the issue the plaintiff was sworn in his own behalf and testified that in the winter of 1874-5 he was logging on the south branch of the Manistee river and that he put logs into the river on defendant Peters’ land: that he had a talk with Mr. Peters about putting these logs in on his rollway and hauling on his (Peters’) roads; that witness told Mr. Peters he would make extra turn-outs for the teams, and would keep the roads in repair. He also testified that there was some talk about his putting on a sprinkler and wetting down the road, but that he did not agree to do this. The defendant Peters, in reference to this same matter, testified that he, Peters, had built the roads and railways at a large expense; that Gallagher said he would put on men to keep the roads in repair, and agreed to mak^ extra turn-outs for the teams so that there should be no delay to his (Peters’) teams; that Gallagher agreed to put men on the river to keep the logs clear from the railway, and agreed to put a sprinkler on the roads so that they would pack; that Gallagher agreed to so use the roads and railway that he (Peters) should not suffer any detriment from his (Gallagher’s) use of the roads and railway.
The plaintiff also testified to a conversation which he afterwards had with defendant Peters at Calkins’ store about breaking the rollways, which he claimed was an express promise to pay for such extra services. This conversation Peters denied, but even without such denial, while such evidence was admissible and was proper with all the facts and circumstances in the case, to be considered by the jury, yet it was not sufficient to establish an express agreement between the parties as to breaking the rollway. The right of the plaintiff to recover’, therefore, grows out of the original agreement between the parties under which the logs were banked. What such agreement was, or the extent of it, •or whether it was, in the light of all the surrounding circumstances, broad enough to embrace and cover the extra work, if any, done by plaintiff in breaking this rollway and putting afloat the logs, we do not undertake to say. That agreement was not in writing, and it was and is a proper question for a jury to consider whether under that agreement, and in the light of the surrounding circumstances, the defendants would or would not be liable under the general rules we here endeavor to Lay down.
The agreement entered into between parties, the usage upon the subject, or the relations existing between the parties and the surrounding circumstances, may be such as to repel any idea or presumption of a promise to pay for such extra services.
Where a party owning a banking ground on which his own logs can be banked and managed without difficulty, if not mixed with others, allows another, as a favor, to bank logs thereon, the labor necessary to get out the logs of the latter, even although in order to get his logs afloat he had to put afloat the logs of the former, should not, nor any part thereof, necessarily be charged to the owner of the banking ground, in,the absence of an express agreement to that effect. The agreement or circumstances under which the owner of the banking ground permits another to bank logs on his grounds, the quantity put in by each, the.extra labor, cost and expense occasioned by such additional quantity of logs, these and such other facts and circumstances as would fairly tend to aid a jury in arriving at a just and proper understanding of the entire case, should be admitted and considered, and the jury should, in the light of all the facts and circumstances, fix the relative rights and obligations of the parties.
Where parties mutually agree to, and do bank their logs at the same place, mixing them indiscriminately as they are hauled upon the same banking ground or rollway, in the absence of any special agreement between them, or of any custom, or other special considerations or circumstance tending to regulate and fix their relative rights and duties, we think it would be the duty of each, at the proper time, to put on a sufficient force of men and means, proportioned to the number of logs he had put in, and in view of the size and condition of the rollway as it then -exists, to break the same and put his logs afloat. And this should be done within a reasonable time, taking into consideration the stage of the water in the river, the probable or usual length of time for running logs upon such stream, and ind'eed all such surrounding facts and circumstances as careful, prudent men, engaged in such business and wishing to get their logs to a place of manufacture or market, would be likely to observe. A failure by either party in this respect would render him liable to the other party, upon an implied assumpsit, for any extra labor by him performed, in consequence of such failure. The language of the court in Mitchell v. Hosmer, 30 Mich., 232-3, as to the mutual rights, duties and obligations of parties under certain circumstances, is equally applicable here, but need not be repeated.
If under the facts and circumstances in this case it was the duty of each, in proportion to the logs by him put in, to assist in breaking this rollway, and the defendants failed in this respect, thus compelling the plaintiff to do more than his share of the work in order to get his own logs afloat, in an action brought to recover the value of such services the defendants would have a right to show that from the manner in which the plaintiff performed such work and labor, it was to them of no benefit or value, or that it was even a positive injury to them. The action being brought to recover the reasonable value of the services performed, the defendants might show that such services were of no value. Schoenberg v. Voigt, 36 Mich., 310. If, however, under such circumstances the plaintiff, on account of defendants’ neglect of duty, performed the services in getting his own logs afloat, when he had accomplished that fact, he would be under no moral or legal obligation to proceed any further for the purpose of putting defendant’s logs afloat. If he did, without the knowledge or authority of defendants, he would not be entitled to recover for such services, nor would he be responsible for any damages which they might sustain in consequence of his not putting all their logs afloat.
The entries made in plaintiff’s book by his foreman as to the number of days’ work done by him in breaking the rollway, was admissible in connection with the testimony of the plaintiff as to his knowledge of the correctness of the entries.
It appeared on cross-examination of the plaintiff that after the commencement of' the suit he had assigned all his interest in this claim to a - third party, and defendant’s counsel thereupon moved to strike out all the testimony in the case, for the reason that the plaintiff was no longer interested in the subject matter of the suit. This was refused.
We do not now undertake to say what the rights of the assignee would be, should he come into court and ask for protection, or what should be done where it appeared that the assignee had acquired his rights before any litigation had been commenced (of which the debtor had notice), and had no knowledge of any such litigation. Jeffs v. Day, 1 Queen’s Bench, Law Reports, 372. In a case like the present, so long as the assignee acquiesces in the proceedings, and permits the suit to go on in the name of the assignor, the defendants cannot complain, as they are in no way injuriously affected thereby. Any judgment that may be recovered in such action will protect them and be a bar to any future proceedings which the assignee might undertake to commence for the same cause of action. Had the •assignment been made in this case before suit commenced, the action might still have been brought in the name of the assignor, and need not have stated that it was for the use and benefit of the assignee. Clay F. & M. Ins. Co. v. Huron Salt and Lumber Mfg Co., 31 Mich., 347.
As the rulings below were not in accordance with the views here expressed, the judgment must be reversed with •costs and a new trial ordered.
The other Justices concurred. | [
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] |
Graves, J.
In the summer of 1874 the plaintiffs in error controlled and were interested in a quantity of pig iron lying at Marquette for shipment, and the defendant in error being about to ship a quantity which he owned, it was agreed that he should likewise ship that of plaintiffs in error. On the basis of the arrangement thus made, the defendant in error sent the iron belonging to' himself and that of plaintiffs in error to Rhodes & Co. of Cleveland, Ohio. The whole was sent in his name and on his account.
Rhodes & Co., through one of the firm, Mr. Hanna, had just previously informed defendant in error that the firm would receive from five hundred to two thousand tons and pay lake freight and dockage not to exceed two dollars per ton and advance $25.85 per ton.
Late in the fall the plaintiffs in error, being informed that their iron had been shipped to Rhodes & Co. in the name of defendant and on his account, called on him for some written evidence of their right, and on the 2d of January, 1875, he gave them the following paper:
“Messrs. Maas & Lonstorf, Negannee:
Dear Sirs: This is to certify that of the Michigan
'pig iron shipped by me to Rhodes & Co., Cleveland, Ohio, for account of Peter White, between Sept. 10th and Nov. 3rd, 1874, eight hundred and eighty-four tons ivas iron upon which you had a first lien, amounting, as per your statement to me, to the sum of twenty thousand seven hundred fifty-five and 07-100 dollars, under date Nov. 9, 1874, and interest since that date. And all that this iron brings, over and above the amount your due and freight and other proper charges, is to go to pay my lien, which is of course, second to yours.
Peter White.
1st Nat. Negaunee, 88,701.58 1 Maas & Lonstorf, 12,053.49 f
*9, 7-- n7 ,,
Failing to receive any thing by way of advances or otherwise on account of the iron, and getting no information from Rhodes & Co. in reply to communication made to that firm therefor, the plaintiffs called on defendant and asked for an order for the iron, and informed him that they would try and get it ánd dispose of it in order to realize the proceeds.
The defendant under date of June 8, 1875, thereupon executed and gave to the plaintiffs the following order:
‘‘Rhodes & Co., Cleveland, O.:
Dear Sirs: You will please transfer to the account of J. B. Maas and N. Lonstorf eight hundred and eighty tons of “Michigan” pig iron, shipped to you for account of Peter White. The iron belonged to them when Tshipped it, and was shipped in my name for convenience, expecting that under the contract with Mr. Hanna they would get their money as soon as it arrived in Cleveland, and now I transfer the iron back to said parties. You will settle with them, and all without further recourse to me.
Yours truly,
Peter White.”
On receipt of this paper the instrument given in January before was surrendered to defendant.. Subsequently the plaintiffs brought this suit and alleged that the defendant received the iron to be shipped on their account and on his undertaking that they should receive advances at the rate of twenty-five dollars and eighty-five cents per ton, and that he shipped in his own name instead of theirs and had failed to keep his agreement that they should have advances. They also alleged that they had received nothing as proceeds of the iron, and that they had been deprived of the value of the iron as a consequence of defendant’s shipment in his name and on his account instead of theirs.
They gave evidence tending to show that immediately after the delivery to them of the order of June 8th they received from Rhodes & Co. a letter concerning- the iron, and in which that firm insisted that they had a lien on the whole lot on account of advances made thereon; that plaintiffs on the next day called on defendant and expressed apprehension that they might not get their iron, upon which he told them if they would go down and present the order and the iron was not turned over to them or the proceeds of it paid to them, he would pay the amount himself; that they called on Rhodes & Co. and presented the order and requested a transfer to their account or the payment of the proceeds subject to any proper charge for freight or dock-age held against the iron, and that the firm refused; that nothing had been received on account of _ the iron either by plaintiffs or the bank they represented, and that at the time of shipment the iron was worth on the wharf at Marquette from 826 to 828; that on the refusal of Rhodes & Co. the plaintiffs informed defendant thereof and requested him to make payment as they claimed he had agreed to do, and that he refused.
The evidence was conflicting in regard to the nature of the arrangement under which plaintiffs’ iron was reoeived and shipped by defendant, and as to whether there existed an absolute agreement for advances, and as to whether such advances as defendant had received were indiscriminate and' on the whole mass of iron Rhodes & Co. had received, or were made in answer to drafts by defendant on specified lots of his own iron. And the case states that defendant gave evidence tending to show that he consented to ship and did ship the iron for the plaintiffs, at their request, and purely for their accommodation and without compensation; and that he shipped it for them precisely in the manner agreed upon between him and the plaintiffs; and that he had not obtained any advances of money upon any of the iron of the plaintiffs; that the same was free of any lien of Rhodes & Go. other than for freight advanced and other legitimate charges made by them; that the order of June 8th was given by him as a final settlement of the matter with the understanding that he (defendant) was to have nothing more to do with the matter; and that he did not promise to pay plaintiffs for the iron in case of their not obtaining it on the order.
The circuit judge was of opinion that the giving and reception of the order of June 8th and its retention by the plaintiffs amounted to a final settlement as between these parties of the whole controversy and left the plaintiffs to look to Rhodes & Co. for whatever redress might be claimed, and acting on this opinion he refused to submit the case to the jury on the facts, and directed a verdict for the defendant.
' We are unable to assent to this ruling.
The case does not come up in such form as to authorize any special discussion.
The facts have not been ascertained and we cannot anticipate their character.
We are of opinion, however, that the plaintiffs were entitled to have the evidence submitted under proper instructions. It was conflicting, but a finding upon it in favor of plaintiffs for some amount was in law possible, and it was hence necessary to take the sense of the jury upon it. Clark v. McGraw, 14 Mich., 139; Strong v. Saunders, 15 Mich., 339; Richardson v. Boston, 339 How., 263; Stone v. Flower, 47 N. Y., 566.
In some particulars the declaration is open to criticism, but no defect of sufficient importance is discovered to authorize us to say the error of the court worked no prejudice.
The judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, C. J.
The case of the plaintiff in the court below was substantially the following:
In May, 1875, Williams, the intestate, a young man between seventeen and eighteen years of age, was living with his mother, the plaintiff, and his sister. He was a little lame, and not strong intellectually. He was employed by the railway company and set at work as a common laborer with a construction train at one dollar and forty cents per day, which were then the customary wages of common laborers. Brakemen at the same time were paid two dollars a day. It was not shown that in hiring Williams anything was said regarding the particular service to be required of him, but it was claimed by the plaintiff that the wages to be paid sufficiently indicated the service, and we think there was some evidence tending to show that service as a common laborer alone was bargained for. One Smith was in charge of the construction train and of the laborers employed therewith, and though there were regular brakemen, he sometimes directed Williams to perform that service on particular occasions though he had previously had no experience as brakeman. On a certain day in June, 1875, Williams was on a flat car near the engine, assisting in unloading ties, when Smith ordered him to go back to the caboose and help stop the train. He started back, and was not seen again until it was discovered that he had fallen between the cars and been run over, receiving injuries which speedily resulted in his death. On these facts it was claimed that the sending of Williams forward to act as brakeman was wrongful, and in view of the dangerous character of the service was negligent, and that as the railway company had put Williams under the direction and control of Smith, and subjected him to Smith’s orders, it was responsible for Smith’s wrongful conduct, and the death of Williams was consequently a death caused by the wrongful act, neglect or default of the railway company, for which an action would lie under the statute. It was to recover damages for thus causing his death that the suit was brought. As bearing upon the question of liability, special stress was placed by the plaintiff on the youth, weakness and inexperience of Williams, and the case was submitted to the jury under the following instruction: “If you find that the deceased at the time he was employed by the defendant was a lad of seventeen or eighteen years of age, inexperienced in the handling of brakes, on a train of cars, such as that in question, and that he was unfitted for that work by reason of his unskillfulness, inexperience and youth, and this was known to Smith; that he was employed by defendant at the time of his death and for some months previous thereto in the capacity of a common laborer only, and was ordered by Smith, the foreman and conductor of the construction train in question, acting for and as the agent of said defendant within the scope of his authority, to brake on said train out of the line of his duty as such common laborer, and. that while attempting to obey such order he fell from the cars and was killed, without negligence on his part, and by the negligence of the defendant or its agent Smith, the case of the plaintiff is established and she is entitled to recover.”
Evidence was given on the part of the defense to show that common laborers with construction trains were accustomed on occasion to assist with the brakes, and that Williams had requested the privilege of doing so in order that he might learn the business; but in finding as they did for the plaintiff the jury must necessarily have found against this evidence, and we must assume in reviewing the case that the facts were as the plaintiff claimed.
The principal question of law which the record presents is whether, on the hypothesis stated in his instruction, the conclusion drawn by the judge lawfully follows. In discussing this question it has been assumed by counsel on one side and conceded on the other that in general the employer is not liable to one of his servants for an injury suffered by him in consequence of the negligence or wrongful act of another servant in the same general employment, and that, as between himself and his employer, each servant takes upon himself all the risks of the employment. But while conceding this, it is claimed on behalf of the plaintiff that if the master wrongfully sends his servant into a dangerous place or exposes him to a risk not connected with the service, and in consequence he is injured, the rule which exempts the master from responsibility has no application, because the risk is not one which the servant has assumed. It is also contended that if, instead of being sent by the master in person, the servant is thus wrongfully exposed to danger by one whom the master has placed over him, and to whose orders he is subjected, the responsibility is the same; the wrongful act of this superior being in law the wrongful act of the master himself. These positions are met on the part of the defense with two propositions, either of which, if sustained, is fatal to the action. These we state in our own language, as follows:
I. That on the plaintiff’s theory of the facts Williams was under no obligation to obey the order of Smith, and if he did obey it, his doing so must be regarded as his own voluntary act. If there was negligence in sending him to stop the train, there was negligence on his part in going, and therefore, conceding that in giving the command Smith stood in the position of the railway company, and that the company must assume his act, the case is the ordinary one of contributory negligence, and the action must fail on that ground.
II. .That if Smith, when he sent Williams to stop the train, was putting him to a service he had not engaged to perform, the act was not within Smith’s authority as conductor, but in excess of his powers, and if wrongful was the tort of Smith alone, as much so as if he had committed an assault upon Williams; and neither morally nor legally can the railway company be held responsible.
The fact that Williams was under iio obligation to obey the order of Smith, is not in our opinion sufficient to sustain the first proposition. When one person engages in the employment of another, he undertakes to obey all lawful orders, and he subjects himself for any failure to do so, to the double liability of being expelled from the employment and of being required to pay damages. It is true the master had no right to direct him to do any thing not contemplated in the employment, but when one thus contracts to submit himself to the orders of another, there must be some presumption that the orders he receives are lawful, the giving of the orders being'of itself an assumption that they are lawful; and the servant who refused to obey would take upon himself the burden of showing a lawful reason for the refusal. This of itself is sufficient reason for excusing the servant who declines the responsibility in any case in which doubts can possibly exist: he should assume that the order is given in good faith and in the belief that it is rightful; and if in his own judgment it is unwarranted, it is not for the master to insist that the servant was in the wrong in not refusing obedience. Eespect for the master as well as a consideration for his own interest may very properly induce him to waive his own judgment for that of his superior, and instead of engaging in disputes and being perhaps ejected from his employment, to leave questions of doubt for future settlement. Now, although we think on the facts as the jury has found them there was no authority to send Williams to handle the brakes, yet the point was not so clear but that serious question was made of it on the trial, and it would be grossly unjust to compel the servant at his peril to decide correctly on the validity of an order presumptively lawful when the consequences of even a correct decision might be apparent insubordination and perhaps difficulty and litigation. It is perfectly just under such circumstances to leave upon the master the responsibility he assumed in giving an unwarranted order, and to hold that the servant is not blamable in yielding obedience to his superior.
It may still be said that in thus yielding .obedience he accepts the risks which accompany it, for the same reasons that he accepts the risks of the employment in which he actually engaged. But the risks the servant actually assumes are only those which are properly incident to the employment; and he may always require the master to respond for injuries resulting from his personal negligence. Cases of this sort occur where the master exposes the servant to unsafe machinery or sends him into places where there are risks of which he is ignorant. Marshall v. Stewart, 2 Macq. H. L., 20; s. c., 33 E. L. & Eq., 1; Mellors v. Shaw, 1 B. & S., 437; Ryan v. Fowler, 24 N. Y., 410; Chicago, etc. R. R. Co. v. Swett, 45 Ill., 197; Schooner Norway v. Jensen, 52 Ill., 373; Snow v. Housatonic R. R. Co., 8 Allen, 441; Walsh v. Peet Valve Co., 110 Mass., 23; Perry v. Marsh, 25 Ala., 659; Strahlendorf v. Rosenthal, 30 Wis., 674. This principle may be applicable even when the risks are apparent and fully open to observation, provided the servant from his youth, inexperience or other cause is incapable of fully understanding and appreciating them. Grizzle v. Frost, 3 Fost. & Finl., 622; Bartonshill Coal Co. v. McGuire, 3 Macq., 300; Coombs v. New Bedford Cordage Co., 102 Mass., 572. Now in this case the servant was inexperienced; and though it would perhaps be apparent to him that the service on which he was sent was more hazardous than that he had engaged for, yet this must have been still better understood by Smith, and we think in this particular, as well as in respect to sending him upon .the service at all, the risk was not fairly upon the servant’s shoulders. We are therefore of opinion that if Smith can be regarded as standing in the place of the railway company in giving the order he did give, the company must be held responsible for the injury. We agree with the Supreme Court of Pennsylvania that “where a servant in obedience to the orders of his superior incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable that it may be safely used by extraordinary caution or skill,” the case is not to be regarded as one of concurring negligence. Patterson v. Pittsburg, etc. R. R. Co., 76 Penn. St., 389, 394.
Nor do we think it follows that because Smith at the time was exceeding his authority, the company is not responsible for his action. It is in general no excuse to the employer that an injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business; and the reasons for holding him responsible for the servant’s conduct are the same whether the injury results from a failure to observe the master’s directions, or from neglect of the ordinary precautions for which no specific directions are deemed necessary. It will be conceded that for a positive wrong heyond the scope of the master’s business, intentionally or recklessly done, the master cannot be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an excess of authority, committed in furthering the master’s interests, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant’s authority. The master fixes these, and it is his duty to keep his servant, in what is done by him, within the limits fixed. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not always be expected to know or be able to discover whether it was or was not without express sanction.
In this case Smith had charge of the train and of the men employed with it. In what he did, he was not purposely committing any wrong outside the employment, but his wrong was committed while acting in the very capacity in which he was employed, and had for its manifest purpose not to injure Williams but to advance the interests of the railway company. As between the company and any other than a fellow servant, there could be no question that his act should be deemed the act of the company. Shea v. Sixth Avenue R. R. Co., 62 N. Y., 180. But we also think that where the superior servant by means of an authority which he exercises by delegation of the master, wrongfully exposes the inferior servant to risks and injury, the master must respond. It is only where the risks properly pertain to the business and are incident to it, that the master is excused from responsibility; and a risk of this nature not being one of the kind, the general rule applies, and he must answer for the misconduct of his agent. This was expressly held on facts similar to the present in Lalor v. Chicago, etc., R. R. Co., 52 Ill., 401, and the cases of Louisville, etc., R. R. Co. v. Collins, 2 Duv., 114; Railroad Co. v. Fort, 17 Wall., 553, and Frost v. Union Pacific R. R. Co., 11 Am. Law Reg. N. S., 101, sustain the same views.
A subordinate question is made on the evidence introduced to show the poverty of the mother and sister of the intestate, and the instruction of the court based upon such evidence, which was as follows:
“In making your estimate of damages it is proper for you to consider all the circumstances in the case, and to take into consideration from the evidence, whether family of deceased were, at the time of his death, and are now in poor and needy circumstances, and looked to the boy when alive for at least partial support, and whether he gave his earnings when alive to his mother’s and sister’s support; whether he was able and willing to work for their benefit; and also the evidence as to the value of his services at the time of his death.” We do not understand that any part of this instruction is objected to except that which permitted the jury to consider, as bearing upon the question of damages, the poverty of the family.
The damages recoverable in a case of this nature are by the statute to be assessed with reference “to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person.” Comp. L., § 2351. They have no regard to the needs of the persons designated, or to any moral obligation which may have rested upon the deceased to supply their wants. If the moral obligation to support near' relatives were to be the criterion, we might take their poverty into account as bearing upon the extent of this obligation; but as this may or may not have been recognized, and if recognized may have been very imperfectly responded to, it is manifest that it can be no measure of the pecuniary injury the family received or was likely to receive from the death. What the family would lose by the death would be what it was accustomed to receive or had reasonable expectation of receiving in his life time: and to show that the family was poor has no tendency towards showing whether this was or was likely to be, large or small. One man contributes liberally in aid of his poor relatives; another delights in contributing luxuries where comforts are already abundant; but when the contribution is cut off in either case the extent of the loss is not measured by the wealth or poverty of the recipient, but by the contribution itself. A dollar lost, whether by poor man or rich man is neither more nor less than a dollar, and a. reasonable expectation of benefit to a certain amount, must, when lost, be compensated to the same extent whether the loser be rich or poor.
A dictum in Potter v. Chicago, etc., R. W. Co., 21 Wis., 372, 375, implies that the pecuniary circumstances of the family may properly be taken into account by the jury. But if this is so, and their poverty should increase the damages, so should their wealth diminish them; and this would establish a rule of damages unknown to the statute and repugnant to the one named by it. There are, it is true, some cases in which, perhaps, such evidence must be received, because it tends to establish a moral obligation to demand assistance in the future from one at the time incapable of giving it: as where the person killed was a very young child, and at present contributing nothing in aid of any one. Ewen v. Chicago, etc., R. W. Co., 38 Wis., 613; Barley v. Chicago, etc., R. R. Co., 4 Biss., 430; Chicago v. Powers, 42 Ill., 169. But it is a sort of evidence that, when necessarily received should be used with caution.
In Dalton v. Southeastern R. W. Co., 4 C. B. (N. S.), 296, to which we are referred, the damages appear to have been measured, not by the circumstances of the family, but by an estimate very properly based on the customary contributions of the deceased. The same remark is substantially true of Franklin v. Southeastern R. W. Co., 3 H. & N., 211. The wealth of the defendant, it is very justly held, can be no measure of the loss sustained (Conant v. Griffin, 48 Ill., 410); though it Avould seem to be quite as suitable for the consideration of the jury as the poverty of the next of kin. See Pennsylvania R, R. Co. v. Zebe, 33 Penn. St., 318. His wealth and their poverty would make the like appeal to his generosity, but the response to the appeal would indicate the extent of the loss, not the appeal itself.
As the verdict awarded to the plaintiff $3400, it would seem very manifest that the instruction misled the jury into giving damages for something besides the pecuniary injury. As the plaintiff’s showing was that Williams was feeble in body and mind, and earned the wages of a common laborer only, from which his own support must be derived, it is difficult to understand any estimate which would place the loss of the family at such a sum. The annual interest on it at the customary legal rate for money borrowed would have been more than three-fourths the whole annual earnings, even supposing Williams to have had steady employment, and to have lost nothing from sickness or other contingencies; and at the lowest statute rate, it would have been more than half. It seems incredible that the family could have had reasonable expectation of receiving an annual sum to either amount from such a source, but if they had, they could at most have realized it only for his life-time, while this award of the sum in gross would enable the family to realize the income, not for his life merely, but in perpetuity.
In this opinion we have not attached importance to any mental weakness of the deceased as bearing upon the right of action. It was enough that he was inexperienced as brakeman; but whether even this was important may fairly be a question. The fact existed in this case, and we need inquire no further.
The judgment must be reversed, with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Marston, J.
Plaintiffs in error brought an action of assumpsit to recover the price and value of a certain wind mill, pump and other things pertaining thereto, put up by them upon defendant’s premises, upon his written request;
Defendant put in a plea of the general issue with a notice attached thereto, alleging breach of contract, breach of warranty, the obtaining of his signature to the written order by false and fraudulent representations, and failure of consideration.
Upon the trial plaintiffs introduced in evidence a written order from defendant, under which they furnished and put up the mill, which order was as follows:
“Chelsea, Nov. 22d, 1873.
Messrs. Phelps & Bigelow, Kalamazoo, Mich. — Please ship on or before the 24th inst., or at your earliest convenience to Chelsea, county of Washtenaw, State of Michigan, per E. E., one 10 foot Perkins’ mill * * [pump, tank, etc., specifying them]. When the mill is up and in good running order, I agree to pay the man that puts it up, cash 8-, to be on trial sixty days: when if it works to my satisfaction, I agree to pay as follows;, (a failure of water in the well to be no excuse for the mill or pump). In one year from the first day of January, next, I promise to pay Phelps & Bigelow two hundred dollars, without interest, for the above described wind mill.
Charles Whitaker.”
Daniel W. Finch, who was selling wind mills for Phelps & Bigelow, saw defendant and procured this written order at the time it bears date. He, Finch and one Adams af ¡terwards put up the mill. The errors presented and argued an this court, in favor of a reversal of the judgment, mostly .•grow out of, and relate to conversations with Finch and .Adams at the time the order was taken, or while they were .at work upon the mill, and to the introduction of a printed .circular which had been shown to defendant at the time, and upon the strength of which he claimed to have given 'the order. The material portions of the circular were as ■follows:
“There is a remarkable beauty about the self-governing -principle which is characteristic of this mill alone. The rudder is hung by hinges on one side of the turn table, ■•and the wheel on the other. When the wind blows stronger than the wheel ought to bear, the tendency is to fold the wheel and rudder together. There is a proper amount of ¡speed for the wheel which it receives in ordinary winds, but in storms when the wheel would run too fast if it stood •directly in the wind, it turns itself partly out of the wind and keeps up its proper motion. If the wind becomes very ¡severe the wheel and rudder will gently fold together and remain still until the wind dies away. Thus the mill gov>erns itself perfectly.”
Warranty. — “To substantiate the above facts we warrant the Perkins mill to work in heavier or lighter winds; to do its work as well or better ; to be less liable to get out of order from storms, ice or any other cause; to be ■simpler and more durable than any other mill in the market. We put up mills on trial. If you are in want of one send your order for a Perkins mill and we guarantee •¡satisfaction or no sale.”
A preliminary objection taken to the cross-examination ■of Finch may first be noticed, viz.: that the questions asked were improper upon cross-examination, as the witness was called only for the purpose of proving the execution of the contract sued upon. This witness may have been called by plaintiffs for the purpose stated, but having proved the execution of the contract, they then proceeded to prove by him that he afterwards put up the mill, and furnished it with the things mentioned in the order, and that when he put it up and left, the mill was all in good condition, in .good running order, and that he had been where the mill was and seen it since that time. Finch having taken the order for the mill and afterwards put it up as testified to by him, we think defendant, upon cross-examination,, had a right to call out what occurred and was said between Viim and defendant relating to this matter, and out of which-the contract grew, and also to show by him, if they could, that he did not put and leave the mill in good running condition as he had testified to on direct examination.
It was also urged that such evidence, as to conversations, was open to objection as tending to change and enlarge the terms of the written contract between the parties, by parol evidence. We may consider this class of objections and those relating to the admission of the circular, which were similar, together.
The representations by Finch, and those contained in the printed circular, made to and shown defendant, during the negotiations for the sale, and which resulted in the order-being given, were clearly admissible in evidence, and the written order of defendant did not constitute such a contract in this case, as would exclude this evidence. Every principle, both of law and justice, should hold a, party bound by, and responsible for, the representations, whether oral or written, which ho holds out, and relying upon which a. party gives an order, as in this case. All such representations and the declarations made by plaintiffs’ agents when, afterwards sent to remedy defects in the mill were properly-received in evidence. Kimball & Austin Manufacturing Co. v. Vroman, 35 Mich., 310; Ochsenkehl v. Jeffers, 32 Mich., 482; Doty v. Martin, Id., 462; Whiting v. Hill, 23 Mich., 399; Miller v. Barber et al., 66 N. Y., 558; Hoyt v. Jeffers, 30 Mich., 181; Trevidick v. Mumford, 31 Mich., 470.
Another class of objections grew out of the clause in the order, under which the mill was to be on trial sixty days, the defendant not having returned the mill at the expiration of that .time, nor offering to return it. It was-, claimed on the part of the defendant, and there was evidence introduced tending to prove, that the mill, pump and fixtures were not in fact put up and left by plaintiffs in good-working order. Upon this branch of the case the jury were expressly instructed that in case they found that it was-properly put up and left and remained so for sixty days- that plaintiffs would be entitled to recover the amount specified, and that even if it was not so put up, if afterwards with the defendant’s knowledge and concurrence it was made to operate and was put in good running order and so remained for sixty days, plaintiffs would be entitled to recover. Other parts of the charge as to the effect of plaintiffs’ willingness to remedy specific defects, and as to the effect of defendant’s having expressed himself satisfied with the mill, were given at plaintiffs’ request, and were certainly as favorable as they were entitled to under the evidence. The court upon request of defendant’s counsel, charged the jury that If the mill or machinery was known to the plaintiffs or their agents to be defective at the time the mill was erected, then no notice was needed.”
It was the duty of plaintiffs to put the mill up and in good running order, and it was also to remain in this condition for the time specified. Now if at the time it was put up, plaintiffs or their agent knew that it was not in the condition bargained for, — and they afterwards from time to time agreed to and endeavored to put it in proper condition, —we think that during such time defendant was under no obligation either to return the mill or to offer to return it. The fact that he permitted it to remain upon his land, and used it at times, while in this unsatisfactory condition and while they were endeavoring to repair the defects, could not be considered as an acceptance on his part. These facts were all proper to be taken into consideration by the jury for the purpose of determining whether there had been a performance on the part of the plaintiffs and an acceptance by the defendant, and for this purpose they were very properly, and we think favorably to the plaintiffs, submitted.
What we have already said, covers, we think, substantially all the questions discussed in this court. A careful examination of the record satisfies us that the rulings and charge of the court contain nothing which could have injuriously affected the plaintiffs’ case, so as to give them just cause of complaint, or entitle them to a reversal of the judgment.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Marston, J.
Lewis A. Dauby contracted with the city of Jackson to furnish and lay certain water-pipes therein, and the plaintiff Hurd became his surety for the performance thereof. To secure Hurd against any loss by reason of his so becoming surety, Dauby executed and delivered to him an agreement as follows:
“This agreement between Lewis A. Dauby, of the one part, and John S. Hurd, of the other part, witnesseth: that the said John S. Hurd has this day become surety for the said Dauby for the faithful performance, on his part, of a certain contract entered into by the said Dauby with the mayor, recorder and aldermen of the city of Jackson, bearing date the 27th day of September, 1875, for the furnishing and laying certain water-pipes therein mentioned, as by reference to said contract will more fully appear.
Now, therefore, in order to secure and save harmless and fully indemnify the said Hurd from all danger and liability, by reason or on account of such suretyship, it is hereby agreed that all the interest of the said Dauby to said contract shall be, and is hereby, assigned to said Hurd, with full power and authority to control the same in every respect, as if he was the original contractor, and to receive from the city all the pay therefor. He, the said Hurd, becoming responsible for all the material furnished, the title of which shall pass to him immediately on the sale from the vendors to said Dauby, and also becoming responsible for all the labor performed on said work, with full power and authority to draw the pay for said work. All of which is agreed to on the part of the said Dauby; but it is understood if there are any profits realized upon said contract the same shall belong, to the said Dauby.
Witness our hands and seals this fifth day of October, A. D. 1875.
L. A. Dauby, [l. s.]
J. S. Hurd. [l. s.]”
The record in this case furnishes us with no information as to the terms or conditions of Dauby’s contract with the city of Jackson, except as appears in this agreement between Dauby and Hurd.
It appeared on the trial that Dauby, before he executed, this agreement to Hurd, had purchased or bargained for a' quantity of iron pipe, in his own name, and that “Hurd had nothing whatever to do with the buying of such pipe.”
This pipe was consigned to Dauby and arrived at the Michigan Central depot after the execution of the contract between Dauby and Hurd. The defendant Brown, who was sheriff of Jackson county, by virtue of a valid execution against Dauby, upon the 27th day of October, 1875, and while this iron was still at the depot, levied upon this iron as the property of Dauby. Hurd then brought this action of replevin, claiming title to the iron under and by virtue 'of his agreement with Dauby.
The case in the court below, as it was there tried, depended and turned upon the construction to be given to this instrument between Dauby and Hurd. On the part of the plaintiff it was contended that this instrument was a bill of sale and' passed the title to the iron absolutely to Hurd, while the defendant claimed that it was but a mere secur-' ity to indemnify Hurd against a contingent liability; that Hurd not having taken possession of the iron, and the instrument not having been filed in accordance with the statute, the security was void as against Dauby’s creditors. The instrument given in this case differs in material respects from those in Holmes v. Hall, 8 Mich., 66, and Dalton v. Laudahn, 27 Mich., 530. In neither of those cases did the instrument purport to change in any way the title to the property, but merely authorized the parties, upon the hap: pening of a certain contingency, to take possession of the property, and in each case it was held that the instrument was not a mortgage. In this case Dauby not only assigned all interest in his contract with the city to Hurd, but also the title to all materials, immediately on the sale thereof from the vendors to him (Dauby). But this assignment or sale was a conditional one. It was expressly declared to be one of security or indemnity merely. If Dauby performed in all respects his contract with the city, Hurd would not be damnified in any way, and he would have to account to Dauby for any and all property and money he (Hurd) might have received. We place no particular stress upon the clause in this contract which undertook to make Hurd responsible for all materials furnished. There is no certainty that Hurd would be in any way responsible to third parties for the property levied upon in this case under such an agreement. Turner v. McCarty, 22 Mich., 266. ' Such a clause gives
him no additional right to property that Dauby may have purchased in his own name. The record in this case shows that the iron levied upon Was purchased by Dauby before he entered into this agreement of indemnity with Hurd, and as the whole object of that instrument seems to have been one of security, the interest which Hurd acquired in the iron in question was that of a mortgagee merely. Hurd did not claim to have any interest in the iron other than what he acquired under this instrument. It follows, therefore, that the view taken by the court below was correct, and that the judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
Defendants in error brought an action of •ejectment to recover possession of certain lots situate in Ann Arbor. From the facts found by the court the parties •claimed title to this property through Minerva E. Mundy who was owner thereof in fee simple on the 20th day of .June, 1862. Hpon that day she executed a trust deed of this property under which the plaintiff below claimed title; to this deed a number of objections were raised. It also appears that Mrs. Mundy died in April, 1871, and that in •October, 1873, her only surviving heirs conveyed the premises in question by warranty deed to Fanny E. Thatcher, .the wife of Erastus Thatcher; that Erastus Thatcher then ■was an attorney at law, and was at the time of such con■veyance the solicitor for said heirs in a cause then pending .in court. This conveyance plaintiffs below attacked as being •champertous, against public policy and therefore absolutely void; that May 13th, 1875, said heirs, by quit-claim deed, conveyed the premises in question to plaintiffs below. This suffi.ciently shows the claim of title made by each party. If the trust deed was and is a valid instrument, then plaintiffs below would be entitled to recover. Even if invalid they still ■ claim they were entitled to recover, if- the deed from the heirs to Mrs. Thatcher can be held void, and upon this ■theory they recovered in the court below. The argument took a very wide range and the several questions raised were -discussed in this court thoroughly and exhaustively. We have ■ considered it proper to first examine the trust deed of June .20th, 1862, because if we find that a valid, legal instrument, it will render wholly unnecessary any examination of the •other questions discussed.
We will consider the objections to this trust deed in their regular order.
I. That the facts and circumstances, with reference to delivery and acceptance set forth in detail in the finding, do not show a lawful delivery or acceptance. Reference was made as to the insufficiency of the evidence to sustain the findings, but this question we cannot examine into upon this record. We must take the finding of facts by the court as correct, and dispose of the questions here raised upon that assumption., It appears from the finding of the court that upon executing this deed Mrs. Mundy left it with Mr. Morgan, the attorney who had prepared it, where it remained until after her death, when he left it at the register’s office-for record at the request of one of the trustees therein named; that during this time, between its execution and her death, she remained in possession of the property, exercising exclusive control over the same, and in March, 1871, she conveyed a part of these premises to Wellington D. Smith; that she had no conversation with the trustees named in the deed or any of them, after its execution, nor were any of them, except Lemuel and Ulysses T. Foster, aware of its execution until after her death; the former, when he first learned of its execution, a few days after the date thereof, approved of and assented to what had been done, but did nothing farther in the way of accepting the trust, other than to request Mr. Morgan to retain it as it would probably be safer in his hands than elsewhere. The court also found “that Mrs. Mundy did or said nothing more in the way of delivering said deed, but it was her intention to do whatever was necessary, to make the deed valid- and effectual, and that the delivery to or leaving it with Morgan was intended by her to give it effect as a valid instrument. At the time of the execution, acknowledgment and leaving of said deed with said Morgan by Mrs. Mundy for the grantees, it was explained to her by Mr. Morgan that that was a good and sufficient delivery.of it to make it operative.”
One of the essential requisites to the validity of a deed, so as to pass the title, is delivery. Even although in all other respects it has been properly executed, yet it does not follow that the title to the property passes; the grantor yet retains control of the instrument, and may deliver it, absolutely, conditionally, or not at all. The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him, but it is that act of the grantor, indicated either by'acts or words or both, which shows an intention on his part to perfect the transaction, by a surrender of the instrument to the grantee, or to some third person for his use and benefit. The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument. The deed may be delivered to the grantee, or to a stranger unknown to the person for whose benefit it is made, and it has been held that such was a good delivery, when assented to by the grantee, after the death of the grantor. Hatch v. Hatch, 9 Mass., 307; Foster v. Mansfield, 3 Met., 412; Belden v. Carter, 4 Day, 66; Doe v. Knight, 5 B. & C., 671. The delivery to a third person unconditionally for the use of the grantee gives effect to the deed. Concord Bank v. Bellis, 10 Cush., 278, and this even although the latter is not aware of the fact, if he subsequently assents. Cases cited, also Buffum v. Green, 5 N. H., 71; Cooper v. Jackson, 4 Wis., 553 ; Wesson v. Stephens, 2 Ired. Eq., 557; see also Eilis v. Secor, 31 Mich., 187; Wallace v. Harris, 32 Mich., 397; Home Ins. Co. v. Curtis, Id., 403.
So we have seen, that acceptance by the grantee, if necessary to prove an actual acceptance, may be made in certain cases even after the death of the grantor. And cases which hold that an acceptance, at a time subsequent to that of delivery, would not be sufficient to give validity to the deed, concede, that where the act of delivery is in its nature a continuing one, as leaving the deed on deposit, to be afterwards accepted by the grantee, a subsequent acceptance would be sufficient. Of course the deed where left on deposit this way might before acceptance be recalled, but until recalled might be accepted. Hulick v. Scovil, 4 Gilm., (9 Ill.), 177; Canning v. Pinkham, 1 N. H., 353; Maynard v. Maynard, 10 Mass., 456; Church v. Gilman, 15 Wend., 660.
Under the finding we have no doubt but that there was in this case a valid delivery and acceptance of the deed. At the time of its execution she left it with Mr. Morgan. In so doing “'it was her intention to do whatever was necessary to make the deed valid and effectual; and the delivery to or leaving it with him was intended by her to give it effect as a valid instrument.” She at this time was informed by her attorney that such “was a good and sufficient delivery of it to make it operative.”
We are of opinion therefore that under the facts found by the court there was a sufficient delivery and acceptance of this deed to render it, valid and effectual.
Even if an express acceptance by all the trustees could be considered necessary, which we do not understand to be the law, and the court had expressly found no such acceptance, yet it would not follow that the trust thereby had failed. “It is a well settled principle in equity that a trust shall not fail for want of a trustee.” “Equity never suffers a trust to fail on account of the neglect or refusal of the trustee to act, but if necessary will either appoint a new trustee, or treat the holder of the legal title as such.” Adams’ Equity, 164 and n.
II. That no power was contained in the deed under which the trustees could sell and convey the real estate. This objection may be considered with the next, which hinges thereon, viz.: that the trust was void under §§ 4081-4082 of the Compiled Laws, in that it suspended the power of alienation for more than two lives.
We think it is a self-evident proposition that the “absolute power of alienation” is not suspended, where the instrument gives the trustees power to dispose of the property at their option. Where power is given to convey the trust estate, the absolute power of alienation can in no possible way be said to be suspended. If such a power is exercised as it may at any time, the trust is at once and forever, upon the execution and delivery of the conveyance, at an end, and cannot be revived, and that such a power is good when contained in an instrument which without it would be invalid, there can be no doubt. A conveyance under such a power would be good and would pass a good title to the grantee. In order to render the instrument invalid under our statute the power of alienation must be suspended, and the time it is so suspended must be for over two lives in being at the creation of the estate, or at least so that it may be so suspended, — but there is no absolute suspension whatever where the trustees have power to sell. It is true they may not. dispose of the estate, but it is not a question of what they may or may not in fact do, but one of power. Have they power to sell, or is the power of sale suspended absolutely for the prohibited period? If the former, the instrument is valid; if the latter, invalid. Belmont v. O’Brien, 12 N. Y., 394; Mason v. Mason, 2 Sandf. Ch., 432; Hawley v. James, 16 Wend., 153, per Bronson, J.; Hunter v. Hunter, 17 Barb., 90; Nelson v. Callow, 15 Sim. Ch., 353; Cresson et al. v. Ferree, 70 Pa. St., 446. The power being one-which may be exercised at any time before the determination of the limitations which precede the ultimate one, renders, the trust valid. Beyond this we do not express any opinion as to the correctness of the rule laid down in New York as to the proper construction of the statute.
Did then the instrument in question in this case con-, tain such a power?
It is generally conceded at the present day that where-apt words are used to create such a power no particular-form is necessary, and it is also a universally recognized rule-in the construction of instruments, that they are to be held valid and effectual, rather than invalid, where such a construction can fairly be J^iven them under the language used and the rules of law applicable thereto. The grantor in. this instrument grants, bargains, sells and conveys unto the-trustees named, the lands therein described, “together with the appurtenances; and does also bargain, sell, assign and transfer to said trustees and the survivors or survivor, or successors of them as such trustees, all my household goods: and personal property of any and every kind, to have, hold,, use and enjoy the same, and lease or dispose of the same, or cause the same 'to be used, and to receive the rents, profits and income thereof, and to use or dispose of the same on trust, and for the uses and purposes following:” And they are also in certain emergencies given authority to temporarily raise money upon the property by mortgage or otherwise. To our mind it seems clear that the power here given is general and is intended to cover both the real and personal property. Not only this but some of the words are, when applied to or in connection with real estate, fit and appropriate, but wholly wanting in this respect when applied to personal property. It is not disputed but that the authority here given to “receive the rents, profits and income thereof” are and were intended to apply to and authorize a leasing of the real estate, yet they form a part of the same clause which contains the authority to “lease and dispose of the same.” They are inappropriate and meaningless when applied to personal property, and yet they may just as properly be held applicable thereto as may the words “lease and dispose.” We are to give effect to the language of the party and are not at liberty to reject any of the words used as meaningless and of no effect, unless forced so to do. The authority here given follows the description of both the real and personal property, and so far as applicable, must be severally applied to the two kinds of property. Had the punctuation in this deed been different and the words, “to have, hold, use” etc. been introduced as the commencement of a new sentence, no reasonable doubt could have existed as to its being applicable to the different kinds of property which preceded it. It is laid down as a rule in reading and construing deeds, that no regard is had to punctuation, since no estate ought to depend upon the insertion or omission of a comma or semicolon. And although stops are sometimes used, they are not regarded in the construction or meaning of the instrument. 3 Washburn on Real Estate, 628. We are of opinion, 'therefore, that full power was given the trustees to sell this property at any time, and that this removes any objection which might otherwise exist on account of a supposed suspension of the power of alienation.
Various objections were made to the validity of this deed under our statute abolishing uses and trusts, except as therein permitted, and within which exceptions this case, it was claimed, did not come. .Even admitting that the directions as to the disposition of the rents and profits were invalid, yet the power to sell would be valid, and the only question that could therefore arise would be as to the proper disposition that should be made of the surplus or accumulated fund. Whether this accumulated fund should go under § 4107 to the person presumptively entitled to the next eventual estate as held in Haxtun v. Corse, 2 Barb. Ch., 518, and in Kilpatrick v. Johnson, 15 N. Y., 322, we need not determine, as such question cannot properly be raised in an action of ejectment where only the legal title to the real estate is in issue.
The objection that the reversion to the school district is void does not at present concern the plaintiffs in error in this case. Should the title of the church for any reason cease to exist and the school district claim under this trust deed, then the validity of the grant to the district would properly arise.
Our statute, §§ 3062 and 3074, fully authorizes the conveyance in trust for the purpose mentioned in this deed and vests the title in perpetual succession in the trustees provided for by the statute in trust for the church. We are of opinion that the objections made to the validity of this trust deed are not valid, and that it is unnecessary to discuss the other questions raised.
The judgment must be affirmed with costs and the record remanded for farther proceedings under the statute.
The other Justices concurred. | [
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Campbell, J.
In this case defendants were convicted of conspiracy, and the case comes up on exceptions. The Attorney General does. not dispute the existence of errors, but as the case must go back with instructions we have deemed it proper to hear argument.
The court below, while expressing an opinion that the information, if tested by the rule in Alderman v. People, 4 Mich., 414, would be bad, maintained it as good on the supposition that the rule had been changed in People v. Clark, 10 Mich., 310.
The latter case was not designed to disturb the former decision, and was decided in express recognition of its principles. In Alderman!s case it was held the information must affirmatively and clearly show what things agreed to be .done under the conspiracy were unlawful, whether as ends or means, and decided that the facts set forth in that record did not.make out of necessity a design to do any criminal wrong.
In Clark? s case the conspiracy was averred to have been “by divers false pretenses, subtle means and devices to obtain and acquire to themselves of and from one John M. "Whelpley a sum of money, to wit, the sum of ten dollars, of the moneys of said John M. "Whelpley, and to cheat and defraud him, the said John M. Whelpley, thereof.” And they were averred to have thereby obtained from him two pieces of money of five dollars each, — an overt act being so shown in pursuance of the conspiracy.
This information was held good as showing a conspiracy to commit a single statutory crime laid in the precise language of the statute. And it was held that the means or specific pretenses need not be set forth because it was quite possible that they might have conspired to use any means of deceit which they might find available, and not have agreed on any specific falsehoods beforehand. This ruling was in conformity with well settled rules laid down in several authorities, and approved by the court of Queen’s Bench under Lord Tenterden and Lord Denman, in Rex v. Gill, 2 B. & Ald., 205; and Reg. v. Gompertz, 9 Q. B., 824.
In the present case there were five counts, of which only the fourth and fifth were supposed to be legally valid. Neither of those lays a conspiracy to commit any specific crime, but both aver a design to use means some of which were within the statute of false pretenses and some not, to cheat and defraud. No other crime was set forth, and the intent to cheat and defraud was not confined to a single person or to two persons jointly, but to two persons severally. As the facts are set forth it is impossible to deduce from the information whether either, or if so, which of the persons named was to be defrauded by false pretenses. The cheating and defrauding were to be done by divers false pretenses, and subtle means and devices, “and by other unlawful, illegal, dishonest, corrupt, and indirect means and devices.” Now all of these except false pretenses may fall outside of any legal definition of a crime, and if they may be of such a nature as under particular circumstances to create a crime it must be shown just what they are in order that the court on reading the information can ascertain what crime they create. This was the defect in the Alderman case. The facts averred c[id not of necessity and absolutely amount to a crime — whether upon such testimony under a proper allegation a jury might or might not have inferred one. Here no facts are set out, and while it may be held that one or the other person named was to be defrauded by false pretenses, it does not appear which of them was, and the charge is ambiguous. The last count names .no victims at all, but refers the design to a purpose to defraud divers of the citizens of the township of Farmington and of the county of Oakland.
There is no class of cases where defendants are better entitled to the protection of the law against vague charges than where they are charged with conspiracy. The course of legal experience has shown this to have been a familiar resort to catch innocent persons, by throwing a drag net of vague charges, and resorting to suspicions and prejudices to induce juries to convict persons who find it impossible to escape the malicious insinuations of false accusers. Titus Oates’ plot has been a warning to all courts and jurists not to encourage any looseness in charges which in exciting times juries and communities are only too ready to catch at to punish those who' are unfortunate enough to be suspected.
The facts in the present case are not such as ‘ to show the injustice of the strict rule. The defendants certainly do not appear in au enviable light, and are probably dishonest swindlers. But this does not render them responsible for crimes not charged and proved against them. The proof is very slender if there is any proof that they obtained money by false pretenses. It indicates that they made promises which they did not mean to keep, and partly by this and partly by flattery and the other cunning devices of sharpers induced people to order what they did not want and to trust to their promises not to hold them on such orders. It is not surprising that a jury with such culprits before it, should convict them without any very close attention to law or facts. But this mode of doing justice is not favored' in law, and needs no encouragement.
We think the information fatally defective so that no judgment can be given upon it. It must be certified to the circuit court that no judgment should be entered against the respondents but that judgment should be arrested and the prisoners discharged.
As there can be no new trial we need not pass upon the rulings.
Cooley, C. J., and Graves, J., concurred.
Marston, J., did not sit in this case. | [
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Graves, J.
Defendant was prosecuted before a justice for disobedience to an alleged ordinance of the village of Hudson against immoderate driving. The act complained of was on August 2d, 1876, and the prosecution was commenced the day following. The case was tried on the 7th and resulted in a conviction. The defendant appealed, and on a trial in the Circuit Court he was again convicted. He then alleged exceptions, and they have been certified to this court. The main one was against the admission pf the proof offered to show the existence of the alleged ordinance at' the time when the act in question was committed.
The charter of the village, as amended in 1869, provides that the time for its taking effect shall be prescribed in ■every by-law or ordinance; and moreover that it shall not have effect until it shall have been published for two weeks successively, once in each week, or by written or printed notices posted up in three of the most public places in the village, and that the like notice shall be given of the repeal -or amendment of any ordinance or by-law/ 2 Sess. L., 1869, p. 877: Act 360, § 56. The precise phraseology of the provision is not given, but the sense is not departed from.
Eelying upon the general act of 1865 concerning the mode of proving by-laws and ordinances (Comp. L., § 5953), the prosecution adduced a collection of what it claimed to be by-laws and ordinances of the village, and it included •one entitled “an ordinance relative to disorderly conduct,” and this was admitted as proof of the ordinance on which the complaint was based. It expressly provided that it ■should take effect on the 16th day of May, 1873, and it ■showed that it was passed, ordained and ordered published May 5th, 1873. A further entry in the form of an amendatory ordinance was admitted. This provided that it should take effect on the 8th day of May, 1875, and it declared that it was passed, ordained, and ordered published April 26 th, 1875.
The provision referred to in the charter is a very important one, and if there was any necessary disagreement between it and the general statute relating to the mode of proof of by-laws and ordinances, it would of course prevail as against the latter. „ Being made specially and specifically for the particular place no mere general regulation of earlier date could be allowed to cut it short. But there is no necessary inconsistency between the two enactments. The charter provision, deals with the manner in which by laws and ordinances shall in one respect be framed, and prescribes the time and course of promulgation. The general act, as 'its title declares, provides “for proving the-by-laws.”
It does not purport to prescribe the mode of enactment, or what shall be expressed, or what proceedings or time-shall be essential for the purpose of promulgation. The mode of proof authorized may be pursued, and yet it may appear on the face of the proceedings that the supposed ordinance has never been constituted according to law, and in such event it could not be treated • as a valid one in virtue of the authority to make proof in the way mentioned.
Compliance with the charter was necessary to the validity of the ordinance and it was apparent on the face of the proceedings that it had not been complied with.
It was indispensable that the ordinance should express the time when it would take effect. It was also indispensable that two weeks should be given for notice previous-to its taking effect. Both conditions were required. It appeared however conclusively that the time set for the ordinance to take effect was too short to enable the required notice to be given and hence that the course taken in carrying out one necessary condition made compliance with the-other absolutely impossible. This was a violation of the-charter.
The supposed ordinance appeared upon the proof to be invalid and the same is true of the amendatory ordinance. It cannot be admitted that the requirement that two weeks: for notice shall elapse before an ordinance shall take effect may be satisfied by publication for two weeks successively, when less than two weeks intervene. The purpose of the-provision is not consistent 'with any such construction.
The people are to be informed of the regulations which are to govern them, and time as well as publication is material. The Legislature wisely put stress both upon the mode of promulgation and upon the length of time to be allowed, and it would be wrong to abridge this time by construction'. Again, the length of time is not regulated at all by the mode of giving notice. It is to be the same- whether the notice is published in a newspaper or by posting in three public places, and no one will claim that less than two weeks will suffice in case of posting. ' The terms of the provision favor the same result, but it is unnecessary to indulge in verbal criticism.
The conviction should be quashed, and the defendant discharged.
Cooley, O. J., and Campbell, J., concurred.
Marston, J., did not sit in this case. | [
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] |
Dethmers, J.
At about 11 p.m. defendant Grant negligently drove his automobile against 1 of 2 pillars supporting a canopy which extended back from the pillars, over gasoline pumps, to the front of a garage to which it was attached. The pillar was knocked almost out from under the canopy. Plaintiff, a deputy sheriff, arrived at the scene and gave defendant a ticket for reckless driving, whereupon the latter went home. At about 1:30 a.m. plaintiff informed 1 of the 2 owners of the garage, the other defendants herein, that the premises were in an unsafe condition and told him that barricades ought to be erected. The next morning plaintiff was present to complete his investigation. He found that no barricades had been erected. He did not go under the canopy because he considered it to be unsafe. While standing back about a pace from the outer edge of the canopy he noticed 3 children under it. He warned them to get out and when they failed to heed his warning he took a step forward, toward them, again warning them to get out. At that instant the canopy let loose from the garage, sl[d toward the side where plaintiff had been standing, collapsed, fell upon and severely injured him. For resultant damages plaintiff brought this suit against the 3 defendants, but before trial effected a settlement with the 2 garage owners. Grant, hereinafter called the defendant, appeals from judgment against him for $7,500.
Starting with the assumption that his negligence caused the collision with the pillar, defendant contends that that negligence was not a proximate, but only á' remote, cause of 'plaintiff’s injuries the following morning. This he predicates on the fact that a period of 9 hours elapsed between his said act. of negligence and'plaintiff’s injuries and on the theory that an independent, subsequent act of negligence intervened as an efficient cause of the injuries, namely, negligence of the garage owners in failing to erect barricades around the dangerous premises to keep people out. In support he cites Luck v. Gregory, 257 Mich 562, and Fuller v. Hessler, 226 Mich 311. The cases are distinguishable from this in that the intervening causal factor there consisted of an overt act, not a failure to act as claimed here. Defendant urges, however, that even though the intervening negligence consists only of a failure of another to act to prevent injury to plaintiff, it must be held to render his own negligence a remote rather than a proximate cause and, in law, excused, under authority of Schneider v. C. H. Little Co., 184 Mich 315, and Fowles v. Briggs, 116 Mich 425 (40 LRA 528, 72 Am St Rep 537). In Schneider, however, this Court said, with respect to such claim (p,324), “the cases . * * * do not go so far.” This Court held, under the facts of that particular case, that the defendant was not excused by an intervening failure of another to act and, in speaking of the Fowles Case and others in which the intervening negligence of another was held to excuse the initial negligence of defendant and render it only a remote cause, went on to say (p 324):
“In all these cases, some one other than defendant had assumed a duty which, performed,'would have averted the injury, or had done some act which, if properly done, would have averted it. Résponsibility for proper conditions had been assumed.”
The quoted language distinguishes the instant case, in which the garage owners had not assumed a duty which they failed to perform,- nor had they undertaken to do some act and performed it improperly with consequent injury to plaintiff. As said in Solomon v. Continental Baking Co., 172 Miss 388, 393 (160 So 732):
“Where an act of negligence is a substantial factor In bringing about an injury, it does not ceasc to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating, and the injury inflicted is not different in kind from that which would have resulted from the prior act. 2 Restatement, Torts, § § 440-442,. 447.”
As for the lapse of 9 hours, no authorities are cited by defendant in which it is held that the mere lapse of time between defendant’s negligence and plaintiff’s resultant injuries will serve to transform that which otherwise would be a proximate cause into a remote cause excusing defendant from lia bility. Appropriate to such, situation is the following from 38 Am Jur, Negligence, § 55, p 703:
“The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space. Assuming that there is a direct, natural, and continuous ¡sequence between an act and an injury, * * the ■act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance.”
Defendant also cites Clumfoot v. St. Clair Tunnel Co., 221 Mich 113; and Weissert v. City of Escanaba, 298 Mich 443 (10 NCCA NS 393), for the proposition that a test of proximate cause is whether the injuries ought reasonably to have been foreseen or anticipated as a possible or likely result of defendant’s negligence. In Clumfoot this Court said (pp 116,117):
“In order that the plaintiff may recover it must ¡appear that his injury was the natural and probable ■consequence of a negligent act or omission of the ■defendant which- under the circumstances an ordinarily prudent person ought reasonably to have foreseen or anticipated might possibly occur as a result of such act or omission. * * *
“The test to be applied is, Was there a likelihood ■or reasonable probability of human contact with the wires by persons who had a right to be in a place from which such.contact was possible? If so, the ■danger should have been foreseen or anticipated by the defendant. * * It is not necessary that the manner in which a person might suffer injury should be foreseen or anticipated in specific detail.”
In the instant case the record fairly presented a question of fact as to whether the danger should have been foreseen or anticipated by defendant and whether plaintiff’s injuries were the natural and probable consequence of defendant’s negligence. The trial court’s finding in the affirmative was not against the clear preponderance of the evidence.
Was plaintiff guilty of contributory negligence as a matter of law? He knew of the dangerous condition of the canopy. There is no showing, however, that he knew, or in the exercise of due care should have known, that the eanopy, in collapsing, would swing to one side, as it did, rather than fall straight down, and that he was, for that reason, in a position of peril when he stood a pace back from the outer edge of the canopy. The trial court held that he was not guilty of contributory negligence as a matter of fact in so standing. We do not consider that finding to be against the clear preponderance of the evidence; much less is there any basis in the record for holding that he was guilty of contributory negligence as a matter of law in standing in that position. Thereafter he took a step forward, as he warned the children, and came to a position where his head was about a foot from the outer edge of the canopy. The collapse immediately followed. While his action in so doing presented a question of fact as to contributory negligence, determined in his favor by the trial court, the proofs are not such as to warrant a holding that plaintiff’s placing himself in a position still outside the outer rim of the canopy amounted to contributory negligence as a matter of law. In response, however, to defendant’s insistence that coming so close to a position of known danger amounts to contributory negligence as a matter of law, plaintiff invokes the “rescuer” or “Good Samaritan” doctrine, quoting 38 Am Jur, Negligence, § 228, p 912:
“The rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made. In other words, in attempting to save the life of another, one is justified in exposing himself to danger in a manner that under other circumstances would deprive him of legal redress for injuries sustained.”
In further support of that doctrine plaintiff cites Wagner v. International R. Co., 232 NY 176 (133 NE 437, 19 ALR 1). The quoted language is applicable to plaintiff’s situation when he sought to rescue the children from a position of peril. It follows that he could not be charged with contributory negligence as a matter of law in assuming a risk to himself in order to save the children. The judgment was not ■contrary to the clear preponderance of the evidence.
Affirmed, with costs to plaintiff,
• Carr, C. J., and Butzel, Smith, Sharpe, Reid, and Kelly, J J., concurred.
Boyles, J., did not sit. | [
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Boyles, J.
The sole question here for decision is, what is the fair rental value of certain premises during a 5-year extension of a written lease.
Plaintiff is the lessee of the ground floor and basement of a certain brick building in Grand Rapids, now owned by the defendant as lessor. In 1948 plaintiff rented the premises here involved, from the then owners, for a term of 5 years ending May 31, 1953, for a rental of $300 per month, under a written lease which contained the following option:
“Landlord hereby grants to tenant an option for a lease for 5 additional years at a rent to be agreed upon, dependent on then existing conditions, but in any event not to exceed a 100% increase over the rent in this instrument provided.”
In March, 1953, the plaintiff notified the defendant of his election to exercise the renewal option but the parties were unable to reach an agreement as to what the rental should be for the extended term. Thereupon the plaintiff filed this bill of complaint in chancery in the circuit court in Kent county alleging that the defendant had refused to renew the lease except at a 100% rent increase, that a fair rental for the renewal term would be $300 per month, asking the court to determine the fair rental for the renewal term, and that the court decree specific performance of the lease.
Issue was joined, testimony taken, the court found that a fair rental would be $350 per month and decreed specific performance. The defendant appeals, and asks that the decree be set aside and one entered for specific performance fixing the fair rental value of the premises for the renewal period at $500 per month.
The defendant claims that the trial court in determining fair rental value erred by restricting its consideration to comparative rentals for business like the plaintiff’s (restaurant and bar) and disregarded evidence of rental value of comparable premises in the area and also of fair return on investment. Decision hinges upon what construction should be given to the wording of the option which the owner granted to the tenant for “a lease for 5 additional years at a rent to be agreed upon, dependent on then existing conditions.”
The lease was prepared by an attorney for the owners and, in case of doubt or ambiguity, must be resolved most rigidly against the party preparing it, in determining its legal effect. Lower v. Muskegon Heights Co-operative Dairy, 251 Mich 450; Higbie v. Chase (syllabus 7), 306 Mich 577; L. A. Walden & Co. v. Consolidated Underwriters (syllabus 5), 316 Mich 341.
Three witnesses qualified as experts and testified as to fair rental value of this property. Two of them testified for the plaintiff—one said $275 per month, the other testified $350 per month. The third witness, for the defendant, testified the fair rental value should be $500 per month. There apparently was a good explanation for this wide spread. The opinion of the 2 appraisers for the plaintiff was based upon rental value of the property in question being used by this plaintiff under the renewal option in the lease as a restaurant and bar, while the opinion of the defendant’s witness as to the rental value was not restricted to the use of the property by the plaintiff, or by any person for a restaurant and bar. His opinion assumed that the property could be rented to anyone for any business purpose. In other words, he did not necessarily have in mind that the use of the property would be restricted to plaintiff’s business. All 3 witnesses agreed that there had been a considerable change in the conditions surrounding this particular piece of property since the date of the original lease. There had been a considerable reduction in the number of pedestrians who would use this street. An attempt was made to compare rental value of the location of the property in question with other businesses, located elsewhere, that would attract pedestrians.
In construing the lease the trial court said:
“This renewal clause must be construed to mean that it was the intention of the parties to the lease that the rental for the additional 5 years was to be determined upon the assumption that the lessee elected to remain the additional 5 years and that his rental for that period should depend upon the ‘then existing conditions.’ This renewal clause was intended to be for the benefit of the lessee, the plaintiff in this case, in carrying on his restaurant and bar business, and not the lessor. * * * This court cannot be at all concerned with what the present lessor may have paid for the property. Perhaps it paid too much. In any event, as heretofore noted, it is the opinion of the court that it was the intention of the original parties to the lease that the renewal provision was inserted for the benefit of the tenant and that the rent to be paid during the additional 5 years was to be determined by ascertaining the fair rental to be paid by the present tenant or by a retail business comparable to the business conducted by the tenant.”
We are in.full accord with the conclusions of the trial court. Under the proofs adduced it would have been possible for the court to fix the rental at even less than $350.
Affirmed. Costs to appellee.
Carr, C. J., and Butzel, Smith, Sharpe,- Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Reid, J.
Petitioner Arthur Weir (also referred to as Arthur J. Weir and hereinafter referred to as plaintiff) filed a petition for writ of habeas corpus, reciting that he was confined in the State prison of southern Michigan at Jackson, Michigan, by virtue of an illegal conviction, upon a charge of embezzlement.
In his petition said Arthur Weir claimed that he was extradited from the State of California on a warrant charging larceny by conversion; was tried by a jury and the jury could not agree, on which account that case was dismissed. Plaintiff then by complaint on charge of embezzlement was convicted by jury and sentenced, and complains of the sentence as illegal and not in compliance with the statute. Plaintiff further claims that he had been tried for the same offense, namely, as larceny by conversion but in substance that the charge on which the jury disagreed, was for the same offense for which he was afterwards convicted. Plaintiff claims the benefit of the constitutional inhibitions concerning former jeopardy as well as claiming that his sentence imposed was not in conformity to the statute concerning indeterminate sentences.
The sentence under which he is now being confined in State prison is as follows:
“State oe Michigan
“The Superior Court oe Grand Rapids
“At a general term of the Superior Court of Grand Rapids, continued and held at the courtroom, in the City of Grand Rapids, County of Kent, on the 18th day of May, A.D., 1953.
“Present, Honorable Thaddeus B. Taylor
“Judge oe the Superior Court oe Grand Rapids.
“The court here opened for business in due form.
“The People oe the State oe Michigan vs
“Arthur J. Weir
“In this cause, an information having been duly filed, charging the said respondent with the crime of
“Embezzlement * * *
“And said respondent Arthur J. Weir, being on motion of the prosecuting attorney of tbe county, arraigned at tbe bar in open court for sentence, and having there been asked by the court whether he had anything to say why judgment should not be pronounced against him, and answering briefly;
“Therefore It Is Ordered And Adjudged by the ■court now here that said Arthur J. Weir pay damages of $11,000 and costs of $1,000 and in default of same to be confined at hard labor in the State Prison •of Southern Michigan in this State, until the same is paid for the period of not to exceed 10 years, from and including this day.
“Thaddeus B. Taylor,
“Judge Of The Superior Court Of Grand Rapids”
The assistant attorney general concedes. that the sentence imposed is erroneous, and quotes in part from the statute as follows:
“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.” CL 1948, § 769.8 (Stat Ann 1954 Rev § 28.1080).
We determine that the sentence imposed was not proper under the statute and did not fix a minimum term. We further determine that plaintiff Arthur Weir should be discharged from custody under the sentence imposed. He is subject, however, to requirement by the superior court of Grand Rapids to serve such sentence as said superior court of the city of Grand Rapids shall hereafter impose nunc pro tunc. The sentence imposed was within the authority of the court but was defective. The defect can be corrected by the court nunc pro tunc. See In re Allison, 322 Mich 491 (syllabus 3).
As to the former jeopardy, the result of the former trial must, under the Michigan Constitution, 1908 (art 2, § 14), be on the merits; under the statute (CL 1948, § 763.5 [Stat Ann 1954 Bev § 28.858]), on the facts and merits.
The dismissal of the former prosecution on the charge of larceny by conversion following disagreement of the jury is not to be considered as an acquittal either on the facts or on the merits. Plaintiffs claim of former jeopardy is overruled. See People v. Harding, 53 Mich 481; People v. Pline, 61 Mich 247; People v. Sharp, 163 Mich 79.
Plaintiff is discharged from custody of the State prison but remanded to the custody of the sheriff to await resentence.
Carr, C. J., and Butzel, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred.
Smith, J., took no part in the decision of this case. | [
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] |
Smith, J.
The defendants, Hubert Wissman and Clara Wissman, husband and wife, owned real property located on highway US-31 near the city of South Haven, Michigan. Upon this property they constructed a building equipped with plumbing facilities and toilet rooms for use as a drive-in restaurant. To serve its intended purpose it was necessary that the project have water. None was municipally furnished to the property. The defendants accordingly ran a pipe into the building from an adjacent property upon which there was a producing well in operation. The adjacent property was owned by defendant Clara Wissman, subject to a life estate in her mother and father, the Hansens, Anton and Marie.
The plaintiffs, Michael Stimac and Lois Stimac, husband and wife, leased the property from the defendants for-a term of 10 years. The lease stated that the property was “to be occupied for restaurant and lunch stand purposes and all purposes incidental thereto.” Rental was at a stipulated -sum, or a percentage of the net profits, whichever might be greater. The instrument was completely silent as to water, its supply, its use, or payment therefor. The facilities, however, could not have been used for their intended purpose without water and it is significant that water was furnished to the premises from the defendants’ well at the time plaintiffs commenced their business operations, May 12, 1949, and at the date of the actual execution of the lease, May 18th. There was also some testimony that defendant Hubert Wissman had informed plaintiff Michael Stimac subsequent to the entry upon the lease that the water supply was sufficient for the business. Difficulties between the parties developed in a short time and were not ameliorated with the passage of time. They ranged a broad field, embracing ultimately matters of accounting for the profits, together with allegations of nonpayment of rent, as well as other complaints. We have considered them all, together with the explanations offered therefor, and we will relate only such of those as are necessary to an understanding of the issues on appeal.
Defendant Wissman’s control of the water supply . invested him with a ready means of persuasion of his tenants, a means he did not hesitate to employ. The water was turned off twice in the summer of 1949, the defendants thereby seeking, in the words of the trial court, “to bring their differences to a settlement.” The building was closed for the winter at the end of the 1949 season. Plaintiffs testified that they intended to open the restaurant in the spring of 1950, but the matter was then in litigation, differences having persisted between the parties concerning interpretation of the lease and matters of accounting. Decree in such case was entered on June 22, 1950, and plaintiffs took immediate steps to reopen their restaurant. They were again faced with a lack of water.
After demand therefor had been made and refused, plaintiffs employed a well driller to drill for water on the property. The defendants reacted with some violence to this move on the part of the tenants, the trial court noting that “they endeavored by language and threats to induce the well drillers to leave.” After some delay, however, the well was completed and the restaurant finally opened for business on August 5, 1950.
It would serve no useful purpose to relate in greater detail the'various measures and stratagems employed by the disputants. Enough has been said to indicate the general atmosphere in which the parties sought to resolve their differences. Plaintiffs brought a bill in equity praying injunctive relief against defendants’ interference with plaintiffs’ business, for assessment of damages, and for other relief. Defehdants denied necessity for relief prayed and filed a cross bill for cancellation of the lease, with incidental relief. The trial court, after hearing, denied the cross bill, granted injunctive relief, ordered plaintiffs’ payment of certain rent moneys, assessed damages in the sum of $940, and granted other relief. Defendants have appealed.
The appellants insist that they were not required by their agreement with plaintiffs to furnish water and that, since the lease did not present words of ambiguity with respect to water, but rather complete silence, parol could not be heard on the alleged duty to supply.' They also object to the computation of damages involved.
The primary issue relates to the alleged duty to furnish water to the plaintiffs, and we will examine such issue in some detail. The lease, as noted above, was completely silent on the point. Is parol admissible with respect thereto?
The narrow issue presented is but a facet of a much broader principle relating to the use of parol. There is no doubt, as Wigmore phrases it (9 Wigmore, Evidence [3d ed], §2430, p 97) that:
“The most usual controversy arises in cases of partial integration, i.e., where a certain part of a transaction has been embodied in a single writing, but another part has been left in some othpr form. Here obviously the rule against disputing the terms of the document will be applicable to so much of the transaction as is so embodied, but not to the remainder.”
The inquiry to be undertaken, then, must relate to whether or not the writing was intended to cover a certain subject. As to this the learned author ¡states that (the instrument being completely silent on the subject) the intent will be sought in the conduct and language of the parties and the surrounding circumstances.
In accordance with this rule our Court has permitted the use of parol in a variety of situations. Thus in Clare County Savings Bank v. Featherly, 173 Mich 292, 302, in a case involving a promissory note, the Court quotes with approval from 21 Am & Eng Enc Law (2d ed),.pp 1094-1096, as follows:
“ ‘Again, the parties to a written agreement, which is complete in itself, may at the time of its execution, or previously, have entered into a collateral parol agreement concerning some matter on which the written instrument is silent, and the rule does not preclude the proof of such collateral agreement, provided no attempt is made to vary or contradict the writing. Any independent fact or collateral parol agreement, whether contemporaneous with or preliminary to the main contract in writing, may be proved, provided it does not interfere with the terms of the written contract, though it may relate to the same subject matter.’ ”
The Court then continues:
“The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission oí extrinsic evidence to show prior or contemporaneous collateral parol agreements between the parties. The general rule admitting evidence of a collateral agreement is especially applicable where such agreement operates as an inducement for entering into the written agreement.”
The rule was also applied in Sharrar v. Wayne Savings Ass’n, 246 Mich 225 (stock subscription case), in Stifter v. Hartman, 225 Mich 101 (sublease), and recently in Rex Oil & Gas Company v. Busk, 335 Mich 368 (option). Its application to leases is extensively annotated in 151 ALR 279, supplementing 25 ALB 787 and 88 ALB 1380.
Its application in the case at bar by the trial court was obviously proper. Since the lease was utterly silent as to water, it was competent to inquire into the circumstances surrounding the transaction. When we consider that the building was constructed and leased for the operation of a restaurant, that it was supplied with plumbing fixtures, inside toilets rather than outside privies, that water was supplied to • the building at the time the business was commenced, and at the time the lease was entered into, and, finally, that a supply of water was not merely convenient but essential to the conduct of the business as obviously intended by both parties, we agree with the trial court that the parties intended that water would be furnished by the defendants. There was an implied, if not an express, collateral independent promise, not covered or attempted to be covered by the writing, to furnish water for the duration of the lease. The showing thereof conflicts in no way with the parol evidence rule.
Under the view thus taken, we do not deem it necessary to discuss the argument urged upon us that the defendants also breached their covenant for quiet enjoyment. Grinnell Brothers v. Asiuliewicz, 241 Mich 186.
The matter of damages remains to be passed upon. The lease provided that the tenants should pay “for rent of said premises for said term the sum of $400 per year or 30% of the net profits acquired by second parties in the operation of said business, whichever is greater.” It also provided: “That the second parties will receive a salary of $75 per week from the gross profits before the net profits are determined.”
The accounting under the lease proved to be as troublesome to the parties as the matter of the water' supply. As stated, a bill in chancery for an accounting, instituted by the present defendants, was heard prior to the institution of the case at bar and decree entered therein on June 22, 1950 by the same court as that from which this appeal was taken. Following the entry of the decree, plaintiffs experienced considerable difficulty in obtaining necessary keys and water, delaying their resumption of operations until August 5th. Plaintiffs testified that they had intended opening the restaurant in the spring of 1950, as they had the previous years, but the decree in the accounting action was not entered until June 22d. In the previous year the profits from May 12th (date of opening) to August 4th were $1,023.77, and damages in this amount were claimed by plaintiffs because of the delay due to defendants’ opposition: The trial court, however, allowed only $700 of this sum, assessing the damages for the period from June 22d, when the decree in the prior case was entered, to August 5th, when operations were resumed. To this amount the trial court added 6 weeks of plaintiff’s wages at $75 per week, less wages he received from other employment, at $35 per week, for the same period, a net addition of $240 to the above $700. The defendants, however, assert- that in the year 1950 business was not as good as in 1949, that, in fact, the plaintiffs’ own figures show a falling off in business and, hence, that the 1949 figures should not be used. It is obvious that the 2 years are not precisely comparable. The year 1949 saw a full season’s operations, marred only by occasional interruptions. The year 1950 saw a complete obstruction of plaintiffs’ operations because of defendants’ wrongful acts, resulting in an opening late in the season. It might well have been expected that in the 2 years there would be a substantial difference in revenues, even for comparable periods. We do not, however, in the assessment of damages, require a mathematical precision in situations of injury where, from the very nature of the circumstances, precision is unattainable. We do require that the amount of profit lost be shown with such reasonable degree of certainty as the situation permits. We are of the opinion that it was so here shown, being based upon profits realized during a like period for the preceding year, with mitigation as to earnings received elsewhere. Rich v. Daily Creamery Company, 303 Mich 344.
The appellants’ cross bill in the court below prayed a cancellation of the lease for nonpayment of rent and other reasons. The trial court denied such relief, with which denial we are in full accord. At the present time the issue of cancellation is moot, the lease having been cancelled in 1953 by mutual agreement of the parties.
The decree of the lower court is affirmed. Costs to appellees.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Kelly, J.
This is a suit for personal injuries. Plaintiff appeals from judgment for defendants upon a directed verdict.
On November 3, 1950, plaintiff, then 68 years of age, was returning from work about 5 p.m. on a streetcar owned and operated by defendant department of street railways. While in the act of alighting therefrom plaintiff was struck by a motor vehicle driven by defendant Eleanor Nutt. Plaintiff suffered bruises, contusions and lacerations and a fracture of his right leg.
Plaintiff testified that as the streetcar on which he was a passenger was brought to a stop he proceeded to leave the same to alight, using the middle or rear doors, which had been opened by the conductor; that he looked out hut could only see a very few feet at a right angle; that he did not see the automobile which later struck him while his right foot was on the pavement and his left foot was still on the step.
Defendant Eleanor Nutt testified that she was driving the automobile with the permission and consent of her brother-in-law, defendant Sasinowski. She further said that just prior to the accident while traveling at about 5 miles per hour her car “caught up with the streetcar right near the door;” that plaintiff stepped “out of the streetcar and onto the ■car;” that she “could have sworn the streetcar was still in motion when the doors flew open and the fellow stepped, walked out. I didn’t see how he could have walked out in front of me and then have me stop. That I can’t see.” The street was so narrow at the place where the accident occurred that there was just room for a car to pass between the car tracks and the curb. She said she believed the bumper of the car struck him as he stepped “right down from the streetcar” and that she “was close enough for him to step right on me.” She immedi ately got out of her car and helped plaintiff over to the sidewalk and when he complained of pains in his leg she wanted to take him to a doctor but he refused. Plaintiff’s son came to the scene of the accident as a result of a telephone call she had placed to him. A police officer came to the scene of the accident and she gave him a statement. Defendant Nutt described the location of the streetcar where the passenger got off, in reference to the regular stop, as follows: “It was the second streetcar back. The first one was standing and the' second one was back, that is why you wouldn’t expect anybody to get out of the middle of the block. I didn’t expect the conductor to open the door and leave anyone out there. With, that anticipation I continued to drive on as fast as I was going.” She stated she could not swear whether the streetcar was moving or had stopped when plaintiff alighted, or whether plaintiff’s foot was extended in the air or was on the pavement when she struck him because “it happened so fast.”
The testimony of plaintiff and that of Eleanor Nutt, called as a witness under the statute, constituted plaintiff’s case. The court directed a verdict and in part said:
“Passing the question of negligence or proximate cause, we come to the important thing here in this case, the failure to show that he himself was not in some respect, in some degree negligent. As far as the DSR is concerned, if the conductor of that car was negligent in putting him out there in front of another car that was coming along there, he, himself, was negligent in stepping out in front of that car and that would relieve the DSR.
“Now we come to the driver of the automobile and the same act of negligence on the part of the plaintiff applies. Assume now she was guilty of violating a statute and therefore, was guilty of neg ligence in driving alongside of the streetcar and not stopping back 1U feet. She was driving there and her approach to that particular point where the accident happened could have been seen by the operator of the streetcar and by the man who was stepping off, and the man who was stepping off was. obligated not to step off there when he could have seen that it was dangerous to do so.
“That is an elaborate explanation of the doctrine and it gets back to the point that in order to recover, a plaintiff must show negligence, that this was a proximate cause, and his own complete freedom from contributory negligence. Under the facts as we have them here, and there is no dispute about the facts, that this car was approaching so close to him that it struck him just as he put his foot down on the pavement, going 5 miles an hour, he should have seen that car and shouldn’t have made the step down and being guilty of that negligence he is not entitled to recover.”
Appellant contends that the defendant department of street railways was guilty of negligence when its conductor opened the doors “thus inviting-plaintiff to alight” at a place of danger caused by the approaching automobile, and cites Spangler v. Saginaw Valley Traction Co., 152 Mich 405; and Knapp v. City of Detroit, 295 Mich 311. Neither of these cases involves the question of the defendant company’s negligence caused by a passenger alighting from a streetcar into the path of an automobile. Each relates to the question of the company’s negligence for stopping the streetcar at a place where plaintiff passenger stepped down from said car into a hole or excavation in the street.
In Spangler v. Saginaw Valley Traction Co., supra, we held:
“In an action by a passenger against a street-railroad company for personal injuries received by falling into a paving excavation between defendant’s tracks immediately after alighting, the situation having been created by defendant a few hours before the injury, evidence examined, and held, to warrant a finding that it was negligence on the part of the carrier to stop its car at the place it did stop it and invite plaintiff to alight there without in some suitable way informing her of the conditions.” (Syllabus 4.)
“A street is not a passenger station, for the safety of which a street-railway company is responsible; ordinarily, a passenger, having safely alighted from a streetcar, becomes at once a traveler upon the highway, and his duty and the duty of others towards him have no relation to the reciprocal duties which a moment before existed between the carrier and himself.” (Syllabus 1.)
In Knapp v. City of Detroit, supra, we stated (p 315):
“ ‘In case of a passenger injured in alighting from a streetcar owing to the condition of the street, it is said that liability exists where the dangerous condition of the street is known or could have been known to the street-railway company, but is unknown to the alighting passenger, unless he is warned or assisted to a safe place.’ ”
In the above-cited ease, in regard to defendant’s contention that the plaintiff was guilty of contributory negligence as a matter of law in not seeing the hole in the pavement, this Court said (p 317):
“Under the facts in this case, especially the crowded condition of the safety zone, this issue presents a question of fact for the jury. "We think it cannot be held as a matter of law that the instant case is one within the holdings that if the defect is as obvious to the injured person as to the carrier there can be no recovery. 1 Nellis on Street Railways (2d ed), § 308, p 619; Whitmore v. Detroit United Railway, 185 Mich 46.”
In Whitmore v. Detroit United Railway, 185 Mich 46, the streetcar stopped where the street was being repaved and had been dug out about 12 inches. The record disclosed that as the plaintiff was leaving the car she said to the conductor, “This is an awful place to let me off.” This Court in that case stated (p 49):
“There was sufficient evidence, in our opinion, to warrant the submission of the case to the jury as to the defendant’s negligence in not at least exercising proper care to see that the place of alighting was safe. Spangler v. Saginaw Valley Traction Co., 152 Mich 405, and eases cited therein.
“But it is also clear, it being in broad daylight, that the dangerous condition must have been as obvious to plaintiff as to the employees of the defendant company. This is not a case of alighting-in the dark and when the danger is unknown to the passenger. The rule which it seems to us is applicable is thus stated in 1 Nellis on Street Railways (2d ed), § 308, p 619:
“ ‘But where a passenger, in alighting from a car, has as good an opportunity as the company or its servants to observe the conditions which confront him, and to know as well as they whether such conditions are dangerous to him in an attempt to alight, he is held to be guilty of contributory negligence, precluding a recovery, in ease he is injured. If the street at the place of discharging a passenger presents a dangerous condition to one alighting there, and such danger is obvious to the passenger, the carrier is not liable to him for injuries received from such defects.’ ”
In Mitchell v. Stroh Brewery Co., 309 Mich 231, the plaintiff, while alighting from a streetcar, became confused by defendant’s truck being parked about 2 feet from exit door of streetcar and fell when she attempted to get back into the streetcar after having placed one foot on the ground. "We held that the plaintiff was guilty of contributory negligence because it appeared that neither the truck nor the streetcar moved. A headnoto in that case reads:
“A passenger who alights from a streetcar with as good an opportunity as the streetcar operators to observe the conditions which confront him and to know as well as they whether such conditions are dangerous to him in an attempt to alight and is injured while alighting in such a dangerous position is guilty of contributory negligence precluding recovery.”
No Michigan case has been called to our attention where this Court decided a question similar to the one here presented, namely, the streetcar company’s negligence where a passenger was struck by an automobile upon alighting from said streetcar to the street. In Max v. City of Detroit, 337 Mich 674, plaintiff brought action for injuries received after being struck by an automobile upon alighting from a bus operated by the Detroit department of street railways. Plaintiff’s case was predicated upon the claim that she saw the automobile approaching and determined not to alight from the bus but the driver started to close the rear exit door so that it struck her on the left arm causing her to jump out from the bus and resulted in her falling to the street and being struck by an automobile. A judgment for defendant was sustained, and in commenting on plaintiff’s request to charge we said (p 680):
“Plaintiff also requested the court to charge that if after making her observations of the approaching automobile she reasonably believed that she could alight in safety she would not be guilty of contributory negligence. The judge charged instead that it was not what plaintiff thought but rather what a reasonably prudent man under the spme circumstances would believe, that determined whether she was negligent or not. In this he was clearly correct.
The test laid down by 2 Restatement, Torts, § 283, is as follows:
“ ‘Unless the actor is a child or an insane person, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.’”
While this Court has not been called upon to deal directly with the question presented here in regard to a streetcar company’s responsibility to guard against a passenger alighting in the path of an automobile, we call attention with approval to Downs v. Northern States Power Co., 200 Wis 401 (228 NW 471), where the Wisconsin court said (pp 403, 404):
“While there is some conflict .in the cases, the great weight of authority, sustained by the better reasons, supports the rule that a street railway company is not liable for injuries sustained by passengers in the act of alighting from streetcars where the injury is caused by vehicles moving along the street. ‘The danger from moving vehicles and from other independent agencies operating upon the street is an ever-present one, intermittent in character, varying in degree with each occasion, and is of such kind that previous warning by the company of each specific danger as it arises would become practically impossible. The danger is not constant, but often arises suddenly, and is only momentary. The person encountering danger, having alone the control over his own movements, must rely upon himself and upon his own precaution and judgment. The responsibility of the company should be coextensive with its practical control. It is impracticable for another to take the responsibility of attempting to control and guard, as to such dangers, the person able to take care of himself. The passenger is in a much better position to guard against those dangers than is the company. * * * The danger of being struck by passing vehicles is commonly known to all, and one which the street rail way company cannot guard the passenger against, any more than it can guard the passenger against conditions of the street where it is required to discharge passengers.’ Jacobson v. Omaha & Council Bluffs Street R. Co., 109 Neb 356, 365, 366 (191 NW 327, 31 ALR 563, 570).
“ ‘In fact, the risk from such danger is more apparent to the passenger than to the motorman because the passenger can, and should, remain on the streetcar until he knows that it is safe for him to step onto the street. Being able to so effectually care for himself, the law should not charge some one else, who obviously cannot do so as well, with the duty of protecting him from such obvious and common dangers. It would, under the circumstances, be impracticable to require the company to fake the responsibility of protection against these obvious dangers of the street. The motorman has no way of knowing when a driver will instantaneously become a wrongdoer. He at best could have but little judgment as to these dangers when he is attending his usual duties. The imposition of this additional and exacting duty would necessarily delay traffic with little hope of successful avoidance. The company is not the creator of these conditions or street dangers and they are beyond its control. To say that its duty requires it to protect the passenger from them is, in effect, to make it an absolute insurer of safety to the passenger.’ For the passenger, ‘the duty is simple and easy. For the company, the responsibility would be so burdensome and impracticable that it would be unreasonable, hence cannot be held to be its duty. Such risks belong to the passenger, and the company cannot be charged with the duty of protecting him, or of giving him warning of such existing dangers.’ Ruddy v. Ingebret, 164 Minn 40, 42, 43 (204 NW 630, 44 ALR 159, 161).”
Appellant contends “that it was the duty of the department of street railways, whose motorman and conductor brought the car to a stop and opened the doors, thus inviting plaintiff to alight, to ascertain whether or not the place where they invited plaintiff to alight was a safe place, and that their failure in not having done so cannot be imputed to plaintiff.” Appellant also contends the defendant company was guilty of negligence in opening the doors of the streetcar for discharge of passengers at a place not designated as a streetcar stop as defined in section 1 of traffic ordinance No 115-D, chapter 237, of the compiled ordinances of 1945, city of Detroit, which reads:
“Streetcar stop. The place designated and plainly marked for streetcars to stop and load, or unload passengers, other than safety zones.”
Appellant further states that defendant company violated its duty by opening the doors of the streetcar for discharge of passengers at a place not designated as a safety zone as provided in CLS 1952, § 257.56 (Stat Ann 1952 Eev § 9.1856).
We approve the principles applicable in regard to the duty of a passenger to protect himself from injuries by automobiles on a street when said passenger is alighting from the streetcar at an irregular stop as established by the Ohio supreme court in Cleveland Railroad Co. v. Sebesta (syllabus), 121 Ohio St 26 (166 NE 898). There it was held:
“It is the duty of a passenger upon a streetcar, when alighting from the car upon a public street or highway, to exercise ordinary care for his own safety against danger arising from the use of the street at that time and place by vehicular travel; and when the stop of the streetcar is at a point where vehicular travel is not held in abeyance by a traffic officer, signal light or other regulations, while the streetcar is standing at such stop, the ordinary care required on the part of the passenger leaving the car at such point includes the duty of the passenger to look in the direction from which vehicular travel may reasonably be expected to approach, and such looking-should be done at a time when it will be effective to serve the purpose designed by it; and a failure to so look constitutes such negligence as will bar a right of recovery for injuries by collision with such vehicular travel which might otherwise be avoided by the observance of the care required.”
The record does not sustain plaintiff’s claim that the city of Detroit, department of street railways, was guilty of negligence.
The record sustains the court’s conclusion that plaintiff did not take precautions that he should have taken for his own safety. Plaintiff testified that when the conductor opened the door: “I kind of looked.” He further said that he was inside the car when he “looked towards the back when he (conductor) opened the door,” and when asked whether he put his head outside of the door to look, he said he did “to a certain extent,” that he “just peeked my head out a little” and that he couldn’t see very far down.
The trial court was justified in finding that the plaintiff was guilty of contributory negligence.
Appellant calls attention to CLS 1952, § 257.664 (Stat Ann 1952 Rev § 9.2364), which reads:
“The driver of a vehicle overtaking any railway or streetcar stopped or about to stop for the purpose of receiving or discharging any passenger shall bring such vehicle to a full stop at least 10 feet in the rear of such streetcar and remain stationary until any such passenger has boarded such car or reached the adjacent sidewalk except that where a safety zone has been established. * * *”
Appellant contends “it was the duty of the defendant Eleanor Nutt to know that the streetcar either had stopped, or was about to stop for the purpose of permitting plaintiff to alight, * * * and that it was therefore her additional duty to41 remain stationary until he had reached the adjacent sidewalk of this very narrow street.”
If the record had disclosed that plaintiff had exercised due care and caution for his own safety a question of fact as to defendant Eleanor Nutt’s negligence would have arisen which would have justified submitting the question to a jury for decision. However, the record does not so disclose, and the trial court was justified in directing a verdict.
Judgment affirmed. Costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
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Carr, C. J.
This case has resulted from an accident occurring in the restaurant of defendant Simons, in the city of Owosso, on October 9, 1947. In company with 2 friends, John L. Phippard, whose estate is represented in the present case by the ancillary administratrix, entered the restaurant of defendant for the purpose, as it is claimed, of procuring a lunch. The party was en route from Grand Rapids to Málveme, New York. According to testimony offered on behalf of plaintiff on the trial in circuit court, Mr. Phippard asked to be directed to the men’s toilet and was so directed by defendant. His companions, in the meantime, sat down at the lunch counter and ordered doughnuts and 3 cups of coffee. Mr. Phippard did not return immediately from the rest room and one of his companions, becoming alarmed, investigated to determine the reason for the delay. It was discovered that Mr. Phippard, as indicated by the general situation, had fallen through a trap door in the floor of the rest room and was on the basement floor beneath. He sustained a badly fractured leg. Following his removal from the basement and the restaurant, he was given medical and hospital treatment.
Claiming that the accident and his resulting injuries were caused by negligence on the part of the defendant, Mr. Phippard instituted an action to recover damages. Issue in the case was duly joined but before the cause was reached for trial Mr. Phippard died. Such death, it is agreed, was not connected in any way with, or occasioned by, the injuries in question here. Probate proceedings were instituted in the State of New York, with ancillary administration in this State. Plaintiff was appointed as ancillary administratrix by the probate court of Shiawassee county, and on motion an order of substitution was entered.
At the conclusion of the proofs on the trial, counsel for defendant moved for a directed verdict. Decision thereon was reserved, the case submitted to the jury, and a verdict in the sum of $3,500 returned. Defendant thereupon moved for judgment notwithstanding the verdict, which was granted. The opinion filed by the trial judge indicates that he questioned whether the proofs were sufficient to establish actionable negligence on defendant’s part, and further stated, in substance, that if there was such negligence the right to recover damages was barred by tbe contributory negligence of Mr. Pbippard. Claiming that tbe court erred in rendering judgment .for defendant on tbe motion, plaintiff bas appealed.,
In determining tbe issues presented, tbe testimony must be construed as strongly as reasonably possible in plaintiff’s favor. Hulett v. Great Atlantia & Pacific Tea Co., 299 Mich 59, 63; Anderson v. Kearly, 312 Mich 566; Cole v. Austin, 321 Mich 548. Under plaintiff’s proofs, Mr. Pbippard was an invitee, and tbe duties resting on defendant must be determined accordingly. In operating tbe restaurant be was not an insurer of tbe safety of bis customers, but tbe burden rested on bim to use proper care for tbeir safety. Hulett v. Great Atlantic & Pacific Tea Co., supra. It is not disputed that the men’s toilet, or rest room, was maintained for the use and accommodation of patrons.
At tbe time of tbe accident Mr. Pbippard was alone in tbe rest room. So far as this record discloses there was no witness of the accident available at the time of tbe trial. In consequence tbe physical facts, and the inferences that may be drawn therefrom, become of special significance. Whether Mr. Pbippard went to said room pursuant to tbe direction of tbe defendant, as plaintiff’s witnesses claimed,, or without such direction, as defendant insisted on tbe trial, is not material. It is conceded that the-door was marked in such manner as to indicate the purpose and use of tbe room, which, it is agreed, was 9'6" in length by 3'8" in width, tbe door being-located at tbe south end of tbe room. Tbe trap door in tbe floor was approximately 34" wide. It was about 3 feet from tbe door and, when opened, was supported by a prop or stick.
In using tbe room it was necessary to pass over tbe trap door. Tbe physical facts clearly indicate that it was open when Mr. Phippard entered tbe rest room and that be fell through tbe opening,, which was approximately 34" in width by 5-1/2 feet in length, into the basement. Defendant insisted on the trial that he was not aware that the trap door had been opened and left in that position and that, in fact, it had been closed a short time previously. He testified also that the stairs to the basement beneath the trap door were not used other than by himself, his employee, Marshall Howe, and a meter reader. As a witness for defendant, Mr. Howe stated that the dishwasher was on duty in the restaurant prior to the accident, but he did not know whether she went to the basement. There is no testimony indicating that the meter reader was on the premises on the day in- question. In the absence of such proof it may not be assumed that he opened the trap door, in order to obtain access to the basement, and left it open. Neither may it bé assumed that some unauthorized person did so. The safety of patrons of the restaurant going to the -rest room required that the trap door be kept closed. It does not appear, however, that defendant exercised any specific precautions with reference to it.
There were no windows in the rest room through which light might enter. There was an electric light therein, suspended by a cord from the' ceiling, but the testimony is in dispute as to its size and effect. On behalf of plaintiff the testimony of the 2 companions -of Mr. Phippard, who went through the rest room to the basement in order to assist him therefrom', was to the effect that the light was dim, reference being made in such testimony to a 25-watt light. On behalf of defendant it is claimed that a 60-watt light had been installed the day prior to the accident, and that the room was brightly lighted. There was thus a direct conflict in the testimony. The matter of lighting conditions was obviously important as bearing on the alleged negligence of defendant, and, also, on the claimed con tributory negligence of Mr. Phippard. The issue was one for determination by the jury, which evidently resolved it in favor of plaintiff’s claims.
Bearing in mind the nature of defendant’s duty in the premises, the location of the trap door, the testimony of plaintiff’s witnesses as to lighting conditions in the room, the fact that access to the basement through the trap door was limited, according to defendant’s claims, in the manner set forth in his testimony, that no precautions were exercised to see that said door was not inadvertently left open, and that there is no basis for an assumption or inference that some unauthorized trespasser, or other person, was responsible for the situation, we think that the question of defendant’s negligence was for the jury to determine. Construing the testimony as to the physical facts, and the inferences to be drawn therefrom, in favor of plaintiff, the conclusion follows that defendant ■ was chargeable with knowledge of the situation existing in the rest room. Wine v. Newcomb, Endicott & Co., 203 Mich 445; Hulett v. Great Atlantic & Pacific Tea Co., supra.
This brings us to a consideration of the question whether, if defendant was negligent, plaintiff’s decedent was guilty of contributory negligence as a matter of law. As above noted, the trial judge, in granting the motion for judgment notwithstanding the verdict, determined this issue in favor of the defendant. Unquestionably the obligation rested on Mr. Phippard to exercise reasonable care for his own safety, the measure of care that an ordinarily careful and prudent person would have exercised under the same or like circumstances. On the record before us we do not think it can be said, as a matter of law, that he failed to do so. He had no reason to anticipate that there was in the floor of the rest room an open trap door, and that the taking of a couple of steps into the room might well result in causing him to fall through the opening into the basement. No precaution was taken by way of a sign, or otherwise, to warn him, or anyone entering the room, of the presence of the trap door in the floor. If the light was dim, as plaintiff’s witnesses claim it was, such fact may well have contributed to his failure to discover the opening.
Plaintiff’s witness, Leonard Wilsing, who entered the rest room for the purpose of discovering what was detaining Mr. Phippard, testified specifically that the light was very dim, that he did not fall down the hole because he was attracted by the moans of Mr. Phippard in the basement, that he stopped when he heard such moans, that he then noticed the trap door standing open and a urinal at the north end of the room, and that he was approximately 1-1/2 feet inside the room when he hesitated for the reason stated. His testimony was corroborated by that of plaintiff’s witness Kenneth E. Place, who testified, in part, as follows:
“Q. And after you got in the room what did you do?
“A. I didn’t see anybody there, I was lost.
“Q. Was it light or dark in there?
“A. There was a light burning in there, not too bright, a dim light I would say.
“Q. Could you see readily or was it with difficulty, the surroundings in the room ?
“A. Things did not stand out too clearly. The thing that struck my eye first was the toilet howl at the far end of the room.
“Q. Right after you got in there what did you do?
“A. Len called to me, ‘We are down here.’ I looked and saw a wide-open trap door, both of them were down at the bottom of the stairs at that time.
“Q. As you went into the room, did you observe the trap door?
“A. Not at first, no, sir.
“Q. What called it to your attention?
A. When I heard the call from downstairs.”
Without discussing the testimony in more detail, it must be said that there were conflicts therein as to material facts. The determination of such issues was within the province of the jury. Coleman v. Washington Theatre Co., 294 Mich 343. On the record before us it may not be said that, as a matter of law, plaintiff’s decedent was guilty of contributory negligence in failing to exercise due and proper care for his own safety. Under the testimony such issue is one concerning which the minds of reasonable persons may well differ. The established facts, particularly the physical. facts surrounding the accident, may properly be construed as furnishing ■ a basis for the determination of the jury that Mr. Phippard was, under the circumstances, exercising the requisite degree of care for his own safety.
The case of Nezworski v. Masanec, 301 Mich 43, involved issues similar to those in the case at bar. In discussing the matter of contributory negligence on plaintiff’s part, it was said (p 63):
“Plaintiff was not under obligation, as a matter of law, to look for an unsafe condition of the platform. She was not guilty of contributory negligence in failing to look out for danger where there was no reason to apprehend danger. In Eulett v. Great Atlantic & Pacific Tea Co., 299 Mich 59, 68, we said:
“ ‘Plaintiff could not be said, as a matter of law, to be under obligation to look for an unsafe condition of the floor. Negligence will not be imputed to plaintiff for failing to look out for danger if, under the surrounding circumstances, she had no reason to suspect that such danger was to be apprehended. Lawrence v. Bartling & Dull Co., 255 Mich 580; Corey v. Eartel, 216 Mich 675; * * * Baldwin, Personal Injuries (2d ed), p 138, §146.’
“In the case of Engel v. Smith, 82 Mich 1, 7 (21 Am St Rep 549), we said:
“ ‘It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any.’
“See, also, Johnson v. City of Pontiac, 276 Mich 103; Grant v. Richardson, 276 Mich 151; Standard Oil Co. v. Burleson (CCA), 117 F2d 412.
“The question of plaintiff’s contributory negligence was, under the testimony presented, a question on which the minds of reasonable men might honestly reach different conclusions. From a careful examination of the entire record we cannot say that plaintiff was guilty of contributory negligence as a matter of law. The question of her negligence was properly presented to the jury.”
In Torma v. Montgomery Ward & Company, 336 Mich 468, 478, this Court quoted with approval from Reedy v. Goodin, 285 Mich 614, 620, as follows:
“ ‘Contributory negligence is ordinarily a question of fact for the jury, if there is one, unless the evidence so plainly and clearly establishes such contributory negligence that no reasonable man could come to any other conclusion. Frary v. Grand Rapids Taxicab Co., 227 Mich 445. If plaintiff was in the exercise of ordinary care under all of the circumstances, he was not guilty of contributory negligence; and what is ordinary care is usually a question of fact. It is the care which an ordinarily prudent person would exercise under the same or similar circumstances.’ ”
See, also, Muth v. W. P. Lakey’s, Inc., 338 Mich 513, and prior decisions there cited.
In Brusseau v. Selmo, 286 Mich 171, to which our attention is called by counsel for defendant, the facts were materially different from those in the case at bar. There plaintiff, in,accordance with directions given him, opened a door for the purpose of going down into the basement of defendant’s place of busi ness. The light was sufficient for him to see the railing and the light switch which was on the same wall and approximately 2 feet above the railing. However, plaintiff did not turn on the light and partially closed the door behind him, so that, by his own conduct, the stairway was dimly lighted. In a 5 to 2 decision, this Court came to the conclusion that plaintiff was guilty of contributory negligence as a matter of law. Because of the factual situation involved, however, the decision cannot be regarded as of controlling significance in considering the case at bar. The same comment may be made with reference to Neal v. Cities Service Oil Co., 306 Mich 605. There the plaintiff was injured by falling through a trap door which had been left open. Prior to the accident he had passed through the room where said trap door was located, without observing it, although the room was small and well lighted. Subsequently he had stood for several minutes in the doorway of said room, and fell as he stepped backwards into the opening.
Each case of this nature must be determined with reference to the particular facts involved. The testimony relating to defendant’s negligence and to Mr. Phippard’s alleged contributory negligence was of such character that the plaintiff was entitled to have the issues submitted to the jury. This was done, and the verdict rendered should not have been set aside.
The judgment entered in favor of defendant notwithstanding the verdict is reversed, and the case remanded with directions to enter judgment on the verdict. Plaintiff may have costs.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Boyles, J.
This is an appeal from an order denying defendant’s petition to set aside a decree of divorce. In October, 1928, plaintiff filed a hill of complaint for divorce in the circuit court for Wayne county. Personal service was had on the defendant, who appeared by attorney and filed an' answer, later withdrawn by a stipulation of counsel which provided that the case might be heard pro confesso. A decree granting plaintiff a divorce was entered in April, 1929. It provided that the defendant have the custody of their minor children and that the plaintiff pay her $10 per week for their support.
In 1951 the defendant filed the petition involved here, to set aside the decree, the only ground alleged being “that the aforesaid plaintiff was a mentally-incompetent person at the time the decree of divorce was entered and at the time his bill of complaint was filed.” A hearing was held, testimony taken, exhibits received, and the court entered an order denying the petition. The defendant appeals, claiming (1) that the court erred in granting the decree of divorce in 1929, lacking jurisdiction, and (2) again erred in 1953 in denying her petition to set aside the decree.
1. The record does not support appellant’s claim that the plaintiff was a mentally-incompetent person at the time the bill for divorce was filed or when the decree was entered.. On January 30,1928, the plaintiff had been ordered admitted to the State asylum for the insane at Phoenix, Arizona, as an insane person. Ariz Rev Code 1928, ch 35, § 1769 (Ariz Code Ann 1939, art 3, § 8-301). On June 22, 1928, he was discharged from said hospital as improved and allowed to return to [sic] Ohio (Michigan ?). Ariz Rev Code 1928, ch 70, § 2935 (Ariz Code Ann 1939, art-2, § 8-203). About 4 months later he filed his bill of complaint in the divorce case, October 19, 1928, and the divorce decree was entered April 18, 1929.
In a case referring to section 8-203, Arizona Code Annotated 1939, supra, the Arizona supreme court held that under this section the effect of a discharge ipso facto is to restore the person discharged to legal capacity to sue and to be sued. Cubbison v. Cubbison, 45 Ariz 14 (40 P2d 86).
In the above case, the supreme court of Arizona made a distinction between proceedings for restoration to competency of persons placed under guardianship for reasons of insanity, and persons committed to the State asylum. The court held (pp 20-22):
“The order of February'8th adjudging her to be insane was made under the provisions of chapter 35, Bevised Code of Arizona 1928 (section 1769 et seq.). * * #
' “Chapter 35, supra, as well as article 17 of chapter 88, Bevised Code of Arizona 1928 (section 4107 et seq.), dealing with guardianship of minors and incompetents, were taken from California. * * * The effect of a discharge in either of such manners ipso facto restores the person discharged to legal capacity to sue and be sued.”
The Arizona court pointed out that a commitment to the State hospital as an insane person under the statute was not an adjudication of mental incompetence, which would be a separate proceeding, under a different statute. In this State a like difference prevails between the statutory provisions for the admission of an insane person to a State hospital, and the appointment of a guardian for one adjudged to be a mentally-incompetent person.
No other proof to sustain appellant’s claim was offered and the record fails to show that the plaintiff was a mentally-incompetent person when the bill was filed or the decree entered. No guardian was appointed by the Arizona court at the time of the commitment of the plaintiff in 1928, and therefore the discharge of the plaintiff from the asylum in Arizona, under section 2935, supra, ipso facto restored him to legal capacity. The plaintiff, being temporarily in Arizona, that State had jurisdiction to adjudicate plaintiff’s mental capacity. The plaintiff being therefore under no legal disability, and the defendant asserting no other jurisdictional defect, it must be concluded that the trial court did not lack the jurisdiction to grant the decree of divorce in 1928.
2. The court did not err in denying the instant petition to set aside the decree. Appellant was represented by counsel in the divorce proceeding. She has not denied the authority of her counsel to act. See August v. Collins, 265 Mich 389. She is guilty of laches amounting to an equitable estoppel by her delay for more than 20 years before seeking to have the decree set aside. Livingston v. Livingston, 276 Mich 399; Hardy v. Hardy, 326 Mich 415: Furthermore, appellant repeatedly has accepted the benefit of the decree of divorce without questioning it. She remarried. On numerous occasions after the decree was granted she petitioned the court for attachments for the plaintiff’s arrest for nonpayment of alimony, and on her petitions the plaintiff on 4 occasions was found guilty of contempt and sentenced to the Detroit House of Correction for nonpayment. She successfully resisted plaintiff’s attempts to obtain custody of the children. One who thus accepts the benefits of a decree of divorce cannot be heard to question the jurisdiction of the court which rendered it. Jackson City Bank & Trust Co. v. Fredrick, 271 Mich 538; Newton v. Security National Bank of Battle Creek, 324 Mich 344.
Affirmed. Costs to appellee.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
CLS 1952, §§ 330.21-330.23 (Stat Ann 1953 Cum Supp §§ 14.811-14.813).
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Butzel, J.
The Detroit & Cleveland Navigation Company, a Michigan corporation, brought suit against the Michigan department of revenue in the court of claims to recover the sum of $4,018.50 constituting sales tax paid after an adverse decision by the State board of tax appeals. There is very little dispute as to the material facts in the case. Plaintiff operated a line of large passenger ships over the following routes:
(a) Buffalo division—One steamer left Detroit, Michigan, for Buffalo, New York, and another left Buffalo for Detroit every afternoon during the navigation season; each arrived at its destination the following morning;
(b) Cleveland division—One steamer left Detroit for Cleveland, Ohio, and another left Cleveland for Detroit late every night and each arrived at their respective destinations early the following morning;
(c) Put-in-Bay, Ohio, and Lake division—Each day the vessel on the Cleveland division which arrived in Detroit made a round trip to Put-in-Bay and remained there a few hours. -The record is not clear as to whether the boat also made lake excursions during the day, but this is not material to the issue;
(d) Midweek cruise—Another steamer left Detroit each Monday afternoon for Mackinac Island, then to Sault Ste. Marie, Michigan, then to Midland, Ontario, and arrived in Detroit the following Friday morning;
(e) Weekend cruise—A vessel left Detroit Friday evening, went to Sault Ste. Marie, Michigan, then to Mackinac Island, Michigan, and returned to Detroit Monday morning.
Plaintiff obtained a liquor license for water craft from the Michigan liquor control commission. On the trips it sold food, liquor, postal cards and novelties. The record shows that while not impossible, it was not practical or feasible to determine with exactitude whether, on these fast steamers, the sales were made in Michigan, Canadian or other waters. The vessels, particularly when sailing in narrow navigable channels, frequently had to cross the line between American and Canadian waters, depending entirely upon weather conditions and also so as not to encounter other boats. As a matter of fact the Buffalo boats crossed the international boundary line twice immediately after leaving the Detroit dock .so as to proceed down the Detroit river.
On the Buffalo round trips the vessels were in Michigan waters 5.833% of the time; on the Cleveland round trips 14.232%; on the Put-in-Bay and Lake division 53% ; on the midweek cruise 61.284%; and on the week-end cruise 88.096%. The gross amount received from sales of food, liquor, postal cards and novelties on each division was set down, to which was applied the percentage of time the boats In that division were in Michigan waters. The amount thus determined was considered the total sum derived from sales in Michigan. The amount of such sales in 1949 was $110,625.02 to which the 3% sales tax was applied in the sum of $3,318.75 which, plus penalty, is the amount plaintiff claims. The sales tax for several previous years had been figured in a similar manner but no suit was brought to recover such payments. There appears to be no question raised in regard to the time the vessels were in and out of Michigan waters on the various trips, nor as to the reasonableness of the formula or percentages heretofore stated. Plaintiff asserts, however, that all sales on all trips were made in interstate or foreign commerce and that the tax thereon, regardless of apportionment, is prohibited by article 1, § 8(3) of the Federal Constitution, the commerce clause.
The Michigan sales tax is a tax imposed upon the seller for the privilege of making retail sales within the State of Michigan and is measured by the gross proceeds of such sales. CL 1948, § 205.51 et seq., and as amended by PA 1949, No 272 (Stat Ann § 7.521 et seq.); Montgomery Ward & Co., Inc., v. Fry, 277 Mich 260; Federal Reserve Bank of Chicago v. Department of Revenue, 339 Mich 587.
Our attention has been directed to many decisions by the United States supreme court. It would be extremely difficult, if not impossible, to analyze and harmonize all of its pronouncements in this complex field. We have not had cited, nor can we find, any case which can be considered as factually controlling. We shall therefore consider only a few milestone cases, not for their factual similarity, but for the purpose of establishing what tests to apply to the unique situation before us. Following its pronouncement in Western Live Stock v. Bureau of Revenue (1938), 303 US 250 (58 S Ct 546, 82 L ed 823, 115 ALR 944), the court decided in McGoldrick v. Berwina-White Coal Mining Co. (1940), 309 US 33 (60 S Ct 388, 84 L ed 565, 128 ALR 876), that a New York City sales tax was valid as applied to the sales of coal mined in another State and delivered and sold in New York City where the company maintained a sales office and consummated its sales contracts. In the course of its opinion the court stated (pp 47-49, 58):
“Equality is its theme. * * * It does not aim at or discriminate against interstate commerce. It is laid upon every purchaser, within the State, of goods for consumption, regardless of whether they have been transported in interstate commerce. Its only relation to the commerce arises from the fact that immediately preceding transfer of possession to the purchaser within the State, which is the taxable event regardless of the time and place of passing title, the merchandise has been transported in interstate commerce and brought to its journey’s end. * * *
“Nor is taxation of a local business or occupation which is separate and distinct from the transportation or intercourse which is interstate commerce, forbidden merely because in the ordinary course such transportation or intercourse is induced or occasioned by such business, or is prerequisite to it. * * *
“Here the tax is conditioned upon a local authority, delivery of goods within the State upon their purchase for consumption. It is an activity which, apart from its effect on the commerce, is subject to the State taxing power. The effect of the tax, even though measured by the sales price, as has been shown, neither discriminates against nor obstructs interstate commerce more than numerous other State taxes which have repeatedly been sustained as involving no prohibited regulation of interstate commerce.”
See comment, 38 Mich L Rev 1292 (1940).
In 1947 the court handed down Joseph v. Carter & Weekes Stevedoring Co., 330 US 422 (67 S Ct 815, 91 L ed 993), which plaintiff considers controlling here. It was there decided that an excise tax on the gross receipts of a stevedoring company was invalid for the reason that the activity taxed was essentially a part of and inseparable from interstate commerce, regardless of the fact that such tax might be apportioned. The decision was primarily based upon the close relation of stevedoring as necessary to vessels engaged in commerce and cannot be considered as eliminating all but the “direct burden” test as measures of validity—plaintiff’s contention. In fact, the court noted (p 429):
“A power in a State to tax interstate commerce or its gross proceeds, unhampered by the commerce clause, would permit a multiple burden upon that commerce. This has been noted as ground for their invalidation. Western Live Stock v. Bureau of Revenue, 303 US 250, 255 (58 S Ct 546, 82 L ed 823, 115 ALR 944). The selection of an intrastate incident as the taxable event actually carries a similar threat to the commerce but, where the taxable event is considered sufficiently disjoined from the commerce, it is thought to be a permissible State levy. This result generally is reached because the local incident selected is one that is essentially local and is not repeated in each taxing unit.”
It has been said that the supreme court’s position has undergone modification. See Freeman v. FLewit (1946), 329 US 249 (67 S Ct 274, 91 L ed 265); Powell, More Ado About Gross Receipts Taxes, 60 Harv L Rev 501, 710 (1947); Barrett, “Substance” v. “Form” in the Application of the Commerce Clause to State Taxation, 101 U of Pa L Rev 740 (1953). However, in recent decisions the court has espoused the “multiple burden” and “discrimination” as well as the “direct burden” criteria. See Interstate Oil Pipe Line Co. v. Stone (1949), 337 US 662, 668 (69 S Ct 1264, 93 L ed 1613); Michigan-Wisconsin Pipe Line Co. v. Calvert (1954), 347 US 157 (74 S Ct 396, 98 L ed 583). A consideration of the foregoing and other authorities leads ns to conclude that a tax based upon gross receipts is not valid, however apportioned, if the transaction taxed is essentially a part of, and inseparable from, interstate commerce. Where, however, the activity is deemed sufficiently “local” in character, it may be subject to a tax if that tax is properly apportioned and allocated to prevent the imposition of a multiple burden, and is nondiscriminatory. The primary inquiry concerns the relationship of the transaction taxed to interstate commerce, or in this ease, whether the sale of tangibles on a steamship traveling in interstate or foreign commerce is a sufficiently “local” activity, apart from the transportation of passengers, to be subject to taxation.
It is conceded that sales are made in Michigan waters. Some are made while a boat is docked, but most are made during the course of the journey. It is possible that in some instances the food is ordered in Michigan, consumed in Canada, and paid for in Ohio. However, the sales tax applied only to those sales “within the State.” The formula utilized purports to reach only such sales. Plaintiff argues that all of the sales themselves are interstate commerce which Michigan seeks to tax. However, this case does not involve the type of transaction where buyer and seller are in different jurisdictions and/or where part of the sales transaction itself crosses State boundaries. See McLeod v. J. E. Dilworth Co. (1944), 322 US 327 (64 S Ct 1023, 88 L ed 1304); Montgomery Ward & Co., Inc., v. Fry, supra.
We realize that any event which may take place within the taxing jurisdiction may be considered “local” in the ordinary sense of the term, but all activities which are “local” in the ordinary sense are not sufficiently “local” in the legal sense to justify a a tax thereon (assuming due process requirements are met). See Memphis Steam Laundry Cleaner, Inc., v. Stone (1952), 342 US 389 (72 S Ct 424, 96 L ed 436); Railway Express Agency, Inc., v. Virginia (1954), 347 US 359 (74 S Ct 558, 98 L ed 757). However, a sale, where consummated locally, though incidentally involved with interstate commerce has been held a taxable local activity. McGoldrick v. Berwind-White Coal Mining Co., supra; International Harvester Co. v. Department of Treasury (1944), 322 US 340 (64 S Ct 1019, 88 L ed 1313); Ashton Power Wrecker Equipment Co. v. Department of Revenue, 332 Mich 432, appeal dismissed, 344 US 870 (73 S Ct 167, 97 L ed 674). We see no reason to alter such a view because the sales are made upon a boat which is moving in interstate or foreign commerce. The sales reached are those made in Michigan waters in the presence of both buyer and seller. It is the sales transaction and the privilege of making it that were taxed, not the transportation.
Plaintiff argues that because of the duration of the trips meals are necessary and required. This is undoubtedly true. However, to consider such an argument as determining the validity of the tax would force us to decide whether liquor or postcards or novelties, et cetera, are each as essential to the journey as food might be. Such an inquiry would be absurd. The essence of Michigan’s power to tax all of such sales made within the State lies in the distinction between the sale of tangibles and the transportation of passengers. By virtue of the fact that Michigan is only taxing sales made within its borders, the tax in and of itself prevents the imposition of a similar tax on this same transaction by another jurisdiction. There is no danger of a multiple burden here. Neither is there discrimination for all local retailers bear the same tax.
Plaintiff contends that the State is without power to apportion a tax which is a direct burden on commerce. This argument is premised upon a determination that the sales are an integral part of commerce. We have decided they are not. The supreme court has approved taxes on transportation where there was a proper apportionment formula which took into account both inter- and intra-state activity. See Central Greyhound Lines, Inc., v. Mealey (1948), 334 US 653 (68 S Ct 1260, 92 L ed 1633); Canton Railroad Co. v. Rogan (1951), 340 US 511 (71 S Ct 447, 95 L ed 488, 20 ALR2d 145). It has been done the same in cases involving taxes on local activities. See International Harvester Co. v. Evatt (1947), 329 US 416 (67 S Ct 444, 91 L ed 390). In Gartland Steamship Co. v. Corporation & Securities Commission (1954), 339 Mich 661, this Court was concerned with the imposition of a corporation franchise tax on a steamship company. While we reversed and ordered a recomputation, we upheld the liability of the company for the tax, if based on a formula reasonably apportioning business done within the State.
The nature of the schedules and the routing of plaintiff’s ships makes it difficult to isolate each particular sale to determine whether or not it was made in Michigan. We cannot agree with plaintiff’s contention that “the inability to make such segregation prohibits the State from taxing any of the sales.” Once it has been decided that a particular transaction is subject to a tax, we are not obliged to invalidate the tax because the only method of determining the amount of liability is by a reasonable formula. It is the economic relation of the activity to commerce that determines the validity of the tax. If the State is within its constitutional rights in tax ing the sales we think it may adopt a reasonable method for determining the actual liability and the amount of the sales. The statute, CLS 1952, § 205.67 (Stat Ann 1950 Rev § 7.538), does not forbid it.
It is therefore our conclusion that the sales made in Michigan on plaintiff’s ships are subject to the Michigan sales tax and we hereby affirm the judgment of the court of claims. No costs. A public question is involved.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Reid, J.
Defendant school district of the city of Bay City appeals from judgment obtained by plaintiff for balance due on account of coal delivered by the plaintiff to the defendant school district. The coal had been delivered in pursuance of a written contract, a copy of which was annexed to the plaintiff’s declaration. Plaintiff claimed in the declaration that the total amount delivered to the defendant was 3,391.555 tons of coal, of which 50.814 tons were to be paid for at the agreed on increased rate of $11.50 per ton. The balance of the coal was to be paid for at the agreed price of $9.35 per ton. The contract contained a stipulation, “B. T. U.’s dry basis ........ 14,180,” and agreement “that the stipulated standard of B. T. U.’s is a material factor in the agreement.” It further contained the following, paragraph 9:
“First party guarantees the analysis of the coal to be furnished under this contract, and consents that such coal be analyzed by the science department of Central high school iveeldy from samples taken from coal delivered daily. First party agrees to rebate to second party for moisture in excess of that specified in the contract, and as disclosed by the analysis above referred to.” (Italics supplied.)
Defendant claims that the chemical tests disclosed that the coal did not contain the required number of B. T. U.’s per pound dry basis as stipulated in the contract, and that under the provisions of the contract, $1,687.86 should be deducted from the purchase price of the coal claimed by plaintiff.
It appears that 7 tests were reported to the school district by the Commercial Testing & Engineering Company at Chicago, Illinois. The tests were made at the request of defendant but were not made by the science department of Central high school weekly from samples of coal delivered daily, and 46 separate deliveries were made from August 2d to October 12th.
The controlling issue in the case is the sufficiency of proof by the defendant to entitle defendant’s exhibits Nos 1 to 7, inclusive (reports of the 7 tests made by the Commercial Testing & Engineering-Company), to be admitted in evidence to show the deficiency in B. T. U.’s of the 7 samples tested.
Defendant claims the 7 exhibits were competent as proof of the analyses referred to, under CL 1948, § 617.53 (Stat Ann § 27.902), which in part is as follows:
“Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction,. occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.”
The exhibits are attached to deposition of Sidney Kaplan, chief chemist of the Chicago laboratory of Commercial Testing & Engineering Company. In his deposition, Mr. Kaplan testified that exhibit No 1 (one of the 7 reports of testing) “is a typewritten report of work done in the laboratory that I am supervising, which is sent out to our clients, and this is one report of that type.” Further in his deposition, referring to the 7 exhibits being the 7 reports to plaintiff as to tests, the witness testified:
“A. These tests were apparently made while I was away from the laboratory and my assistant substituted for me.
“Q. The records of this test are a part of the records of your office?
“A. They are.
“Q. And is that report made up from those records in your office ?
“A. It is.
“Q. Would you know of your own knowledge whether that report is a true transcript of your records?
“A. It is a true transcript of my records. The values are identical.”
The following appears in the deposition of Robert Wilmer Langtry, vice-president of the Commercial Testing & Engineering Company:
“Q. And those reports [referring to the 7 exhibits in question] were all sent out by the Commercial Testing & Engineering Company to the board of education of the school district of the city of Bay City?
“A. They were all sent out by our company to our client, the board of education of the city of Bay City, Michigan.
“Q. And those are the original reports that were sent to them?
“A. All 7 of the exhibits are the original reports that were sent to them.”
The trial judge correctly concluded that:
“The records in question were merely the reports which had been given into the possession of the defendant and were not the original records of the testing laboratory.”
The court further ruled:
“It is the opinion of the court that defendant’s exhibits 1 to 7, inclusive, were properly excluded from evidence under the best evidence rule, and that plaintiff had not waived its right to object to their admissibility by failing to make its objections before trial.”
Defendant claimed that plaintiff waived its right to object to the exhibits Nos 1 to 7, inclusive, by not making objection prior to the trial.
Our Court Rule No 31 (1945), provides in part:
“Sec. 1. When a deposition has been taken by either party, it may at any time be read by the other party on the trial.
“Objections to notice of, and objections to the manner of taking, certifying or returning depositions shall be noticed for hearing before the court, by motion to suppress or otherwise by the party making the same, within 5 days after such objections are made, and if not so noticed for hearing the same shall be considered waived.”
Our statute, CL 1948, § 617.9 (Stat Ann § 27.857), provides, in part, as follows:
“Objections to notices of, or objections to the manner of taking the testimony, or of certifying or returning the deposition, shall be regarded as waived unless made in writing within 10 days after knowledge or notice of the return thereof.”
The objection of the plaintiff to exhibits Nos 1 to 7, inclusive, on the ground that they were copies or transcript of original memoranda, and were inadmissible as not being the best evidence, is not invalidated by the court rule nor the provisions of the cited statute. Neither the court rule nor the statute covers the question of objections to competency of testimony.
In Angell v. Rosenbury, 12 Mich 241, 242 (syllabus) we say, as to answers to interrogatories under a commission, “The party may make objection to the competency of the evidence for the first time at the trial.” The trial court was correct in determining that the exhibits Nos 1 to 7, inclusive, were not the best evidence and, hence, inadmissible and in further determining that the plaintiff had not by failure, hereinbefore noted, to object to the deposition as a whole, waived the right to make objections to the competency of the offered testimony at the time of reading the deposition at the trial. Without the exhibits Nos 1 to 7, defendant made out no defense.
The case was properly submitted to the jury; the jury returned a verdict in favor of plaintiff for $1,-687.86. Judgment for that amount on the verdict was rendered February 18, 1954. The judgment appealed from is affirmed. Plaintiff may tax its costs.
Carr, C. J., and Btjtzel, Sharpe, Boyles, Dethmers, and Kelly, J J., concurred.
Smith, J., took no part in the decision of this case. | [
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Campbell, J.
Plaintiffs brought ejectment as heirs at; law of Stephen W. Griffin to recover lands sold to defendant Yost under a mortgage executed by the administrator-of their father’s estate, by virtue of a license from the-court of probate of Washtenaw county. The license was-, granted January 29, 1872, and the mortgage dated February.-1, 1872, and acknowledged March 14, for $3,000, payable-October 15, 1874, with annual interest on the 15th of October in each year at the rate of ten per cent. The widow-joined in the mortgage. Default having been made-, the-mortgage was foreclosed under the statute, March 31, 1875, subject to the statutory redemption. On the 28th of October, 1875, an order was made by the judge of probate confirming the mortgage. After the redemption expired, the purchaser, Yost, went into possession. This action was, brought not long afterwards.
The validity of the mortgage is attacked for reasons; lying back of the license, consisting of various facts claimed; to show there was no legal occasion for the sale to pay-debts, and no actual deficiency of assets. Further grounds, set up were, that the property was a homestead, that an. oath and bond were not taken and filed in season, that the terms of the mortgage varied from the license in regard to the time of the first interest payment, and an attorney’s fee of $50, and that the mortgage was not seasonably confirmed.
The petition set forth that the personal property was exhausted except a corn sheller worth $8; that the just debts which deceased owed and which were then due, including two mortgages specified, amounted to about $3,000, and that the costs and charges of administration would be about $150. On these showings leave was asked to mortgage all or a part of the land described, being an eighty-acre farm which was the homestead of deceased, worth $4,000, and two small lots worth $240. The license authorized the whole to be mortgaged for $3,000,' payable on or before October 15, 1874, with interest annually at ten per cent.; and required a bond of $6,000, and the oath required by statute. The bond was filed February 22, and approved February 27, 1872.
The allegations in the petition set up a sufficient state of facts, if true, to authorize the granting of a license. This being so, the truth or falsehood of those allegations cannot be inquired into collaterally. The court having jurisdiction, parties claiming under a mortgage made in pursuance of a license are not required to investigate the truth of those facts, but have a right to assume the court acted correctly. This doctrine has been settled by a long series of decisions of this court. Palmer v. Oakley, 2 Doug., 433; Howard v. Moore, 2 Mich., 226; Coon v. Fry, 6 Mich. 506; Woods v. Monroe, 17 Mich., 238; Osman v. Traphagen, 23 Mich. 80.
The statute does not require an oath, for the simple, reason, probably, that, as the amount and rate and terms, of the mortgage are fixed by the license, it is of no importance from whom the money is borrowed; while in case of.' a sale of lands there is much room for discretion in fixing the sale in such way as to be most public and probably productive. A bond is required to protect the estate against, the misappropriation of the money received on the mortgage. This bond was given before the acknowledgment of the mortgage, and was approved by the court. This is all. that the statute contemplates.
We think it was no departure from the terms of the. license to make the first installment of interest payable. October 15, 1872. As that was the day when the other payments were to accrue, and as annual interest could not be ¡paid literally in annual instalments, but must fall within ■a shorter period first or last, the time was properly fixed.
So far as inserting an attorney’s fee in the mortgage is (Concerned, it could not invalidate the mortgage, and could ■only give rise to a claim for a reduction of the amount 'due upon it, even if we should regard it as unauthorized. It is not a question that can be raised in this action.
The homestead question is not presented by this record, as .there is no finding of such facts as would show the homestead right to have existed. The widow appears to have joined fin the mortgage, and the record does not find the fact that ithere were minor children whose claims would be entitled to protection. None but minors would be entitled to protection when the mortgage was made. We cannot act upon .evidence where there is no finding.
This objection would not affect the remainder of the land which exceeded in amount and value the statutory •homestead (Wallace v. Harris, 32 Mich., 380; Hanchett v. McQueen, 32 Mich., 22); and in the present condition of the case, the question cannot be discussed.
How far the absence of a previous confirmation might .affect the case if there had been any thing left to the dis'■cretion of .the administrator, we need not determine. In the case of a mortgage the whole of its terms are fixed by the license, and it cannot be of any consequence whether the money is borrowed of one person or another. A con■firmation in such a case is not necessary to prevent such risks as may arise out of a sale for an inadequate consider.ation, and is not of any importance by way of protection. There is no reason, therefore, why it may not be made /nunc fro tunc. The statute does not make the mortgage void without it, and we think the confirmation made was walid. It cannot be supposed it was intended to make such •instruments void for mere irregularities. These have been held, in the cases before cited, to have no such effect; and .a proceeding which cannot affect the substantial rights of parties is no more than irregular.
We find no error in the record, and the judgment must, be affirmed, with costs, and the case remanded to the court below for such further proceedings as may be legally authorized in actions of ejectment.
Marston and Grates, JJ., concurred.
Cooley, C. J.
I agree with my brethren in this caseexeept as to what is said regarding the homestead right. I am of opinion that the record before us sufficiently presents-the rights of the plaintiffs in that regard. | [
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Marston, J.
The plaintiff in error was brought into court upon a capias to answer to the suit of Helen M. Dunks “in an action of trespass on the case for selling and giving liquor to Edward J. Dunks, her husband, in violation of law,’ and contributing to the intoxication of said Edward J. Dunks, to the damage of said plaintiff” etc.
The declaration consists of but one count and under it plaintiff sought to recover back the moneys' paid by her husband to defendant for liquor, and also damages for the injury which she sustained by reason of the intoxication of her said husband. Counsel for plaintiff in error insist that there was a misjoinder of two distinct causes of action in this count, an action of assumpsit to recover back the mon eys paid for the liquors sold, and an action of tort to recover damages for the injuries sustained by reason of the intoxication of her husband.
That such causes of action cannot be joined in this manner counsel for defendant in error do not deny, nor do they dispute the effect of such a misjoinder. They deny any misjoinder; they say there is in the declaration no count in assumpsit; that the statute gives the wife the right to recover back the money, and to recover the other damages enumerated; that the whole cause depends upon the wrongful and unlawful acts of the defendant, and that case is the appropriate remedy.
That this is the appropriate remedy to recover any damages which the plaintiff has sustained by reason of such intoxication of her husband there can be no question, and this is conceded by counsel for both parties. It seems therefore only necessary to determine whether it is also the appropriate form to recover back moneys paid for spirituous or intoxicating liquors under the statute.
The statute under which this action was brought prohibited the manufacture and sale of certain kinds of liquors-except as therein specified. The second section provided that all payments for such liquors sold in violation of law, should be considered as having been received without consideration, and against law and equity, and that any money or other property paid therefor might be recovered back by the person so paying the same, his wife, or any of his children, or his parent, guardian, husband or employer. Farther on in this same section, every wife, child, parent, guardian, husband or other person, who shall be injured in person, property, means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, shall have a right of action against any one who by selling or giving intoxicating liquor caused or contributed to the intoxication of such person, and in any such action the plaintiff shall have a right to recover actual and exemplary damages. These are the provisions under- which this action was brought. The statute does not jorescribe the form of remedy, so that the party seeking to recover under either of these provisions must resort to the common law for an appropriate form of action.
That assumpsit is the proper form of' action to recover back moneys which have been received by a person without ‘Consideration and against law and equity, there could seem to be no reasonable doubt. And the late cases in this state, •sustaining the right of the party making such payments, to set off the same, in an action brought against him, is a clear recognition of this principle. Roethke v. Philip Best Brewing Co., 33 Mich., 310; Webber v. Howe et al., 36 Mich., 150.
We consider it equally clear that case is not the appropriate remedy. There are also other considerations arising ■out of these statutory provisions which would prevent claims •arising thereunder from being recovered under the same form of action and count as was attempted in this case. It is quite clear that if either of the persons mentioned under the first clause, brings an action and recovers back the ■moneys paid for such liquors, neither of the other persons named could thereafter bring an action to recover back the ■same moneys. The first action would be a bar to any future action that might be brought. The money paid could be recovered back but once, and a recovery by one would prevent a recovery by the others. This would not be so in reference to injuries sustained. Several persons may at the same time be injured, in person, property or means of support by an intoxicated person, or by reason of his intoxication, and the injury to each, where several, would entitle each to maintain a cause of action therefor. And where ■several such actions were brought, the defense might vary somewhat in each case, yet would be substantially the same. The defenses however.in an action brought to recover back money paid as being paid without consideration, and in an action to recover damages sustained, would be very different, and the evidence introduced in each case "would in many respects, be different also.
In the former notion, which is an equitable one, the party endeavors to prove the amount paid, and the issue is limited and simple. In the latter the party is entitled to recover the actual damages sustained, and also exemplary damages. Under such an issue it is very evident that the evidence introduced must take a much wider range than it possibly could in the other case, and any joinder of the-two causes of action, could but lead to confusion and injurious results. The objections made in the court below upon this branch of the case should have been sustained.
As the case must go back for a new trial, and as this-difficulty may be obviated by an amendment of the declaration, by striking out all claim for moneys paid, thus making it conform with the writ, we will proceed to consider such of the other questions raised as are likely to arise again upon a new trial.
During the trial counsel for the plaintiff introduced evidence tending to prove the amount and value of plaintiff’s-husband’s property and business when first he became a resident of Hudson in 1865 and when he left Hudson in 1875. They also introduced evidence tending to show how plaintiff’s health was injuriously affected on account of her husband’s intoxication; that she was excluded from society-on account thereof, -and her mental sufferings generally on account of his drunkenness. This was all objected to andi is assigned as error.
Our statute gives to the wife who has been injured in-person, property, means of support, or otherwise, by any-intoxicated person, or by reason of the intoxication of any person, a right of action in her own name against the person who has by selling or giving any intoxicating liquor or otherwise, caused or contributed to such intoxication, “and in any such action the plaintiff shall have a right to recover' actual and exemplary damages.”
In Mulford v. Clewell, 21 Ohio St., 196, it was held that a count in the declaration which merely charged that the plaintiff had suffered mental anguish, disgrace and loss of society or companionship, was not sufficient; that such suffering did not amount to “injury to the person” within the meaning of the statute. Without any desire at present to either approve of this ruling or to question its correctness, our statute, in the light of previous decisions in this court, may admit of a different construction.
The wrong committed by the defendant in selling intoxicating liquors to the plaintiff’s husband, was not only in open violation of the laws of this state, but was persistently persevered in by the defendant, regardless alike of the suffering and ruin he was inflicting and entailing upon the unfortunate victim and upon his innocent and unoffending wife and child. A’jury might measure, if they could, and allow the wife every dollar of loss she could prove she had sustained for the injuries to her person, her property and means of support, and then would fall far short of compensating her for the shame and mental anxiety which she suffered daily in seeing her husband becoming a common drunkard, the finger of scorn pointed at him, his business neglected and going to ruin, his property melting away, himself and wife excluded from respectable society, the means which should be used in support of his family squandered in strong drink, and his once happy home broken up and destroyed, if these facts could not toe proven and considered by them. These áre but some of .the natural results of drunkenness, and the better sense of .all good people recognize the mental suffering thus caused .•as constituting a real injury to the person; and although not capable of an actual money measurement, yet that it ■should be taken into consideration by a jury, who could, from all the facts in the case and their own sense of justice, award such damages as would at least compensate in ■part for the groat wrong done her, and at the same time punish the defendant for the gross, willful and deliberate wrong which he, for mere gain, had wantonly perpetrated.
Mental injuries are frequently of the most deep and lasting kind, and the wounds thus inflicted are often the most severe. That they are a real injury and damage to the sufferer no one will dispute. Why, then, should a jury not consider them? Take the case of a husband and wife who' are dependent upon his daily labor for support. If he has good health, is sober and industrious, the reward received for his toil will enable them to live comfortably and respectably, and if they are blessed with children, to educate and bring them up to become good, respectable and. useful citizens. In an evil hour he is led astray and commences the use of intoxicating liquors. Unable to control himself in their use he becomes a drunkard; he suffers mental or physical impairment; he no longer works with any degree of regularity, and squanders in drink the pittance he is able to earn; he deserts his home; his wife is neglected and his children become outcasts. An action is brought to recover damages in such a case. Would the amount of money which the wife had lost, as a means of support, from not receiving her husband’s daily wages or the benefit thereof, compensate her for the damages she had suffered? And yet it would bo a very serious question whether she could show, with any degree of certainty, any other direct loss she had sustained. To confine the damages in such a case to the direct money loss she had sustained, or to the loss in her means of support, and refuse to recognize as a proper element of damages the far greater and irreparable injury she had sustained in person on account of mental anguish, disgrace, loss of society and companionship from such causes, would be but a mere mockery of justice. These damages are not, nor are the consequences and results we hare referred to, merely fanciful. It would perhaps be much better for society if they were. But the sad truth is that these are but the natural and probable consequences of the drunkard’s career. They are of every-day occurrence, and the liquor dealer who will sell or give liquors to a person in the habit of becoming intoxicated, must know that all these evils, and frequently many others, will follow as a natural consequence. They are but the natural and probable consequence of his own wrongful act, and as such may be submitted to and considered by the jury.
Care should, however, be taken in this class of cases not to permit facts to be given in evidence tending to prove damages which might be considered fanciful merely or too remote. Of course in a case like the present, the inquiry extends over a considerable space of time, and yet even here there should be some limit. The declaration sets forth that the plaintiff’s husband had been, to all outward appearances, a sober man from the time of their marriage until April 20th, 1871, when the unlawful acts complained of commenced. Now while the inquiry may fairly extend to all the facts and circumstances between that period and the time of tho commencement of the action at least, except for the purpose of showing the person’s physical and pecuniary condition, his habits of industry and sobriety, his social position and the care and treatment bestowed upon his wife and family, immediately previous to that date, it should not be extended beyond that time. Such at least should be the general rule. Aud while an inquiry may be made as to his pecuniary circumstances, within the rule here laid down, but not as a substantive cause of action, avo think that it should not be extended, as Avas done in this case, to the year 1865, when he first came to Hudson. This Avas too remote. In permitting this class of testimony, no matter how limited in point of time, the jury should be instructed to discriminate between losses occasioned by the changes and fluctuations in business, and those resulting from a neglect of business occasioned by drinking.
In many cases it must be very difficult to make this discrimination. A person engaged in business may be to all outward appearances prosperous aud supposed to be carrying on. a profitable business while in fact he may be on the verge of bankruptcy, and this fact, 'unknown to others, may be the cause of his indulging in intoxicating liquors. Tho neglect of business and loss of property in consequence thereof, wherever the same can fairly be attributed to his intemperate habits, may properly be iaid before the jury, and so of mauy other facts, as the effect upon the children, not, as already said, as a substantive cause of action, — not for the purpose of allowing the amount of the loss of property, or the injuries the child sustained, as damages, because the property so lost Avas not the property of the plaintiff, and the child is given a right of action of its own, — but as circumstances to be considered in tho case Avith all the others, as tending to sIioav the damages sustained by the plaintiff. Upon, this subject see Ganssly v. Perkins, 30 Mich., 494.
As was said in Mulford v. Clewell, already referred to, “in order to sustain her action under these statutes for injury to her means of support, it is by no means necessary she should show that she has actually been without support, or been, at any time, in whole or in part, deprived of means of support. Means of support relate to the future as well as as to the present. It is enough if she show that the sources of her future support have been cut off, or diminished below what is reasonable and competent for a person in her station in life, and below what they otherwise would have been. Of course the damages in such case would not be commensurate with the amount of loss or injury to the husband’s estate, but merely the diminution, if any, thereby resulting to the wife’s means of present and future support. What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine.”
This whole question of permitting all the facts and circumstances in this class of cases to be laid before the jury, under such instructions and advice from the court as would tend to prevent the allowance of such as might be merely possible, or too remote and fanciful in their character to be safely considered as the result of the injury, was clearly laid down by Christiancy, J., in Allison v. Chandler, 11 Mich., 555, 556. And the question of allowing for mental as well as physical damages was fully considered in Welch v. Ware, 32 Mich., 83, and we see no occasion to depart from what was there said upon this subject.
The fourth request of defendant to charge was too broad, and the court properly modified it. The mere fact that Dunks had been of intemperate habits previous to April, 1871, would not justify the defendant in selling liquor to him, and would not prevent the plaintiff from recovering damages on account of injuries sustained, caused by his intoxication from the use of liquors sold him by defendant after that date. Ganssly v. Perkins, 30 Mich., 495. For his intemperance previous to that time defendant would not be responsible.
. For the errors already referred to, the judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, C. J.
This is a somewhat extraordinary case. The main facts are the following:
In January, 1866, Harriet L. Bradley died intestate leaving her four brothers, Thaddeus Wilson, Milo Wilson, Almon Wilson and William Wilson her heirs at law. Her property consisted'of a note and mortgage for $1,800, given to her by Thaddeus. It- is not known that she left any debts owing by her. After her death the heirs agreed upon a division of the property between them, and it was carried into effect by Thaddeus paying to each of the others his proportion. Notwithstanding this, in November 1873, Wil liam Wilson applied to have letters of administration issued on his sister’s estate, and they were issued accordingly to Daniel Grillett, his son-in-law. The administrator is now seeking in this suit to enforce against the estate of Thaddeus Wilson, who died i.n 1870, the same claim which once has voluntarily been apportioned by the heirs between them. What satisfactory reason there can be for this is not apparent, as the defendant estate, if it pays the moneys, will be entitled to recover back again from the very persons to whom distribution will be made, so that the costs of administration will be incurred for the purpose of reaching at a future time and by circuity, a result which substantially was attained before by voluntary action, without legal proceedings and without expense.
The defense is based in part on the voluntary arrangement, but in part also on alleged defects in the plaintiff’s title as administrator. The latter should properly be first considered. It is claimed that the probate court by which the plaintiff was appointed never acquired jurisdiction to make the appointment.
Looking into the record we find no defects in the letters of administration, or in the order in pursuance of which they were issued. To authorize the making of such an order, however, it must have been shown to the court that the notice to parties concerned, which the statute requires, had previously been published; for while the court is one of general probate jurisdiction, it cannot take cognizance of particular cases until in some legal manner the parties are before it; and for the purposes of this proceeding they are brought before it by due publication of notice of the application for an appointment. This publication is to be made for three successive weeks in such newspaper as the judge of probate may direct. The order for notice in this case is in evidence, and it directs the notice to be published in the St. Joseph County Republican. The order appointing the administrator recites that the petitioner has shown “by affidavit on file, that a copy of the order of this court touching such hearing” “has been duly published, by which all persons interested have been duly notified of said hear ing.” We are to find, therefore, in this affidavit, the proof which the probate court had that any notice had been published.
The affidavit appears in the record, and is as follows:
“ PROBATE NOTICE.
State or Michigan, 1 County of St. Joseph, f ’
At a session of the Probate Court for the county of St. Joseph, h olden at the Probate office in the village of Centreville, on Saturday the 22 day of November three in the year one thousand eight hundred and seventy-three.
Present, - - -, Judge of Probate.
Wm. H. Cross.
In the matter of the estate of Harriet L. Bradley, deceased.
On reading and filing the petition, duly verified, of William Wilson a brother of said deceased praying among other things that administration may be granted in the estate of said deceased and that Daniel G-illett of Burr Oak may be appointed as administrator thereof.
Thereupon it is ordered that Friday, the 26th day of December next, at 10 o’clock in the forenoon, be assigned for the hearing of said petition, and the heirs at law of said deceased, and all other persons interested in said estate, are required to appear at a session of said Court, then to be holden at the Probate Office in the village of Centreville, and show cause, if any there be, why the prayer of the petitioner should not be granted. And it is further ordered, that said petitioner give notice to the persons interested in said estate, of the pendency of said petition, and the hearing thereof, by causing a copy of this order to be published in the St. Joseph County Republican, a newspaper printed and circulated in said county of St. Joseph, for three successive weeks, previous to said day of hearing.
(A true Copy.) ---,
Judge of Probate.
Filed 187 Wm. H. Cross
State or Michigan, ) County of St. Joseph, [ '
H. Egabroad
A printer in the office of the - -, a paper printed and circulating in the county of St. Joseph, being duly sworn, deposes and says, that the annexed notice has been published in said paper at least once in each week for three successive weeks, and that the first publication thereof was on the 29th day of Nov 1873.
H. Egabroad.
Sworn and subscribed to before me, this 26 day of December, A. D. 1873. Wm. H. Cross,
Judge of Probate.”
The only statute under which such an affidavit could be admissible is section 5924 of the Compiled Laws, which reads as follows: “When notice of any application to any court or judicial officer for any proceeding authorized by law is required by law to be published in one or more newspapers, an affidavit of the printer of any such paper or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when and the paper in which such notice was published, may be filed with the proper officer of the court, or with the judicial officer before whom such proceeding shall be pending, at any time within six months after the last day of the publication of such notice.”
Referring now to the affidavit, it is seen that it does not appear to be made by the printer of any paper, or by the foreman or principal clerk of such printer, but only by a printer in some office; it does not give a copy of the notice purporting to be taken from the paper in which it was published, nor does it specify any paper whatever. It is manifest, therefore, that the affidavit does not in any particular comply with the statute; and as without the aid of the statute the .affidavit would have no force as evidence, we may dismiss it from consideration. It was an ex parte affidavit which at common law would not be evidence at all.
If the order appointing the administrator did not refer to this affidavit as the evidence of publication, we might .suppose proof was made in some other form; but we can indulge .in no such presumption when the particular evidence on which the court acted is pointed' out. It follows that the court acted without evidence on the jurisdictional fact of notice.
Our attention is called to the fact that in Cook v. Stevenson, 30 Mich., • 242, 245, the court decided that the regularity of the appointment of an administrator could not be collaterally inquired into. In that case the objection was made by a stranger to the proceedings, and the general rule was declared and followed; but it was not intimated that a jurisdictional defect could be overlooked. A want of jurisdiction may always be taken advantage of by the parties whose interests were prejudiced.
The judgment must be reversed, and judgment entered for the defendant with costs of all the proceedings.
The other Justices concurred. | [
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] |
Graves, J.
This is a suit in equity in the name of the State to enjoin the setting up a new toll gate structure in place of a former one removed by the company.
The complaint is, that if made, the intended erection will be a public nuisance. After answer and proofs the court below dismissed the cause, and from this decree an appeal was taken.
Some questions have been mooted which require no discussion at this time. The case is governed Joy former decisions. Detroit v. Detroit & Erin Plank Road Co., 12 Mich., 333; Att’y Gen’l on rel. of McKay v. Detroit § Erin P. R. Co., 2 Mich., 138; Detroit & Howell Plank R. Co. v. Fisher, 4 Mich., 37. The criticism of the first case and the suggested distinction between the effect of the amendment of the charter of the Detroit & Erin Company and the amendment of defendant’s charter do not appear to the court as important.
When the State gave the company the right to build their road from a point in the city, and the right to erect gates according to their reasonable discretion, but subject to the condition that none should be placed in the city, it contemplated the city as it then ivas in respect to limits, and meant that the privilege given within the city should not extend so far as to allow gates to be set up there, and on the other hand that the restriction should be confined territorially to the then fixed and known bounds of the city. The State could not have designed that as fast as it might enlarge the city boundaries, the defendant’s franchise covering the right to place toll-gates should be correspondingly annihilated and the gates themselves, thereby brought within the limits, be instantly converted into a public nuisance. Hall v. The State, 20 Ohio, 7; City of Somerville v. O’ Neil, 114 Mass., 353; Barber v. Rorabeck, 36 Mich., 399. It is noteworthy in this connection that it is the State and not the city which complains. In view of the power and privilege given by the charter, the gate ought to be regarded for the purpose of this case as though the site had ‘been directly designated by the State.
The company originally chose it in the exercise of a discretion the State had conferred, and this discretion does not seem to have been improperly used. Certainly for many years the State acquiesced. The privilege has never been withdrawn and the charter has not expired. The impediment could not have become unlawful by the mere flow of time. The fact that the State itself tolerates railroad crossings near the place and has thereby consented to» the incidents which naturally happen there in consequence of the concentration and combination of different ways will hardly entitle it to turn round and assail the defendant’s gate as a public nuisance. This privilege of crossing was granted to two of the three roads possessing it sometime after the defendants located their gate, and if either franchise ought to be modified by conditions or give way on the ground that the coterie of interferences is injurious to the public, it is not certain that it should be that of the defendants. But the case does not prove that the gate or the railroads or all together make a public nuisance there.
The plan of structure does not appear to be one not competent to be adopted in the exercise of that discretion the defendants possess under their charter. What the State authorizes it cannot prosecute as a nuisance. Among other authorities see First Baptist Church v. Utica & Schenectady R. R. Co., 6 Barb., 313, and cases; Hentz v. Long Island R. R. Co., 13 Barb., 646; People v. Denslow, 1 Caines, 177; Cooley’s Const. Lim., 594.
The decree of dismissal must he affirmed with costs against the relator.
The other Justices concurred. | [
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Cooley, C. J.
This is an action for the breach of a covenant against encumbrances'contained in a conveyance of lands. The parties are husband and wife. The declaration contains two counts, the first of which avers that on the eighteenth day of March, 1871, the plaintiff was the lawful wife of the defendant, and as such was living with him upon a homestead owned and occupied by them; that the defendant at that time desired that the plaintiff should for the future live wholly separate and apart from the defendant, and declared to the plaintiff that he would not thereafter live with her as her husband, and the plaintiff having theretofore agreed to live separate and apart from the defendant, thereupon, in consideration that the plaintiff relinquished and gave up all her rights to be supported and maintained by the defendant, and also then and there executed and delivered to the defendant warranty deeds of the homestead and of other real estate, which homestead and other real estate was of the value of $8,000, he, the defendant, executed and delivered to her the conveyance in question. The second count is similar to the first except that it omits the relinquishment of the right to support in stating the con sideration of the conveyance. Breach, that the land conYeyed was not free from encumbrances, as covenanted, but was subject to a mortgage to one Elijah Lee for one thousand five hundred dollars and interest, which the plaintiff had been compelled to pay.
The cause was tried by the circuit judge without a jury, and the following is his finding of facts:
In this case the following facts are found by the court:
1st. That the parties are husband and wife, and were married in March, 1841, and cohabited together until about March 18th, 1871.
2d. That the defendant owned a farm of eighty-two acres near the village of Birmingham, Oakland county, Mich., which the parties occupied as a homestead, and also about seven acres of land in Southfield, and a brick store and lot in said village of Birmingham, said store and lot being the land in question.
3d. That the plaintiff had no interest in the said real estate, except as the wife of the defendant, and the occcupancy of said farm of eighty-two acres as their homestead.
4th. That on the eighteenth day of March, 1871, the defendant executed to the plaintiff a warranty deed with full covenants of said store and lot in Birmingham, with a consideration named therein of one thousand dollars, copy of which deed is annexed and made part of this finding, and upon which deed this suit is brought. Also another warranty deed of seven acres of land in Southfield, and assigned to plaintiff a claim against Horace Bandall of one hundred and sixteen dollars.
5th. Said plaintiff executed to said defendant two warranty deeds, which two warranty deeds embrace the farm of eighty-two acres aforesaid.
6th. That all said deeds were drawn by O. "W. Hewett, a notary, at the request of said defendant, and subsequently delivered by said Hewett to said defendant, and the deeds from said defendant to said plaintiff were found duly recorded, and were produced by plaintiff on the trial. I therefore find that said deeds were delivered to said plaintiff by said defendant.
7th. That prior to the making of said deeds, said defendant went to Hewett, a scrivener or notary public, with four deeds, and instructed him to draft the aforesaid deeds, and told Hewett that he and his wife had agreed to separate, and were going to divide the property. I therefore find as a fact that a- short time prior to the eighteenth day of March, 1871, the parties agreed to separate and live apart.
8th. That after the execution of the said deeds, on Saturday, the eighteenth day of March, 1871, all the conversation between the parties was this: The plaintiff on that day asked the defendant if she could remain in the house upon the farm where the parties lived until the following Monday, and he replied that she could, and she did so remain.
9th. That on Monday, the 20th day of March, 1871, the plaintiff left the residence of defendant aforesaid, and since that time has lived separate from him, the defendant; and the defendant has since contributed .nothing for the support of the plaintiff.
10th. That at the time of the execution of said deeds, the said brick store and lot were subject to a mortgage executed by William Lowes and his wife, to Elijah Lee, for one thousand five hundred dollars, with interest at seven per cent., and the same was due January 16, 1873. Said mortgage provided that should any default be made in the payment of said mortgage, the said party of the second part was empowered and authorized to sell and convey said preñases, with appurtenances thereto belonging, at public vendue, pursuant to the statute in such case made and provided. And said mortgage contained a further condition that, should any proceedings be taken to foreclose it, an attorney fee of twenty-five dollars should be paid, in addition to all other legal costs.
11th. That the said defendant on the first day of March, .1871, made a. contract with’ one Albert Putnam for a sale of a portion of the lot included in defendant’s said deed to the plaintiff; which said contract was afterwards, on the 18th day of March, 1871, assigned to plaintiff by said defendant, and she received the proceeds from said contract by payment on said mortgage.
12th. That the said plaintiff paid said mortgage, as follows:
1st. December 16,1871, payment of money received on the said Putnam contract, seven hundred and thirty-eight dollars and seventy-nine cents. And also on the same day paid two hundred dollars, making a sum total paid December 16, 1871, of nine hundred and thirty-eight dollars and seventy-nine cents.
2d. That on the 23d day of January, 1873, the mortgagee commenced the foreclosure of said mortgage by advertisement in the Pontiac Gazette, and that thereupon the said plaintiff, on the 81st day of March, 1873, paid the balance due on said mortgage, to wit: The sum of seven hundred and nineteen dollars and sixty-eight cents.
And also the printer’s bill for advertising of twenty-nine dollars and forty cents, and the attorney fee of twenty-five dollars. The sum total paid March -31, 1873, seven hundred and seventy-four dollars and eight cents.
13 th. That I find there was no money consideration paid by the plaintiff to defendant for said deeds, but that the consideration was hereinafter stated, and that the parties had separated and lived apart since March 20, 1871, and that the plaintiff had since supported herself.
14th. That plaintiff was born on the 24th day of May, 1819, and that her expectation of life, when such separation took place was 19 years, and that the value of her support would be three hundred dollars per annum, and that the gross value of such annual support is more than equal to the amount she has paid on account of the mortgage in question upon said real estate.
15th. That the evidence of the contract for support consisted in the acts and relation of the parties and in the declarations made by defendant, that he had given the plaintiff sufficient for her support; that it was done for the purpose of dividing the property; and that the conveyances to her were given her to enable her to take care of herself. Those declarations were not made in plaintiff’s presence, nor with her agents, but individuals witli whom defendant was casually conversing before and after the execution of the deeds. But there was no evidence to the contrary, and I therefore find as conclusions of fact from such evidence, that the purpose of said transfer from defendant to plaintiff, and that the agreement between them was to divide the aforesaid property, and to provide for the future support of the plaintiff, and to relieve the defendant therefrom, and that the real consideration of said conveyances and assignment from defendant to plaintiff declared upon was the aforesaid division of the property and the undertaking of the plaintiff to support herself, and relieve the defendant therefrom, and that the value of such consideration is greater than the amount the plaintiff ■ has paid upon the. mortgage in question.
2nd. The consideration named in the said deed of the seven acres, which was three hundred dollars and the account from Horace Randall assigned to her by defendant.
Findings of law were requested by the defendant as follows :
1st. That any contract for a separation between husband and wife is void as against public policy.
2d. That a husband cannot make a contract to be performed thereafter that will be binding upon either, and upon which an action may be predicated.
3d. That the wife cannot sue the husband upon the covenants of a deed based upon a separation.
4th. That unless a consideration be proven, the plaintiff cannot recover more than the named consideration and interest.
The following were the findings made:
1st. I find that the undertaking to divide the property, and the agreement by the plaintiff to maintain herself and relieve defendant therefrom, having been carried out in good faith, is a good and valid consideration for defendant’s undertakings, and covenants in said deed declared upon.
2d. I find as follows in response to the requests for findings of law submitted by defendant:
1st. That the first request is based upon an assumed finding of facts not true, and that the agreement counted on and found is based upon support alone, and division of the property.
2d. This request is disposed of by the same manner and for the same reasons.
3d. This point does not arise in the case, and it is not. necessary to decide it.
4th. Plaintiff has proven another and different consideration from that named in said deed, which exceeds in value the whole amount she has paid on the mortgage, and I find, therefore, that she is not restricted to the amount of consideration named in the deed declared on.
oth. I do not find the facts 'as assumed in this request.
I find as the law that when a husband and wife agree to separate, and therefrom the husband makes provision for the wife’s support, and the wife undertakes to support herself, such undertaking may be a good and valid consideration for the husband’s contracts, and they may be enforced.
Gth. I therefore find that the defendant did assume and promise, as the said plaintiff has in her declaration alleged, and I find her damages are two thousand one hundred and twenty-four dollars and fifty-three cents.
I. Several exceptions are taken to the findings of fact as. being without evidence to support them, but as the record does not affirmatively show that all the evidence was returned, we cannot consider these. We must assume that the evidence warranted the finding, and have only to see whether the findings of law are correct deductions from the facts.
II. It is said that the agreement set out in the plaintiff’s declaration is void in law. In support of this position cases are cited which decide that at common law the husband and wife cannot contract with each other. This is true as a rule, though we apprehend there was never any impediment to their dealing with each other on the basis of contract, when no consideration of public policy precluded it; in other words, when the occasion required it, and when the contract in view of the relations of the parties was one proper and suitable to be made. On this point we might content ourselves with a reference to the leading case of Shepard v. Shepard, 7 Johns. Ch., 57, the principle of which was recognized in Farwell v. Johnston, 34 Mich., 342. We shall add to these only the following American cases, all of which support the same doctrine: Bradford v. Goldsborough, 15 Ala., 311; Hunt’s Adm’r. v. Dupuy, 11 B. Mon., 282; Powell v. Powell, 9 Humph., 477; Wells v. Wells, 35 Miss., 638; Caldwell v. Bower, 17 Mo., 564.
The chief difficulties with such contracts are encountered when they undertake to provide for a separation of the parties and a breaking up of the marriage either with or without a divorce. It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. It has accordingly been decided that articles calculated to favor a separation which has not yet taken place will not be supported ; Durant v. Titley, 7 Price, 577; St. John v. St. John, 11 Ves., 526; Westmeath v. Westmeath, Jac., 126. But when a separation has actually taken place, or when it has been fully decided upon, and the articles contemplate a suitable provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them; on the contrary, if they are fair and equal, and are not the result of fraud or coercion, reasons abundant may be. found for supporting them, in their tendency to put an end to controversies, to prevent 'litigation, and to give to the wife an independence in respect to her support which without some such arrangement she •could not have under the circumstances. The cases are too numerous for citation where such arrangements have been ¡¡supported, and we only refer to a few of the many which both in England and in this country have settled the law beyond further controversy. Compton v. Collinson, 2 Bro. Ch., 377; Worrall v. Jacob, 3 Meriv., 266; Jee v. Thurlow, 2 B. & C., 547; s. c., 4 D. & B., 11; Blaker v. Cooper, 7 Serg. & R., 500; Hutton v. Duey, 3 Penn. St., 100; Dillinger’s Appeal, 35 Penn. St., 357; Nichols v. Palmer, 5 Day, 47; Baker v. Barney, 8 Johns., 73; Shelthar v. Gregory, 2 Wend., 422; Carson v. Murray, 3 Paige, 483; Chapman v. Gray, 8 Ga., 341; Wells v. Stout, 9 Cal., 494; Gaines v. Poor, 3 Met. (Ky.), 503; Walker v. Walker’s Ex’r., 9 Wall., 743. In some of these cases the articles have been enforced against the husband or his estate, and in others against the wife or her estate, and although a trustee for the wife has been usually provided for by the articles, in whose name suits on her behalf might be brought, it was long ago determined that this was wholly unnecessary, and that equity, whenever it became needful, would give effect to provisions on her behalf by adjudging the husband to be her trustee and requiring him to account accordingly. Wallingsford v. Allen, 10 Pet., 583; Garver v. Miller, 16 Ohio St., 527; Houghton v. Houghton, 14 Ind., 505. It would certainly be unnecessary in this State, where the wife has full authority to make contracts in respect to her individual property, which includes authority to make contracts to acquire property. Tillman v. Shackleton, 15 Mich., 447.
III. There being nothing, then, in the law, to constitute an impediment to such an arrangement as is set out in the declaration, the deed to the wife must be supported if a sufficient consideration appears. The judge finds as considerations first, the release of the wife’s dower and homestead interests, and second, her undertaking to support herself. The first is sufficient if the release was valid. Low v. Carter, 21 N. H., 433; Searing v. Searing, 9 Paige, 283; Lewis v. Caperton, 8 Grat., 148. The release was perfectly good in equity, whether it was in law or not. If she had authority to bargain for the land, she had authority to agree upon the consideration. Her undertaking to support herself was also a valid consideration. It may be that this* would not release him from his obligation to the public, to see that under no circumstances, while he had ability to prevent it, should she become a public charge, but the agreement would protect him against any claim made on, her behalf; and this was probably all that was contemplated..
IV. There remains to be considered one question of no-little difficulty. The consideration in the deed to the plaintiff was stated at one thousand dollars. The mortgage on the land, with interest, amounted to twice that sum. To enable the plaintiff to recover this she was permitted to show that the value of her support was three hundred dollars a. year, and the judge so finds. His deduction from this fact, is, that as her probability of life was nineteen years, the* real consideration for the conveyance made in relinquishment of her right to support was considerably more than the amount of the mortgage. The method adopted by the circuit judge to arrive at his facts will appear by some of the questions which, under objection, he suffered to be put to* witnesses. Thus, Mr. Htter was asked: “What in your opinion would be the yearly value of the support of a woman like-Mrs. Bandall, in their circumstances, without considering what she would earn?” Answer: “I should think it was, worth from $300 to 8350 a year.” Mr. Toms was asked: “ What in your opinion would be the cost or value of keeping-a woman like Mrs. Bandall?” Answer: “I should think 8350 would be as low as it could be done for.” Now this evidence seems to us wholly without warrant, and all deductions from it consequently baseless. What authority is therefor assuming that this woman was entitled to a support.. from her husband without rendering any return therefor in services? No decision is cited in support of such an assumption, nor are we aware of any. The law does not assume-that the wife will be a burden on her husband to the full extent of all her support will cost; on the contrary the legal presumption is that her services and the comfort of her society are of a worth to him fully equal to all the obligations which the law imposes upon him because of the marital relation. Any other view is degrading to woman and to marriage itself.
Such questions as are above given must have been allowed on a supposition that the wife had already established her right to a support in a state of separation from the husband; but such is not the case. She had shown only an agreement to release her husband from the obligation to support her; but this obligation was to support her in his family and not elsewhere; and coextensive with it was her obligation to render family services. An obligation on his part to support her elsewhere could only arise by his turning her out of doors, or by his being guilty of such misconduct as would justify her in leaving him. Neither the one nor the other appeared in this case, and the support which constituted the subject of negotiation between the parties, and the right to which the plaintiff relinquished, was the support the husband was then compelled to furnish; namely, a support in his own home where he would have her. assistance. And when she relinquished the right to a support, he also, as a part of the same arrangement, relinquished his right to her services. It is immaterial that he had, as she avers, declared he should not live with her. He had not turned her away, and their bargaining was with reference to an adjustment of rights which they then mutually possessed, and for a rearrangement in view of their difficulties. And it should be mentioned here that no foundation was laid .for an inquiry on this subject of support, by showing that the wife was an invalid, or otherwise disabled from rendering the usual services of the head of the household.
Our conclusion is that both the evidence and the deduction from it were unwarranted. The correct view to take of this transaction as it seems to us, is this: The consideration for the conveyance to the plaintiff embraced matters which were incapable of any accurate estimate in money, and the consideration named by the parties must therefore be taken and deemed to be the valuation placed upon it by themselves. No court could have any safe or reliable data by which to be guided in making an estimate, and from the very nature of the case it must be assumed that the sum named by the parties was intended to preclude any subsequent inquiry on that subject. It is in the nature of stipulated damages, beyond which we cannot go in case of breach of any of the covenants contained in this conveyance.
These views require a reduction of the judgment to the sum of one thousand dollars, with interest from the time this suit was commenced. The defendant is entitled to the costs of this court, and the plaintiff to the costs of the circuit court.
Campbell and Grates, JJ., concurred.
Marston, J., did not sit in this case. | [
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] |
Graves, J.
Billingsley exchanged with the Hamiltons a place in Yorkville, a mortgage of $850, and certain personal property valued at $150, for two instalments of a bond and mortgage made by one Meach and forty acres in Carmel. He was to pay $50, however, on the parcel in Carmel. He claims that it was the express understanding that each of the said instalments of the Meach bond and mortgage called for $1000, and that the Hamiltons explicitly represented to him that there remained to be paid $1000 on each. He alleges that this representation was false and fraudulent, and that as the Hamiltons well knew, there had been paid and endorsed the sum of $1874, so that only $136 remained to be paid on the instalments in question.
He brought this action to recover for the alleged fraudulent representation and the jury found in his favor for the sum ascertained to have been paid on the assigned instalments, namely, $1874, together with interest.
The defendants below then brought the case to this court on writ of error and bill of exceptions.
First: Complaint is made that the court allowed declarations by Thomas W. to be shown to affect his co-defendant. The objection has no foundation. When Billingsley proceeded to testify it was observed by the counsel for plain tiffs in error that he objected to any showing of the sayings of Thomas W. about his father unless a conspiracy was first sh.own, and the court stated that the testimony should be received subject to proof of conspiracy to make it relevant. No exception was taken, and the evidence proceeded. No-motion was made to strike out or disregard the evidence, and if there had been it could not have prevailed, because the facts tended to show that the Hamiltons co-operated.
Second. It is next urged that the court refused to allow plaintiffs in error to give evidence of the value of the York-ville property and prove that it was much less than Billingsley swore it was estimated at in the trade, and that the evidence-was competent as tending to show that Billingsley’s statement that the property was put in at so much was improbable and untrustworthy.
When the testimony was first offered it was excluded. The object of the offer was not explained. Shortly after-wards, however, the court reversed the ruling and allowed the evidence, and plaintiffs in error seem to have gone into-it as fully as they desired. The point has no merit.
Third. In the course of his testimony Billingsley testified that Thomas W. Hamilton agreed to go to Yorkville on Sunday to look at the property in question there. After both sides had rested and the argument to the jury was about to commence, the counsel for plaintiffs in error, for the purpose of making out that Billingsley’s statement as to a promise by Thomas W. to go to Yorkville on Sunday was improbable, offered to show that the other defendant was a strict observer of the Sabbath, and the refusal of the offer is made a ground of objection. The exception is absurd.
Fourth. One James Hamilton, a witness for plaintiffs in error, swore that Billingsley knew that most of the two instalments in question had been paid; that -the personal property of the Eagle hotel in Bellevue was sold by Meach, the mortgagor, to Thomas W. Hamilton, and was appraised in order to fix the value; that it was agreed that the amount so ascertained should be applied on the two instalments, and that Billingsley acted as one of the appraisers and knew of the intended application.
In regard to this feature, the court charged in substance that if Billingsley in acting as appraiser, and at the time of his so acting, was led to understand that the sum fixed by the- appraisal was to be applied on the particular instalments, still if when he traded with plaintiffs in error the idea was out of his mind, in consequence of his misunderstanding or of lapse of time, the plaintiffs in error would not be able to escape the consequences of their representation that no payments had been made.
We see no objection to this instruction. Of course it was for Billingsley to show that the means used to deceive were successful. However false may have been the representations, still if Billingsley was in possession of the truth he could not be deceived by them. On the other hand, if at the time of the trade his mind was entirely unoccupied by any notice or impression that any thing had been paid on the instalments, and he was not possessed of any fact to suggest that the representations of the plaintiffs in error were lying representations, it is not admissible for them-to say that although their representations were false his former information as appraiser should be held sufficient to preclude him from claiming that he accepted their statements as honest and not fraudulent, or to enable them to contend that their representations were not made to be believed.
Fifth. The court allowed recovery for the difference between the actual amount represented by the assigned instalments and the amount . actually remaining unpaid together with interest.
We see nothing in the case to give occasion to the plaintiffs in error to complain of this charge. It allows nothing beyond what the defendant in error would have had if the actual amount of the security sold had been what it was represented to be, and there appear to be no facts inconsistent with a right of recovery to that extent.
No error being shown, the judgment should be affirmed, with costs.
The other Justices concurred. | [
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Graves, J.
Weeks brought ejectment against the plaintiffs in error for an eighty acre lot. The judge heard the case without a jury and specially found the facts and ordered judgmetn against the plaintiff in error first named for the east fifty acres of the lot and against his associate for the balance. They then brought error.
A bill of exceptions appears in the return but it contains no exceptions on the admission of evidence; neither does the record indicate that any points in the nature of requests to charge were presented.
Preceding the finding by the judge, we have in this bill what purports to have been the whole testimony pertaining to the search among the township records and in township offices for certain tax proceedings, and on which testimony the judge found, as matter of law, that the proceedings which Avere the object of the search had never existed.
The conclusions of law upon the facts as found are followed by the exceptions taken to such conclusions, and it is upon these exceptions that the allegations of error are based.
But on looking at the exceptions Ave notice that one applies only to considerations touching the weight of evidence, and the propriety of a conclusion of fact made by the judge, and that it affords no foundation for any question of law in this court. A mere inference of fact, drawn from evidence, cannot be converted into matter of law by setting it up as such in the finding. Trudo v. Anderson, 10 Mich., 357.
Noav, upon the question Avhether the John Mitchell Avho was seized in 1842 was the same John Mitchell who conveyed in 1871, there Avas substantial evidence for the judge to consider and find upon, and his conclusion of fact upon that evidence cannot be here examined on this record. The ruling that certain papers must be considered as never having been in existence because they were not to be found in the places legally assigned for them, was erroneous. It Avas based undoubtedly upon Hall v. Kellogg, 16 Mich., 135; but since that decision the rule has been changed by statute, Comp, L., § 1129. The presumption is now the other AYay.
The second charge of error is overruled by previous decisions of this court. Ives v. Kimball, 1 Mich., 308; Galpin v. Abbott, 6 Mich., 17.
It is now objected under the third assignment of error that it was necessary to show and establish that at the date of the deed made by Harold C. Weeks as attorney in fact for Munroe, the latter was in life, and this is the only point made under this allegation of error. It is enough to say that no such ground was taken or suggested at the trial. The objections then made were, first, that the acknowledgment was not sufficient; and, second, that it was “not by the principal or of the principal.” If the present objection had been taken below, it may be that it would have been obviated at once. But if we admit it to be entertained, we are unable to see any force in it.
The fourth and fifth charges of error do not appear to be insisted on.
The ninth charge of error complains that the deed for the tax of 1857 was held void because the supervisor’s certificate to the roll of that year certified that he had assessed at the “true value” instead of saying at the “true cash value,” as the statute ordered. This ruling is undoubtedly open to difference of opinion, but I am inclined to regard it as sound.
When the Legislature fix a standard for the valuation of property for taxation, it is of course incumbent upon tax officers to comply, and where such compliance is required to be made known by official certificate, the instrument ought to express the fact in terms reasonably certain. No real ambiguity should be permitted. It may not be necessary to use the exact terms found in the statute, but there must be substantial conformity. Now it appears quite impossible to say that in respect to .the valuation of lands by assessing officers for taxation, an assessment at the “true value” must be considered as the same as an assessment at the “true cash value.” The legislature were rightly of opinion that the use of the word “cash” in the expression was adapted to mark a criterion to fix more definitely the standard of valuation and. to tend to hinder unjust discrim inations and other abuses committed under pretended “true ” valuations. It is very common to make a distinction between “value” or “true value” and “cash value” or “true cash value,” and it may make a great difference to tax-payers and to the revenue whether the terms of the statute are permitted to be superseded by the expression rejected by the court below.
The policy of the State is to secure uniformity and equality, and this accords with justice. The “cash” standard favors uniformity and equality. It contemplates a limit which, the assessor may not exceed or fall short of, and it is a limit which can be more readily and more clearly and certainly apprehended, as a general rule, than any other which could be devised. By means of it, the chances for committing injustice and creating ill-feeling against our rev- • enue system are diminished. The opportunity to assess the property of some much above, and that of others much below the cash rate, and hence the same rate, is reduced. These and other considerations lead me to assent to the view taken by the circuit judge that the statutory requirement could not be dispensed with and that the certificate in question was not a substantial compliance.
The original highway list for 1854 with the warrant attached was produced. It was not signed by any commissioner of highways, but the warrant for collection attached was signed and the return of the overseer of unpaid taxes was endorsed on this list in due form.
The court ruled that the omission of the commissioner’s signature to this list made it void and that consequently the overseer had no authority to return the tax, and the supervisor none to spread it.
The eighth charge of error is directed to this ruling. I am inclined to think the court erred. The judge finds, as before stated, that a warrant to collect was attached to this list and that the warrant was signed.
Now I do not discover any provision for a warrant to be attached to the list, and the signature referred to ought, I think, to be regarded as a sufficient signing of the list itself.
This is the only conclusion I am able to reach upon this record. It is not very clear, and neither counsel has said much about it.
The tenth charge of error is based on the ruling that the failure of the overseer of highways to verify his return to the supervisor of unpaid highway labor assessed for 1865, was a defect which defeated the deed for the taxes of that year.
The decision was right. The counsel for plaintiffs in error states that the requirement of an oath by the overseer applied only to lands of non-residents, and that the statute continued unaltered up to 1869. .This is a mistake. The law was so amended as to cover lands assessed as resident, by the act of February, 1865 (Sess. L. 1865, p. 46), and the provision was imperative. Upton v. Kennedy, 36 Mich., 215.
The eleventh charge of error relates to the certificate filed with the board of supervisors on the part of the agricultural society, and on which a tax was raised in 1857, and which tax formed a part of that covered by one of the deeds in question. The certificate was only signed by the secretary of the society, and not by its president, and the court held it invalid. The court committed no error. The law required the concurring action upon oath of both secretary and president of the society as a condition precedent to any right to lay the tax, and the president not having concurred, the board acquired no right whatever to impose it. 1 Comp. L. 1857, § 1687; Hall v. Kellogg, 16 Mich., 135.
The twelfth assignment of error complains of the allowance of judgment against each plaintiff in error for a distinct parcel. The judgment follows the finding, and that seems to be in form as provided by the statute. Comp. L., § 6330.
The view taken disposes of the case. The judgment must be reversed with costs, and a new trial ordered.
The other Justices concurred.
(1129.) Sec. 163. * * no sale of real estate for non-payment of the taxes thereon shall he rendered invalid by showing that any paper, certificate, return, or affidavit required to he made and filed in any office is not found in the office Avhere the same ought to he filed or found; hut, until the contrary is proven, the presumption shall he, in all cases, that such certificate, paper, return, or affidavit Avas made and filed in the proper office. | [
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Campbell, J.
This case is certainly not free from difficulty. But it seems to me that the liability of the individual members of corporations for their debts, under the statute upon which this suit was brought, cannot in any just sense be called a primary liability. The debts which they are called on to pay are in fact — as they are expressly regarded in the constitution — debts of the corporation. The statute is clear that the private parties shall not be called upon unless the corporation has failed to pay, and legal remedies are exhausted, either by unsatisfied execution or by bankruptcy legally adjudged. The right of recovering contribution by legal action is only given where the payment made by the suing party is compulsory. lie has no right to make payment without necessity, and if he does so, he must seek redress in some other way. Comp. L., § 2852.
The corporation is in law a different person from any of its members. A promise by a stockholder to pay a corporation debt is in every sense a promise to pay the debt of another. The case cannot be different merely because the obligation is statutory. It may be that the statute could be so framed as to create a joint or a joint and several responsibility which could be legislated into a primary obligation. But where the corporation is not put into such relations, and the stockholder cannot be called on until the remedy against the corporation has been tried and exhausted, it is entirely plain that they are not both original debtors, and that one is only collaterally liable, and is therefore in law a mere surety. It is still plainer where, as here, he has no right to pay in the first instance.
The constitution by making stockholders “individually liable” for labor debts does not thereby necessarily make them primarily liable. Bank corporators are made “ individually liable” for bank debts contracted during their connection with the banks. Originally this was unlimited. Now it is limited. It would be impossible to regard this limited responsibility as a primary debt of the stockholders. It requires peculiar legislation to reach such cases at law at all. If the constitution could be regarded as making them primary debtors, the remedy could not be enforced except in equity, unless in very peculiar cases if'it could be at all. Here the plaintiff sued expressly under a statute which treats the stockholder in all respects as a several surety, and he must I think be so treated in determining his responsibility.
It cannot be denied that if defendant is a surety he was discharged from the debt for labor by taking the corporate note and giving time. In my view of the case no other question arises, and the judgment should be affirmed.
Graves, J.
I cannot avoid the impression that the constitutional and statutory provisions in question in this cause, necessarily result in giving to the liability imposed specially on stockholders a mere accessory or collateral relation to corporate liability.
All admit that this peculiar liability is only imposed on stockholders where there exists a real corporate liability and no one believes that these two liabilities are joint.
If it be said that the liability of the corporation and that of the stockholders arise after all simultaneously, the reply is that that circumstance is unimportant in the present consideration. The question is not whether one liability is earlier or later than the other; but it is whether in truth one is accessory and collateral to the other. Now labor is supposed to be performed “for the corporation,” and at its instance, and it is rightly assumed that by the general principles of justice the world over the corporation must be originally, directly and at once liable therefor. The responsibility is immediate and unconditional. It does not turn in any way on any responsibility elsewhere. No enactment to create or impose a liability is required and none is made, — a debt arises at once against the corporation. It is a debt of the corporation. The case is different with the stockholders. To render them liable for the debt a law expressly declaring their liability is found necessary, and the institution of this law is a confession that the liability would not exist without it. The stockholders do not receive the service, and the legal obligation which in natural justice results from its reception does not devolve on them. As to them there is no spontaneous liability, and apart from the positive provisions before mentioned the debt actually exists, but it exists not as their debt at all, but as the exclusive debt of the corporation.
These distinctions concerning the nature and source of liability serve to show as I think, that the debt is originally and directly the exclusive debt of the corporation and that whilst the liability cast on the stockholders is for the .-same debt, it is a distinct liability and one purely accessorial and collateral.
The liability of the corporation is the fruit of its own ■contract, — is a liability for its own debt.
The liability of the stockholders is not upon a contract ■of theirs: it is not a liability for their debt but for that of another and the law declaring such liability virtually holds the place of an express accessory or collateral undertaking or agreement.
There may be room, perhaps, for questioning the right to sue less than the whole number of stockholders when the purpose is to enforce the specific liability.
Whether the expression, “the stockholders,” ought not ■to be construed as meaning the collective body, and the ■.term “individually” be taken as signifying that they are .personally responsible, rather than as meaning that each ■must be sued separately, may perhaps not be beyond con troversy and I desire to reserve my opinion on the subject.
I agree with my brother Campbell in thinking the judgment ought to be affirmed.
Cooley, C. J. I assent to the foregoing conclusion - | [
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] |
Marston, J.
Defendant in error commenced an action of assumpsit in justice’s court to recover the amount due on a promissory note given by Locke to the company. The suit was commenced by summons returnable August 5th. On the return day after joining issue, counsel for defendant moved the court for a continuance of the cause on account of the sickness of the defendant. Plaintiff’s counsel then admitted that the defendant had been sick and unable to attend to business on the previous day. An affidavit was filed setting forth that the defendant was still in a weak condition and that in the opinion of the deponent, the defendant was “too unwell to attend the trial of this cause, or do any business; that the defendant, deponent thinks, could not to-day, in safety to himself, leave his house on account of his ill-health, he being apparently quite unwell, and the weather being damp and rainy.”
The court overruled the motion, and the parties proceeded to the trial of the' cause, which resulted in the plaintiff’s recovering judgment. The cause was then removed by certiorari to the circuit court, where the judgment of the justice was affirmed. The case comes here on writ of error.
The justice erred in not continuing the cause up.on the showing made. It is not generally expected that parties will be prepared upon the return day of a summons in justice’s court to join issue and at once proceed to a trial of the case upon the merits, and such is not the practice, and the showing for a continuance at such time is not required to be as full and complete as would be required at a later stage in the proceedings. Under the admission of counsel for the plaintiff as to the sickness of the defendant on the 4th of August, and the affidavit as to the continuance thereof on the 5th, if the justice had any discretion upon the subject it was a clear abuse of such discretion to refuse an adjournment. Mercer v. Lowell Nat'l Bank, 29 Mich., 248. In asking for an adjournment, on joining issue, and upon such a showing, the motives of the defendant or his counsel in asking for such adjournment should not be too closely scrutinized and deemed improper upon mere assumption.
The note offered in evidence was endorsed “Pay H. A. Eedfield, cashier, or order, for collection,” and it is claimed that by this endorsement the plaintiff parted with all title and interest in the note and was not therefore entitled to recover. This position is not well taken; the endorsement is for a special purpose, that of collection only. If paid, the proceeds would have belonged to the plaintiff; the title to the note, and the proceeds thereof, when collected, remained in the plaintiff, Sutherland v. First Nat. Bank, 31 Mich., 232.
There was evidence in the case which warranted the justice in finding that plaintiff was a corporation.
For the error mentioned, the judgments of the circuit and of the justice’s court must be reversed, with costs of each court.
The other Justices concurred. | [
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] |
Per Curiam.
This is a motion for a mandamus to
.compel the circuit judge to grant an order for a new trial as a matter of right under the statute in an action of ejectment. It appears, however, that there has been no trial at all, but only a non-suit. An application to set this aside would be addressed to the discretion of the court below; the statute has no reference to such a case. The .statute intends to give the parties a second trial upon the facts; and a case is only brought within it where it appears .that one trial has already been had. Comp. L., § 6238.
Motion denied. | [
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] |
Cooley, C. J.
The manner in which this case is submitted makes the record present substantially this question: Whether in the court below there was any evidence tending to prove the plaintiff’s case? The action was begun in justices’ court, and the declaration is as follows:
“Saginaw County — ss. John B. Weir, plaintiff herein, complains of the Flint and Pere Marquette Railway Company, defendant herein, in a plea of trespass on the case upon promises; for that whereas, the said defendant, before and at the time of the delivery of the goods and chattels to said defendant, as hereinafter mentioned, was and from thence hitherto hath been and now is a common carrier of passengers and baggage, and goods and chattels, for hire, to and from Detroit, in the State of Michigan, to East Saginaw, Jackson, Lansing and Saginaw railroad crossing and Saginaw city, in the State of Michigan; and as such common carrier, the said plaintiff, on the 9th day of November, A. D. 1875, took passage on the railway and cars of said defendant, from Grand Trunk Junction, in the county of Wayne, to Saginaw, in the county of Saginaw; and did then and there deliver to said defendant and the said defendant then and there accepted and received of and from the said plaintiff certain goods and chattels of the said plaintiff, to wit: one trunk, one silk finished dressing gown, [etc.', naming several other articles] of groat value, to wit: of the value of three hundred dollars, to be safely and securely carried and conveyed by the said defendant, from Grand Trunk Junction aforesaid, to Saginaw aforesaid, and then, to wit: at Saginaw aforesaid, safely and securely to be delivered to said plaintiff, for certain reasonable hire and reward paid to said defendant in that behalf, and the said defendant, then and there, in consideration of said hire and reward, undertook and faithfully promised the plaintiff to safely and securely carry and convey the said plaintiff and said goods and chattels, from Grand Trunk Junction aforesaid, to Saginaw aforesaid, and to take good and proper care of said goods and chattels, and in and about its carriage and conveyance of the same, and the delivery thereof, as aforesaid; yet the said defendant, not regarding its said promises and undertaking in that behalf, did not safely and securely convey and deliver the said goods and chattels to the said plaintiff, but so carelessly and negligently conducted itself with respect to said goods and chattels that by and through the negligence, carelessness and improper conduct of said defendant, and its servants, in that behalf, that said goods and chattels, being of great value, to wit: of the value of three hundred dollars, became and were wholly lost to the said plaintiff, to wit: at Saginaw, aforesaid; by means whereof the said plaintiff hath sustained damages in the sum of three hundred dollars; which said- sum of money the said defendant then, to wit, at Saginaw aforesaid, undertook and promised to pay the said plaintiff,” etc.
The evidence was put into the case by stipulation, and in the main the facts are undisputed. It appears that the plaintiff took passage upon the cars of the defendant from Detroit to Saginaw, and that he had with him a trunk, which he avers contained the articles of personal property described in the declaration. This trunk has been lost, but whether through any fault of the railway company is in dispute. It is, however, shown by the plaintiff himself that both he and his trunk were being carried, not for hire and reward, but gratuitously. There was consequently no contract for carriage by the railway company, and this action, which is in assumpsit, cannot be maintained. Nolton v. Western R. Corp., 15 N. Y., 444, 440.
There can be no question that a railway company which receives property for gratuitous carriage, assumes, like any other gratuitous bailee, certain duties in respect to it, and that a suit will lie for a failure to perform these duties. But the obligation in such case is quite different from the obligation of a bailee who, for a consideration received or promised, undertakes to carry or to perform any other service with respect to the subject of the bailment. In the latter case the terms of the contract, if an express contract was made, will be the measure of the duties to be performed, and in the absence of any express contract the law itself will impose upon the bailee a higher degree of care and watchfulness than it demands of him who, for the mere accommodation of the bailor, undertakes the charge, of his goods. The gratuitous bailee must not'be reckless; he must observe such care as may reasonably be required of him under the circumstances; but it is not the same care which is required of the bailee who, for his own profit, assumes the duty. This is elementary, and is so reasonable that it requires no discussion. When care is bargained for and compensated, something is expected and is demandable beyond what can be required of him who undertakes a merely gratuitous favor.
Reliance is placed by the plaintiff upon certain cases which are supposed to have decided that the obligation of a railway company to carry safely is unaffected by the fact that'no fare was paid. None of them so decides. Todd v. Old Colony, etc., R. R. Co., 3 Allen 18, was an action for an injury to a person who was riding without payment of fare. The court recognized the obligation of the carrier to observe due and reasonable care, but expressly said that it did not appear that the facts proved at the trial rendered it material to consider whether a less degree of care was demandable than in cases where fare is paid. In Nolton v. Western R. Corp., 15 N. Y., 444, 450, which was an action for injury to a mail agent carried on "the cars under contract with the government, it is said that “the matter of compensation may have a bearing upon the degree of negligence for which the company is liable,” but no decision on that point became necessary. In Perkins v. N. Y. Cent. R. R. Co., 24 N. Y., 196, the question was how far it was competent for a carrier of persons to contract for an ■exemption from liability for injuries caused by negligence. Incidentally it was remarked (p. 200) that a carrier undertaking to carry one gratuitously “must do it carefully, as with other passengers.” By this we understand that, as in other cases, they must carry with care; not necessarily that they must carry with the same degree of care as in other cases. The court does not even by dictum go so far as that. In Ohio & Miss. R’y Co. v. Selby, 47 Ind., 471, the action was for a personal injury, and it was found by the court that the plaintiff was being carried for hire. In Jacobus v. St. Paul, etc., R’y Co., 20 Minn., 125, which also involved the question of the right to contract for exemption from liability for injuries arising from negligence, there is a dictum that “the same extreme care is required” where a passenger is carried gratuitously as in other cases. For this the cases already referred to are cited as authority, and also the two which follow: Phil. & Reading R. R. Co. v. Derby, 14 How., 468. In this case the jury found the injury to have been the result of gross negligence, and the court (pp. 485-6) expressly decline to express an opinion whether the care demandable by one who is being •carried gratuitously is the same that is due to those carried for hire. Steamboat New World v. King, 16 How., 469. The same remark may be made of this case as of the last. But we do not care to comment upon these cases, or to say .more of them than this: that the right of recovery in each of them where the carriage was gratuitous was based upon the duty of one who undertakes to carry persons, to carry them safely, a duty independent of any contract, and which the carrier owes, not exclusively to the person being carried, but also to the state itself. In such a case, especially if the mode of carriage is peculiarly subject to dangerous and destructive accidents, the carrier' may well be required to observe a high degree of care and diligence. But where ■only property is in question, there is no reason why any different rule should be applied to a railroad company taking ■charge of property gratuitously, to that which governs the relation in the case of any other gratuitous bailment. Nor .is it material that the gratuitous carriage of a trunk was accompanied by the gratuitous carriage of a person: the duty to carry the trunk safely was only the same that the law would have imposed had the trunk been taken upon a •freight train gratuitously; and no greater degree of care could be demanded in one case than in the other. It may therefore be conceded that the same extreme care is demand-able of carriers of persons in all cases, where injuries to persons are in question, and the concession will not in any manner affect the present suit.
But as the plaintiff has brought his action, not in tort but upon contract, there can be no recovery under his declaration, and the extent of the duty which under the circumstances was imposed upon the railway company becomes immaterial. The judgment must be reversed, with costs, 'but as the facts are not embodied in a finding by the circuit judge, so as to permit of our entering final judgment in this court, a new trial must be ordered.
The other Justices concurred. | [
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] |
Campbell, J.
This bill was filed to restrain Brown from asserting title by action of ejectment for so' much of a lot of land purchased by him in Grand Rapids as is occupied by the railroad of complainants.
Brown bought by deeds which expressly refer to the occupancy by the railroad. His purchase is therefore subject to whatever rights they had.
The ease presents no questions of law and depends on a very simple state of facts.
In 1853 a contract was made in writing whereby Daniel W. Coit, the owner of several government subdivisions including the laud in question, agreed with Harvey P. Yale, who was acting partly for himself and partly as a director of the Oakland and Ottawa Railroad Company, to sell to Yale an undivided interest in certain of these lands, one of the express conditions being that the railroad should pass through the lands, and a depot be built within certain specified distances. The railroad was located and the line marked and cleared, and the place of the depot was fixed. All matters having been settled the contract was as to the rest carried out by deed to an assignee of Yale in December, 1855. The previous month a partition deed was made between Ooit and one Curtis (who liad some unrecorded claim to an undivided interest in the property), and the property covered by the road was nominally within his share of the division. He conveyed to Brown in 1871, by warranty as to all but the railroad land, and by quit-claim as to that.
When Coit and Curtis made the partition deed the road had been surveyed, marked out, and clearly designated by clearing and otherwise.
By statutes which are public laws the Oakland and Ottawa Railroad was authorized to become merged in the Detroit and Milwaukee Railway, whose corporate existence is admitted in the answer as a corporation cle facto in possession of the property, and its subsequent reorganization is also admitted. No further evidence is needed until the presumption of regularity is overthrown, — even if it could be assailed by strangers collaterally.
As the road was laid out in accordance with Ooit’s requirement, and its location was one of the chief conditions of [his contract, we do not think there is any ground for claiming that the company was to have no rights without a further purchase. And as Curtis took his deed with constructive notice of this right, by open and evident occupancy by a road in course of construction, and his grantee took with plainer notice and actual knowledge of the occupancy, the title of Brown cannot prevail, and the bill is well founded.
The decree must be affirmed with costs.
Cooley, O. J., and Graves, J., concurred.
Marston, J., did not sit in this case. | [
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] |
Campbell, J.
The defendants in error brought suit upon a policy of insurance issued to one Headly and' on the face of it appearing to be for different sums on five distinct buildings and upon furniture and other personal property also, the aggregate sums insured amounting to $2,500. The policy contained the following clause: “Payable in event of loss to the property on said farm premises to the executors of the estate of Ira Davenport as mortgagees, as their interest may appear.” The mortgage was for $2,000 on real estate.
There was a condition which declared that “ if the premises hereby insured shall become vacated by the removal of the owner or occupant, and so remain for a period of more than fifteen days, without notice to the company and consent endorsed hereon,” it should become void.
The premises were burned, during such a vacancy, but evidence was received and acted on that before the issuing of the policy the insured had stated to the agent that he expected during the currency of the policy to leave his house vacant during a year or more, and was informed it would make no difference.
This is one of the errors assigned, and it is claimed in support of the ruling below, that the company is estopped from relying on this forfeiture.
We do not think the case is within any such principle. This court has held in several cases that there may be waivers or estoppels which do away with the written conditions of a policy by reason of the conduct of the insurerers inconsistent with reliance upon them. Peoria M. and F. Ins. Co. v. Hall, 12 Mich. 202; Westchester Ins. Co. v. Earle, 33 Mich., 144; North American Fire Ins. Co. v. Throop, 22 Mich., 147; Aurora F. and M. Ins. Co. v. Kranich, 36 Mich., 289.
These cases, so far as they apply at all, relate to a knowledge by the company of existing facts at the time of their action, when such action would not be consistent with any idea that they were to be discharged from liability by reason thereof.
But in this case the vacancy concerning which the parties conversed, if there was any such conversation, was one contemplated in the future, and the stipulation or understanding, if it amounted to anything, was an executory contract, intended to form a part of the contract of insurance. This being so, the doctrine cannot be admitted that any part of the completed contract can rest in parol. The policy was the conclusion of the bargain, and its acceptance would exclude any parol promises inconsistent with it. There is no resemblance between a parol variance of a written contract and a waiver of a condition after it has become binding on the parties.
It may also be suggested, although perhaps not very important, that the declaration sets out the contract as written and relies on it, and is not consistent with a claim to strike out a material condition.
We are also of opinion that the plaintiffs below showed no right to sue upon the contract. The parties to this policy were Headly and the company. Van Buren v. St. Joseph County Village Insurance Co., 28 Mich., 404; Clay Fire and Marine Ins. Co. v. Huron Salt and Lumber Man’g Co., 31 Mich., 346. The policy was to insure his interest and not that of the mortgagees, and any money paid to them would enure to his benefit. They hold no assignment of the policy and sue as original parties.
No one can dispute the right of parties to a contract to make money payable to a third person if they see fit. It is not important in this case to inquire whether if the policy before us gave the mortgagees an exclusive right to the whole insurance money they might not sue for it. In the present case the policy does not purport to do any such thing. It covers property not included in the mortgage, and only provides for payment to them of the. insurance money due upon the property with which they were concerned. Upon the trial it appeared that other property was burned, and the court excluded them from recovering beyond their own share, and Headley lost his share of the money entirely.
Now there can be no splitting up of causes of action on a single policy. The party insured retained by the terms of the policy itself interests beyond the control of the mortgagees. Their interests were several and not joint. Under such circumstances it cannot be held that the mortgagees have any control of the policy which would authorize them to sue upon it. No doubt the company would be protected in paying them their share as ecpritable appointees, but they cannot be treated as trustees for Headly’s benefit. He and not.they must be held the legal owner of the policy, which stands in his name and was made for his benefit. No case has been cited and we cannot conceive that any will be found, which would justify us in holding the mortgagees having only a partial interest under an appointment in a policy authorized to assume its legal ownership. Whoever sues must be able to enforce the whole policy.
As this will probably dispose of the case, we need not consider the other points.
Judgment must be reversed with costs and a new trial granted.
Cooley, C. J., and Graves, J., concurred.
Marston, J., did not sit in this case. | [
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Marston, J.
Admitting the doctrine contended for by plaintiffs in error in this case to be correct, viz.: that plaintiffs and defendants claiming title to the premises from a common grantor, must be regarded as admitting the title of the person through whom they thus claim (Johnstone v. Scott, 11 Mich., 232), yet there is still a difficulty in the way of the right of plaintiffs to obtain a verdict .in this case. While the' rule referred to may be correct and applicable in ordinary cases, and the presumption may be that where a person in possession of premises exercising rights of, and claiming ownership therein, conveys the same, a grantee thereof might be able to maintain ejectment against another claiming title from the same person; yet this cannot be extended to cases where the deed from such common grantor does not purport to convey the entire title, or leaves it uncertain and indefinite what interest was conveyed, without the aid of other testimony which is not furnished.
In this case the deed from Catherine Lafferty to Joseph Campau and Barnabas Campau, through which plaintiffs and defendants claim title, according to plaintiffs’ theory of the case, describes the grantor as “formerly Catherine Campau sister of Nicholas Campau deceased, * * of the first part, and Joseph Campan and Barnabas Campau * * brothers of the said Nicholas Campau deceased,” and she conveys, quit-claims “all her right, title, interest, share, estate,, claim and demand in law and equity, in possession and in expectancy of, in and to the following lands * * it being hereby intended to include and convey both ‘front and rear concessions, and the same premises particularly described in certain letters patent by the United States to Nicholas Campau, dated Oct. ?th, 1811, * * and in letters patent, U. S. . * * to heirs of Nicholas Cam-pan, dated Sept. -2d, 1840, * * and said Catherine sells, conveys and quit-claims to the said Joseph and Barnabas, all her right, title and interest and estate of, in and to the real estate wheresoever situate, or being, whereof her brother Nicholas died seized, possessed of or entitled to, or which she has inherited or become interested in, by and through said Nicholas.” No evidence was introduced showing who were the heirs of Nicholas Campau deceased at the time this conveyance was made or at any other time. Whether Catherine, Joseph and Barnabas were the sole heirs, or whether there were twenty others or any other number, we have no means and the jury had no means of knowing. Nor did it in any way appear upon the trial whether Nicholas Campau died intestate, or whether Catherine inherited any part of his estate, or if a portion, what portion. The evidence was not therefore sufficient to warrant the jury in ■finding any verdict in favor of the plaintiffs for any particular interest in the lands in dispute. Under such circumstances the court properly instructed the jury to find for the defendants, and the other rulings become immaterial. As the record now stands we think it would not be proper to consider them. The judgment must be affirmed with costs and the record remanded.
The other Justices concurred. | [
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Marston, J.
Whether all the logs contracted for in this case were by the parties understood to be only the logs sold by Stauffer to Hale in the writing of January 5th, 1874, would seem to be immaterial. The written assignment made by Hale to Richards is not such a written contract between the parties as would preclude plaintiff in error from showing by parol the agreement actually entered into. This assignment was not complete in itself and did not purport to set up the entire agreement. It may have been made pursuant to the agreement entered into and in part performance thereof, and this was what defendant below offered to show. We are of opinion that this evidence was admissible and should have been received for the purpose for which it was offered. The case comes clearly within previous rulings of this court. See Phelps v. Whitaker, ante, p. 72, and cases there cited, and Trevidick v. Mumford, 31 Mich., 470; Sirrine v. Briggs, 31 Mich., 443; Rowe v. Wright, 12 Mich., 291; Bowker v. Johnson, 17 Mich., 42; Facey v. Otis, 11 Mich., 217.
Judgment reversed, with costs, and new trial ordered.
The other Justices concurred. | [
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Per Curiam.
This is an application for a writ of ha-
beas corpus. The real question made by the application is 'the right of a person acting as a justice of the peace to perform the duties of that office, it being claimed that the legislation under which he was chosen was unconstitutional.
We have concluded not to consider this question except in a proceeding instituted against the person assuming to •aGt as justice, so that he may be heard upon a matter so ■directly affecting him.
Writ denied. | [
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] |
Graves, J.
Oook brought ejectment against Bertram who was in possession. Bertram claimed under two deeds given on sales for taxes, and he endeavored to ground a defense on them. Cook introduced evidence which he claimed was sufficient to estop Bertram from maintaining his possession against this action on the strength of the tax title deeds, and the court charged the jury that if the facts were found to be as asserted by Cook the estoppel was made out. The jury under this charge gave their verdict for Cook, and Bertram brought error. This court sustained the ruling and affirmed the judgment. Bertram v. Oook, 32 Mich., 518. The record was remanded to permit further action under the statute, and Bertram took a new trial as there allowed. The trial took place last November and under the instruction of .the judge the defendant Bertram recovered. Cook thereupon brought error. The evidence submitted was the same as upon the first trial. The court, however, was of opinion that as the trial was a new one granted by the statute, it was governed by Comp. L., § 6244, and that this section secured to the defendant the right to show and avail himself of the tax deeds in bar of a recovery, and deprived the plaintiff of the right he held oh the first trial to set up the matter of equitable estoppel against the claim under the tax deeds. And pursuing this view the judge refused to charge as on the first trial; but told the jury "the defendant was entitled to a verdict.
This was error. The provision referred to is applicable -only to cases where the plaintiff has taken possession by -virtue of a recovery and a new trial is had under the statute, and there is no pretense that Bertram had been put ■out under the first recovery. This statute could therefore' ■exercise no influence on Cook’s right to rely upon the matter -of estoppel at the last trial, and the same consideration was -due to the evidence as at the first trial. We shall defer .an examination concerning the sense of the provision until .•some case is presented which requires it. We express no •opinion upon it now. We only observe that< whatever may be its scope and force in cases in which the Legislature designed it to operate, it has no application at all in this case.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Graves, J.
The right Gibson asserts is based solely on an alleged special agreement entitling him to collect so much as he might of a specific judgment and to retain one-half of the sum collected. According to his own statement of his case, the judgment was the exclusive subject-matter of the agreement relied on. No other demand or form of demand entered into the bargain. The parties had nothing else in their minds. They did not assume to contract about an unliquidated claim or an unadjudicated cause of action, the enforcement of which in Pelkie’s name might involve him in a much larger liability than would be likely to attend the collection of a judgment. It was a judgment which formed the subject-matter of the bargain. Such was the claim made by the declaration, and such was the case in issue. No other ground for recovery appears. Now, there was no proof of a judgment; but there was evidence concerning one, and it seems to have been in effect conceded that there was something which had been taken to be a judgment, but which was so defective that it could not avail any thing.
The case must be viewed as it is. It is not admissible to arbitrarily admit one part and reject another. If what there is to show that the supposed judgment was void, is rejected, then all there is to make out the existence of any such judgment will be stricken out, and if that be dona there will be no proof whatever of the essence of the cause of action set up. There will be no showing that there was any subject-matter for the alleged agreement and no proof to maintain the actual averments of the declaration. The cause is presented here by both sides upon the theory that there was something which was intended as a judgment, but which was void and hence uncollectible, and the plaintiff in error cannot ask a more favorable view of the record. If then there was a proceeding which was meant to be a judgment, but which was void, there was nothing to which the actual bargaining could attach. There was no subject-matter. The parties supposed there was a judgment, and negotiated and agreed on that basis, but there was none. Where they assumed there was substance, there was no substance. They made no contract because the thing they supposed to exist, and the existence of which was indispensable to the institution of the contract, had no existence. Allen v. Hammond, 11 Pet., 63; Suydam v. Clark, 2 Sandf. Sup’r Court Rep., 133; Gove v. Wooster, Lalor’s Supp. to Hill & Den., 30; Smidt v. Tiden, L. R., 9 Q. B., 446: 9 Eng., 379; Couturier v. Hastie, 5 H. L., 673; Hazard v. New England Ins. Co., 1 Sumn. 218; Silvernail v. Cole, 12 Barb., 685; Sherman v. Barnard, 19 Barb., 291; Metcalf on Cont., 30, 31; 1 Poth. Ob. by Evans, 113; Benjamin on Sales, §§ 76, 77, Ch., 4; 2 Kent Com., 468. It is therefore the opinion of a majority of the court that the-judgment.in Pelkie’s favor ought not to be disturbed.
Judgment is affirmed with costs.
Cooley, C. J., and Campbell, J., concurred. | [
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Boyles, J.
On plaintiff’s petition we entered an order directing the defendant liquor control commission to show cause why mandamus should not be granted to compel it to allow plaintiff a new SDM license to sell alcoholic beverages at retail at 5546 Chopin street in Detroit, known as Tobey’s Market. Return has been filed and the case submitted.
The question involved is whether plaintiff’s To- bey’s Market is within 500 feet of a church or a school building within the proscribed area under CLS 1954, § 436.17a (Stat Ann 1953 Cum Supp §18.988[1]), which provides:
“Any new application for a license to sell alcoholic beverages at retail, * * * shall be denied in the event the contemplated location is within 500 feet of a church or a school building. Such distance between the church or school building and the contemplated location shall be measured along the center line of the street or streets between 2 fixed points on said center line determined by projecting straight lines, at right angles to the said center line, from the part of the church or school building nearest to the contemplated location and from the part of the contemplated location nearest to the church or school building.”
The defendant commission denied plaintiff’s application for the license because of the above inhibition. The factual situation as to location of the buildings involved and their distance from each other is shown on the following drawing.
Inasmuch as it is quite obvious from the record before us that Tobey’s Market is not within 500 feet of the St. Andrews school and church “building” at 5690 Cecil street, it appears that the defendant commission considered that the rectory shown at 7060 MeG-raw, which is on a part of the St. Andrews property, is “a church or a school building” within the purview of the statutory inhibition. The rectory would be within 500 feet of Tobey’s Market, using the statutory yardstick for measuring the distance. The position of the defendant commission in this connection is indicated by its counsel in stating, in their brief, as a counterstatement of the question involved :
“May the defendant hoard conclude inasmuch as licenses are issued in its discretion under section 17 of the so-called liquor law, that the rectory of Saint Andrew’s Church is a church building and within 500 feet of the property of appellant under the provisions of section 17a of the so-called liquor law?”
A -¡— CCHrr \-----At.-----•]- fJcGrau/
There is a complete absence of any showing in the record that the rectory was actually used as a church or as a school building.
A rectory is defined in Webster’s New International Dictionary (2d ed Unabridged), p 2083, as “a rector’s residence; a parsonage.”
Section 2c of the liquor control act (CLS 1954, § 436.2c [Stat Ann 1953 Cum Supp § 18.972(3)]) defines the word “church” as used in the act as follows :
“ ‘Church’ shall mean an entire house or structure set apart primarily for use for purposes of public worship, in which religious services are held and with which a clergyman is associated, and the entire house or structure is kept for that use and not put to any other use substantially inconsistent therewith.”
We have carefully, examined the record before us to ascertain whether it shows that the so-called rectory, under the proofs adduced, can be said to be “a church building” within the definition of the statute; and particularly within the definition of a church building which this Court has recognized in Gamble v. Liquor Control Commission, 323 Mich 576; also, to ascertain whether the rectory is a school building, within the meaning of said statute, in the light of our decisions, including our more recent decision (March 9, 1955) in Boys’ Clubs of Detroit v. Pakula, 342 Mich 150, wherein we have considered that question. We find nothing in the record to show that the rectory was used as a church, or as a school building. On the oral argument, counsel for the defendants referred to the “kindergarten school” as being within 500 feet of Tobey’s Market. On plaintiff’s exhibit A, in the record, the “Aux. school bldg.” is shown more distant from Tobey’s Market than the “St. Andrews school and church” at 5690 Cecil; and this is likewise true on defendants’ exhibit A, in which this same building is labeled “kindergarten.” Both exhibits place this building as being more than 500 feet from Tobey’s Market, and neither the exhibits nor the record otherwise indicates that the rectory was used as a kindergarten school.
We find nothing in the Gamble Case, supra, or in Elliott v. Liquor Control Commission, 339 Mich 78, to support the defendants’ argument that the location of a proposed licensee’s building and that of the church or school building must both be on the same street, and that the measurement must be by a straight course along the center line of that street. The statute refers to measurement along the center line of the street or streets. Furthermore, if the defendants’ claim were correct, an SDM license might be allowed for a building around the corner within 500 feet from a church or school building, on an intersecting street, where it might be inside the 500-foot inhibition of the statute if the statutory measurement was correctly applied.
In defining a rectory or parsonage, considering a statute which declared any parsonage owned by any religious society and occupied as such was exempt from taxation, this Court said:
“A parsonage may be defined as a house in which a minister of the gospel resides. In its ecclesiastical sense the word was ‘glebe (or land) and house’ belonging to a parish appropriated to the maintenance of the incumbent, or settled pastor of a church; but its modern general signification is in the sense of its being the residence of a parson, and it may be with land or without it. 29 Cyc, p 1693; Wells Estate v. Congregational Church at Underhill Flats, 63 Vt 116 (21 A 270).” St. Joseph’s Church v. City of Detroit, 189 Mich 408, 413.
We have also recently considered what constitutes a school building, in School District No. 3, Township of Norton, v. Municipal Finance Commission, 339 Mich 96. It is not necessary to repeat here what has been said in these recent opinions. The record before us completely fails to establish that plaintiff’s proposed location for an SDM license to sell intoxicating liquor at retail is within 500 feet of a church or a school building. The commission erred in denying the license.
The writ of mandamus will issue. No costs, a public question being involved.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Kelly, J.
Plaintiff filed a declaration in the circuit court for the county of Kent alleging that he had ’’been greatly injured in his good name, fame and credit and brought into public scandal, infamy and disgrace” by the printing in the Grand Rapids Herald, on January 17, 1953, the following news item:
“Man Held In Jewelry Holdup Case
“Grand Rapids detectives arrested Albert Schulz, ■36, of 415 Cass Ave. S.E., Friday afternoon at the request of Roseville, Mich., police, who will question him about a $1,000 jewelry robbery that took place in Roseville last summer.
“Taken also in the holdup was a rare watch valued at about $700 according to Roseville police. There are only 3 such watches in the Hnited States, they said.
“Schulz, who was arrested by detectives Morey Butler and Celmyr McConnell while he was at work, is to be taken to Roseville Saturday, inspector Frank Breen, chief of detectives, said, to see if he can be identified as one of the armed men who held up a man and his wife.”
Defendant entered a special appearance and moved to dismiss for the reason:
“That the newspaper report in connection with the ■apprehension of Albert Schulz, plaintiff herein, was ■qualified privileged inasmuch as the excerpt quoted was a publication in good faith as current news of a matter involving the violation of the law, and it went no further than the privilege of the newspaper to publish the actual facts concerning the commission ■of a crime and the facts as to the arrests and charges made against the plaintiff, who was suspected of the ■crime.”
Circuit Judge Leonard D. Verdier denied the motion to dismiss, stating:
“It appears to the court that the' motion to dismiss is made prematurely. It may well be that, when the proofs have been submitted on a trial of the case, defendant’s motion to dismiss may have merit, but that is not true at this stage of the case.”
Defendant’s application to this Court for leave to appeal from this order was denied. Defendant then filed a general appearance and answer, alleging:
1. That the item complained of “did not, in the connection in which it was used, carry even the impression that plaintiff was guilty of the crime referred to.”
2. That before the police department of Grand Eapids arrested plaintiff he was known to them as an ex-convict who had been sentenced to the State prison of southern Michigan, at Jackson, in 1940 for breaking and entering; that he was again sentenced to the same prison in 1946 for uttering and publishing checks, and in 1952 arrested in Grand Eapids for nonsupport.
3. That a picture of plaintiff, taken at the time of his arrest in 1952, was sent at its request to the police department at Eoseville, and that the arrest of plaintiff was made at the request of the Eoseville police who stated that plaintiff had been identified as one of 2 men who committed the robbery.
4. That plaintiff was not known to defendant prior to his arrest for questioning and that the published item complained about “was merely a factual report of his arrest, without editorial comment, was without any malice whatsoever, and was true in every respect.”
5. That after questioning and release of plaintiff by the Michigan State police and the Eoseville police, the defendant published a full, impartial and complete report of same.
6. That the report of his being arrested and held for questioning was qualifiedly privileged and neither charged the plaintiff with nor imputed to him the commission of any crime.
Plaintiff filed a reply admitting that plaintiff was not known to defendant prior to his arrest and publication of the news item, but denied there was no malice and averred “that the language of the newspaper report speaks for itself and that that language imputes the commission of a crime by this plaintiff.”
The cause of action was removed from the circuit court of Kent county to the superior court of Grand Rapids, and defendant moved for summary judgment. The Hon. Thaddeus B. Taylor, judge of the superior court of Grand Rapids, granted the motion for summary judgment, and in his opinion stated:
“There is no issue of fact and the only question is—-
“Would the plaintiff be entitled to a verdict upon a trial?
“I am of the opinion he could not recover.
“First: The police of Grand Rapids were acting properly when at the request of the Roseville police they detained the plaintiff. This is in accord with the recent case of Ilammit v. Straley, 338 Mich 587.
“Second: The published article does not import to or accuse the plaintiff of the commission of a crime. The 2 portions of the statement which were incorrect do not furnish the basis for an action of libel.”
In his opinion Judge Taylor commented on the alleged incorrect statements as follows:
“The plaintiff alleges in his declaration that the statement was untrue. It does appear that the robbery occurred in November of 1952 rather than in the summer of 1952. Even if incorrect, it imports no guilt of plaintiff nor does the error accuse him of a crime. It further states that the plaintiff was to be taken to Roseville for questioning. This did not occur but the Roseville officers rather came to Grand Rapids and conferred with the plaintiff and thereafter he was released. The statement that plaintiff was to be taken to Roseville for questioning imports no charge of guilt.”
The only question involved is as set forth in appellant’s brief:
“Does the superior court of Grand Rapids have authority to grant a motion for summary judgment in a case where the circuit court of Kent county previously had denied a motion to dismiss and the Supreme Court had refused an application for an appeal from that denial!”
The removal of the case to the superior court from the circuit court is not questioned. Judge Taylor’s legal conclusions and findings that there were no controverted facts are not appealed from.
Appellant contends that Judge Verdier’s denial of defendant’s motion to dismiss and this Court’s subsequent denial of application for leave to appeal constituted “res judicata as far as the present matter is concerned,” and therefore Judge Taylor, superior court judge, did not have authority to determine that the motion for summary judgment should be granted.
We do not agree with appellant’s contention. Judge Verdier’s opinion related solely to the motion to dismiss and the denial of that motion did not have adjudicatory effect on the subsequent motion for summary judgment.
This Court’s denial of defendant’s application for leave to appeal constituted merely a finding that the trial court did not abuse the discretionary power reposed in it in determining that under the facts as then existing the motion to dismiss should be denied.
Judgment affirmed, costs to appellee.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dbthmers, JJ., concurred. | [
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Reid, J.
On leave granted by the circuit court, plaintiff filed a petition for writ of certiorari against the defendant Genesee county employees’ retirement commission, by which petition plaintiff sought as employee of Genesee county, Michigan, an order of the circuit court (in effect) reversing and declaring irregular and improper, a finding by the defendant that,
“2. He (Harry Demorest) cannot be given credit for service prior to April 6, 1945, and consequently will not have 10 years of service credit until April 6, 1955.”
The defendant had also found, July 11, 1949 (as reported to plaintiff’s attorney by J. H. Galliver, secretary and member of defendant commission), that,
“1. Mr. Harry Demorest is a member of the Genesee county employees’ retirement system, beginning with the effective date of the retirement system.”
Plaintiff was appointed and qualified as the official stenographer of the seventh judicial circuit of Michigan in 1900, which position he occupied until January 17,1949, when he resigned said commission. After January 17, 1949, he acted under the commission of Governor Albert Sleeper which was issued on September 1,1917. The seventh judicial circuit was Genesee county then, and has continued the same since. All of this time until the hearing in circuit court Mr. Demorest personally served as official stenographer for the circuit courts for Genesee county, Michigan.
PA 1851, No 156, granted and defined in general the powers of the boards of supervisors of counties in Michigan. PA 1943, No 249, granted power to boards of supervisors of the several counties to purchase or participate in the cost of group-retirement annuities for the employees of their respective counties and of the several offices, boards and departments thereof, without expressly defining in detail who were to be considered as county employees. PA 1945, No 68, amended said PA 1943, No 249, and in the amended section, § 12a, inserted the following among other things:
“Or to adopt and establish a plan whereby their respective counties shall pay retirement benefits or pensions to the county employees of their respective counties and of the several offices, boards and departments thereof, including the board of county road commissioners, who have been so employed for hot less than 25' years, or who have attained the age of 60 years and have been so employed for not less than 8 years.” (This was later changed to “5 years.” See PA 1949, No 201.)
Said PA 1945, No 68, also inserted the following, which is further amendatory to said section 12a, as follows:
■ “The term ‘county employee,’ when used in this section is hereby defined to include all persons who receive more than 50 Jo of all compensation for personal services, rendered to governmental units, from county funds or county road funds, except persons engaged for special services on a contract or fee basis. All persons included within the definition of ‘county employee’ shall be deemed to be employed by said county for the purposes of this section.”
Said PA 1945, No 68, was given immediate effect and was approved April 6,1945.
On December 20,1945, the board of supervisors of Genesee county adopted a county employees’ retirement ordinance effective January 1, 1946 (also specifying in section 16 [a] that eligible persons became members December 31,1945). Section 2 of the supervisors’ ordinance among other things contained the following definitions:
. “(c). ‘Member’ shall mean any person included in the membership of the retirement system.” •
“(g). ‘Prior service’ shall mean all service rendered as an employee of the county prior to the effective date of the retirement system.”
“(t). ‘Employee’ shall mean any person who receives 50% or more of all compensation for personal services, rendered to governmental units, from the funds of Genesee county or of the several offices, hoards and departments thereof, including the hoard of. county road commissioners.”
The ordinance adopted hy the board of supervisors further contained the following in section 21:
“Subject to provisions - of the retirement system and to such other rules and regulations as the retirement commission may adopt, the retirement commission shall credit each member’s service account with the number of years and months of prior service and membership service to which the member may be entitled.” (Italics supplied.)
During the proceedings before the trial court, the following occurred:
“Mr. Neithercut [attorney for plaintiff]: They admit he comes under the county pension system now, as of the date of the adoption, on January 1, 1946, according to that letter [referring to letter of Galliver to Mr. Neithercut, July 11, 1949], but they deny any prior service—credit for prior service.
“Mr. David [attorney for defendant]: It is the contention of the board, your honor, that Mr. Demorest is entitled to prior service credit only to the effective date of an act passed in 1945, which would be April 6, 1945.”
The issue before the trial court seems to have been limited to an attack by plaintiff on the finding by the defendant,
“2. He (Harry Demorest) cannot be given credit for service prior to April 6, 1945, and consequently will not have 10 years of service credit until April 6,1955.”
The question for us to decide is of dual aspect:
(1) Did the act of 1945 grant to the board of supervisors of Genesee county the right and authority to adopt a retirement ordinance including allowance based on “prior service” to one not considered an employee under the act of 1943?
(2) Did the ordinance adopted by the board of supervisors have the effect of granting to plaintiff a membership in the retirement system with credit for service prior to the effective date of the act of 1945 ?
While the acts of the legislature in many instances are considered to speak as of the effective date of the act, still we consider that the words, “have been so employed for not less than 25 years,” et cetera, do not relate solely to the date, April 6, 1945. They are meant to be considered as though not only in the present perfect tense but are intended to apply as of the date of the completion of the required years of service. The past tense and future tense are included with the present perfect tense, in the phrase, “have been so employed,” by reasonable implication.
Plaintiff performed the same kind of work and for the same employer before April 6, 1945, as he did after that date and was compensated therefor in the same manner by the county of Genesee. Section 51 of the ordinance set the effective date of the retirement system as January 1, 1946, on which date and also the preceding day, plaintiff was, by the terms of the ordinance, a member of the retirement system.
It is to be noted that the same act (of 1945) which changed the definition of “member” so that it had the effect of clearly including plaintiff .as an em ployee of the county, is also the same act which contained the words “who have been so employed” and “have been so employed,” which we construe to include prior service; so that the act of 1945 is to be considered as giving the supervisors authority to give prior service credit to all persons who were recognized by that act of 1945 as proper to he made members, and who had completed the requisite prior service. The words “who have been so employed” must he given the same construction in the act of 1945 as in the act of 1943.
Defendant argues in its brief that the plaintiff was a contractor, not employee, because he was paid in one lump sum for his own services and for 3 assistants who assisted him in doing the stenographic work for the circuit courts of Genesee county, during a part, at least, of his claimed prior service. This question we decide in favor of plaintiff. Plaintiff was an officer'duly appointed under the law, was paid for his services by the county, and clearly comes within the definition of a county employee contained in the act of 1945. The defendant so found and so announced. The provisions in the retirement ordinance quoted from section 2 (g) and from section 21 concerning prior service and membership service clearly indicate the construction contended for by plaintiff.
We conclude that plaintiff was a member of the retirement system from and after December 31, 1945, and that he is entitled to the prior service credit claimed by him. The judgment of the circuit court determined the decision of the defendant commission erroneous. The judgment of the trial court is affirmed. No costs, a question of public importance .being involved.
Carr, C. J., and Btjtzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred.
See CL 1948 and CLS 1952, § 46.1 et seq., as amended (Stat Ann and Stat Ann 1953 and Stat Ann 1955 Cum Supp § 5.321 et seq.). —Beportee.
The 1947 amendments did not affect the portions here quoted. See CL 1948, § 46.12a (Stat Ann 1945 Cum Supp § 5.333 [1]).—Re-porter. | [
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] |
Carr, C. J.
Dearborn Clinic & Diagnostic Hospital was incorporated in 1933 as a nonprofit corporation, under tbe provisions of tbe Michigan general corporation act. Tbe case at bar involves tbe right of tbe city of Dearborn to tax real estate of said corporation used for hospital purposes. Apparently tbe property has been so used for several years past without being taxed. In 1954 it was placed on tbe assessment roll, and such action was confirmed by tbe city board of review. Thereupon tbe owner appealed to tbe State tax commission, asserting that tbe assessment was unauthorized.
On receipt of tbe complaint tbe parties were notified that a review of tbe city’s action would be held in Detroit on July 20, 1954, at which time consideration would be given to the appeal. On tbe date specified no witnesses were produced by either tbe city or tbe owner of the property. Discussion was bad with reference to tbe claim of exemption, representatives of tbe city contending that such claim was not well-founded, that tbe assessment of tbe property was lawful, and that tbe commission, if it took any action in tbe premises at all, should enter an order approving tbe action of tbe city officials concerned. A brief was submitted setting forth tbe arguments advanced in opposition to tbe claim of the property owner. It appears also that tbe commission bad before it certain papers bearing on tbe organization and operation of tbe Dearborn Clinic & Diagnostic Hospital, herein referred to for convenience as tbe Hospital.
On October 25, 1954, tbe commission issued its order reciting that “after investigation and after giving due consideration to all reports and statements submitted,” at tbe bearing of July 20th, it bad determined that tbe property in question was ex empt. Prom such order the city of Dearborn, on leave granted by this Court, has taken an appeal in the nature of certiorari. It is claimed that the commission lacked authority to strike the property from the assessment roll and that, if it had jurisdiction in the premises, such action was not warranted by the showing made. It is insisted further in this connection that the commission should have taken testimony of witnesses for the purpose of developing the factual situation.
On behalf of appellant it is urged that statutory provisions defining the powers and duties of the State tax commission do not in express terms grant authority to it to strike from assessment rolls property deemed exempt from taxation. Appellee directs attention to pertinent provisions of the general property tax law indicating that only properties liable to assessment for taxation may properly he placed on assessment rolls, and that it is the duty of the State tax commission “To have and exercise general supervision over the supervisors and other assessing officers of this State, and to take such measures as will secure the enforcement of the provisions of this act.” (CL 1948, § 211.150 [Stat Ann 1950 Rev § 7.208].) Subdivision 3 of the section cited also makes it the duty of the commission:
“To receive all complaints as to property liable to taxation that has not been assessed or that has been fraudulently or improperly assessed, and to investigate the same, and to take such proceedings as will correct the irregularity complained of, if any is found to exist.”
It is contended that if property exempt from taxation is placed on the assessment roll it must be deemed to be “improperly assessed” and that, in effect, the commission is given specific authority to correct such action.
The authority of the commission is further indicated in CL 1948, 211.152 (Stat Ann 1950 Rev § 7.210), which makes assessment rolls subject to inspection by the commission or by any member or authorized representative thereof. If such inspection indicates that property has been omitted, or improperly described, or that “individual assessments have not been made in compliance with law,” the commission is authorized to issue an order for a review of the assessment roll in which such defects are claimed to exist. It is significant that the statute refers to the proceeding as a “review”, thereby indicating the nature and scope of the functions of the commission.
In keeping with other provisions of the statutes relating to taxation, CL 1948, § 209.104 (Stat Ann 1950 Rev § 7.634) provides that “The State tax commission shall have general supervision of the administration of the tax laws of the State.” Without referring specifically to other pertinent provisions, we think the intent is clearly manifest on the part of the legislature to give to the commission broad powers of review in matters of taxation. Such was the conclusion expressed in Board of State Tax Commissioners v. Quinn, 125 Mich 128. The Court also concluded that the commission functions as a “board of review,” saying in part (p 131):
“Had the tax law, including the amendments, been passed as a whole in the first instance, we should find no difficulty in saying that the intention was discernible, and that the term ‘board of review’ was used as descriptive of the character of the board, and meant the board of final review in that particular instance, and that the term was intended to apply to the local board or the State board, as the circumstances might require. There is no reason for applying a different rule of construction where the apparent inconsistency arises between the original act and the amendatory sections, for all is to be considered as 1 act for the purpose of construction, under the well-settled rule.”
As before noted, the board of review of the city of Dearborn confirmed the assessment of the hospital property. It is apparently not questioned that it might have refused to take such action, and have stricken said property from the roll. In this connection the provisions of CLS 1954, § 211.29 (Stat Ann 1950 Eev § 7.29) are in point. Said section, after providing for the meeting of the board of review, directs that the members thereof:
“shall correct all errors in the names of persons, in the descriptions of property upon such roll, and in the assessment and valuation of property thereon, and they shall cause to be done whatever else may be necessary to make said roll comply with the provisions of this act. The roll shall be reviewed according to the facts existing on the tax day. The board shall not add to the roll any property not subject to taxation on the tax day nor shall it remove from the roll any property subject to taxation on said day regardless of any change in the taxable status of such property since such day.”
Obviously correcting an assessment roll so that it may comply with the law may involve striking therefrom assessments on tax-exempt property. The authority to eliminate property that should not be assessed is clearly indicated by the language quoted. If, as declared by this Court in the Quinn Case, supra, the State tax commission is to be regarded as the final board of review, the conclusion follows that it possesses at least the powers granted to local boards.
In Township of Beaverton v. Lord, 235 Mich 261, the plaintiff sought to tax certain flowage easements within its boundaries. The owner of such easements appealed to the hoard of State tax commissioners, to which board the present State tax commission is the successor, claiming that such assessment was unauthorized. The member of the board hearing the matter agreed with the owner and removed the property from the roll. Thereupon suit was started in circuit court to enjoin such action. This Court held that under the circumstances equity had jurisdiction to grant relief, and disposed of the case on the merits by holding that the easements were subject to taxation in plaintiff township and that, in consequence, the order striking such property from the roll was improper. It does not appear that any question was raised in the case by the parties or •either of them, or by this Court, as to the jurisdiction of the board of State tax commissioners to strike from the roll property deemed not legally taxable in the township. It is perhaps of some significance that the acceptance of jurisdiction by the board was not challenged or criticised.
In Board of State Tax Commissioners v. Kohler, 193 Mich 420, the Court considered the authority .given by provisions of the general tax law to the board of State tax commissioners, pointing out that It was the duty of said board to exercise general supervision over assessing officers and “to take such measures as will secure the enforcement of the provisions of the act.” It was further stated that (pp 427,428):
“By subdivision 3 of said section 150, it is made the duty of the board to receive all complaints as to property liable to taxation that has not been assessed, or that has been fraudulently or improperly .assessed, and to investigate the same, and to take •such proceeding's as will correct the irregularity complained of, if any is found to exist.
“It is too narrow a view to say that the words ■‘such investigation/ found in section 152, refer sim ply to the ‘inspection.’ of the rolls; it is more reasonable to hold that they refer to all the other avenues open to investigation. The words ‘inspection’ and ‘investigation’ are not synonymous; and it is more reasonable to say that the words ‘such investigation’ refer to the investigation, and examination of witnesses and documents referred to in the preceding sections, as above noted.”
In Hudson Motor Car Co. v. City of Detroit, 282 Mich 69 (113 ALR 1472), it was held with reference to the right of review by the State tax commission:
“After tax rolls have been passed upon by local boards of review and are properly certified by them no change may be made therein by the local board of review or by any local assessing officer but the State tax commission has a right to review the tax rolls after final review by the local board and such review by the commission may be either special or general.” (Syllabus 16.)
Questions of statutory construction analogous to that in the case at bar have arisen in other States under provisions of tax laws similar to those of Michigan. In Kane County Board of Equalization v. State Tax Commission, 88 Utah 219 (50 P2d 418), the defendant commission on appeal to it by a taxpayer set aside and cancelled an assessment made by local officials. After pointing out provisions of the statutes relating to taxation giving to the defendant commission general supervision over the administration of the tax laws of the State and over local officials in the performance of their duties, it was said (pp 226, 227):
“Since the commission has general supervision over the tax laws of the State and over those charged with the enforcement of those laws, and has the power on appeal to make such correction or change in the order of the county board of equalization as it .may deem proper, it must necessarily follow that it is authorized to cancel, vacate, or change an assessment when, upon a proper showing, it has been determined that the assessment should be so cancelled, vacated, or changed.”
Likewise, in City of Newark v. Fischer, 3 NJ 488 (70 A2d 733, 21 ALR2d 280), the question arose as to the authority of a county board of taxation to ■cancel an assessment which said board found to be improper. In commenting on the situation, it was •said (p 492):
“The county board had jurisdiction of the subject matter and pursuant to RS 54:3-22, as amended was vested with the power to ‘revise and correct the assessment in accordance with the true value of the "taxable property/ This power necessarily includes the right to cancel the assessment entirely where the property is determined to be not taxable.”
Further discussion of the question of jurisdiction is ' not required. It is fundamental that statutes must be construed to carry out the purpose of the legislature. It is apparent that it was intended to •give to the State tax commission broad powers of review and of supervision over the administration of the general property tax law. Under pertinent provisions of the statutes of this State relating to taxation, some of which are specifically mentioned above, we conclude that the commission had jurisdiction to entertain the complaint made to it in this case and to enter an order based on the matters submitted to it on the hearing and on the results of its investigation.
As before noted, the order of the commission from which the city of Dearborn has appealed indicated that it was made after due consideration of reports ;and statements submitted at the hearing, and also after investigation. The duty to investigate was specifically imposed on it by the statute (CL 1948, § 211.150 [Stat Ann 1950 Rev § 7.208]). The scope -of the investigation in the instant case does not appear from the record but it may be assumed that it was intended to furnish to the commission information that it required in determining the matter before it. In the case of In re Application of Consolidated Freight Co., 265 Mich 340 (4 PUR NS 397), the Court had before it the propriety of an order made by the Michigan public utilities commission (now Michigan public service commisson). The question at issue and the views of the Court with reference to it are suggested by the following quotation from the opinion (pp 352, 353):
“The principal contention asserted by appellants on this appeal is that the evidence before the utilities commission did not show the requisite public convenience or necessity for issuing a permit to appellee. On application for a permit the statute requires the commission to:
‘find and determine that public convenience and necessity require the exercise of such privilege, and said commission shall refuse to issue any certificate if, upon investigation of all existing highway transportation facilities and hearing, it shall appear to the satisfaction of the commission that public convenience and necessity do not require such additional facilities as applied for.’ PA 1931, No 312, § 5.
“Prom this statutory provision it appears that the commission acts not only upon the testimony taken at the hearing but it may make an investigation on its own account and consider the results of such investigation in granting or withholding the permit. Needless to say a question of fact was presented to and determined by the commission. It is equally
clear that determination of such issue based in whole or in part upon ‘investigation’ by the commission cannot be reviewed in this Court upon a record which, as in the instant case, contains no information as to what the commission’s investigation disclosed. But entirely apart from this anomalous situation, on review by certiorari this Court has no power to substitute its judgment for that of the commission on issues of fact.”
See, also, People, ex rel. Little, v. St. Louis Merchants Bridge Co., 291 Ill 95 (125 NE 752).
By stipulation of the parties, the record in this case consists of the record of the commission, certified as correct by its secretary, which was filed with this Court in connection with the application for leave to appeal. It appears therefrom that the communication embodying the appeal to the commission from the decision of the Dearborn board of assessors contained a statement indicating that in 1934 the State tax commission had determined that the property of the Hospital was tax exempt. It does not appear that the correctness of this statement was questioned before the commission, or that it is now disputed. The complaint, filed on a blank furnished by the commission, further set forth that the ownership of stock entitled the owner to take part in the management but carried no dividend or proprietary rights, and that in case of dissolution the assets would be conveyed to a “similar charitable trust.”
The articles of incorporation of the Hospital set forth in article 2 thereof the purposes of its organization as follows:
“To acquire, construct, complete, maintain, and conduct a hospital for the care and relief of indigent and other sick, infirm, or injured persons, and the treatment of maternity cases; and to provide dental treatment to the aforesaid persons; the study and teaching of the cause, nature, prevention, and cure of various diseases, dissemination of knowledge relating thereto and the purchase, leasing, erection, and equipment and maintenance of all buildings and laboratories necessary or incidental thereto upon land situated in the city of Dearborn, "Wayne county, Michigan.”
It was also provided in the articles that the corporation should be financed by the charging of fees to patients able to pay and the acceptance of contributions from benefactors.
The record contains the 1954 annual report of the Hospital to the Michigan corporation and securities commission. Among other statements therein, the report avers that during the year covered by it the nature of the business conducted was “hospital—nonprofit.” The question in the report as to whether interest or dividends were ever paid on capital stock was answered in the negative. It thus appears that the commission at the time of the hearing and the making of the subsequent order had before it, in the form disclosed by the record, certain claimed facts which it had full authority to check as a part of the investigation authorized by the statute.
If the hospital property had been treated as exempt from taxation for a period of 20 years, such fact was entitled to consideration in determining its character and use. In Wright v. Central of Georgia Railway Company, 236 US 674 (35 S Ct 471, 59 L ed 781), the appellee company sought to enjoin the collection of certain taxes on the ground that they were not properly assessed against it, its claim being that it did not actually own the property in question. In affirming a decree in favor of the plaintiff railway company, it was said (p 678):
“To decide whether these taxes are such an unjustified exaction we must turn to the legislation of the State, bearing in mind that the practical construction given to the law for nearly half a century is strong evidence that the plaintiff’s contention is right. Wright v. Georgia R.R. & Banking Co., 216 US 420, 426 (30 S Ct 242, 54 L ed 544); Temple Baptist Church v. Georgia Terminal Co., 128 Ga 669, 680 (58 SE 157).”
The claim that the Hospital’s real estate is exempt from taxation rests on CLS 1954, § 211.7 (Stat Ann 1953 Cum Supp § 7.7). The 4th subdivision of said section reads as follows:
“Fourth, Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions and memorial homes of world war veterans incorporated under the laws of this State with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated. Also charitable homes of fraternal or secret societies. Also real estate not to exceed 160 acres of land owned by any boy or girl scout organization, while occupied by them solely for the purpose for which they were incorporated or established. Also real estate, with the buildings and other property thereon, owned and occupied by any nonprofit trust and used for hospital or public health purposes.”
It may be noted that the final sentence of the provision above quoted was added by PA 1952, No 54, presumably for the purpose of clarifying the status-of hospitals with reference to taxation.
The exemption from taxation of the property of hospitals and like organizations has been considered by this Court in prior cases. In Michigan Sanitarium & Benevolent Ass’n v. City of Battle Creek, 138 Mich 676, in sustaining the right of the plaintiff association to recover taxes that it had paid under protest, it was held that it had sufficiently shown that it had not paid dividends by proof that none of its funds had gone to its members except in the form of wages or salaries. The claim of the city to the effect that plaintiff did not occupy the property for purposes specified in the act under which it was incorporated was answered by statements indicating the nature of plaintiff’s operations and by declaring that it was not incumbent on plaintiff to show the impossibility of collection of charges from patients receiving free treatment. The Court concluded that the plaintiff corporation occupied the property “for the care or relief of indigent or other sick or infirm persons” and that it was sufficiently charitable in character to entitle it to exemption from taxation, the charges collected for services not being in excess of sums needed for successful maintenance. This decision was cited with approval in Auditor General v. R. B. Smith Memorial Hospital Ass’n, 293 Mich 36. See, also, In re Petition of Auditor General, 226 Mich 170.
On the record before us we cannot say that the State tax commission was in error in striking the property of the Hospital from the assessment rolls. In addition to the facts that the record indicates were brought out on the hearing, it may be assumed that it had further information based on the statements and arguments presented to it. It also had the results of the investigation that its order indicated was made. Such order may not be set aside ■on the theory that there was no proper and adequate support therefor.
The action of the commission is affirmed, but without costs, questions of statutory construction being involved.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
PA 1931, No 327, as amended (CL 1948, § 450.1 et seq. [Stat Ann § 21.1 et s<?2.]).
See NJSA, 1954 Cum Supp § 54:3-22.—Bepoetjsr.
This act was repealed. See provisions relative to certificate in the motor carrier act. CL 1948, § 476.1 et seq. (Stat Ann § 22.534 et seq.).—Reportes. | [
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Boyles, J.
This is an appeal by the plaintiff from a decree dismissing his bill of complaint wherein he sought an injunction to restrain the defendants from •erecting or maintaining a small building on an 18-foot driveway on the north side of leased premises at 5946-5954 Cass avenue in Detroit occupied by the Michigan employment security. commission. Plaintiff conducts the business of selling and installing automobile parts, accessories, et cetera, in the building next north of the above premises; and also, as a substantial part of his business, plaintiff is engaged in cashing checks, at a certain charge per check, for the recipients of benefit checks from the employment .security commission, which it issues in the above .leased premises. Defendant Berger also leases from the same owner the rear part of the building, the front part of which the commission occupies, facing-on Cass avenue. Berger proposes to engage in the business of cashing unemployment beneficiaries’ •checks in competition with plaintiff, and for that purpose desires to erect a small building about 5x8 feet in extent, facing Cass avenue, on the driveway herein referred to. The facts and circumstances are as follows:
Plaintiff owns lot 4 with a building thereon at 6000 Cass avenue in Detroit, on the south side of which is a paved driveway 11-1/2 feet in width extending east from Cass avenue toward the rear of said lot. In the southwest corner of plaintiff’s building is a window where he conducts the check-cashing business herein referred to. The west part of lots 5 and 6, next south of plaintiff’s said building, known as 5946-5954 Cass avenue, is leased by the State and occupied by the Michigan employment security commission. On the north side of said lots 5 and 6 is the driveway approximately 18 feet in width, on the west end of which defendant Berger proposes to erect the little building here in question, facing Cass avenue. Said driveway extends east from Cass avenue over 100 feet, immediately adjoining and parallel with the driveway which is on the south side of plaintiff’s adjacent lot 4. The 2 driveways are separated by a fence. The record shows that the erection of the small building here in question would still leave sufficient unoccupied width in the 18-foot driveway to allow an adequate use of the driveway by defendant Berger and by the employment security commission.
On June 29 and 30,1951, the State of Michigan and the defendant Berger rented their respective portions of said building on lots 5 and 6 from a common owner. The lease to the State of that part occupied by the employment security commission contains the following provisions:
“2. The lessor hereby leases to the State the following described premises, in the city of Detroit, county of Wayne, and State of Michigan, vis: Lots 5 and 6 of the subdivision of lot 6, park lot 48, except the driveway over the northerly 18 feet of said property, * * * excepting, however, that portion of said premises at the rear of the building [leased to Berger], * * *
“14. It is understood and agreed that the State shall have a right-of-way over the driveway excepted in paragraph 2.”
The lease to defendant Berger provides in part:
“(2) * * * The landlord, * * * does hereby lease unto the tenant the following described premises * * * That portion of lots 5 and 6 of the subdivision of lot 6, park lot 48, * * * described as approximately the easterly 44 feet thereof, * * * also the driveway over the northerly 18 feet of lots ■5 and 6 of the subdivision of lot 6, park lot 48, which said driveway extends from the easterly boundary ■of Cass avenue to the premises hereinabove described. * * *
“(39) It is understood and agreed that the rights' ■of tenant as lessee of the driveway hereinabove described are subject to the right of the State of Michigan and the Michigan employment security commission, tenants of the portion of lots 5 and 6 of the-subdivision of lot 6, park lot 48, not covered by this lease, to have a right-of-way over the said driveway.”
The defendant De Monaco obtained from the city a building permit to construct the small building herein involved, in the north part of the driveway at thb northwest corner of lot 5; it is to have a frontage on Cass avenue of 5 or 6 feet and to extend back from the street about 8 feet. Plaintiff alleges in his bill that construction of the building has been commenced, that it encroaches on public property, that it constitutes a public nuisance and a purpresture, that it is being built on public property in such a manner as to compete with his, plaintiff’s, check-cashing business. He seeks a permanent injunction restraining the defendants Berger and De Monaco from constructing and maintaining said building.
In the cases cited and relied upon by plaintiff, the obstruction or encroachment involved was upon a public way, such as a street, highway, walk, alley, or a navigable water, over which the general public had a right of access and enjoyment. That is not the situation here. The proposed building will be on private property leased to the defendant Berger with the State having the right to use the driveway in which the alleged purpresture is being built. This driveway has not been established as a public street, alley, or highway over which the general public has an easement or use. On the contrary, the only right which the State, the public, or the employment security commission has in the driveway is for a limited period of time for individual use, as distinguished from a right of use by the public at large. The building does not encroach upon a common way.
Appellant relies on Long v. Netv York Central Railroad Co., 248 Mich 437. But in that case the flagman’s shanty, claimed to constitute a purpresture, was in the street, which is not the situation in the ease at bar.
The essence of plaintiff’s claims is (1) that the action of defendants Berger and De Monaco in constructing the building in question in the driveway is a purpresture, and (2) that the erection and use of the building on the driveway will be a nuisance abatable at the instance of the plaintiff.
Webster’s New International Dictionary (2d ed Unabridged), p 2018, defines a purpresture, in law, as follows:
“Wrongful appropriation of land subject to the rights of others; esp., any encroachment upon, or enclosure of, land subject to common or public rights, as highways, rivers, harbors, forts, et cetera; or, in England, of land belonging to the king, as, esp., the royal forests; also, the property so enclosed or seized.”' '
The driveway in question is not a highway or public property and the doctrine of purpresture does not apply. The proposed building does not constitute a purpresture.
For reversal plaintiff also urges that the erection of the building by defendants Berger and De Monaco is a nuisance for the reason that article 21 of section 2101 of the building code of the city of Detroit provides that no building shall encroach upon public property unless a special permit shall have been authorized by the common council. No permit issued in this case so authorized. The section of the code, above cited, reads:
“No portion of a building or other structure, * * * shall encroach upon or project into any street, alley, park or other public property without a special permit having been authorized by the common council.”
The complete answer to that contention by plaintiff is that no portion of the building in question encroaches on or projects into public property.
For reversal plaintiff further argues that the building permit for defendants’ building was obtained upon the application of defendant De Monaco but was issued to “Modern Craft Home Bldrs. Co.” The evidence failed to disclose any corporation or assumed name certificate on file with the county clerk for that name. Plaintiff argues that since the building permit and application therefor were improper in that De Monaco had failed to file an assumed name certificate as required by statute, the permit was improperly issued and plaintiff may, therefore, have equitable relief enjoining the erection of the building. The application and the permit issued therefor might be amended upon proper application or an assumed name certificate might be filed. It should be noted that the city is not a party in the case and is not complaining of any violation of its ordinances. Nor is the State or the employment security commission interposing any objection to the erection of the building involved.
In connection with the question whether the plaintiff may have relief to abate a claimed nuisance, 2 facts must be kept in mind. Neither the State of Michigan nor the employment security commission has been made a party in this case. As it now stands, plaintiff’s relief, if any, could be granted only as against Berger or De Monaco. Secondly, the circumstances, on which plaintiff relies in claiming a nuisance, occurred while the beneficiaries of the checks were on their way to the place of business of the commission to obtain their checks. Defendants Berger and De Monaco had, and would have, no responsibility for any line-up of beneficiaries until after they had received their checks and were about to cash them.
Plaintiff’s testimony and exhibits show that those who are on their way to obtain their checks from the commission line up in the street across the front of plaintiff’s driveway and along the front of his building blocking plaintiff’s driveway and the entrance to plaintiff’s place of business; also, that occasional use of his driveway has been interfered with by such a line using plaintiff’s driveway. All this happened before the persons in the line-up had obtained their checks. The plaintiff testified:
“Exhibit 19 is a photograph and shows some people in the picture. These people are lined up in our driveway. These people are about to enter the claim office of the unemployment center. * * * The people in the picture are on our side of the fence and they are lined up as you can see, going towards the south building to the unemployment center.
“Plaintiff’s exhibit 22 is another picture of the same circumstances. The people are lined up on my side of the fence, proceeding south to the unemployment for their checks. * * *
“Exhibit 24 is a photograph which I took. I took it a year or more ago. It is a fair representation of the position at the time I took it. It shows people lined up on Cass avenue and then the line turning going into the driveway, that is, the State driveway. It shows them entering the State driveway. It shows people headed into the side entrance of the unemployment center.
“Mr. Pagels [Attorney for defendants]: This was taken approximately a year ago ?
“The Witness: A year or more, yes.
“Mr. Pagels: And it shows these people—where are they headed for there ?
“The Witness: They are headed into the side entrance of the unemployment center.”
We do not decide whether plaintiff might obtain relief against the State or the employment security commission, if they were parties. Nor do we anticipate a possible future condition which might (or might not) occur if a line-up of recipients of checks, on the way to having defendant Berger cash them, caused a private nuisance by lining up in front of plaintiff’s building or obstructing his driveway. However, it is improbable that such a condition would arise, inasmuch as Berger’s place for cashing checks would be between the commission’s place of business and that of the plaintiff.
Affirmed. Costs to appellees.
Carr, C. J., and Btttzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Carr, C. J.
The facts in this case are not in dispute. On the 27th of June, 1951, the plaintiff, while in the employ of the Monroe Tool & Manufacturing-Company at Monroe, Michigan, sustained a physical injury in the course of and arising out of his employment. He sought and obtained compensation under the workmen’s compensation law of the State.
The present action was instituted June 25, 1954, the plaintiff alleging in his declaration that the injury sustained by him in 1951 was caused by negligence on the part of the defendants. It is undisputed that prior to the effective date of PA 1952, No 155 (CLS 1952, §413.15 [Stat Ann 1953 Cum Supp § 17.189]), plaintiff was precluded from maintaining-the present action against the alleged tort-feasors because of his election to take compensation under the-statute. The act cited, however, amended part 3, § 15, of the workmen’s compensation law in such manner as to deprive an alleged tort-feasor of the defense indicated. As amended, the section reads, in part, as follows:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence such action within 1 year after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by registered mail at their last known address, the workmen’s compensation commission, the injured employee, or in the event of his death, his known dependents, or personal representative or his known nest of kin, his employer and the workmen’s compensation insurance carrier. Any party in interest shall have a right to join in said suit.”
Other provisions of the amended section relate to the right of the employee, the employer, and the insurance carrier to settle their claims as their interests may appear, and to the application of the damages that may be recovered in the action. In Rookledge v. Garwood, 340 Mich 444, it was held that the 1952 amendment was remedial in character, operated to deprive an alleged tort-feasor of the defense of election of remedies that had previously existed under the statute, did not in any way impair vested rights, and was intended by the legislature to have a retroactive effect. See, also, Horn v. Davis Brothers, Inc., 340 Mich 460.
It will be noted that under the provisions above quoted from the amended section a party starting suit thereunder is directed to give notice by registered mail, not less than 30 days before the commencement of the action, to the workmen’s compensation commission, the injured employee or his dependents or personal representative or next of kin, the employer, and the workmen’s compensation insurance carrier. It is conceded that in the instant case plaintiff did not give such notices more than 30 days before starting suit. Apparently he did so on or after June 29, 1954. It will be noted in this connection that suit was begun 2 days before the period fixed by the statute of limitations elapsed. Because of the failure to comply with the statute in giving the notices, defendants filed motions to dismiss, which were denied. From the order entered, defendant Ford Motor Company has appealed.
On behalf of appellant it is argued that the giving of the notices not less than 30 days before starting suit is a condition precedent to the right to maintain the action in a case in which compensation has been accepted under the workmen’s compensation law. However, the amendatory act of 1952, the construction of which is involved here, did not create the right of action that plaintiff is undertaking to invoke. Rather, as held in Rookledge v. Garwood, supra, the legislature merely undertook to deprive an alleged tort-feasor of a defense that might have been available to him under the provisions of the statute previously in force. In other words, we are not dealing with a situation in which the legislature has created a right of action contingent on the observance of certain conditions.
Counsel for appellant in their brief have called attention to prior decisions of this Court involving statutory rights of action. Among the cases so cited is Northrup v. City of Jackson, 273 Mich 20, in which the Court indicated the reasons for upholding provisions of charters and statutes imposing conditions precedent to the bringing of suits against municipalities. It was there said, in part (pp 23, 24):
“A charter provision for presentment of a claim to a municipality as a prerequisite to action against it is in harmony with the long-established policy of our State, as is indicated by similar provisions in old time special statutory charters, in the general village act, CL 1929, § 1534, the fourth class cities act, CL 1929, § 1921, and the highway law, CL 1929, § 4230. Its purpose is to give notice to the whole of the governing body of the municipality and afford all the members an opportunity to investigate and determine to allow, settle or prepare defense to claims. It seems particularly applicable to claims of the character at bar, because the nuisance developed gradually and only plaintiffs knew when the condition had become so obnoxious to them as to suggest the question of money damages. The charter provision is general, covering claims arising out of both contract and tort, and thus avoids the rule that enumeration of specific items impliedly excludes others not enumerated. We see no reason for emasculating the charter by construction in order to exempt a claim peculiarly within its purpose because plaintiffs made an election to ask damages in equity instead of suing at law. Had damages been awarded in lieu of abatement, or had there been no prayer for damages but the court had allowed them in the exercise of its plenary equitable powers, a different question would he presented. We think the charter should be given force according to its language and purpose and exceptions permitted only upon sound distinctions. See City of Detroit v. Michigan Paving Co., 38 Mich 358; Mead v. City of Lansing, 56 Mich 601; Springer v. City of Detroit, 102 Mich 300.”
In other cases it has been held that notice or demand is required as a condition precedent to court action by virtue of contract provisions. It is significant, however, that in these cases it was the defendant in the case who was entitled to notice. In the case at bar the statute does not direct the giving of notice to the alleged tort-feasor or tort-feasors but, rather, to other parties whose rights may be involved in the proceeding. We are not concerned here whether the failure to give any or all such parties the specified notice may give rise to a remedy for the omission. The issue before us is merely whether, in a case of this nature, an alleged tortfeasor may defeat the action on the ground that the parties specified in the statute were not notified more than 30 days before the bringing of the suit that it would be instituted. Had the legislature intended the result for which appellant contends, we think such intent would have been clearly expressed and not left to mere implication. In 1 CJS, Actions, .§ 25, p 1066, it is said :
“While no particular words in a statute are necessary to create a condition, it is nevertheless the ordinary rule of interpretation that conditions are not favored and that, where doubt exists, they will not be presumed.”
In Arnold v. Village of North Tarrytown, 137 App Div 68 (122 NYS 92, affirmed, 203 NY 536 [96 NE 1109]), the court distinguished between statutes creating rights of action and imposing conditions precedent to the bringing of suits and statutes relating merely to the enforcement of existing causes of action. In discussing the question, it was said, in part (P 70):
“Here, however, the plaintiff’s right to maintain an action exists at common law and was not created by any statute. The statute which the appellant invokes did not create the right, but simply regulated its enforcement. It might have made the time limit a condition precedent, but it did not so provide expressly nor, according to the common rules of interpretation, did it do so by implication. No particular words are necessary to create a condition precedent or a condition subsequent, but it is the ordinary rule of interpretation that conditions are not favored and that, where there is any doubt, they will not be presumed. (Graves v. Deterling, 120 NY 447 [24 NE 655].)”
Bearing in mind the purpose of the amendatory act of 1952, we do not think that it may fairly be construed as evidencing a legislative intent to make the giving of the notice therein specified to certain parties, not less than 30 days before bringing action, a condition precedent to the right to bring suit against an alleged tort-feasor. Such conclusion renders it unnecessary to discuss the claim advanced by appellee based on the fact that the statute of limitations may be invoked to bar the prosecution of a further suit against appellant, and the claim of the latter that the requirement as to notice was imposed, in part at least, for the benefit of a possible defendant tort-feasor. Had the legislature intended to make the giving of the prescribed notice, subject to the time limitation specified, a condition precedent to the maintenance of a tort action, it may be assumed that such purpose would have been stated in express language. • This was not done, and the omission to so provide must be regarded as conclusive.
The order of the trial court denying the motion to dismiss is affirmed. A question of statutory construction being involved, no costs are allowed.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
PA 1912 (1st Ex Sess), No. 10, as amended (CL 1948, §411.1 et seq. [Stat Ann 1950 Rev § 17.141 et seg.]).
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] |
Kellt, J.
This appeal involves the title to 120 acres of land located in Missaukee county, and this is the second time this case has been before this Court.
The present appellees (heirs of Mary E. Arndt), in December of 1951, appealed from a decision of the lower court dismissing their bill to quiet title, before proofs were taken in the case. The trial court concluded that the bill of complaint disclosed that the present appellants claimed possession of the land under paramount title, and, therefore, a chancery court was without authority or jurisdiction to determine the issue of title, relying upon CL 1948, § 606.4 (Stat Ann 1953 Cum Supp § 27.545), which provides:
“Said circuit court in chancery shall also have jurisdiction and authority: * * *
“4. To hear and determine suits instituted by any person claiming the legal or equitable title to lands, whether in possession or not, against any other person not in possession, setting up a claim thereto in opposition to the title claimed by the plaintiff: And, if the plaintiff shall establish his title to such lands, the defendant shall be decreed to release to the plaintiff all claims thereto.”
In the case of Arndt v. Ball, 335 Mich 595, this Court reversed the order of the circuit court, stating (pp 600, 601):
“The bill alleges that defendants Kenyon remained in possession as tenants after obtaining a deed and .asserting a title hostile to plaintiffs to the lands in question. Defendant Thornton C. Kenyon’s affidavit in support of the motion to dismiss clearly indicates that he did not surrender possession as tenant before asserting his adverse title. The assertion of his adverse title, while remaining in possession after the expiration of his lease, is a defense not permitted to defendant. Until he surrenders his possession as tenant, his possession is that of his landlord and not his own. For the purposes of disposing of the issues raised on this appeal, the plaintiffs are still in possession through their tenants. Plaintiffs were at liberty to file their bill of •complaint to quiet title. The jurisdiction of the .equity court has become attached to the matters in controversy, and the authority to quiet title as to .other defendants falls within the equity jurisdiction to prevent a multiplicity of suits. * * *
“The cause is remanded to the trial court, to receive further pleadings found necessary, and to proceed to a final decree on the merits.”
Subsequently appellants Kenyon filed an amended answer and cross bill, alleging:
“That these defendants and cross plaintiffs have been denied a trial of their title to said land by action at law by the decision of the Michigan Supreme Court, and therefore have no adequate remedy at .law, and for that reason, as well as to avoid a multiplicity of suits, hereby invoke this honorable court to grant them relief in the form of a decree quieting their title to said lands.”
At the conclusion of proofs the court found that .appellees herein are the heirs of Mary E. Arndt, who died intestate on July 30, 1948; that the appellants Kenyon entered into an arrangement in writing with Mary E. Arndt on November 25, 1947, whereby the appellants were to have the use of the land in question for a period of 3 years; that the Kenyons were to build a fence on said property; that while occupying relationship of tenants, the Kenyons, on July 20, 1950, secured a deed from Cora E. Johnstone purporting to convey to them an interest in said land and that they now claim ownership and the right of possession under the Johnstone deed; that under the decision of this Court in the case of Arndt v. Ball, supra, the appellants herein could not assert adverse title under the Johnstone deed while remaining in possession of the land as a tenant under their arrangement with Mary E. Arndt; that appellees and their common ancestor Mary E. Arndt have occupied, owned, controlled and managed the land in question under a claim of ownership for over 15 years prior to the filing of the bill of complaint, and, therefore, decreed them to be the owners of the land and premises in question.
The main question presented in this appeal is whether the instrument that appellants Kenyon admit signing with Mary E. Arndt constituted a lease, or was a mere option or unilateral contract. Appellants do not now ask this Court to reverse the legal principles established in the previous appeal.
The land in question has never been cultivated, is marshy and has been used through the years for hunting and logging purposes. The land was not fenced prior to 1950, after Kenyons claimed title under the Johnstone deed. Kenyons live on land close to this 120 acres in dispute.
Appellants admit that they went to the house of Mary E. Arndt on November 25, 1947, for the purpose of either purchasing or renting the 120 acres. There is no dispute that after talking with Mary E. Arndt her hired man was called into the house and prepared a written agreement, and on a sheet of stationery bearing the printed name of “Mary E. Arndt,” the following was written by said hired man:
“Nov 25,1947
“I, Mary E. Arndt owner give Thornton Kenyon permition to build my share of line fen on west sid of the N W corn of the S W corner of Sec 35 of Enterprise Township 23 north range 5 west for renter on the 120 acors joining same
“This rentel is for 3 years ending Nov 25,1950
“This fence shall be built in 1948.”
This agreement was signed by Mary E. Arndt, Thornton Kenyon and his wife, Helen Kenyon, and witnessed by the hired man who prepared same. All •of the signatures, except that of Thornton Kenyon, were on the face of the agreement. His signature was on the reverse side of the same sheet of paper.
The instrument describes appellant as a renter .and specifically establishes the rental to be for 3 years. There is nothing in the record before us to sustain appellants’ contention that a lease was not -entered into between themselves and Mary E. Arndt ■on November 25, 1947, except the fact that they did not construct the fence until after they secured the ■deed from Cora Johnstone in July, 1950. Appellants’ failure to build a fence would not affect the nature of the agreement entered into between themselves and Mary E. Arndt. "We cannot agree with appellants’ contention that this instrument was not a lease. •
After deciding that a lease existed the trial court properly determined that the case was controlled by Arndt v. Ball, supra. The trial court had chancery jurisdiction to determine the question of title. The record sustains the trial court’s determination that .appellees were the owners of the land because of the fact that they and their common ancestor have oc eupied, owned, controlled and managed said land for 15 years prior to the filing of the bill of complaint.
Decree affirmed. Costs to appellees.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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O’Hara, J.
This is an appeal of right after the denial of a timely motion for a new trial.
The original action in the circuit court was brought by the purchasers of a home against the people from whom they bought it. The complaint was for rescission of the land contract of purchase on the grounds of fraudulent misrepresentations alleged to have been made, and material facts concealed which the sellers were obligated to disclose, and for money damages for permanent improvements made to the property while it was in the possession of the purchasers. At this point the issues in the case were narrow and precise. Were plaintiffs entitled to rescind their contract of purchase or weren’t they? Were they entitled to money damages or not? However, the defendants filed a counterclaim alleging breach of the contract of purchase by the purchasers, and also moved to add three third-party defendants, namely, the two realtors who represented the sellers in the transaction and an insurance company which had issued a homeowners policy to the purchasers. The motions were granted and the parties duly added. There followed then a series of motions and other pleadings and counter- pleadings filling two folders of docket entries and copies of the pleadings. Nine separate volumes of transcript report the proceedings including the testimony, argument, and court and counsel colloquies. Trial was to the court without a jury.
We recite all of these procedural antecedents so that the trial court’s subsequent rulings, after the case had been in progress and some testimony was taken, can be better understood as of the time they were made. We now furnish the necessary factual background.
In 1957 the defendant Oleksinskis engaged one Russell Secor, a contractor with extensive experience in home building in the St. Clair-Marysville area near the site of the premises here involved. Mr. Secor did not draw the plans. They were furnished him by defendants who obtained them from another source.
Mr. Secor, on the basis of his prior experience, advised the defendants that there was “a series of unstable strata of soils extending to 120 feet below the surface” on the proposed site of the home. He described the effect of this condition as causing “large masses of land [to] tend to move at infrequent intervals”.
The defendants apparently decided to build on the site they had chosen, irrespective of Mr. Secor’s warning, and the home was completed in 1957 at a cost of some $27,000. Shortly thereafter, the testimony disclosed, the property was listed for sale and remained so listed until it was sold to plaintiffs in 1966.
Plaintiffs took possession of the property and moved in. Shortly thereafter, evidence of latent defects appeared. They were of a very serious nature. Ultimately the premises, according to the plaintiffs’ claim, became uninhabitable. As the defects became apparent, plaintiffs learned that what defendants had characterized as some “minor” or “temporary” repairs having been made, were in reality basic major repairs necessitated by the shifting of the land base under the home.
The trial judge found adequate grounds for rescission and the money judgment asked by plaintiffs. He granted separate trials as to the two impleaded realtors, and to the insurance carrier.
Defendant-appellants enumerate eight assignments of error. We have reviewed them in depth and in detail. As stated, some of them include the judicial conclusions sought in the premise of the question. We will attempt to collate them into what appears to us to be the basic legal issues.
First, defendants argue that if they are liable to plaintiffs as principals, defendants’ agents, the realtors, are likewise liable, and that by granting separate trials to the agents defendants lost any possibility of joint judgment against them and their agents, and consequently their right of contribution from them.
We think the position is unsound. First, the question as to whether or not separate trials shall be granted rests in the sound discretion of the trial judge. It is wisely so vested by rule (GCR 1963, 505.2). It is necessary to counteract the liberalized joinder practice. We can find no abuse of that discretion in this instance. Nor can we see how defendants are ultimately harmed. If defendants have a viable cause of action as principals against their agents, it can be litigated in a separate action. The grant of rescission to plaintiffs here in nowise affects that cause of action, if any. What we say of the separate trial granted to the agent-realtors is equally true of the grant of the separate trial to the defendant-insurer. We find no reversible error.
Appellants next allege that the record is clear that the plaintiffs were advised through their real estate agent of the damage to the property. Since it was his duty to impart this knowledge to the plaintiffs, there should he no basis for an action against the defendants. In addition, the plaintiffs inspected the property themselves and were satisfied that all damage had been repaired. Since the seller is not liable for latent defects, it is argued that there should have been no cause of action against defendants. These are all, in essence, fact questions. The trial judge, as finder of fact, determined that the defendants had misrepresented the house and therefore allowed rescission of the contract. The evidence as to whether the defects were fully disclosed is conflicting. This Court may not substitute its judgment for that of the trial judge under these circumstances.
Appellants’ counsel in vigorous advocacy on oral argument spoke to additional legal errors he claims occurred and which were properly saved for appeal. Saved they were, and the legal questions raised would all constitute a basis for reversal as stated as legal theorems. Among them are the necessity for tender on the part of one claiming the right to rescission; the claim that rescission was not the proper remedy in this case and that plaintiffs were limited to an action at law; the impropriety of the assessment of damages because plaintiffs were required to assert a cause of action therefor against the insurance carrier issuing the policy on the house and because of the insufficiency of proof of the damages allowed. We do not find reversible error in any of them. First, as to certain of the claimed legal errors, the trial judge found contrary to appellants’ position on the fact issues necessary to support the claimed legal error. His findings were supported by credible evidence and though we might not find as he did, we may not substitute our judgment for his.
As to the balance of the claimed error, the questions again were issues of fact decided adversely to defendants. In simple substance, on the ultimate issue of fact necessary to support rescission, the trier of facts held against the sellers and for the purchasers.
This was the visceral issue. We find no reversible error. The order denying the motion for a new trial is affirmed. Costs to the plaintiffs.
All concurred. | [
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Per Curiam.
Both of these appeals arise from orders denying plaintiffs’ motions to disqualify a Genesee Circuit Judge from presiding over the instant eases. Leave to appeal from both orders was granted by this Court, the two causes being consolidated on appeal since the same questions are raised in each case.
In both of the instant cases, plaintiffs were represented by the law firm of Leitson, Dean, Dean, Segar & Hart, P. C. In each case a motion to disqualify the assigned judge was made, said motions being supported by affidavits alleging prejudice by the judge toward members of the law firm.
The brief submitted by the law firm states that subsequent to the judge’s election as a circuit judge, the members of that law firm have moved to disqualify him in every case in which they were counsel of record. Since that time, one hundred such motions have been filed and most have been granted by other judges of the Genesee County Circuit Court. This time, however, the trial court denied disqualification stating:
“Considering among other things the following:
“(2) The affidavits are taken as true, but relate entirely to old and best forgotten events;
“(3) Testimony proposed in paragraphs E and F of Plaintiff’s ‘Supplement to Motion to Disqualify Judge’ should not be permitted.”
The trial court was of the opinion that since most of the events upon which plaintiffs rely for disqualification occurred before the judge’s election to the circuit court, that it would be best to forget them for purposes of trying cases on the circuit court bench.
This Court is convinced, however, that plaintiffs’ affidavits sufficiently establish conduct on the part of the judge to support a motion for disqualification. In addition, there is now an outstanding grievance before the State Bar against him, the grievance having been filed by one of the members of the law firm. It is our opinion that the conduct in the past, along with the grievance which has been filed, is sufficient to support a motion for disqualification.
GCR 1963, 405 provides in part:
“The judge shall be deemed disqualified to hear the action when the judge:
“(3) Is personally biased or prejudiced for or against any party or attorney.”
Since it is our opinion that the acts complained of demonstrate a prejudice and hostility toward members of the law firm, he should be disqualified from hearing any cases in which the firm is counsel.
It is, therefore, the order of this Court that the trial court be reversed and that Judge Freeman be permanently disqualified from hearing any cases in which the law firm of Leitson, Dean, Dean, Segar & Hart, P. C., are counsel. | [
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J. H. Gillis, J.
This case presents a nice question about the dimensions of the confrontation right in criminal cases. In one particular, we must decide whether there is any room for hearsay exceptions within the scope of the confrontation clause.
In the early morning hours of January 12, 1969, a second-floor dance hall known as the Soul Expression Bar in the City of Detroit was destroyed by fire. The fire was of criminal origin. Gasoline had been poured over the stairway leading to the dance floor. This gasoline was then ignited; fire resulted and several people were injured.
The defendant, Eugene Kelley, and another, Ronald Robinson, were tried separately under an information which charged them in two counts with different forms of arson. Count 1 charged that defendant Kelley wilfully and maliciously burned the above-mentioned building contrary to MCLA § 750.73 (Stat Ann 1962 Rev § 28.268). Count 2 of the information charged that Kelley arranged and placed an inflammable liquid, to-wit: gasoline, in and about the second-floor dance hall with the intent to burn the dance hall, contrary to MCLA § 750.77 (Stat Ann 1962 Rev § 28.272).
Count 3 of the information charged a violation of MCLA § 750.207 (Stat Ann 1962 Rev § 28.404), a section of the criminal code dealing with the unlawful use of explosives. It charged that Kelley placed an explosive substance, gasoline, in and upon the Soul Expression Bar with intent to destroy the bar, which substance upon explosion caused the destruction of the property and personal injury.
Defendant Kelley was tried by a jury and convicted on all three counts. He was given the mandatory life imprisonment sentence, without parole, for conviction on Count 3. On the arson counts, Counts 1 and 2, Kelley was sentenced to serve from 2-1/2 to 10 years in prison. All three sentences were to run concurrently. Defendant’s motion for new trial was denied by the trial court. From his convictions and the denial of his motion for new trial, defendant Kelley appeals.
For the people, the testimony at trial established the following view of what happened on the morning of January 12th. At about 1:30 a.m., Kelley, together with Ronald Robinson, Theodore Wallace, Ulysses Butts, and Donald Jones, drove to the Soul Expression dance hall and left Robinson there for about one-half hour. When Kelley and the others returned, Robinson informed them that there had been an argument over his entry to the hall and that he had been refused admission. The five men then drove to a nearby gas station where Ronald Robinson obtained a two-gallon can of gasoline. It was Theodore Wallace’s testimony that, on returning to the car after purchasing the gas, Robinson said “he was going to burn it down if he couldn’t get back in to get his money back”.
The five men then returned to the Soul Expression dance hall. Ronald Robinson got out of the car with the can of gasoline. According to the testimony of both Ulysses Butts and Donald Jones, Robinson motioned to defendant Kelley and said, “Come on”. Kelley left the car and followed “right behind” Robinson. Both men then entered the door leading immediately to the stairway of the dance hall. Moments later, the stairway was engulfed by flames. Robinson and Kelley were seen running together from the burning building. They jumped into the car and, together with Wallace, Butts, and Jones, drove from the scene.
Just what part defendant Kelley played in the criminal episode — indeed, whether he played any role at all — was disputed at trial. Defendant Kelley took the stand and testified that his actions on the morning of the 12th were completely innocent. Kelley admitted following Robinson from the car. He admitted his presence on the stairway moments before the fire; however, according to Kelley’s testimony, his purpose in following was only to retrieve his overcoat which Robinson had left at the dance hall earlier in the evening. Kelley testified that he climbed the stairway and obtained his coat. Then, as he was leaving, it was Kelley’s testimony that:
“And on my way downstairs with the coat, Ronald Robinson asked me for a match. And I told him I didn’t have a match. He says, ‘one in your coat pocket’. And I didn’t know it was a match in there because I don’t smoke or anything, and I never carried any matches. So he snatched my coat in kind of a angry way and I was turned around walking out the door. And as I walked out the door, he come out and nearly knocked me down, and it was a fire behind him, and I am on my way to the car all the time. And in the confusion I didn’t know what to do and I just ran on to the car, the both of us.
“Q. [By Mr. Fury, defendant’s counsel]: All right. Did Robinson say anything to you when you were in the car?
“A. No, he didn’t.”
For the people, however, there was ample evidence, both circumstantial and direct, which, if believed, established defendant Kelley’s participation in the arson. To borrow Learned Hand’s characterization, there was sufficient evidence such that the jury could find “not only that the witness’s testimony is not true, but that the truth is the opposite of his story”. Dyer v. MacDougall (CA 2, 1952), 201 F2d 265, 269. We begin with the testimony of Delbert McCoy.
McCoy, who at the time of the fire was on the stairway leading to the dance hall, testified that he observed two individuals at the foot of the stairway. Each of these individuals, according to McCoy, played a part in starting the fire. McCoy testified that “the first man spread out the gasoline”. When asked what happened after the first man spread the gasoline, McCoy testified: “The other man threw the match on the way out”.
In the fire that followed, McCoy was severely burned. His eyesight was impaired and, at the time of trial, he was unable to identify defendant Kelley as one of the men seen at the foot of the stairway. However, McCoy’s testimony established a joint effort; it squarely conflicted with the defendant’s protestation that Robinson alone was responsible. According to McCoy, there was no exchange of overcoats; rather, there was a joint effort.
McCoy’s testimony establishing joint participation was corroborated by the testimony of Theodore Wallace, Ulysses Butts, and Donald Jones. This time, however, defendant Kelley was directly implicated; no inference was required to link Kelley to the criminal episode. All three men, Wallace, Butts, and Jones, testified that when Robinson and Kelley returned to the car, Robinson commented on Kelley’s participation as follows (we quote the testimony of Ulysses Butts):
• “Q. And after you saw the fire what did you see?
“A. Them jumping in the car.
“Q. When you say ‘them jumping in the car,’ who do you mean?
“A. Eugene and Ronnie.
“Q. Now did Ronald Robinson say anything to Eugene Kelley as he got into the car?
“A. After he got back in?
“Q. Yes?
“A. Yes.
“Q. What did he — what did Ronald Robinson say to Eugene Kelley as he got back in ?
“A. He said, ‘You threw the match too quick.’
“Q. Ronald Robinson said to Eugene Kelley, ‘You threw the match too quick’ ?
“A. Yes.
“Q. Did Eugene Kelley reply at all?
“A. No.” (Emphasis supplied.)
Thus the accusatory finger of a co-participant in crime pointed with explicit directness at Eugene Kelley. And, as will later appear, it is significant that Robinson’s non-custodial accusation went unanswered.
The trouble with Butts’ testimony, as well as that of Wallace and Jones, however, is that it is hearsay — hearsay pure and simple. Butts’ testimony is only what someone else asserted, offered to prove the truth of the assertion.
“He [Robinson] said, ‘You [Kelley] threw the match too quick.’ ”
And the extrajudicial declarant, Robinson, neither appeared at trial nor was he available for cross-examination. This, according to Professor Wig-more, is classic hearsay. See 5 Wigmore, Evidence (3d ed), § 1361, p 2.
At trial, defense counsel objected to the introduction of Robinson’s extrajudicial assertion implicating defendant Kelley. Counsel’s objection was twofold. First, admission of Robinson’s unsworn statement violated the hearsay rule. Counsel also argued that admission of Robinson’s statement, absent his appearance and cross-examination, denied defendant Kelley the right of confrontation constitutionally guaranteed to criminal defendants. On this point, particular reliance was placed on Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 LEd 2d 476).
The trial court overruled defendant’s objection and denied counsel’s motion for a mistrial. Judge Schemanske was of the view that Robinson’s statement, although hearsay, was admissible under the res gestae exception to the rule, made, as Judge Schemanske put it, “within seconds of escape from the burning building”. The court also considered Kelley’s silence in the face of Robinson’s accusation to be Kelley’s adoption of the statement as his own, and thus admissible under the rules of evidence. See 4 Wigmore, Evidence (3d ed), § 1071, p 70. Finally, Judge Schemanske ruled: “We are not dealing with the Bruton situation * * * but strictly with the well-grounded exception to the hearsay rule”.
On appeal, the first question concerns alleged error in the admission against defendant Kelley of Robinson’s inculpatory hearsay statement: “You threw the match too quick” . The admissibility question has, to counsel’s credit, created quite a fire of appellate advocacy. The fire is one, however, which we shall — after the necessary excursus — quickly put out.
For reasons which follow, we hold that Judge Schemanske was right. He was right as an evidentiary matter in admitting Robinson’s statement. Furthermore, Judge Schemanske was right as a matter of confrontation jurisprudence — a field recently enlarged by addition of the United States Supreme Court’s plurality pronouncement in Dutton v. Evans (1970), 400 US 74 (91 S Ct 210, 27 L Ed 2d 213).
I
First, the record adequately supports Judge Schemanske’s determination that Robinson’s statement was admissible as within the res gestae exception to the hearsay rule.
In Rice v. Jackson (1965), 1 Mich App 105, 110, 111, the admissibility of res gestae statements was exhaustively reviewed by this Court. Under the standards of Rice, which have applicability in this criminal action, see People v. Ivory Thomas (1968), 14 Mich App 642, 646, such statements are admissible in evidence under the following conditions:
“Under the general heading of res gestae there have emerged exceptions to the rule prohibiting hearsay evidence for statements uttered under the stress of excitement produced by a startling event, and made before the declarant has had time or opportunity to reflect or contrive. Whether labeled ‘excited utterances,’ ‘spontaneous exclamations,’ or more generally, ‘res gestae statements,’ they are admissible because special reliability is thought to be furnished by the excitement which suspends the powers of reflection and fabrication.
“In Michigan, the law regarding res gestae is clear. * * # [T]he 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.” (Emphasis supplied.)
Testing the facts of this case against these standards, we find (1) a startling occasion — specifically, the fire that eventually destroyed the Soul Expression Bar. On this point, Rice v. Jackson, supra, p 111, forecloses any argument:
“A fire that completely destroys a large building housing two businesses, in which the roof collapses, and in which considerable property is lost, cannot be said not to be a ‘startling occasion’.”
Moreover, in this case there was testimony that the declarant Robinson had been burned as a result of the fire, a circumstance in all likelihood buttressing Robinson’s nervous excitement — the very foundation of admissibility under the res gestae exception. The requirement (2) that the statement must have been made before there has been any time to contrive is satisfied here by Judge Schemanske’s finding that it was made within seconds of escape from the burning building. This finding is amply supported in the record. Finally, (3) the statement related to the circumstances of the occurrence preceding* it; it described just how the fire started.
Judge Schemanske was also on sound evidentiary ground when he viewed Kelley’s silence in the face of Robinson’s non-custodial accusation as defendant’s admission by adoption of the incriminatory statement.
In People v. Gisondi (1967), 9 Mich App 289, 293, 294, this Court noted:
“Nevertheless, under long standing Michigan precedents, which antedate Escobedo and Miranda, the accused’s silence in. face of an accusation is not deemed an admission or confession in a criminal case (People v. Bigge [1939], 288 Mich 417), except when such silence occurs on the part of a suspected participant in a crime as a part of the res gestae (People v. Todaro [1931], 253 Mich 367).” (Emphasis supplied.) Unfortunately for defendant Kelley, his silence was that of a suspected participant in a crime as part of the res gestae. The statement was made during the course of the criminal episode; it recounted a detail of the crime. Under these circumstances, Kelley’s on-the-scene silence evidenced an adoption by him of Robinson’s accusation. Accordingly, there was no error in the use of Robinson’s statement. It constituted Kelley’s adoptive admission. People v. Todaro (1931), 253 Mich 367; see also, 4 Wigmore, Evidence (3d ed), §1071, p 70; Annotation, “Admissibility of Inculpatory Statements made in the Presence of Accused, and not Denied or Contradicted by Him,” 80 ALR 1235, supplemented in 115 ALR 1510.
At trial, Judge Schemanske correctly noted the rationale for introduction of Robinson’s statement as Kelley’s adoptive admission:
“Certainly, a guiltless person would have protested such an accusation made in the presence of three other people.”
Our research discloses that Judge Schemanske was in the company of quite eminent jurists. We quote Chief Justice Traynor, People v. Osuna (1969), 70 Cal 2d 759 (76 Cal Rptr 462, 465; 452 P2d 678, 681) (citations and footnotes omitted):
“One witness testified to one conversation and three witnesses testified to another in which defendants discussed the homicide. The conversations were with defendants’ friends or confederates and took place on the day of the killing while defendants were still at large. Since each defendant implicated the other as well as himself, * # * each contends that the other’s statements were inadmissible against him. There is no merit in this contention. During each conversation both defendants recounted various details of the crimes. Had one disagreed with what the other said, it is reasonable to assume that he would have said so. Under these circumstances the statements of each were common admissions of both and therefore admissible against both.” (Emphasis supplied.)
Accord, United States v. Geaney (CA 2, 1969), 417 F2d 1116, 1120, (per Friendly, J.); State v. Saiz (1968) , 103 Ariz 567 (447 P2d 541); State v. Thomas (Mo, 1969), (440 SW2d 467); State v. McClain (1969) , 254 La 56 (222 So 2d 855).
We emphasize that this is not a case of custodial silence, of silence after an arrest. At the time Robinson made the inculpatory statement, neither he nor Kelley were under arrest. For the reasons given in People v. Gisondi, supra, pp 293, 294, Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977), and Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974) are not in point.
To summarize on the evidentiary point: There was no error in the admission of Robinson’s hearsay declaration. Robinson’s statement was admissible as a spontaneous, excited utterance; it was also admissible by way of Kelley’s adoption of the statement as his own when uttered at the scene of the crime.
"We pass to a consideration of defendant’s constitutional claim — specifically, the claim that defendant’s right of confrontation was violated by introduction of Robinson’s unsworn statement.
II
We begin just as we did in a recent case considering an analogous claim, People v. Gauthier (1970) , 28 Mich App 318, leave to appeal denied (1971) , 384 Mich 812:
“This case requires an interpretation of the right of confrontation guaranteed to criminal defendants by [Const 1963, art 1, § 20], as well as by virtue of the Sixth Amendment to the United States Constitution.* 2 At issue is the scope of the confrontation right in criminal cases when read in light of a recognised exception to the hearsay rule — specifically, the business records hearsay exception.” (Footnotes renumbered, emphasis supplied.)
In this case of Eugene Kelley, the constitutional issue is the same, i.e., the scope of the confrontation right in criminal cases. However, the exception to the hearsay rule in the instant case is a different one. In the present case, we are required to consider the constitutionality of the introduction in criminal cases of unconfronted, unsworn res gestae testimony. Some of our pronouncements in Gauthier, where we considered the validity of using business record hearsay in criminal cases, are quite relevant in adjudicating defendant Kelley’s constitutional objection to the admission in evidence of Robinson’s res gestae statement.
In People v. Gauthier, supra, an incriminatory hearsay declaration of the deceased victim of the crime was introduced in evidence over defendant’s objection that he had no opportunity to cross-examine the declarant. The people had offered the declaration as part of a business record, one prepared by the deceased desk clerk. Although the incriminatory statement was concededly hearsay, the testimony at trial adequately supported admission of the document under the business records exception to the hearsay rule. Reviewing the trial record in Gauthier, we were satisfied, as was the trial court, that the document was prepared under such circumstances as provided a substantial guarantee of trustworthiness.
Notwithstanding the admissibility of the hearsay declaration in Gauthier based upon a recognized exception to the hearsay rule, we considered the suggestion that the confrontation right in criminal cases necessarily mandates general exclusion of business record hearsay in such cases. Specifically, we considered the argument that merely because business record evidence is hearsay, its admission violates an accused’s right of confrontation.
In the present case, defendant Kelley makes an analogous argument. We quote his brief:
“[I]t might he suggested that the statement of Bobinson was properly admitted as a res gestae exception to the hearsay rule. But this argument proves too much. It is not within the province of the Court to elevate a mere rule of evidence over established constitutional prerogatives.
“[Defendant’s] submitted conclusion is that regardless of the statement’s evidential validity, it must give way to the preservation of the higher right embodied in the Sixth Amendment.” (Emphasis supplied.)
Defendant’s argument is premised upon the notion that somehow the constitutional guarantee of confrontation precludes introduction of hearsay in criminal cases, regardless of the nature and circumstances under which the extrajudicial declaration was made. We rejected this premise in Gauthier as follows (28 Mich App at 333):
“It is a mistake to conclude that where hearsay evidence is admitted in a criminal case, confrontation rights of the accused necessarily have been violated. As recently stated by the United States Supreme Court:
“ ‘[M]erely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.’ California v. Green (1970), 399 US 149, 156 (90 S Ct 1930, 1934; 26 L Ed 2d 489, 495, 496).”
Since our decision in Gauthier, the recent plurality decision of the United States Supreme Court in Dutton v. Evans, supra, p 80, has only strengthened our view:
“It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced. In the Pointer [Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923)] ease itself, we referred to the decisions of this Court that have approved the admission of hearsay:
“ ‘This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States [1892], 146 US 140, 151, [13 S Ct 50, 36 L Ed 917], and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States [1895], 156 US 237, 240-244 [15 S Ct 337, 39 L Ed 409]. See also Dowdell v. United States [1911], 221 US 325, 330 [31 S Ct 590, 55 L Ed 753]; Kirby v. United States [1899], 174 US 47, 61 [19 S Ct 574, 43 L Ed 890], * * * . There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses.’ ” (Footnote omitted, emphasis supplied.)
Contrary to defendant Kelley’s position, quoted supra, it is clear that nothing in the confrontation clause automatically requires exclusion of all hearsay, qua hearsay. Like most other questions in the law, here too we cannot deal in absolutes. In each case, the question of the admissibility of a hearsay declaration in a criminal case depends upon the nature of the statement and the circumstances of its making. This much we made clear in People v. Gauthier, supra, p 337:
“The question of the admissibility of a business record in a criminal case should not be left to any general prohibition against such use. Rather, in our view, each case should be decided on its own facts. In each case, the people should be obliged to convince the trial court, by way of a firm foundation of admissibility, that the circumstances of the making of the record are such that accuracy is highly probable. Where, however, as here, the trial court is convinced of the trustworthiness of the particular record in question, it should be admitted in evidence.” (Emphasis supplied.)
These observations apply with equal force to the res gestae declaration at issue in the present case.
In Part I we held that Robinson’s inculpatory statement was admissible in evidence as a spontaneous utterance on the theory that “special reliability is thought to be furnished by the excitement which suspends the powers of reflection and fabrication”. Rice v. Jackson, supra, p 111. And this same special reliability that governs concerning admission of Robinson’s statement as an evidentiary matter, also constitutes the rationale for admission as a constitutional matter. Again, Gauthier provides an example.
The reason why business record hearsay is generally held admissible in criminal cases without raising confrontation problems is that such hearsay is thought quite reliable. To this effect, we quoted Judge Augustus Hand [United States v. Leathers (CA 2, 1943), 135 F2d 507, 511] in our opinion in Gauthier. Furthermore, although we held that “in each case ‘the test is one of reliability’ ”, United States v. Hickey (CA 7, 1966), 360 F2d 127, 143, cert. den. 385 US 928 (87 S Ct 284, 17 L Ed 2d 210), we noted that by the circumstances of its making, business record hearsay is generally regarded as providing a substantial guarantee of trustworthiness. See 5 Wigmore, Evidence (3d ed), § 1522, p 369. Similarly, other exceptions to the hearsay rule have been held not to violate the right of confrontation on the rationale of probable trustworthiness, e.g., Mattox v. United States (1892), 146 US 140 (13 S Ct 50, 36 L Ed 917) (admissibility against accused of dying declarations). See generally, Comment, “Preserving the Right to Confrontation — A New Approach to Hearsay Evidence in Criminal Trials,” 113 U Pa L Rev 741, 746 (1965).
With regard to the precise question before us, the constitutional validity of the introduction in evidence of res gestae utterances in criminal cases, several courts have expressly held that admission of res gestae hearsay does not violate an accused’s confrontation right. United States v. Chee (CA 9, 1970), 422 F2d 52, is a leading case.
In Chee, the Ninth Circuit held that it was not error for an alleged rape victim to testify to the statement of one of the two accused, “We are going to rape you”, which statement was used against the non-declarant defendant at trial. On appeal, defendant Chee argued that allowing use of the victim’s hearsay testimony violated his right of confrontation because Roanhorse, the declarant, was not present at trial and, therefore, was not subject to cross-examination. The Ninth Circuit responded:
“This statement was made in Chee’s presence and during the actual joint commission of the offense. It was properly admissible as part of the res gestae.” 422 F2d at 54.
The following cases are in accord: Migliore v. United States (CA 5, 1969), 409 F2d 786, cert. den. (1969), 396 US 975 (90 S Ct 449, 24 L Ed 2d 444); McGregor v. United States (CA 5, 1970), 422 F2d 925; see also United States v. Zentgraf (ND Cal, 1970), 310 F Supp 268, 271, for a summary of the law on this point.
Nor is Bruton v. United States, supra, made retroactive by Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100), any aid to defendant Kelley’s contention that introduction of Robinson’s hearsay statement was constitutional error as to him. Bruton is expressly inapposite.
The Bruton principle is that admission in a joint trial of a co-defendant’s confession implicating the defendant in the crime may be violative of the nondeclarant’s right of cross-examination secured by the Confrontation Clause, despite instructions to the jury that it should disregard the confession in determining the defendant’s guilt or innocence. It was made explicit, however, that the co-defendant’s extrajudicial statement incriminating defendant Bruton was inadmissible under traditional rules of evidence. The Supreme Court declined to rule or comment on the situation where the inculpatory hearsay statement might be accomodated by a recognized hearsay exception. In a footnote at 128 (88 S Ct at 1623, 20 L Ed 2d at 480, 481), the Court noted:
“We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence. * * * There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.”
Case law postdating Bruton makes it clear, however, that there is indeed room enough for hearsay exceptions within the scope of the Confrontation Clause. See, e.g., Reyes v. United States (CA 9, 1969), 417 F2d 916, and Kay v. United States (CA 9, 1970), 421 F2d 1007, where the “concert of action” exception to the hearsay rule is sustained against constitutional challenge. In those which consider the res gestae exception, see United States v. Chee, supra; Migliore v. United States, supra; McGregor v. United States, supra, the Bruton decision is held inapplicable and the exception is upheld. Likewise, the constitutionality of the co-conspirator exception to the hearsay rule has long been expressly or impliedly recognized. See Delaney v. United States (1924), 263 US 586 (44 S Ct 206, 68 L Ed 462); Campbell v. United States (CA 6, 1969), 415 F2d 356; United States v. Littman (CA 2, 1970), 421 F2d 981; People v. Brawley (1969), 1 Cal 3d 277 (82 Cal Eptr 161, 461 P2d 361).
We think in each case the question whether a particular hearsay declaration may be admitted against an accused without infringing the right of confrontation depends, as we have said, on the nature of the declaration and the circumstances of its making. Where such circumstances, however, create the substantial likelihood of an accurate report of the hearsay assertion and where there exists reasonable assurance that cross-examination would be unavailing, hearsay may be admitted without violating the confrontation right in criminal cases. In each case, the trial judge, outside the hearing of the jury, should first test the proffered declaration against these standards; if satisfied that the high standards of probable trustworthiness have been met, the court may then permit introduction of the hearsay statement without running afoul of the Confrontation Clause.
This is not to say that there is room enough for every hearsay exception, qua exception, within the Confrontation Clause. Academicians have pointed out that the traditional justifications for admission of certain types of hearsay as an evidentiary matter are wholly unrelated to the critical indicium of admissibility as a constitutional matter, i.e., probable trustworthiness. See Comment, “Preserving the Eight of Confrontation — A New Approach to Hearsay Evidence in Criminal Trials,” 113 U Pa L Eev 741, 754-756; People v. Brawley, supra, at 289 (82 Cal Eptr at 167, 461 P2d at 367). Moreover, the United States Supreme Court itself has noted that any suggestion of a complete congruence between the Confrontation Clause and hearsay exceptions is unwarranted:
“While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more nor less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception.” California v. Green, supra, at 155, 156 (90 S Ct at 1933, 1934; 26 L Ed 2d at 495).
We reiterate each case must turn on its own facts. And, in the circumstances of this case, we conclude there was no infringement of defendant Kelley’s right of confrontation. In this regard, we make final reference to Mr. Justice Stewart’s plurality opinion in Dutton v. Evans, supra.
In Dutton, the Supreme Court was required to consider the constitutionality of admission in evidence of a hearsay declaration which implicated defendant Evans in the crime. Declarant Williams neither testified at Evans’ trial nor was he called as a witness. His incriminatory statement was related at Evans’ trial by a witness named Shaw. This statement was admitted in evidence under a co-conspirator exception to the hearsay rule long established under Georgia statutory law.
Mr. Justice Stewart’s opinion treats the question as one to be determined with reference to the particular circumstances of the case. His opinion in no way suggests that the introduction of Williams’ hearsay statement incriminating Evans is permissible solely on the basis of a recognized exception to the hearsay rule. Again, there is a refusal to wholly equate the Confrontation Clause and hearsay exceptions :
“The Georgia statute can obviously have many applications consistent with the Confrontation Clause, and we conclude that its application in the circumstances of this case did not violate the Constitution.” 400 US at 87, 88 (91 S Ct at 219; 27 L Ed 2d at 226). (Emphasis supplied.)
Justice Stewart then delineated the following circumstances which, for the plurality, undermined defendant Evans’ contention that use of Williams’ hearsay declaration violated his confrontation rights:
“The confrontation issue arises because the jury was being invited to infer that Williams had implicitly identified Evans as the perpetrator of the murder when he blamed Evans for his predicament. But we conclude that there was no denial of the right to confrontation as to this question of identity. First, the statement contained no express assertion about past fact, and consequently it carried on its face a warning to the jury against giving the statement undue weight. Second, Williams’ personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by [an accomplice’s] testimony and by Williams’ prior conviction. It is inconceivable that cross-examination could have shown that Williams was not in a position to lenow whether or not Evans was involved in the murder. Third, the possibility that Williams’ statement was founded on faulty recollection is remote in the extreme. Fourth, the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans’ involvement in the crime. These circumstances go beyond a showing that Williams had no apparent reason to lie to Shaw. His statement was spontaneous, and it was against his penal interest to make it. These are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.
“The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement’. California v. Green, 399 US at 161. Evans exercised, and exercised effectively, his right to confrontation on the factual question whether Shaw had actually heard Williams make the statement Shaw related. And the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.” 400 US at 88, 89, (91 S Ct at 219, 220; 27 L Ed 2d at 227). (Emphasis supplied.)
These statements, particularly those underscored, apply equally in the circumstances of this case. Significantly, the test applied is that of reliability, of probable trustworthiness. Application of Mr. Justice Stewart’s pronouncements leads us to our view that there was no violation of defendant Kelley’s right of confrontation as to Robinson’s hearsay declaration, “You threw the match too quick”.
Ill
Two issues remain. We treat them together in this final part.
We find without merit defendant’s contention that his conviction on the two arson counts is void for multiplicity. Counts 1 and 2 of the information charged different statutory offenses. “The offenses under the various [arson and burning] statutes are separate and distinct * * * .” 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1006, pp 1394, 1395. A violation of MCLA § 750.77 (Stat Ann 1962 Rev § 28.272) requires elements not necessarily included in the conduct made criminal by MCLA § 750.73 (Stat Ann 1962 Rev § 28.268). Moreover, arguments similar to those raised by defendant on this point were considered and rejected in People v. Rabin (1947), 317 Mich 654, 661, 662.
Defendant’s final contention is that his conviction on Count 3 cannot stand because the circumstances of this case do not disclose a violation of MCLA § 750.207 (Stat Ann 1962 Rev § 28.404), which provides :
“Any person who places in, upon, under, against or near to any building, car, vessel or structure, gunpowder or any other explosive substance, with intent to destroy, throw down, or injure the whole or any part thereof, which substance upon explosion shall cause injury to any person, shall be guilty of a felony, punishable by imprisonment in the state prison for life. Such convicted person shall not be eligible to parole.” (Emphasis supplied.)
It is defendant’s argument that gasoline is not an “explosive substance” within the meaning of the statutory provision. We disagree.
It is common knowledge that gasoline, as a physical substance, is capable of exploding; indeed, there was testimony of an explosion in this case — an explosion resulting from ignition of the gasoline soaked stairway at the Soul Expression Bar. Moreover, a careful reading of those sections of the criminal code dealing with the unlawful use of explosives indicates that gasoline is likewise an “explosive substance” within the meaning of MCLA § 750.207 (Stat Ann 1962 Rev § 28.404). Where the legislature intended that gasoline be excluded from the legal definition it made such intention explicit. See MCLA § 750.200 (Stat Ann 1962 Rev § 28.397).
Defendant’s conviction on all counts is affirmed.
All concurred.
The distinction emphasized here receives frequent mention in decisions dealing with silence in the face of accusatory remarks. See, e.g., People v. Osuna (1969), 70 Cal 2d 759, note 1 at 765 (76 Cal Rptr 462, note 1 at 465; 452 P2d 678, note 1 at 681): “[T]hese conversations were initiated by defendants when they were not in custody ***.n (Emphasis supplied.)
We recognize that People v. Bigge (1939), 288 Mich 417, contains broad language inconsistent with the view that pre-arrest, non-custodial silence in the face of incriminating statements may serve as an adoptive admission. This Court has not, however, so construed the Bigge rule. In People v. Gisondi (1967), 9 Mich App 289, 294, we discussed Bigge and stated:
“The reason for the Bigge rule is clear. Without it., the constitutional privilege against self-incrimination would be vitiated. The privilege gives a man under arrest the right, with impunity, to be silent in face of an accusation. While, under certain circumstances, the statements of a person in custody may be used in evidence against him, his silence may not.
“Without the Bigge rule, a man under arrest could be accused and forced to reply on the pain of silence being used as proof of guilt. If he replied to the accusation, his reply might also be used in evidence against him. This would make a mockery of the privilege against self-incrimination.” (Footnotes omitted, emphasis supplied.)
Candor requires us to note, however, that confusion exists, even in our own Court, as to this point. See the application of the Bigge rule in People v. Wardell (1970), 26 Mich App 69. We think the time is ripe for a definitive pronouncement from the Michigan Supreme Court.
“In every criminal prosecution, the accused shall have the right * * * to be confronted with the witnesses against him.”
“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”
The confrontation guarantee of the Sixth Amendment was made applicable to the states in Pointer v. Texas (1965), 380 US 400 (85 SCt 1065, 13 L Ed 2d 923). | [
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Fitzgerald, J.
Plaintiffs Major Douglas and his wife, Beatrice Douglas, brought action for damages and injuries sustained in an automobile accident with Willie James Harris. Harris was uninsured at the time of the accident. Under the provisions of the Motor Vehicle Accident Claims Act (MCLA § 257.1101 [Stat Ann 1968 Rev § 9.2801]), the Secretary of State intervened as attorney for Willie James Harris. A judgment of $45,000 was subsequently rendered in favor of plaintiffs. A remittitur was agreed upon which reduced the judgment to $25,000 for Major Douglas and $5,000 for Beatrice Douglas. Plaintiff Major Douglas received $10,000 from the fund, while plaintiff Beatrice Douglas received the full amount of her judgment.
The plaintiffs thereafter instituted a second action to recover interest from the fund on the full amount of each judgment entered. Both the plaintiffs and defendant filed motions for accelerated judgment. It is from the trial court’s decision to grant defendant’s motion for accelerated judgment that plaintiffs appeal.
The primary question raised on this appeal is whether interest is recoverable from the Motor Vehicle Accident Claims Fund when the Secretary of State intervenes on behalf of an uninsured motorist. Plaintiffs argue that the act which created the Motor Vehicle Accident Claims Fund made no provision expressly relating to interest. They urge, however, that by virtue of the act’s adoption, the state waived sovereign immunity and has accepted the obligation to protect the public by acting as insurer for uninsured motorists and, as such, is liable for the payment of interest once it intervenes on behalf of an uninsured motorist.
The payment provisions of the fund are set forth in MCLA § 257.1123 (Stat Ann 1968 Rev § 9.2823), which presently provides :
“(1) In respect to applications under this act for payment of damages arising out of motor vehicle accidents occurring in this state on or after January 1, 1966, the secretary shall not pay out of the fund, (a) more than $10,000.00, exclusive of costs, on account of injury to or the death of one person, and, subject to such limit for any one person so injured or killed, not more than $20,000.00, exclusive of costs, on account of injury to or the death of 2 or more persons in any one accident; and (b) more than $5,000.00, exclusive of costs, for loss of or damage to property resulting from any one accident.”
We note upon examination of the record that the trial court was of the opinion that in order for interest to be recoverable the statute must have specifically provided therefor. Since MCLA § 257.1123, supra, did not so provide, the trial court held that no interest could be recovered by plaintiffs.
The Motor Vehicle Accident Claims Act, PA 1965, No 198, MCLA § 257.1101 (Stat Ann 1968 Rev § 9.2801), was originally approved by the legislature on July 16, 1965, and became effective by its terms on November 1, 1965. Section 23(3) of the act provided that:
“The secretary shall not pay out of the fund any amount for interest or costs.”
In October 1965, the Motor Vehicle Accident Claims Act was amended, becoming PA 1965, No 389, which excluded the reference to non-payment of interest or costs found in § 23(3). Hence, it appears that the intent of the legislature was to make interest and costs recoverable. Since the latter act represents the latest expression of the legislative will, its terms supersede those of the earlier act passed during the same session. Detroit United Railway v. Barnes Paper Co. (1912), 172 Mich 586, 589; OAG, 1967-68, No 4617, p 211 (March 18, 1968).
Such an interpretation can be readily implied, despite the fact that the statute does not expressly provide for recoverable interest and costs. In addition, Michigan does have a general statute (MOLA § 600.6013 [Stat Ann 1971 Cum Supp § 27A.6013]) allowing interest at 5% on all money judgments recovered in a civil action. Therefore, we conclude that the Motor Vehicle Accident Claims Fund is liable for the payment of interest once it intervenes on behalf of an uninsured motorist.
We proceed to a consideration of whether the Motor Vehicle Accident Claims Act obligates the State of Michigan to pay interest on that portion of a judgment entered against an uninsured motorist which exceeds the limits payable under § 23(1) of the act.
Since the filing of this appeal, the fund has agreed to pay interest on that portion of any judgment entered against an uninsured motorist within the limits of the fund’s statutory liability. Plaintiffs now argue that they are entitled to interest on the additional $15,000 of the judgment entered in favor of Major Douglas, despite the fact that the fund is liable only for payment of $10,000 on that judgment. Defendant contends that plaintiffs have already recovered all moneys, including interest and costs, to which they are entitled under the act, and therefore the appeal presents a moot question which should be dismissed.
Plaintiffs would have this Court liken the present obligation of the State of Michigan to a policy of automobile insurance issued by a private insurance carrier doing business in this state. However, the obligation of the state, through the Motor Vehicle Claims Fund, is specifically prescribed and limited by its own statutory terms.
An examination of the provisions of § 23(1) of the act indicates that the fund will pay a maximum of $10,000 on account of injury or death of one person and not more than $20,000 if two or more persons are injured or killed. The act provides that these limits are “exclusive of costs”. Therefore, in the absence of specific statutory mandate authorizing payment of interest on such portion of a judgment rendered against an uninsured motorist exceeding the fund’s oblig-ation under § 23(1), we find plaintiffs’ position without merit.
It is the holding of this Court that pre-judgment and post-judgment interest is recoverable from the Motor Vehicle Accident Claims Fund when the fund intervenes on behalf of an uninsured motorist, but is limited to payment of interest on that portion of a judgment which does not exceed the fund’s státutory obligation which is $10,000 or $20,000, as provided by statute, supra.
Reversed and remanded for proceedings consistent with this opinion. No costs, interpretation of a statute being involved.
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T. M. Burns, J.
Defendant appeals his conviction of breaking and entering a dwelling house with the intent to commit larceny therein. MOLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp §28.305).
On April 18,1969, the home of Mr. George Huttlemeir was broken into. A number of items were stolen including a .22 caliber rifle. On May 2, 1969, two police officers questioned the defendant with regard to a person they suspected of perpetrating the felony. On May 5, 1969, the same officers went to defendant’s home and took him to the Essexville Department of Public Safety for the purpose of questioning the defendant concerning his participation, if any, in the crime. After being informed of his constitutional rights, the defendant made a written statement admitting his participation in the crime.
At the trial, defendant made a motion to suppress the admission of the confession on the grounds that it was given involuntarily due to threats made by the officers. A Walker hearing* was immediately held, at which the trial judge determined that the confession was given voluntarily by the defendant. The confession was then admitted into evidence and at the close of all the proofs, the jury found the defendant guilty of the crime charged.
On appeal defendant raises three issues: (1) Was the trial court’s determination that the defendant’s confession was voluntary against the great weight of the evidence and improper as a matter of law? (2) Did the trial court properly exclude testimony by tbe defendant pertaining to the circumstances surrounding his statement of confession? (3) Did the court properly allow into evidence the .22 caliber rifle which had been stolen?
1. Was the trial court’s determination that the defendant’s confession was voluntary against the great weight of evidence and improper as a matter of law?
Defendant first contends that the confession should not have been admitted because he was coerced by Trooper Brown, thus making the waiver of his constitutional rights prior to the confession meaningless. Furthermore, defendant contends that it is not enough merely to inform defendant of his rights, but the officers must advise him and make sure he understands them.* *
At the Walker hearing, the trial judge asked defendant if he had understood his rights and defendant answered in the affirmative. The defendant admits that he was informed of his rights on two occasions and that he was also allowed to read a copy of the rights which are guaranteed under Miranda. The trial judge also questioned the defendant about his intellectual capability with special emphasis on his comprehension of the English language.
The law in Michigan, concerning the standard of review with regard to Walker type hearings, is that an appellate court will not reverse the decision of the lower court unless it is clearly erroneous. When the testimony of the defendant and other witnesses is in direct conflict, the decision of the trial court will prevail if it is supported by the record.
Although, the testimony at the Walker hearing was conflicting, the trial court’s ruling is supported by the evidence. This Court will not reverse as we cannot say that the finding of the trial judge is clearly erroneous.
Defendant also contends that because one of the officers threatened to send him to prison for parole violation and also charge him with five or six other offenses of breaking and entering if he did not confess, the confession was not voluntary and should not have been admitted into evidence. Both officers testified, however, that they did not recall making any specific threats. One officer did admit that if he had known that defendant was out on parole at the time the questioning took place that he might have told defendant that he would be sent back to prison for parole violation. However, defendant admitted at the hearing that he knew he would be charged with parole violation whether he made a statement or not.
As we stated above, since there was a conflict in the testimony, it was the duty of the trial court, sitting as trier of fact, to determine the credibility of the witnesses and arrive at his decision of whom to believe. The trial court’s decision here is fully supported by the record and not clearly erroneous. The trial judge did not commit reversible error by determining that the confession was voluntarily given.
2. Did the trial court properly exclude testimony by the defendant pertaining to the circumstances surrounding the statement of confession given to Trooper Brownf
Defendant contends that the trial court erred in excluding a portion of defendant’s testimony re garding the circumstances surrounding his confession. It is defendant’s position that he should have been allowed to explain the circumstances for purposes of allowing the jury to determine the truthfulness of the. statement and the amount of credibility which should be given to it. The portion of the testimony now in issue is as follows:
“Q. Mr. Matuszewski, you have a right to explain to the court, to the jury, the people, your answers in this statement — was there anything you feel that needs additional explaining?
“A. I can’t really say because I was more or less forced into writing that statement.
“Mr. Mullison [assistant prosecutor] : I am objecting to that testimony. I would like to make a motion.
“The Court: A motion?
“Mr. Mullison: I am objecting to the testimony. The matter has already been determined.
“The Court: For the purposes of the jury, the court has already determined that this statement was voluntary.”
The people contend that since the prosecution’s objection was neither sustained nor the answer stricken, that there was never really a ruling by the trial court. The people further contend that since the defendant did not register his own objection to the above proceedings, the issue is not properly before this Court.
We agree with the people. It does not appear that the court ever ruled on the prosecution’s objection, nor was the testimony in question stricken from the record. Further, defense counsel never objected to the proceedings of the court. He merely went on to his next question which dealt with defendant’s conduct on the night of the crime. We find no prejudice to the defendant as a result of the proceedings in question.
3. Did the trial court properly allow the .22 rifle into evidence as the people’s exhibit¶
Defendant finally contends that the trial court committed reversible error by admitting into evidence the .22 rifle which was stolen. It is defendant’s position that because the .22 rifle was never in his possession, its admission into evidence was irrelevant and immaterial and only served to prejudice the jury against him.
We disagree. At the trial, the victim positively identified the rifle as the one taken. Francis Dunckel, a conservation officer, testified that he had found the rifle in the possession of one Bandy Myers. Bandy Myers testified that he had received the rifle from a Michael Nalazek. Nalazek testified that the defendant had told him that a Danny Piotrowski was in the possession of such a rifle and that Nalazek had then borrowed the rifle from Piotrowski. Piotrowski was an accomplice of the defendant.
Based upon the above testimony, it is apparent that the prosecution laid a proper foundation. The rifle was connected with the defendant in a logical manner and the rifle connected defendant with the crime. The evidence was both relevant and material and was, therefore, properly admitted into evidence.
Affirmed.
All concurred.
People v. Walker (On Rehearing, 1965), 374 Mich 331.
Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
GCR 1963, 517.1; People v. Walker (1967), 6 Mich App 600; People v. Stewart (1970), 25 Mich App 204.
People v. Walker (1967), 6 Mich App 600.
See People v. Stewart, supra.
GOB 1963, 517.1.
People v. Ramsey (1970), 25 Mich App 576.
We will not, therefore, reverse based upon this issue since MOLA § 769.26 (Stat Ann 1954 Eev § 28.1096) requires a reversal only to prevent a miscarriage of justice. | [
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] |
T. M. Burns, J.
Plaintiffs appeal from the judgment of the trial court, sitting without a jury, that plaintiffs had failed to establish a cause of action against the defendant corporation.
Francis J. Schwartz originally owned lots 6, 7, and 8 in the Northford Park subdivision in the township of Troy, Michigan.* Defendant corporation owned lots 9 through 23 and lots 60 through 67. Lots 1 through 5 and lots 68 and 69 were owned by Mr. Reginald Stevens.
Plaintiffs claimed that in 1951 Mr. E. R. Davis, who was then president of defendant corporation, proposed to Stevens and Schwartz that the subdivision be replatted so that the alley running behind lots 1 through 13 could be moved 80 feet to the eastward, thus giving defendant company more space upon which to conduct its business. Schwartz claimed that the consideration he was to receive for his participation in the replatting was to have his lots 6, 7, and 8 extended the 80 feet to the new public alley. The extensions in plaintiffs’ lots were to be conveyed to plaintiffs from both Stevens and defendant company, who owned the property immediately east of the alley as it was originally situated.
The replatting was accomplished, , but plaintiffs never received the deed from defendant company for the extended portions of their lots. Plaintiffs did, however, in 1967, receive a deed from Stevens for the extended portion of lot 6 and the north half of lot 7. Plaintiffs now seek the extended portion of the other half of lot 7 and the extended portion of lot 8, title to which still remains in the defendant company.
To demonstrate the existence of the contract, Schwartz showed that in 1952 he received a bill from defendant for three-thirteenths of the cost of replatting and that he paid the charge; that from 1952 through 1957 he planted a garden over the extended portions of lots 6, 7, and 8; that in 1954 the replatting was approved and recorded; that plaintiffs have paid the taxes on the lots as extended since 1955, although they did not know if the taxes had increased after the lot extensions; that defendant built a wall in 1965 the length of the lot line between lots 8 and 9; and that Stevens deeded to plaintiffs in 1967 the rear 80 feet of lot 6 and the rear 80 feet of the north half of lot 7, a 30 feet by 80 feet portion of Stevens’ lots 68 and 69 prior to replatting.
At the time of trial, Davis was deceased. The trial court ruled, therefore, that Schwartz could not testify as to the making of the oral agreement between himself and the deceased president of defendant corporation. The court ruled that such testimony was prevented by the dead man’s statute, MCLA § 600.2166 (Stat Ann 1971 Cum Supp § 27 A-.2166) which provides:
“(1) In any 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.”
Plaintiffs here contend that the evidence, detailed above, presented to demonstrate the existence of the contract (supra) tended to corroborate their claim and, therefore, the dead man’s statute should not have been a bar to the testimony.
The quantity of corroborating proof necessary to satisfy the statute has never been determined by Michigan courts. We will, therefore, examine the decisions in several other jurisdictions where similar statutes have been interpreted.
At least four jurisdictions, New Mexico, District of Columbia, Oregon, and Virginia, have statutes similar to the one we have in Michigan. Closest is New Mexico’s statute which provides:
“In a suit by or against the heirs, executors, administrators or assigns of a deceased person, a claimant * * * shall not obtain a judgment or decision on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is supported by some other material evidence tending to corroborate the claimant or interested person.”
The New Mexico Court, interpreting what quantity of evidence is necessary to satisfy the requirements of the above statute, held that it is no longer necessary that corroborating evidence be such as would, standing alone, tend to prove the essential allegations raised by the pleadings. The Court stated that it was only necessary that the corrob orating evidence support the claimant’s evidence.
The Virginia statute provides that “ * * * no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony * * * ”. Although this statute seemingly requires more evidence than a statute such as Michigan’s, which only requires “evidence tending to corroborate” the interested party’s claim, the Virginia Supreme Court has held:
“Corroborating evidence is such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated that is, such as tends to show its truth, or the probability of its truth.
“It usually consists of separate and independent items, no one of which of itself would probably be sufficient, but when joined together lead satisfactorily to the conclusion of the truth of the testimony of the witness sought to be corroborated.”
The District of Columbia’s statute, which is very similar to the Virginia statute, has been interpreted in much the same way. In approving the above statement by the Virginia Court, the United States Court of Appeals for the District of Columbia stated:
“We agree with the Virginia court. We think the statute permits a judgment based essentially on the survivor’s testimony if there is other evidence from which reasonable men might conclude that his testimony is probably true.” Rosinski v. Whiteford (1950), 87 App DC 313, 314 (184 F2d 700, 701).
In Oregon, their applicable statute has been interpreted more rigidly. The effect of the Oregon decisions is that a claimant must establish, through evidence other than the claimant’s own testimony, a prima facie case before the claimant’s own testimony may be admitted. The Court in Rosinski, supra, commenting upon this type of reasoning, stated:
“This amounts to saying that a survivor’s testimony may be considered only when it is not essential to the result. Such a view nearly nullifies the statute.”
We are in accord with approach of the New Mex-. ico, Virginia, and the District of Columbia Courts. We adopt the statement by the United States Court of Appeals, quoted above, that “the [Michigan] statute permits a judgment based essentially on the survivor’s testimony if there is other evidence from which reasonable men might conclude that his testimony is probably true”.
When this rule is applied to the facts in the case at bar, it is our conclusion that the evidence pre sented at the trial court does tend to corroborate the plaintiffs’ claim of an oral contract. Therefore, the trial court should have allowed Francis Schwartz to testify concerning the making of the oral contract.
Defendant contends, however, that even if we find sufficient corroboration to have admitted plaintiffs’ testimony, the issue has not been properly preserved for appeal because plaintiffs failed to request and make a separate record pursuant to GCR 1963, 604, which provides:
“If any objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, or by leave of court, may examine the witness in relation thereto. The court may require the offer to be made or the testimony taken out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon.”
Despite the permissive wording of the court rule and its corresponding statute, MCLA § 600.2101 (Stat Ann 1962 Rev § 27A.2101), our Supreme Court has consistently construed the language in mandatory terms. However, this Court has recently held in Hes v. Haviland Products Company (1967), 6 Mich App 163, 170, that a separate record does not necessarily have to consist of actual testimony :
“A ‘separate record’ does not have to embody actual testimony unless the trial judge so requests. An attorney’s summarization of what a witness would have said had he been permitted to testify will sufficiently preserve the issue for appeal under GrCR 1963, 604. Shortly after the trial judge sustained defendant’s first objection the plaintiff’s attorney said:
“ T would like to show on this matter had Mr. Hes been allowed to answer that question he would have claimed the compensation, he believes is reasonably in line with what he received throughout the industry, in line at least of what he is paid now.’
“We hold this evidentiary issue is properly before us.”
In the case at bar, after defendant’s objection to the offered testimony had been sustained, plaintiffs’ attorney made the following statement:
“There had to be discussion, there had to be consultation, some agreement made and [defendant’s counsel] knows that the only man that can tell us what happened is the man that is sitting right here on the stand.”
“I have evidence to prove, to show the court there was a conversation took place between the deceased and the other platter, and I can prove there was discussions to what their interests were and I can prove to the court the other platter never claimed any interest in half [lots] 7 and 6.”
We hold that the above statements made before the trial court sufficiently satisfy the “separate record” requirement of GrCR 1963, 604, and the issue was properly preserved for appeal. Therefore, since we have ruled that plaintiffs’ testimony concerning the oral contract should have been received by the trial court, the cause will have to be remanded for a new trial.
Although plaintiffs raise several other issues, since we are remanding for a new trial, we will not deal with them at this time. Plaintiffs contend that the defendant had waived the protections of the “dead man’s statute” by cross-examining Francis Schwartz as to matters equally within the knowledge of the deceased. Since we have already decided that the statute permits Mr. Schwartz to testify to the oral contract, it is unnecessary to decide whether the protection afforded by the statute had been waived. Plaintiffs also raise two issues which were not raised in the trial court: (1) whether certain testimony should not have been excluded as hearsay because it falls within an exception to the hearsay rule; and (2) whether full performance on the part of the plaintiffs removes the oral contract from the statute of frauds.
Since neither of these issues were raised below, and further since we are reversing for a new trial, we will not discuss these issues until the trial court has had an opportunity to rule on them.
Reversed and remanded.
All concurred.
See diagram,
See diagrams.
MCLA § 600.2166 (Stat Ann 1970 Cum Supp § 27A.2166). A corporation is also protected under subsection 2 of the statute which includes a corporation of the definition of a “person incapable of testifying” where the agent of that corporation, having the material knowledge, is incapable of testifying.
Ch 261, Laws 1959, § 1 (§ 20-2-5 NMSA 1953 Comp).
Peck v. Wright (1962), 70 NM 259 (372 P2d 831). The New Mexico Court, under a previous statute, has required that the corroborating evidence must, standing alone, tend to prove the essential allegations or issues raised by the pleadings. See Porter v. Porter (1958), 65 NM 14 (331 P2d 360). However, the previous statement had provided that the interested party could not recover a judgment on his own evidence “unless such evidence is corroborated by some other material evidence”. The present statute requires evidence “tending to corroborate”. This difference between the two statutes has resulted in the New Mexico courts’ allowing the claimant to testify when he has much less evidence to corroborate his claim. Peck v. Wright, supra.
Virginia Code of 1950, Section 8-286.
Varner v. White (1927), 149 Va 177, 185 (140 SE 128, 130).
DC Code 1963 § 14-302.
Or Rev Stat § 115.195 (Oregon Laws 1969, e 591 § 159) provides: “A claim that has been disallowed by the personal representative may not be allowed by any court except upon some competent, satisfactory evidence other than the testimony of the claimant.” (Emphasis supplied.)
Although this statute is a recent enactment, the italicized portion is exactly the same as the former statutes (1930 Oregon Code § 11-504, 1940 OCLA § 19-704, 1950 ORS § 116.520). See In re Millon’s Estate (1936), 154 Or 615 (61 P2d 1030).
See Field v. Rodgers (1929), 128 Or 661 (275 P 598); Mount v. Riechers (1932), 140 Or 267 (13 P2d 335); In re Millon’s Estate (1936), 154 Or 615 (61 P2d 1030); Vancil v. Poulson (1964), 236 Or 314 (388 P2d 444).
Rosinski v. Whiteford (1950), 87 App DC 313, 314 (184 P2d 700, 701).
Eglash v. Detroit Institute of Technology (1965), 375 Mich 592, 597. | [
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] |
R. B. Burns, P. J.
The above cases have been consolidated as both cases involve the liability of the Secretary of State under the Motor Vehicle Accident Claims Act, MCLA § 257.1101 et seq. (Stat Ann 1968 Rev § 9.2801 et seq.).
Howell v. Lazaruk
On June 15, 1966 Adrian Howell was operating his automobile with passengers Martha Howell, Peggy Howell (age eight), Ella Burgy, and Barbara Burgy, when his vehicle was struck by the automobile of Lillian Lazaruk. The Howells sustained serious and permanent injuries. Ella Burgy was killed.
At the time of the accident the defendant was uninsured; however she had paid the statutory fee to the Secretary of State in accordance with MCLA § 257.1103 (Stat Ann 1970 Cum Supp § 9.2803). The estate of Ella Burgy filed a notice with the Secretary of State on or about February 20, 1967. A photostatic copy of the accident report was attached to the notice. The director of the Motor Vehicle Accident Claims Fund had the Great Lakes Claim Service investigate the facts surrounding the accident.
March 11,1968 the Howells filed applications with the Secretary of State seeking payment for the injuries sustained in the accident. The claims were denied as the Howells had failed to file the notice of intention to file a claim within one year as required by the act.
Summons and complaint were served on the Secretary of State and the defendant in compliance with the act. When no answer or other pleadings were filed, except for another letter from the Secretary of State advising that the claim was barred because of the late notice, a default was filed and copies were served on defendant and the Secretary of State.
Upon plaintiffs’ petition an order to show cause was issued requiring the Secretary of State to show cause why he should not be required to pay the plaintiffs. The motion was taken under advisement pending a decision in this Court of the case of Lisee v. Secretary of State. Plaintiffs then filed a motion to intervene in this Court and an application for leave to appeal. The application for leave to appeal was granted.
Lisee v. Secretary of State
Plaintiffs bring an original action in this Court pursuant to GCR 1963, 714, as amended, which requires that actions for mandamus against state officers be brought in the Court of Appeals.
Mandamus was brought against the defendant Hare, as custodian of the Fund, to compel him to pay a default judgment rendered against an uninsured motorist under the Motor Vehicle Accident Claims Act, supra. On August 27, 1966 the minor plaintiff Robert Frederick Lisee was involved in an accident with an automobile owned by Larry Eischer and driven by Donald Bryce. Both Eischer and Bryce were uninsured. Notice of intent to file a claim with the Secretary of State was made September 15, 1967. The claim supervisor of the Motor Vehicle Accident Claims Fund replied that the claim would not be honored because the plaintiffs had failed to file the notice within one year of the accident. Plaintiffs filed suit against Eischer and Bryce. Summons and complaint were served on the Secretary of State with a request that the defendants Eischer and Bryce be served pursuant to MCLA § 257.1105 (Stat Ann 1968 Rev § 9.2805).
The director of the Motor Vehicle Accident Claims Fund returned the summons and complaint to plaintiffs’ attorney with a letter which read in part as follows:
“We are returning herewith your correspondence dated January 7, 1968, addressed to the Honorable James M. Hare. We have not undertaken to serve the defendants since the claim is barred by section 18 of the act creating the fund.”
At this point it should be mentioned that the act does not give the Secretary of State discretion as to whom shall be served. When a suit is filed under the act it is mandatory that the Secretary of State forward a copy of the summons and complaint to the defendant. Subsequently both defendants were personally served. An attorney appeared on behalf of defendant Eischer. Later a voluntary dismissal was entered as to defendant Eischer. A default judgment was entered against defendant Bryce. A copy of the judgment was sent to the Secretary of State and payment was refused.
Plaintiffs then filed a motion in circuit court to require the Secretary of State to make payment from the fund. The motion was denied and plaintiffs applied to this Court for a writ of mandamus against the defendant.
Both cases raise two common issues:
1. In a case involving the Michigan Motor Vehicle Accident Claims Fund, where the Secretary of State fails to enter an appearance or defend an action and a default judgment is entered, is the Secretary of State estopped from raising a defense to the plaintiff’s motion requiring the Secretary of State to pay the judgment from the fund?
2. Is the one-year-written-notice provision of § 18 of the Michigan Motor Vehicle Accident Claims Act unconstitutional ?
The Howell case raises an additional issue: Does knowledge of the occurrence of an automobile accident by the Secretary of State, obtained through his agents and employees by virtue of the fact that a passenger had filed a notice with the Secretary of State, obviate the requirement that other passengers in the vehicle give notice to the Secretary of State?
MCLA § 257.1105 (Stat Ann 1968 Rev § 9.2805) provides:
“The secretary is deemed to be an agent of the owner or operator of every uninsured motor vehicle for service of process in an action in this state arising out of the use or operation in this state of the uninsured motor vehicle. Where such an action is commenced, summons and complaint shall be served on the secretary by certified or registered mail or by leaving a copy thereof with or at the office of the secretary who shall forward a copy of the summons and complaint forthwith by certified mail to the defendant at his last address as recorded with the secretary. In any action to recover damages arising out of the use or operation of an uninsured motor vehicle, failure to serve summons and complaint upon the secretary shall constitute a bar to recovery from the fund. In all actions where summons and complaint have been served upon the secretary, the secretary shall have the right to intervene in said action as a party defendant.”
This Court has interpreted this section in Livasy v. Evans (1970), 24 Mich App 227. On page 230 the Court stated:
“Service of summons and complaint on the Secretary of State is required to preserve a claim against the fund. Such service does not make the Secretary of State a party to the action. The latter occurs if the Secretary of State decides to intervene in the action. The Secretary of State became a party when he filed in appearance April 10, 1969; the affidavit of default filed February 17, 1969 was ineffective as to him and the motion to set aside the default was unnecessary insofar as the Secretary of State was concerned. We treat it as a nullity as well as the order denying it and all trial proceedings thereafter with respect to the right of the Secretary of State to defend this action. On the present record, the action stands at issue and ready for trial.”
The Secretary of State was not a party to these actions and was not estopped from raising a defense when requested to make payments from the fund.
This Court held in Reich v. State Highway Department (1969), 17 Mich App 619, that the notice requirements were constitutional and applied to minors. However, since that decision the Supreme Court rendered its opinion in Grubaugh v. City of St. Johns (1970), 384 Mich 165. Grubaugh, a 19-year-old boy, was a passenger in an automobile which was involved in an accident. He suffered serious injuries. It was alleged that as a result of the accident he was incapacitated and could not file the notice of claim within the 60 days required by statute. Defendants filed a motion to dismiss the complaint on the ground that Grubaugh had failed to serve written notice within 60 days as required by MCLA § 242.8 (Stat Ann 1958 Rev § 9.598). The motion was denied. Subsequently the defendants filed a second motion to dismiss, which was granted.
The Supreme Court reversed the trial court and remanded the cause for trial. The rationale of the Court’s opinion was that a cause of action against a municipality, although statutory in origin, was a vested right and could not be abolished except by due process of law; the notice provision of the statute was arbitrary and capricious and deprived the plaintiff of a vested right without due process of law.
While the Court restricted its decision to a minor, the same rationale must apply to competent adults.
Applying the rationale of the Grubaugh case in the present case we hold the notice provision of the Motor Vehicle Accident Claims Act, supra, deprived the plaintiffs of due process of law.
In the Lisee case the defendant raises one other issue. Even though it is necessary to review the case tried in the circuit court, it must be remembered that the Lisee case is one of original jurisdiction in this Court seeking a writ of mandamus against the Secretary of State. The defendant claims Lisee is barred from recovering the award because of the failure to prosecute the action to final judgment or dismissal against Eischer. MCLA §257.1107(3) (Stat Ann 1968 Rev § 9.2807[3]) reads:
“The secretary shall not pay out of the fund any amount in respect of a judgment unless the judgment was given in an action brought against all persons against whom the applicant might reasonably be considered as having a cause of action in respect of the damages in question and prosecuted against every such person to judgment or dismissal.”
It is the position of the Secretary of State that defendant Eischer, the owner, was a person against whom the applicant might reasonably be considered to have a cause of action, and that plaintiffs’ voluntary dismissal of Eischer was contrary to the conditions for recovery from the motor vehicle claim fund.
Steel v. Wilson (1971), 29 Mich App 388, held that the act was remedial in nature and should be liberally construed. The Court refused to disqualify the plaintiff from recovery after the plaintiff had settled with third-party tortfeasors.
In line with that reasoning, and giving the statute a liberal construction, we decline to disqualify the plaintiffs in the Lisee case because of the voluntary dismissal of Eischer. The decision in this case controls the question of notice in the Howell case.
In the Lisee case a writ of mandamus will issue against the Secretary of State requiring him to pay plaintiff the award rendered in the trial court in the case of Lisee v. Eischer and Bryce.
The Howell case is remanded to the trial court for action consistent with this opinion.
No costs, a public question being involved.
All concurred.
MOLA § 257.1118 (Stat Ann 1968 Rev §9.2818). This section was amended, effective July 1, 1968, to reduce the time to six months.
Amended by PA 1967, No 274, § 1. | [
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] |
Pee Ctjeiam.
On August 29, 1966, defendant was convicted by a jury for the crime of armed robbery. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28-.797). Defendant was sentenced to serve a term of 9 to 20 years in prison.
On March 16, 1969, defendant filed a motion for a new trial. At the hearing held on March 24,1969, the trial court, after ascertaining that all parties were in agreement, permitted the information to be amended to include the charge of unarmed robbery, granted defendant’s motion for a new trial, and properly accepted defendant’s plea of guilty to the charge of unarmed robbery. Defendant was then sentenced to serve from four to 15 years on his plea of guilty to the charge of unarmed robbery. Defendant was credited with time served under the original conviction for armed robbery. Defendant appeals as of right.
Under defendant’s first assignment of error it is alleged that defendant’s conviction is invalid because he did not have, nor waive, a preliminary examination on the charge of unarmed robbery as required by MCLA § 767.42 (Stat Ann 1970 Cum Supp § 28.982).
We disagree. Defendant’s plea of guilty to the charge of unarmed robbery constituted a waiver of the statutory right to a preliminary examination. People v. Losinger (1951), 331 Mich 490, cert den 343 US 911 (72 S Ct 644, 96 L Ed 1327); People v. Tate (1946), 315 Mich 76; People v. Rufus Williams (1970), 23 Mich App 459, 467, fn 11.
Defendant also contends that the proceedings held on March 24, 1969, constituted double jeopardy. The rationale for the constitutional protection against double jeopardy does not come into being when the new proceeding comes at the defendant’s own request. Thus, since defendant in the instant case presented the motion for a new trial, he cannot now complain of double jeopardy because the new trial was granted. See Stroud v. United States (1919), 251 US 15 (40 S Ct 50, 64 L Ed 103); People v. Fochtman (1924), 226 Mich 53.
Judgment affirmed.
MCLA § 750.530 (Stat Ann 1954 Eev § 28.798). | [
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] |
V. J. Brennan, P. J.
This is an appeal by the Michigan Civil Service Commission from adverse rulings in the circuit courts of Wayne and Lapeer Counties. The two cases were consolidated on this Court’s own motion.
Local Unions 1342 (State Liquor Wholesalers) and 567 (Lapeer State Home) were organized as affiliates of Council 7 of the American Federation of State, County, and Municipal Employees, AFL-CIO. They were organized pursuant to the “employee relations policy” of the Civil Service Commission which provides in part:
“Recognition: The Civil Service Commission, as a public agency charged by the Constitution with the regulation of all conditions of employment, and with responsibility for the public interest of all citizens equally, will grant recognition to employee organizations coming within the definition stated in this policy * # # . Recognition shall continue so long as such organization satisfies the criteria for such recognition.”
The definition of an employee organization is defined as:
“Employee Organisation: Any lawful association, organization, or union composed of employees in the Michigan State Classified Service, having as its primary purpose the improvement of conditions of employment; but not including any organization (1) which asserts the right to strike, or which imposes a duty or obligation to conduct, assist or participate in any such strike, # * * .”
In September and October of 1968, both unions allegedly engaged in some prohibited strike activity. Thereafter, the commission issued show cause orders to each union ordering them to show cause why recognition should not be withdrawn. After hearings at which extensive testimony was taken, the commission determined that the prohibited activity had in fact occurred. Although the commission might have withdrawn recognition, instead it ordered that the union were no longer to be provided with payroll deduction of dues (“dues checkoff”). It is the position of the defendant unions that in so doing the commission exceeded its authority. We agree.
The pertinent section of the employee relations policy dealing with dues checkoffs provides:
“Dues Collections: Recognized employee organizations will be provided with the payroll deduction system for the collection of dues.”
It is undisputed that the locals were “recognized employee organizations” both before and after the order suspending dues checkoffs.
The commission contends, however, that the order was proper on two grounds. First, the commission urges that since dues checkoff is a condition of employment, it may properly make this type of order under its constitutional power to “regulate all conditions of employment in the classified service.” Const 1963, art 11, § 5. Secondly, it is argued that the power to withdraw complete recognition contains within it the power to exact penalties short of nonrecognition.
Neither of the commission’s arguments meet the issue in this case. We are not concerned here with whether the commission could have included a revocation of dues checkoff in its policy; nor are we concerned with the commission’s authority to exact a different, although more severe, penalty. We are faced, rather, with the unequivocal language in the commission’s own policy statement to the effect that recognized employee organizations will he provided with dues checkoffs, and with the undisputed fact that nowhere in the rules and regulations of the Civil Service Commission is there provision for a suspension of dues checkoffs as a possible penalty for engaging in strike activity. Accordingly, what was said in the concurring opinion of Mr. Justice Edwards in Dillon v. Lapeer State Home and Training School (1961), 364 Mich 1, 26, is applicable here:
“ ‘An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Commission v. Chenery Corp., [1943] 318 US 80, 87, 88 (63 S Ct 454, 87 L Ed 626). Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles [1957], 354 US 363 (77 S Ct 1152, 1 L Ed 2d 1403). This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so.’ ” Quoting with approval from Vitarelli v. Seaton (1959), 359 US 535, 546, 547 (79 S Ct 968, 3 L Ed 2d 1012).
Since the standards by which the commission professes itself to be judged do not provide for suspension of dues checkoffs as a penalty for engaging in certain activities and since suspension is inconsistent with the commission’s policy statement that recognized employee organizations will be provided with dues checkoffs, we believe that the order suspending them was arbitrary and cannot stand. MCLA § 24.108 (Stat Ann 1969 Eev § 3.560[21.8]).
For the foregoing reasons, the judgment in favor of the defendants is affirmed.
Affirmed.
All concurred.
The defendants made application first to this Oourt, then to the Michigan Supreme Court, for leave to appeal two orders of the commission. Civil Service Commission v. Local 1342, AFSCME, AFL-CIO (1969), 382 Mich 782. Leave was denied for lack of jurisdiction hut without prejudice to proceed in circuit court under the Administrative Procedure Act. MCLA § 24.101 et seq. (Stat Ann 1969 Rev § 3.561 [21.1] et seq.). Petitions to review the commission’s ruling were then filed in circuit court.
NLRB v. Reed & Prince Manufacturing Co. (CA 1, 1953), 205 F2d 131, cert. den. (1953), 346 US 887 (74 S Ct 139, 98 L Ed 391). | [
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] |
Per Curiam.
On February 17, 1969, defendant pled guilty to unarmed robbery, MCLA § 750.530 (Stat Ann 1954 Rev § 28.798). Defendant now argues that because the trial judge never specifically inquired as to whether defendant was voluntarily making his plea, the requirements of GCR 1963, 785.3 have not been met.
Since the decisions by the Michigan Supreme Court in People v. Hobdy (1968), 380 Mich 686; People v. Dunn (1968), 380 Mich 693; People v. Stearns (1968), 380 Mich 704; and People v. Winegar (1968), 380 Mich 719, it has been the rule in Michigan that in reviewing guilty pleas, the appellate court should only reverse when the error is substantive and that mere formal procedural error without accompanying substantive miscarriage of justice will not be grounds for the reversal of a guilty plea. Following our Supreme Court’s decisions, this Court recently stated:
“The Court has held in these decisions that in accepting a plea of guilty, the judge must determine whether the accused was in fact guilty, whether he is pleading guilty because he is guilty, and his plea was free from coercion. The trial court should be concerned with the substance, not the form of the plea. The trial judge is not bound by any set, prescribed, stereotyped form of examination. The form and manner of the examination is left to the judge’s sound discretion.”
Therefore, although this Court is concerned more with the substance of the plea taking than the form thereof, the trial court must still meet the requirements of GCR 1963, 785.3. In the instant case the defendant was not asked at any time whether he was pleading guilty because of any promises that might have been made to him or because he had been coerced into making the plea. Although the trial court did a careful job of taking the plea, he did not inquire as to why defendant was making the plea and this, in our opinion, is error.
Without some kind of a question concerning the voluntariness of defendant’s plea, it is impossible for this Court to put substance over form for purposes of determining whether or not GCR 1963, 785.3 has been complied with. The court rule plainly requires that the trial court determine whether or not the plea is voluntarily given by the defendant. It is our opinion that the court rule requires that defendant be specifically asked why he is pleading guilty and whether or not such plea is being given voluntarily. Anything less does not meet the requirements of the court rule and is, therefore, error.
Reversed and remanded.
People v. Williams (1970), 27 Mich App 567, 570. | [
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Per Curiam.
This is an injunctive action brought by the State of Michigan to prevent a riparian owner on the navigable Kalamazoo River from constructing a landfill bulkhead. The trial court dismissed the complaint and plaintiff appeals.
In 1964, defendant applied to the Army Corps of Engineers, who have concurrent jurisdiction over the river with the State of Michigan, for a permit to construct a landfill bulkhead. The State Department of Conservation was notified of the application and received a copy of the specifications for the proposed bulkhead.
On August 26, 1965, defendant received a letter from the State Department of Conservation which provided in part:
“With reference to your request for a Federal permit, please be advised that this office has written to the Corps of Engineers indicating that we will offer no objection to the project at this time. This is to indicate that we will not object but that we do not necessarily approve of this project where there is a filling in of waters which are navigable to the public.
“We expect to formulate rules and regulations for the administration of this act some time within the next few months and will forward copies to you.”
The Army Corps of Engineers granted defendant’s bulkhead construction permit on May 4, 1966. The expiration date of the permit was December 31, 1969.
On August 15, 1969, the Department of Natural Resources became aware of defendant’s construction of the bulkhead. On September 8, 1969, the department sent defendant a letter advising defendant that he must cease further construction of the bulkhead because it would interfere with small boat navigation and because defendant had not obtained the necessary state permit.
Defendant contends that since he had been informed that the state would not object and that the state did nothing until over three years after the Federal permit had been granted and after construction on the bulkhead had begun, that the state should be estopped to prevent defendant from completing the bulkhead.
The trial court held that by failing to withdraw its previous acquiescence to the proposed project, the state’s complaint must be withdrawn. The basis for the trial court’s opinion was equitable estoppel.
We agree with the trial court. The state’s inaction after its prior acquiescence and defendant’s detrimental reliance thereon should estop the state from now complaining about the partially constructed bulkhead. And it cannot be doubted that the state is subject to estoppel principles just as individuals are:
“That the state as well as individuals may be estopped by its acts, conduct, silence, and acquiescence is established by a line of well adjudicated cases. Hough v. Buchanan (CC Iowa, 1886), 27 F 238; United States v. Missouri, K & T R Co. (CC Kan, 1888), 37 F 68 ; Attorney General, ex rel. People v. Ruggles (1886), 59 Mich 123; State v. Jackson L & S R Co. (CA 6, 1895), 69 F 116; State v. Flint & Pere Marquette R. Co. (1891), 89 Mich 481; Trustees of Internal Improvement Fund v. Claughton (Fla, 1956), 86 So 2d 775.”
The state contends, however, that defendant is not entitled to the defense of estoppel because he committed a statutory wrong i.e., failing to get the permit required by MCLA § 281.736 (Stat Ann 1968 Eev § 11.456). However, the statute was not passed until after the state had already acquiesced to defendant’s proposed project. The passage of the statute did not, therefore, put defendant on notice that he was required to get a permit from the state when he already had a letter expressing the state’s acquiescence. Under these circumstances, defendant’s failure to apply for a permit cannot act as a bar to his defense of equitable estoppel.
Affirmed.
The permit is required by MOLA S 281.736 (Stat Ann 1968 Rev § 11.456).
Oliphant v. Frazho (1969), 381 Mich 630, 638. | [
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Per Curiam.
Application for a mandamus. The respondent is one of the circuit court commissioners of Wayne county. An order of reference in a foreclosure case has been tendered to him for execution, and he has declined to proceed under it on the ground that as he has not been designated by the circuit judge to perform the duties of injunction master, he is precluded by the act of 1877 entitled “an act to provide for the reference of certain causes in chancery involving an accounting between the parties,” (Public Laws 1877, p. 76) from acting under such an order.
We think the respondent is in error. The exact purpose and scope of the act in question, may be open to controversy, but we think only those cases are within its terms where the bill is filed for'an accounting, and a reference is ordered to take and state an account. Mortgage cases are not of that class, and a reference to ascertain the amount due on the securities or any other interlocutory reference in a case not instituted for an accounting is not within the contemplation of the act referred to.
The writ must issue. | [
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Cooley, C. J.
The parties to this suit were owners of adjoining tracts of timbered lands. In the winter of 1873-4 defendants in error, who were plaintiffs in the court below, in consequence of a mistake respecting the actual location, went upon the lands of the mining company and cut a quantity of cord wood, which they hauled and piled on the bank of Portage Lake. The next spring the wood was taken possession of by the mining company, and disposed of for its own purposes. The wood on the bank of the lake was worth $2.81^- per cord, and the value of the labor expended by plaintiffs in cutting and placing it there was $1.87|-per cord. It was not clearly shown that the mining company had knowledge of the cutting and hauling by the plaintiffs while it was in progress. After the mining company had taken possession of the wood, plaintiffs brought this suit. The declaration, contains two special counts, the first of which appears to be a count in trover for the conversion of the wood. The second is as follows:
“And for that whereas also, the said plaintiff, Michael Hertin, was in the year 1874 and 1875, the owner in fee simple of certain lands in said county of Houghton, adjoining the lands of the said defendant, and the said plaintiffs were, during the years last aforesaid, engaged as co-partners in cutting, hauling and selling wood from said lands of said Michael Hertin, and by mistake entered upon the lands of the said defendant, which lands adjoined the lands of the said plaintiff, Michael Hertin, and under the belief that said lands were the lands of the said plaintiff, Michael Her-tin, cut and carried away therefrom a large amount of wood, to-wit: one thousand cords, and piled the same upon the shore of Portage Lake, in said county of Houghton, and incurred great expense, and paid, laid out and expended a large amount of money in and about cutting and splitting, hauling and piling said wood, to-wit: the sum of two thousand dollars, and afterwards, to-wit: on the first day of June, A. D. 1875, in the county of Houghton aforesaid, the said defendant, with force and arms, and without any notice to or consent of said plaintiffs, seized the said wood and took the same from their possession and kept, used and disposed of the same for its own use and purposes, and the said plaintiffs aver that the labor so as aforesaid done and performed by them, and the expense so as aforesaid incurred, laid out and expended by them in cutting, splitting, hauling and piling said wood, amounting as aforesaid to the value of two thousand dollars, increased the value of said wood ten times and constituted the chief value thereof, by reason whereof the said defendant then and there became liable to pay to the said plaintiff, the value of the labor so as aforesaid expended by them upon said wood and the expense so as aforesaid incurred, laid out and expended by them in cutting, splitting, hauling and piling said wood, to-wit: the said sum of two thousand dollars, and being so liable, the said defendant in consideration thereof, afterwards to-wit: on the same day and year last aforesaid and at the place aforesaid, undertook, and then and there faithfully promised the said plaintiffs to pay unto the said plaintiffs the said sum of two thousand dollars, and the interest thereon.”
The circuit judge instructed the jury as follows:
“If you find that the plaintiffs cut the wood from defendant’s land by mistake and without any willful negli gence or wrong, I then charge you that the plaintiffs are entitled to recover from the defendant the reasonable cost of cutting, hauling and piling the same.” This presents the only question it is necessary to consider on this record. The jury returned a verdict for the plaintiffs.
Some facts appear by the record which might perhaps have warranted the circuit judge in submitting to the jury the question whether the proper authorities of the mining company were not aware that the wood was being cut by the plaintiffs under an honest mistake as to their rights, and were not placed by that knowledge under obligation to notify the plaintiffs of their error. But as the case was put to the jury, the question presented by the record is a narrow question of law, which may be stated as follows: whether, where one in an honest mistake regarding his rights in good faith performs labor on the property of another, the benefit of which is appropriated by the owner, the person performing such labor is not entitled to be compensated therefor to the extent of the benefit received by the owner therefrom ? The affirmative of this proposition the plaintiffs undertook to support, having first laid the foundation for it by showing the cutting of the wood under an honest mistake as to the location of their land, the taking possession of the wood afterwards by the mining company, and its .value in the condition in which it then was and where it was, as compared with its value standing in the woods.
We understand it to be admitted by the plaintiffs that no authority can be found in support of the proposition thus stated. It is conceded that at the common law when one thus goes upon the land of another on an assumption of ownership, though in perfect good faith and under honest mistake as to his rights, he may be held responsible as a trespasser. His good faith does not excuse him from the payment of damages, the law requiring him at his peril to ascertain what his rights are, and not to invade the possession, actual or constructive, of another. If he cannot thus protect himself from the payment of damages, still less, it would seem, can he establish in himself any affirmative rights, based upon his unlawful, though unintentional en croachment upon the rights of another. Such is unquestionably the rule of the common law, and such it is admitted to be.
. It is said, however, that an exception to this rule is admitted under certain circumstances, and that a trespasser is even permitted to make title in himself to the property of another, where in good faith he has expended his own labor upon it, under circumstances which would render it grossly unjust to permit the other party to appropriate the benefit of such labor. The doctrine here invoked is the familiar one of title by accession, and though it is not claimed that the present case is strictly within it, it is insisted that it is within its equity, and that there would be no departure from settled principles in giving these plaintiffs the benefit of it.
The doctrine of title by accession is in the common law as old as the law itself, and was previously known in other systems. Its general principles may therefore be assumed to be well settled. A willful trespasser who expends his money or labor upon the property of another, no matter to what extent, will acquire no property therein, but the owner may reclaim it so long as its identity is not changed by conversion into some new product. Indeed some authorities hold that it may be followed even after its identity is lost in a new product; that grapes may be reclaimed after they have been converted into wine, and grain in the form of distilled liquors. Silsbury v. McCoon, 3 N. Y., 379. See Riddle v. Driver, 12 Ala., 590. And while other authorities refuse to go so far, it is on all hands conceded that where the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the value of the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the value of the article as it was before the conversion. This is a thoroughly equitable doctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as possible, from any loss. But whore the identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of permitting its appropriation by the original owner so gross and palpable as to be apparent at the first blush. Perhaps no case has gone further than Wetherbee v. Green, 22 Mich., 311, in which it was held that one who, by unintentional trespass, had taken from the land of another young trees of the value of $25, and converted them into hoops worth $700, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established.
But there is no such disparity in value between the standing trees and the cord wood in this case as was found to exist between the trees and the hoops in Wetherbee v. Green. The trees are not only susceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the trees standing to the wood cut. The cord wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed as a rule that a man prefers his trees cut into cord wood rather than left standing, and if his right to leave them uncut is interfered with even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him. Nothing could more encourage carelessness than the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error, but should have a claim upon the owner for remuneration. Why should one be vigilant and careful of the rights of others if such were the law? Whether mistaken or not is all the same to him, for in either case he has employment and receives his remuneration; while the inconveniences, if any, are left to rest with the innocent owner. Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance ■ of an innocent mistake.
A case could seldom arise in which the claim to compensation could be more favorably presented- by the facts than it is in this; since it is highly probable that the defendant would suffer neither hardship nor inconvenience if compelled to pay the plaintiffs for their labor. But a general principle is to be tested, not by its operation in an individual case, but by its general workings. If- a mechanic emjDloyed to alter over one man’s dwelling house, shall by mistake go to another which happens to be unoccupied, and before his - mistake is discovered, at a large expenditure of labor shall thoroughly overhaul and change it, will it be said that the owner, who did not desire his house disturbed, must either abandon it altogether, or if he takes possession, must pay for labor expended upon it which he neither contracted for, desired nor consented to? And if so, what bounds can be prescribed to which the application of this doctrine can be limited ?. The man who by mistake carries off the property of another will next be demanding payment for the transportation; and the only person reasonably secure against demands he has never assented to créate, will be the person who, possessing nothing, is thereby protected against any thing being accidentally improved by another at his cost and to his ruin.
The judgment of the circuit court must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Graves, J.
Smalley was a constable and held an execution from a justice in favor of George S. Engle against Lighthall and seized under it a horse owned by Lighthall. The latter then replevied the horse of Smalley and he justified under the execution and the judgment on which it issued. He proved the judgment by a certified transcript and submitted the original execution with its endorsements. According to the transcript the record showed that the summons was issued May 18, 1875, and was personally served by Smalley May 22, 1875, whilst at the same time the record did not show the time or place for appearance or whether any continuance was allowed or not. It stated that the case was called and tried on the 29th of May, 1875; that Lighthall did not appear, and that judgment was rendered against him in Engle’s favor for damages $46.20 and costs $3.30.
The execution bore date June 5th, 1875, and under date of July 29, 1875, was endorsed by Smalley: “No property found not exempt of the defendant.”
Following this a renewal was endorsed under date of August 6, 1875, and next a levy by Smalley August 16, 1875, on the property in question.
After some other evidence which need not be mentioned, Lighthall called Smalley to the stand and was allowed to prove by him, and did prove by him, against the objection of his counsel, that ho served the summons in the case of Engle against Lighthall, and that it was not served personally, but by copy only. The evidence was clear and definite. At the same time Lighthall submitted the original summons with Smalley’s certificate of service endorsed as follows: “I hereby certify that I have personally served the within summons on the within named defendant, by reading the same, and by giving a copy on the defendant, 22d day of May, 1875. Fees $1.45. Served by copy. Mortimer G. Smalley, constable.”
The result of the case depended on the right of Smalley to justify under the proceedings in the suit of Engle against Lighthall, and the judge being of opinion that there was no such right, ordered a verdict in Liglithall’s favor. In doing so he mentioned three grounds of objection to the proceedings. Two will not be noticed.
If under the actual circumstances it was lawful for Light-hall to show that he was not personally served with the ¡summons, the judgment was impeached and Smalley’s justification failed. In other words, the defense broke down and Lighthall was entitled to judgment for the property.
Before a justice should assume to proceed and render .judgment on the return of summons against a defendant who makes no appearance he should require distinct lawful ■evidence that the service made was personal. And whether it would be competent for a defendant, in case of judgment ■against him. based on the evidence of a constable’s regular ■and explicit certificate of personal service, to impeach the .judgment in a collateral proceeding by contradicting the return and proving that the service was only by copy and ■thereby defeat the levy of an execution on the judgment, is a question not raised by this record.
Granting that such docket entries by the justice as the law deems proper for him to make are all to be considered as prima facie true, still whatever appearance he may create he cannot give himself the actuality of jurisdiction to proceed as in case of personal service or preclude defendant .from, proving the truth, by reciting in his minutes or docket that there was personal service, when the service was not personal and the evidence of service before him failed to show that it was. Indeed the great weight of authority goes further. Clark v. Holmes, 1 Doug. (Mich.), 390; Starbuck v. Murray, 5 Wend., 148; Shumway v. Stillman, 4 Cow., 292; s. c., 6 Wend., 447; Long v. Long, 1 Hill, 597; Noyes v. Butler, 6 Barb., 613; Bosworth v. Vandewalker, 53 N. Y., 597; Sears v. Terry, 26 Conn., 273; Judkins v. Union Mutual Ins. Co., 37 N. H., 470; Carleton v. Bickford, 13 Gray, 591; McDermott v. Clary, 107 Mass., 501; Pennywit v. Foote, 27 Ohio St., 600; Thompson v. Whitman, 18 Wall., 457.
What was the state of things here? Lighthall did not appear. The docket stated that he did not. But in reciting the constable’s return, it represented that it was a return of personal service. At the same time, however, the docket, and on which Smalley relied, failed to show affirmatively any jurisdiction in the justice to proceed to trial and judgment on the 29th of May. It neither stated that the summons was returnable at that time or that the cause was kept alive to that time by adjournment. When the original summons with the constable’s return upon it came, however, to be introduced by Lighthall it cured this defect and showed that the 29th of May was the time fixed for appearance. But this piece of evidence also developed the fact that the docket entry that the summons was returned personally served, Avas not warranted by the return itself. That was ambiguous, and no fair judgment upon it could convert it into higher or better evidence of personal service than of service by copy. If it conduced to prove one rather than the other it was, service by copy.
Under these circumstances it Avas competent for Light-hall to show by the constable who made the service Avhat the truth was. It follows that tlie judgment should be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
This case comes within the principle of the case of the same plaintiffs in error against Amos R. Harlow.
The judgment must be reversed with costs, and a new-trial granted. | [
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] |
Cooley, C. J.
The suit in the court below was trespass quare clausum, and the plaintiff claimed title by deed from Benjamin P. Crane who was the devisee of his father Elijah Crane. The will of Elijah Crane made several gifts of sums of money, and then gave the residue of his property of every description to Benjamin P. Crane. After this will had been put in evidence the plaintiff offered parol evidence that the several gifts had been paid; but this was objected to on the ground that the proof must be matter of record in the probate court. The circuit cc|urt sustained the objection. If there was any necessity for such evidence, the court was plainly in error in its ruling. The evidence of payment may or may not be of record in the probate court, and generally would not be until the executor filed his account for settlement. But we do not think it was essential to prove that the legacies had been paid. The title to the real estate was in Benjamin P. Crane, subject to the lega cies, and unless possession of tbe land was taken by the executors for the purposes of administration, the residuary legatee might have had and defended possession in himself from the time the will was probated.
It follows from what has been said that the judgment must be reversed, as the court subsequently excluded a deed from Benjamin P. Crane to the plaintiff on the ground that payment of the legacies had not been shown. The defendant claimed to be in possession at the time suit was commenced under a claim of title, and there was evidence from which the court might have so found; but as the finding is general, we cannot know that it was not based wholly on the fact that plaintiff had failed to make out a chain of title.
The judgment is reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Marston, J.
Upon the main and undisputed facts this case may easily be disposed of.
Canton Smith as owner in fee of certain lands caused the same to be platted as an addition to the village of Grand Rapids, and the plat thereof to be recorded in August, 1849.
In the spring of 1850 he caused the lots in this addition to be offered for sale at public auction, and among the lots then sold, lot one in block six was purchased by J. W. Wisner through whom complainant claims title. In the deed to Wisner the property was described as “lot No. 1 in block six (6), said lot being one hundred and six (106) feet on Washington street, sixty-five (65) feet and six (6) inches on Louis street, sixty-six (66) feet on State street and one hundred five (105) feet on an alley running from State to Washington street, said lot lying in Smith’s addition to the village of Grand Rapids, reference being had to the recorded plat thereof.”
In August, 1872, Canton Smith claiming that Louis street did not 'extend to the front of this lot but only to State street sold and conveyed the land on the west side of this lot and up to the intersection of State and Washington streets, (the same being a triangular piece of land at the intersection of these streets), to Martin B. Smith, who after-wards commenced the erection of a dwelling house upon the piece so purchased. This bill was filed to obtain a perpetual injunction to restrain the erection of such house and for othetf purposes.
Canton Smith having in 1850 conveyed lot one to complainant’s grantors and having in such conveyance described the property as being sixty-five feet six inches on Louis street, he, and all others claiming under him subsequent thereto, are estopped from now claiming that this street did not extend in front of this lot. This question was settled in this State in Smith v. Lock, 18 Mich., 56. The question still remains as to that part of the property lying west of Louis street. The record of the plat was destroyed by fire and a complete copy of the record or of the plat was not introduced in evidence. Some question was made as to whether the land was properly platted and recorded. The bill alleges that in August, 1849, Canton Smith was the owner in fee of this land, that as such he platted the same into streets, lots, alleys and blocks and caused the same to be acknowledged, and on the 15th day of August, 1849, to be recorded according to the statute in such case made and provided, in the office of the register of deeds. Canton Smith in his answer admits that he was owner, and that he did cause the same to be platted as an addition to the city of Grand Rapids, and did have the said plat recorded as in said bill of complaint alleged. We consider this charge in the bill and admission in the answer a full and complete recognition of the validity of the plat and record thereof. Even if any doubt existed upon this question the act of 1850 (1 Comp. Laws, § 1358) would remove it. We must treat this land therefore as having been legally platted and recorded.
An examination of the plat, were it not for the word “common,” would indicate that this disputed strip was intended as a mere widening or expansion of Washington and State streets, and if this is the correct view then no diffi-^ culty could arise as it would be a part of those highways,, and there is no question but that there was an acceptance of these highways by the proper authorities. It is however marked or designated upon the plat as “common,” which indicates an intention on the part of the owner to dedicate it to the public for any use which the proper authorities might deem proper, and which could be legitimately regarded as public. And although it is now claimed that at the time this plat was made the proprietor thereof did not -fully understand the meaning of the word “common” as there used, yet we are of opinion that this can make no difference. A person is concluded by the words he deliberately adopts and uses in an instrument, whether he at the time fully understood their legal signification or not. The rights, which third parties may acquire cannot be affected by the individual views or understanding of the proprietor in such a case. The only remaining question necessary to be considered relates to an acceptance ;of this part designated as common, by the public authorities. There is no doubt but that an acceptance must be made within a reasonable time, but what shall be considered such time must be largely .governed by the surrounding circumstances. in each case. And so long as the original proprietor, or those claiming through him, take no steps to withdraw the offer, we think it must he considered as continuing. In April, 1862, a resolution was passed by the common council of the city of Grand Eapids, reciting that they had investigated the title to this strip and found that it was dedicated to and belonged to the public and directing the city marshal to take and Jiold possession of the same, cause it to be surveyed and staked out as the property of the city and in all respects to protect the interests and rights of the city therein. Some action was taken under this resolution and some years later certain parties under the direction of the city marshal fenced in this piece and made some slight improvements thereon for the benefit of the city. No objections whatever or claim of ownership was set up by Canton Smith until one year or upwards after the fencing and improvements were thus made. We are all of opinion that the resolution of April, 1862, and the subsequent acts performed thereunder was a sufficient acceptance on the part and behalf of the city, and that the subsequent acts of Canton Smith in attempting to resume possession were unlawful and gave him no special rights in the premises.
The decree must be affirmed with costs.
The other Justices concurred.
(1358.) Section 1. Be it enacted, etc., That in all cases in which the proprietor or proprietors of any piece of land shall heretofore have caused the same to he laid out and platted in a town or village, and shall have caused such plat to he recorded in the office of the register of deeds of the county in which such..land is situated, without having acknowledged the same according to the statute in such case made and provided and shall have sold and conveyed lots in such town or village hy deeds duly acknowledged, referring to such recorded plat, such plat so recorded shall he deemed to have the same effect, in all respects whatsoever, as if the same had heen acknowledged hy such proprietor or proprietors, according to the statutes in such case made and provided; etc. | [
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Campbell, J.
Sherman sued defendants in error on a justice’s judgment rendered by Timothy McCarthy, a justice of the peace of Wayne county, and the court below held the judgment void.
It appeared, by the justice’s docket that he proceeded, upon default of appearance by the defendants, to hear the cause, on a return of service of summons “on the within named defendant” (not “defendants”). The declaration averred one to be maker and the other endorser of the note sued on. The entry of judgment is in these words: “And after considering the evidence judgment is this day rendered for $300 damages, and $3.00 costs.”
This judgment is objected to as not showing in whose favor or against whom it was rendered.
Assuming that from the whole entry it may be gathered that it was in favor of the plaintiff, it is clearly insufficient as against defendant Palmer, who was not a joint promisor with his co-defendant. In allowing the various parties to negotiable paper to be joined in one suit, the statute does not make them liable in any different way than if they had been sued separately. The maker may be liable and the endorser may not have been properly bound, and the endorser on the other hand may have given currency to paper not binding on the supposed maker. And under the statute judgment may be in favor of some of the defendants and against the others. 2 Comp. L., §§ 5185 et seq.
However liberally we may be allowed to regard entries which permit only one inference to be drawn from them —(as where the same judgment must be rendered against all or none, Aldrich v. Maitland, 4 Mich., 205), — we have no power to draw inferences from a record which is ambiguous. Rood v. School District, 1 Doug. (Mich.), 502. It is doubtful whether we could look for help to any references in the docket to testimony, inasmuch as that is not required to be set out as given. But in this case the statement of evidence shows no proof against the endorser, and while if the judgment had been in due form this might not have injured it, it indicates the danger of assuming a liability not distinctly found.
As the judgment is void upon its face, we need not consider the other questions presented by the record.
The judgment of the circuit court holding the justice’s judgment invalid was correct and must be affirmed, with costs.
Cooley, O. J., concurred.
Graves, J.
The docket entry was very indefinite. It did not show at what time of day the plaintiff appeared, nor how long, if at all, the defendants were waited for. It stated that judgment was given for $300 damages and $3 costs, biit did. not express for whom or against whom it was-rendered.
It was competent to give judgment against Franz and not agaiust Palmer, and there is no entry to show that such was not the case. The whole thing is too imperfect to-authorize an intendment that judgment was given against him if the proceedings of a justice of the peace could be made good in that way. It appears to me, therefore, that there was no evidence of any judgment against Palmer, and I agree with my brother Campbell that the judgment below should be affirmed, with costs.
Marston, J., did not sit in this case. | [
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Per Curiam.
The facts in this case present the same question which was passed upon in American Cigar Co. v. Foster, 36 Mich., 368, decided at the last term. As the judgment of the court below was in accordance with that case, it must be affirmed with costs. | [
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] |
Per Curiam.
Suit was brought in the Superior Court of Detroit by one Glass against these plaintiffs, and Hude -was garnisheed as their creditor. He answered, and the proceedings against him were discontinued on the filing by 'the plaintiffs of the bond provided for by Compiled Laws, ;§ 6512.
A month after this discontinuance, without any notice to ■the plaintiffs, the Superior Court made an order allowing Hude fifteen dollars costs to be deducted from the amount -owing to plaintiffs. The plaintiffs in their suit with Glass afterwards obtained judgment. This is a suit against Hude to recover what he is supposed to owe them, and the only •question is whether Hude is entitled to be allowed the fifteen dollars costs. We think not. The order as already stated was made after the proceeding against him was discontinued, and without notice to the plaintiffs. Under the statute (Comp. L., § 6505) the plaintiffs were only liable to the payment of costs in case judgment in the principal suit .passed against them; but even then they would be entitled •to notice before any allowance of costs could be made against them. The proceedings against the garnishee being then .discontinued, no one was before the court for any proceedings, and any order made without notice would necessarily be a nullity.
Judgment must be reversed and judgment entered in this court for plaintiffs for the amount shown by the finding and ^costs of all the courts. | [
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] |
Campbell, J.
The only question in this case is, whether under the general banking law, a bank may take ten per cent., instead of seven, for discounts on loans. The statute, in giving discounting and other banking powers, contains a proviso “that it shall not be lawful for any such association to take or receive more than the legal rate of interest in advance on its loans and discounts.” 1 Comp. L., § 2185. It is claimed by plaintiff in error that the phrase “legal rate of interest” means seven per cent., which is the rate fixed where the contract is silent on the rate, and that it •cannot authorize the taking of ten per cent., although that amount may be agreed upon by all persons except banks.
It seems to be assumed that although ten per cent, may be taken by those who stipulate for it in writing, ye.t this rate is in some way to be regarded as not favored in law, and as allowed under such restrictions as indicate that it is -to be deemed a hard exaction. And attention is also called to the fact that the old bank charters only allowed seven per cent, to be taken.
So far as these old charters are concerned, it will be found that of the banks chartered before the Revised Statutes of 1838, all were allowed to take the highest legal interest permitted by the general laws existing at their chartered date, the earliest being confined to six per cent., and the subsequent charters allowing seven. Private contracts at the same period involved forfeitures for any excess beyond the legal rates. The statutes rescinding these forfeitures and simply making the contract invalid to the extent of the excess of interest, are comparatively recent. "We find no trace in our early legislation of any disposition to put banks on any worse footing than individuals, as lenders on inter•est. After the rate of interest had been so fixed as to ■allow contracts for ten per cent., the charters were, it is true, granted in such terms as to put the new corporations on the same footing as the old, and confine them to seven per cent. But it is evident this was only done to prevent inequality. The early State Legislatures never tampered with the older charters, and left the six per cent, restriction in force, where existing, just as they did the seven per cent, •clause. Most of the banks were organized before ten per -cent, could be taken by any person. And it is worthy of remark that no bank charter is to be found which does not fix the percentage to be allowed expressly. The term “legal rate of interest” is never used in those instruments.
The general banking law of 1857 was passed at a time when it was desired to bring capital into the State, and relieve our citizens from depending on foreign banks and currency. This law imposed some restrictions intended to secure bill-holders and prevent frauds. But, contrary to the policy of the earlier legislation, it permitted no favoritism and created no monopolies. There was no reason, therefore, for exacting from banks any unusual conditions of business. The rejection of any fixed percentage, and the permission to discount at the legal rate of interest show, as we think, an intention to place bank loans on the same footing, as to rates, with private loans. This is the natural inference from the language, and this has been the general understanding and usage, continued without question from any source, and open and notorious. This practical interpretation by the people and the authorities, would deserve consideration if the language had been ambiguous. We do not think it is ambiguous, and the narrow meaning is unnatural, and at variance with the policy which has for forty years tended towards the removal and not the creation of usury penalties. If either seven or ten per cent, had been mentioned in terms, it might happen, as it did in 1833, that bank rates would differ from others; whereas by leaving contracts subject to legal rates, changes in the law would operate on banks as on all others, whether enlarging or restricting commercial freedom.
The suggestion that the statute requires stipulations for ten per cent, to be in writing, and that unless that rate is expressly mentioned the paper is illegal, is not well founded. The object of the statute was evidently to require the writing to remove the ambiguity that would otherwise exist on the face of an instrument calling for interest, and mentioning no rate. It was to conform to the rule rejecting parol explanations of writings. But where the sum of money to be paid is expressed, there is no ambiguity, and if it included no more than ten per cent, interest it is valid. Smith v. Stoddard, 10 Mich., 148.
There is no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
We do not consider it at all necessary to pass upon all the questions raised in this case. Admitting, for the purpose of this case, the contract between plaintiffs and defendant Oushway to have been executed in such manner as to bind the latter, and that parol evidence would have been inadmissible to show that the agency was to be exclusive within the territory mentioned, points upon which we express no opinion, there was nothing in the contract which would bind Cushway to act as agent for any definite length of time, or which Avould transfer or pass to him title to the sewing machines shipped to him thereunder.
It appears, and the record states was undisputed, that the defendant requested one of plaintiffs’ agents in the spring of 1875 to remove and take away the undisposed of machines then in his possession, and that he wrote the plaintiffs the first of May to like effect, but received no reply thereto. This he claims to have done upon the ground that they had violated their contract by appointing another agent to sell machines within the territory previously granted to the defendant. The reasons, however, are not of so much consequence. On the 14th of June defendant’s store was destroyed by fire, and the machines then unsold, together with certain property of the defendant, were destroyed, and on the trial it was admitted by counsel for the-respective parties “that the machines and fixtures thereto belonging, for which compensation is sought for in this action, were destroyed by the fire of June 14, 1875, and that such fire occurred without fault or negligence on the part of defendant Cushway.” The court charged the jury that “if they found Cushway gave plaintiffs notice a reasonable time before the fire to take their machines off his hands, he would, after the expiration of such reasonable time for removal, be answerable only for gross negligence, and that plaintiffs could not recover for machines destroyed by fire without fault or negligence on the part of Cushway after the lapse of such reasonable time.”
Under the declaration and claim of the plaintiffs the charge here given was correct, and was, under the admitted facts, decisive of the case, and the other rulings of the court, whether correct or not, could have had no material bearing.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, C. J.
The information in this case, a copy of which is given in the margin, was for the statutory offense of breaking and entering a certain store in the night time with intent to commit larceny therein. The information was filed September 26, 1876, but by some clerical error the time of the alleged offense was given as December 25, 1876. This error is now relied upon as a ground for a reversal of the judgment.
I. The time named, it will be seen, was simply an impossible time, because it was a time still in the future. But the defect in this particular is cured by the statute — ■ Comp. L. § 7923 — which provides that no indictment shall be held insufficient for the following among other errors and defects: “for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or any impossible day, or on a day that never happened.” This statute applies to informations also — Comp. L., § 7940 — and it plainly covers the case. Indeed it would have been difficult for the Legislature to employ language more precisely applicable. Nor can there be any valid objection to such a statute, on the ground of its invasion of the constitutional right of the defendant to be informed of the accusation against him. The error could not mislead or prejudice him in any manner.
II. On the trial it became material to identify certain articles found in the possession of defendant with those said to have been stolen from the store named in the information. For this purpose the tabs upon them were examined, and a witness was allowed to testify that the marks on those found with the defendant and those previously in the store were alike. This it is said was permitting the witness to testify to handwriting by comparison. But handwriting was not in question here, and the handwriting of no one was sought to be proved. The marks, it is true, might be alike, because consisting of the same letters and made by the same person; but this fact could constitute no reason for excluding any one who had examined them from testifying to their similarity and apparent identity, any more than if they had been made by a stamp or other mechani cal contrivance. Identification by such appearances stands on no other or different ground than would identification by the color of paper and ink, the size of the tabs and the manufacturer’s stamp, if any, upon them: indeed all such particulars' would properly be gone into, and would be considered by a witness testifying cautiously on so important a matter.
III. It is complained that plaintiff in error was not allowed two days after conviction in which to move in arrest of judgment; and- circuit court rule 32 is relied on. It is sufficient for the purposes of this case to say that that rule has no application to criminal cases.
IV. In the sentence as entered of record the offense is designated burglary. This was erroneous; the offense is not burglary, but is a statutory offense quite different from that in some particulars. Burglary is the felonious breaking and entering of a dwelling house in the night time; this offense is, the felonious breaking and entering in the night time of a store not adjoining to or occupied with a dwelling house. But this misnomer in the order for judgment is of no importance; it could not affect the rights of the plaintiff in error, and it would be corrected by the record itself, which shows what the offense really was.
We find in the judgment no error of a substantial nature, and it must be affirmed.
Campbell and Graves, JJ., concurred.
Marston, J., did not sit in this case.
The information appears in the record to be in the following form:
STATE OF MICHIGAN County of Livingston J bb-
The Circuit Court for the County of Livin'gston.
Andrew D. Waddell, Prosecuting Attorney for the county of Livingston aforesaid, for and in behalf of the People of the State of Michigan, comes into said Court in the September term therof, 1876, and gives it here to understand and be informed that Ira Cole, late "of the township of Hartland, in the county of Livingston and State of Michigan, heretofore, to-wit: on the twenty-fifth day of December, in the year one thousand eight hundred and seventy-six, at the township of Hartland, in said Livingston county, at about the hour of two o’clock in the night time of said day, the store of Jacob S. Griswold and James H. Norbert, then ancl there situated, not adjoining to or occupied with a dwelling house, feloniously did break and enter with the intent then and there the goods and chattels of the said Jacob S. Gris-wold and James H. Norbert, in the said store then and there being found, then and there feloniously and burglariously to steal, take and carry away, contrary to the form of the statute in such case made and provided, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.
Andrew D. Waddell,
Prosecuting Attorney for the County of Livingston.
STATE OF MICHIGAN ) County of Livingston j bb'
Jacob'S. Griswold, being duly sworn, deposes and says that he knows the contents of the above information, and he verily believes the same to be true as therein set forth.
Jacob S. Griswold.
Sworn to and subscribed before me, at Howell, this 26th day of September, A. D. 1876.
Benj. F. Batcheler, Clerk. | [
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Campbell, J.
This is a case where complaint is made of the affirmance on certiorari of a justice’s judgment in replevin. Alexander L. Thorp, a justice of Cass county, issued a writ on the affidavit of Dodge, for a horse of the value of one hundred dollars. The affidavit described the horse, and alleged that Smith had him in his possession “unlawfully from the possession of said Joseph J. Dodge, at the township of Calvin, in said county of Cass, by Charles W. Smith, and that said Joseph J. Dodge is now lawfully entitled to the possession of said goods and chattels.” The remainder of the affidavit is not criticised.
Under this writ the property was taken and delivered to the plaintiff. On the return day the parties appeared, and the plaintiff declared verbally “ in replevin for the property described in said writ.” The defendant pleaded the general issue, and the court proceeded to hear the cause. Just as it was about opening, the defendant desired to see the affidavit, which had been accidentally enclosed in another paper and could not at the time be found. He thereupon moved to dismiss the case for that reason. This motion was denied, and the hearing proceeded; and after all the witnesses were heard and the cause was submitted, the justice, as stated in his return, “did forthwith render judgment in favor of the plaintiff Joseph J. Dodge, and against the defendant, for the- sum of one cent damages and nine dollars .and thirty cents costs of said suit.”
The grounds set up for reversing the judgment were: 1. the refusal of the justice to dismiss the case; 2. insufficiency of the declaration; and 3. error in the judgment in granting damages when none were alleged, and in granting costs when there was no judgment touching the property. The circuit court affirmed the judgment.
Inasmuch as the parties had gone to an issue on pleadings, it is questionable whether it Avas not too late to object to the affidavit. But while the word “detained” is omitted, the affidavit makes allegations Avhich are legally equivalent. To say that a man has property in his possession unlaAvfully, to which another is entitled, means about the same thing as to say it is detained. We do not think the affidavit fatally defective.
The declaration indicated precisely Avhat the plaintiff desired to put in issue. If defendant had demurred it would have been a matter of course to allow its amendment. By pleading the general issue he indicated a willingness to go to trial upon the merits, and the case Avas fully tried in that Avay. There is nothing in the statute to prevent oral pleadings in replevin before a justice, and where they are resorted to nothing is looked to but matters of substance. If the issue made is intelligible, and a trial is had under it without objection, it would not be proper thereafter to reverse a judgment for objections not made before the justice.
The objections to the judgment itself are frivolous. It only covers nominal damages, and no return need be awarded where the property has been delivered under the writ to the plaintiff. It was held in Lamberton v. Foote, 1 Doug. (Mich.), 102, that a verdict that “this jury find for the plaintiff” is a sufficient verdict in replevin, where no special facts required any peculiar finding, and that a justice was bound to enter judgment on it. That case is in point to sustain the justice’s judgment in the present cause.
The circuit court acted properly in refusing to disturb the judgment of the justice.
The judgment below must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
This is an original bill in the nature of a bill of revivor and supplement to foreclose a mortgage dated December 7th, 1866, given by Bernard Eggeman and Marie Eggeman his wife to Henry Miller deceased, who filed his bill of foreclosure and died before hearing, his interest having since his death been sold to complainant.
Defendants Harrow and Allen defend under securities claimed to be equitably prior to that of complainant.
On the 12th of July, 1866, Bernard Eggeman and wife made this bond and mortgage to Harrow, in the sum of $3,000 on the lot in controversy and one other lot, to secure the safe return of the barge Sheridan by the first day of January thereafter. Allen subsequently became interested with Harrow. In December, 1866, the parties got together to settle this claim for the barge, and agreed to arrange it at $2,000, for” which a new mortgage was to be given with clear title in lieu of the old one. The new one was taken on one lot instead of on both, the release being intended to enable Eggeman to dispose of the lot left out of the second mortgage to raise money to pay the debt. This mortgage to Harrow and Allen was made and delivered on the 7th day of December, 1866. Harrow swears it was delivered about two o’clock in the afternoon, and left with Mr. Stoll to procure its registration.
On this same seventh day of December, 1866, Eggeman and wife executed, and some one procured to be recorded, a mortgage to Henry Miller, for $1,500 with interest at seven per cent, payable in one year from date, which is the instrument here sued on.
The question here presented is, which of these mortgages should be preferred.
The testimony is very clear that Harrow and Allen had a perfectly valid security under the first mortgage covering the lot in question, which if left unchanged had preference over any other. There is no impeachment of the justice of their claim. If they have lost priority it is by the gross fraud of Eggeman in getting up the mortgage to Miller, with a view of having it recorded so as to cut off the rights of defendants Harrow and Allen, who were to accept a new security in lieu of the old one, which was valid against every body. The only object they had in changing securities was to accommodate Eggeman by releasing one of the lots mortgaged, and to settle the amount due them for the loss of their barge. It is impossible for any one to find an honest explanation of Eggeman’s conduct. He admits that he wanted Miller’s mortgage recorded first, and states that he wanted to pay him first. To do this he got a good mortgage out of the way and an encumbered lot freed, and then sought to juggle his honest creditors out of their security. Both he and his wife undertake to swear that the Miller mortgage was executed a day or two before the other. If so, then the mortgage of July, 1866, having been obtained to be discharged by fraud subsequently to the other should be held in force. But there is no doubt of the execution of the Harrow and Allen mortgage oil the 7th day of December.
The question then arises whether Henry Miller is entitled to protection against it. It appears that he was father of' Mrs. Eggeman and lived with her. The story of the Eggemans is, that he advanced money in considerable amounts to them, and that one of his sons having found fault with him for doing so, or for doing it without security, he proposed that they should secure him by mortgage, and they did so.
It appears plainly that the father had not at any time requested repayment, and if this story is true it does not appear that Eggeman and his wife had ever promised to repay it. Their testimony is ambiguous, but the facts show— as thejr state them — that the old man had let his daughter have money from time to time in considerable sums. The items alleged were 8360 in 1854, more than twelve years before the mortgage, 8182 in 1862, and 8870 in the fall of 1865. The first of these items had been outlawed twice over if it was a debt, and there are no money transactions shown to have taken place within a year before the mortgage. If the transactions are truly stated, the inference is very strong that the old man never intended to call upon his daughter to whom these sums were advanced, for payment. Be this as it may, he was not a pressing creditor, and looking at all the circumstances it is difficult to believe that his mortgage would ever have been heard of, if it had not been for the temptation presented by the expected shifting of Harrow’s and Allen’s securities.
But whether an honest mortgagee or not, if his mortgage was made first he took a title which was then encumbered of record to the amount of 83,000, and he has no equities which would make his security anything but a second mortgage. He gave nothing and did nothing which would have rendered it any wrong to him to keep the first mortgage alive to its apparent extent. If that was changed for another tinder false pretenses, he is therefore in no situation to object to its restoration. It does not appear that the doctrine of marshalling securities was so familiar to him that he would prefer the old mortgage to remain alive on that account, to having a second mortgage on a single lot instead of on two. It is not surprising, therefore, that he appears to have been passive in the whole affair, which could only have appeared desirable to him on the theory that he knew how his security was to be given the semblance of legal priority. If he knew this, he was a direct party to the fraud. We incline to the belief that his name was used by the Eggemans without any desire of his own.
His bill was not filed until he was imbecile, if his daughter is to be believed, and nearly six years after the mortgage was given. It was then too late to take his testimony. The case stands upon the testimony of the mortgagors who show their own fraud when they attempt to give this mortgage priority. The impression we have received from the whole testimony is that the whole transaction was without any real consideration or equity, and merely colorable, and that the Harrow and Allen mortgage of December, 1866, should prevail over it.
The decree should be so modified as to be reversed and the bill dismissed as to Allen and Harrow with costs of both courts, and the decree to stand as against Bernard and Marie Eggeman, who have not appealed, with a recital and finding that the sale to be made under the decree shall be subject to the priority of the Harrow and Allen mortgage of December 6, 1866.
The other Justices concurred. | [
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] |
J. H. Gillis, P. J.
In the late evening of July 12, 1966, plaintiff was assaulted and injured. At approximately 2:30 a.m. of July 13, 1966, he was admitted to defendant hospital. Plaintiff was diagnosed as having a broken jaw. Ten days after his admittance to the hospital, plaintiff was operated upon by Dr. Newby, a plastic surgeon. This ten-day wait was apparently due to infection and swelling. During the operation, Dr. Newby drove a steel pin through plaintiff’s jaw, wired it and removed a tooth that was on the fracture line of the jaw.
Plaintiff was discharged from defendant hospital about three days after the operation with instructions to see Dr. Newby at his private office for removal of the stitches in six days. Plaintiff went to see Dr. Newby as scheduled, at which time Dr. Newby removed the stitches and told plaintiff to return for another examination in six more days. Plaintiff did not keep the second appointment. Instead, he waited nine days and went to Veterans Administration Hospital. An infection had developed requiring another operation to remove a portion of the jaw bone.
On April 10, 1968, plaintiff commenced a malpractice action against defendant alleging improper care during the ten days between his admittance and the operation and also that in the course of the operation the pin was placed in such a manner so as to sever the nerve in plaintiff’s jaw and interfere with the blood supply causing the infection that necessitated the second operation and a loss of feeling in the facial area.
Trial commenced on April 27, 1971. On April 28, 1971, defendant moved for, and was granted a mistrial. On September 9, 1974, the second trial began. The trial court ruled that the repair of a jaw fracture is within the proscription of the dental practice act and that a plastic surgeon who performs jaw surgery violates the statute. MCLA 338.201 et seq.; MSA 14.629(1) et seq. Accordingly the trial court instructed the jury that Dr. Newby was negligent per se in performing the operation in question leaving the issue of proximate cause to be decided by the jury. The jury returned a verdict of no cause of action in favor of defendant. Plaintiff appeals as of right raising three issues. Defendant cross-appeals raising one additional issue. We will address the cross-appeal first.
Defendant raises the following issue on cross-appeal: Is the surgical repair of a fractured jaw by a physician in a nonemergency situation a violation of the dental practice act?
The Michigan Academy of Plastic Surgeons (hereinafter referred to as Plastic Surgeons) and the Society of Oral Surgeons (hereinafter referred to as Oral Surgeons) have filed amicus curiae briefs in support of their respective positions.
Section 4 of the dental practice act makes it "unlawful for any person to practice or engage in the practice of dentistry or dental surgery in any of its branches”, other than licensed dentists unless the particular procedure or practice comes within an exception provided in the dental practice act. MCLA 338.204; MSA 14.629(4).
Section 12 of the dental practice act states that a person is practicing dentistry when it is shown:
"(1) That he uses a dental degree, designation, card, device, directory, poster, sign, or other means whereby he represents himself, or permits himself to be represented as being able to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury or physical condition of the human tooth, teeth, alveolar process, gums or jaws, or their dependent tissues.
"(2) That he is a manager, proprietor, operator, or conductor of a place where dental operations are performed.
"(3) That he performs dental operations of any kind gratuitously, or for a fee, gift, compensation, or reward, paid or to be paid to himself, to another person, or agency.
"(4) That he, or his employees, use a Roentgen or X-ray machine for dental treatment, radiograms, or for dental diagnostic purposes.
"(5) That he extracts a human tooth or teeth, or corrects or attempts to correct malpositions or deformities of the human teeth or jaws, or repairs or fills cavities in human teeth.
"(6) That he offers and undertakes, by any means or method, to diagnose, treat, or remove stains or accretions from human teeth or jaws.
"(7) That he conducts a physical evaluation, uses or administers anesthetics in the treatment of dental, or oral diseases, or in any preparation incident to a dental operation of any kind or character.
"(8) That he takes impressions of the human tooth, teeth, jaws, or performs any phase of any operation incident to the replacement of a part of a tooth, teeth, or associated tissues.
"(9) That he examines clinical material in a dental office or contracts or agrees to render or perform, either personally or through another, a dental service or services.
"(10) That he performs any operation included in the curricula of recognized dental schools or colleges.” MCLA 338.212; MSA 14.629(12).
Section 13 of the dental practice act provides that "[t]he rendering of temporary supportive relief in emergency cases in the practice of his profession by a physician or surgeon” is an exception to the dental practice act. MCLA 338.213(1); MSA 14.629(13X1).
Section 2 of the Medical Practice Act, MCLA 338.1801 et seq.; MSA 14.542(1) et seq., defines the practice of medicine to be:
"[T]o diagnose, treat, prevent, cure, or relieve a human disease, ailment, defect, complaint, or other condition, whether physical or mental, by attendance or advice, or by a device, diagnostic test, or other means, or to offer, undertake, attempt to do, or hold oneself out as able to do, any of these acts.” MCLA 338.1802(g); MSA 14.542(2)(g).
Dr. Newby is a licensed physician and not a licensed dentist. The Oral Surgeons contend that the jaw surgery which he performed in the instant case was nonemergency dental surgery in violation of the dental practice act. In support of their argument, the oral surgeons submit that the Medical Practice Act provides a broad definition of the practice of medicine and that the dental practice act provides a specific definition for the practice of dentistry and that in order to give full force and effect to both statutes, under the rules of statutory construction, the specific definition of the dental practice act controls. Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99; 43 NW2d 77 (1950), Attorney General ex rel Owen v Joyce, 233 Mich 619; 207 NW 863 (1926), McKenna v Chevrolet-Saginaw Grey Iron Foundry Div, General Motors Corp, 63 Mich App 365; 234 NW2d 526 (1975).
The Oral Surgeons also argue that oral surgery is the one health care field specifically trained to treat the human jaw and that jaw surgery should be measured against the standards as set by oral surgeons. The Oral Surgeons further contend that a physician has a duty to inform a patient, who is suffering a jaw related problem, of the availability of an oral surgeon as a specialist for such treatment.
The Plastic Surgeons argue that the surgery performed by Dr. Newby was authorized under the Medical Practice Act and that the dental practice act was not intended to prevent physicians from performing functions that they find to be necessary even though those functions may also be performed by a dentist.
In interpreting a statute or statutes, the Court must attempt to ascertain the intent of the Legislature, considering the purpose of the statute in question. Statutes are to be construed so as to avoid absurd results and in the way most beneficial to the public. See generally, State Highway Commissioner v Detroit, 331 Mich 337; 49 NW2d 318 (1951), Mayor of Port Huron v City Treasurer of Port Huron, supra, Webster v Rotary Electric Steel Co, 321 Mich 526; 33 NW2d 69 (1948), Rathbun v State, 284 Mich 521; 280 NW 35 (1938), Smith v City Commission of Grand Rapids, 281 Mich 235; 274 NW 776 (1937).
The purpose of statutes regulating health care professions is to safeguard the public health and protect the public from incompetence, deception and fraud. People v Carroll, 274 Mich 451; 264 NW 861 (1936), 70 CJS, Physicians and Surgeons, §3.
The Oral Surgeons contend that dentists and doctors are practicing distinct and separate professions and that dentistry has become increasingly sophisticated over the years, presently requiring a three-year residency program for oral surgeons to specially train them in jaw and other dental surgery. The rapid development of the dental profession and the educational programs, they argue, make oral surgeons more qualified than physicians to perform jaw surgery.
The Plastic Surgeons counter with an explanation of the specialized training and instruction that they receive and that they have been performing facial surgery for many years.
We do not dispute the fact that oral surgeons and plastic surgeons are trained and qualified to operate on the human jaw. We make no comment as to which, if either, is better equipped to perform that function. The dental practice act regulates dentistry in general. There are no provisions within the act for specific requirements relating to oral surgeons. Therefore, according to the act itself, a dentist who is not an oral surgeon and has not completed a residency program may perform the same functions as an oral surgeon. Likewise, the Medical Practice Act does not separately regulate the various specialties within the medical doctors’ profession; meaning that statutorily there is no difference between a dermatologist and a neurosurgeon.
The Oral Surgeons direct us to the following language in People v Blair, 192 Mich 183; 158 NW 889 (1916), in support of their position of segregation:
"As we have before said, the several acts heretofore passed by the legislature regulating the practice of medicine and dentistry have indicated its intention of separating these professions and making them two distinct professions. By the medical act the legislature has conferred in general terms the right upon physicians and surgeons to practice surgery; but by the use of particular words in the dental act it has indicated its intention of restricting the scope of that general right where it overlaps into the field of dental surgery, and therefore we must hold that physicians and surgeons have no right to practice dentistry except as permitted by the provisions of the act.” 192 Mich at 187-188.
The statute involved in Blair specifically stated that physicians and surgeons may not extract teeth or advertise to perform dental operations of any type including the treatment of diseases or lesions in the human teeth or jaws. The defendant, a physician, had advertised that he would extract teeth for a fee, and was found guilty of violating the statute in question. In upholding the conviction, the Court held that the defendant’s activity, i.e., advertising dental work, was specifically prohibited by the statute and refused to accept defendant’s argument that tooth extraction by a physician is permissible as minor medical surgery.
One year later, in the case of In re Carpenter’s Estate, 196 Mich 561; 162 NW 963 (1917), the Court recognized an overlap in the dental and medical professions and held that either profession could perform functions within that area of overlap.
We decline to find that dentists and physicians perform mutually exclusive functions, and hold that where the two overlap, such overlapping procedures may be performed by either without violating the dental practice act. A competent surgeon trained in facial surgery cannot be said to be committing a fraud on the public in repairing a broken jaw. It is not the intent of the dental practice act to preclude physicians who are trained in facial surgery from performing such surgery merely because a dentist may also be trained in that area. It is possible that many rural communities do not have a need for oral surgeons but do have resident medical surgeons. We do not find it to be in the public’s interest to prohibit the surgeon from performing jaw surgery in favor of the dentist who has not participated in an oral surgery residency program. A prohibition of this sort would in our opinion be absurd and inconsistent with the purpose of health field regulations. Until such practices are specifically prohibited by the Legislature, we do not find it to be the intent of the dental practice act to prohibit physicians from performing surgery on or treatment of the jaw. See Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), Lincoln Park Detention Officers v Lincoln Park, 76 Mich App 358; 256 NW2d 593 (1977).
This does not mean, however, that a plaintiff is prevented from presenting proof that a surgeon committed malpractice in performing jaw surgery. Our decision does not preclude as evidence of malpractice the techniques of oral surgeons, that such techniques would prevent certain injuries, and that a physician should have known of the availability and expertise of oral surgeons and failed to advise and explain to the patient accordingly.
We therefore hold that the trial court erred in ruling that Dr. Newby violated the dental practice act in performing surgery on plaintiffs jaw.
The remaining three issues raised by plaintiff in his appeal do not require extensive discussion. Plaintiff claims that comments and remarks on the part of defense counsel unduly prejudiced him. The record reveals that in each instance of alleged prejudicial examination or remark, plaintiff either failed to object or did not request a cautionary instruction. This error, if any, has not been preserved. Marr v Saginaw County Agricultural Soci ety, 364 Mich 373, 377; 110 NW2d 748 (1961), Treece v Greyhound Bus Co, 63 Mich App 63, 66; 234 NW2d 404 (1975).
In support of a motion for new trial, plaintiff submitted affidavits impeaching certain jurors. The jury had been polled at trial and all had assented to the verdict. The trial court denied the motion for a new trial. We find no error. Consumers Power Co v Allegan State Bank, 388 Mich 568, 572-574; 202 NW2d 295 (1972), Metz v City of Bridgman, 371 Mich 586, 590-592; 124 NW2d 741 (1963).
Plaintiffs third issue relating to Dr. Newby’s testimony needs no discussion in light of the issue decided in the cross-appeal.
Affirmed in part, reversed in part. Costs to defendant.
R. E. Robinson, J., concurred. | [
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] |
Bashara, J.
Petitioners appeal an order of the Michigan Tax Tribunal affirming an allocation of property tax millage made by respondent pursuant to § 11 of the Property Tax Limitation Act.
After petitioners’ initiation of review proceedings, the tribunal issued an order setting a date for a "preliminary” hearing. That order stated that the purpose of the hearing was "to take testimony, to examine the basis of Petitioner’s allegations and the nature of proofs pursuant to MCLA 211.217; MSA 7.77, tending to show 'a material mistake of fact, fraud or error of law’ in the division of the net limitation tax rate and thereby to determine the need for further proceedings in this matter(Emphasis added.)
At the conclusion of the hearing before three members of the tribunal a short recess was taken. When the tribunal reconvened the presiding member announced the following determination:
"As I indicated just before we recessed here to consider this matter, the Tribunal regards an allocation hearing as of the utmost priority for which reason we wanted to give this our consideration early. Having taken the testimony and examining the proofs submitted, it is the unanimous opinion of this Tribunal that there has been no showing of material mistake, fraud or error of law sufficient to justify proceedings further in this matter. Therefore, the cause is dismissed with prejudice, but without cost to either party, and a written order will be entered accordingly. We thank both sides very much for your patience. This hearing is concluded.”
Challenges to that decision are raised by petitioners on both procedural and substantive grounds. Petitioners argue that the tribunal was without authority to decide the merits of the controversy by preliminary proceedings.
Section 32(d) of the Tax Tribunal Act authorizes the tribunal to promulgate rules of procedure. MCLA 205.732(d); MSA 7.650(32)(d). However, that section also requires that the mode of promulgation be in accordance with the Administrative Procedures Act of 1969. MCLA 24.201 et seq.; MSA 3.560(101) et seq. That act requires, by definition in § 5(6), that the rules promulgated be filed with the Secretary of State. MCLA 24.205(6); MSA 3.560(105)(6). The procedure followed in this case was not by a rule so filed, but by an ad hoc procedure established in the tribunal’s order to the litigants. Accordingly, we must conclude that the method by which the tribunal provided for preliminary proceedings in this case was in contravention of the Tax Tribunal Act.
Rules of procedure are intended to lend stability, order, and uniformity to a forum’s proceedings. Therefore, the promulgation of rules of practice and procedure must itself conform to a uniform process so as to afford a degree of permanency to those rules. To permit a forum to alter its rules of practice by fiat would result in significant uncertainty for prospective litigants. They would be unable to ascertain the method by which to advocate their rights before the forum and left without standards by which they could anticipate the forum’s decision process.
The instant case is illustrative of the foregoing. By denominating the proceedings as "preliminary”, there was nothing in the administrative code of procedure to which reference could be made to guide the conduct of the hearing. See 1975 AACS, R 205.1101 et seq. In petitioners’ opening statement, counsel indicated that sufficient evidence would be presented to establish a prima facie case of error in the respondent’s determination. Reference was made in petitioners’ closing argument to the preliminary nature of the hearing. Apparently, petitioners anticipated that in deciding whether further proceedings were warranted, the tribunal would view the evidence in a light most favorable to their position. We are unable to discern from the record the standard of review ultimately used by the tribunal.
Respondent maintains that whatever the nature of the proceedings, the rights of petitioners were not thereby prejudiced, since there was no curtailment of petitioners’ ability to present evidence. We find this argument unpersuasive. It is not the extent of the allowable presentation that we deem to be material, but rather the extent of preparation that was indicated by the nature of the pro ceedings. The hearing was to be a preliminary proceeding. Petitioners’ counsel had a right to expect that a full evidentiary presentation of his clients’ position would not be anticipated by the tribunal. Consequently, only an abbreviated evidentiary description of the case would be prepared, omitting possibly significant portions of testimony and exhibits that would be presented in a full hearing on the merits.
We must therefore conclude that the petitioners’ right to a review of the respondent’s decision by the tribunal was prejudiced by the order for preliminary proceedings. This is not to deny that the tribunal may promulgate rules for preliminary proceedings in the interest of forum efficiency. We require only that the promulgation of those rules be in conformity with the Administrative Procedures Act and adequately alert those practicing before the tribunal as to the mode of conduct of such proceedings.
Petitioners also contend that the tribunal’s decision does not conform to the requirements of the Tax Tribunal Act, because it fails to state findings of fact and conclusions of law. We address this issue to guide the proceedings on remand.
Initially, we must note that the legislation creating the tribunal mandates that its decisions be rendered only upon "participation of the entire tribunal”. MCLA 205.734; MSA 7.650(34). Here, a decision was rendered with participation by only three members of the seven-member tribunal. It is also required by § 51 that the decisions include a concise statement of the findings of fact and conclusions of law. MCLA 205.751; MSA 7.650(51). This requirement is described with greater particularity in § 85 of the Administrative Procedures Act. MCLA 24.285; MSA 3.560(185). Tribunal hearings are made subject to that provision by § 26 of the Tax Tribunal Act. MCLA 205.726; MSA 7.650(26).
It is especially important that the latter requisite be satisfied. Only if the decisions of the tribunal contain the factual and legal basis of determination will appellate review be facilitated. Because that basis is absent from the decision in the instant case, we are unable to evaluate petitioners’ claim of substantive error. Merely stating that the tribunal has reviewed the evidence and finds it to be insufficient as a basis for relief is not adequate. Ann Arbor Township v State Tax Commission, 393 Mich 682; 227 NW2d 784 (1975).
Proceedings of the tribunal are de novo, according to § 35 of the Tax Tribunal Act. MCLA 205.735; MSA 7.650(35). However, when reviewing a determination, such as made by respondent in this case, the tribunal must conform to the guidelines provided in § 17 of the Property Tax Limitation Act. MCLA 211.217; MSA 7.77.
Considerations involved in the allocation of property tax millage are of peculiarly local concern. Deference must be accorded to local decisions concerning the distribution of financial resources among competing local governmental units rendering services to the community. The tribunal is a centralized state agency that is not in a position to ascertain and weigh the relative importance of competing services on the local community level. Therefore, as a matter of public policy, the county allocation board’s determination should be disturbed only if a review of all the evidence clearly establishes that a "material mistake of fact, fraud or an error of law” occurred incident to the board’s proceedings. MCLA 211.217; MSA 7.77. To that extent, the de novo proceedings of the tribunal are constrained.
Reversed and remanded for proceedings consistent with this opinion. No costs, a public question being involved.
MCLA 211.201 et seq.; MSA 7.61 et seq.; specifically MCLA 211.211; MSA 7.71.
MCLA 205.701 et seq.; MSA 7.650(1) et seq.
Section 85 provides as follows:
"A final decision or order of an agency in a contested case shall be made, within a reasonable period, in writing or stated in the record and shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. If a party submits proposed findings of fact which would control the decision or order, the decision or order shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by authority or reasoned opinion. A decision or order shall not be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with the competent, material and substantial evidence. A copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.” | [
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Bashara, J.
Defendant appeals from a jury conviction of first-degree murder. At trial the prosecution sought to prove that defendant killed the victim during the course of robbing him after forcibly gaining entry into the victim’s house.
I
During the course of the trial the prosecution was allowed, over defendant’s objection, to admit into evidence a photograph of the victim’s face taken at the morgue. Defendant argues that the photograph was irrelevant and that its only purpose was to inflame the passion of the jury and prejudice his right to a fair trial.
We must determine whether in admitting the photograph the trial judge erred by allowing irrelevant, prejudicial material into evidence or, if relevant, an abuse of discretion is presented because the probative value of the photograph is substantially outweighed by its prejudicial effect. Our conclusion is that neither form of error was committed.
As proof of the cause of the victim’s injuries, the prosecution offered the testimony of three examining physicians. On direct examination each concurred that the injuries were caused by a beating and that the victim died as a result of those injuries. Defense counsel’s cross-examination elicited testimony conceding the possibility that the victim’s injuries could be sustained from falling down a flight of stairs. An issue of fact was therefore raised as to the cause of the victim’s injuries. It was on that issue that the trial judge admitted the photograph, since the evidence presented also showed that the victim was knocked down a flight of stairs by the forced entry of the perpetrators.
Where photographic evidence is relevant to a material issue, it is admissible at the discretion of the trial court, notwithstanding its shocking or gruesome character. People v Eddington, 387 Mich 551, 562-563; 198 NW2d 297, 301 (1972), People v Becker, 300 Mich 562; 2 NW2d 503 (1942). We cannot say that the trial judge abused his discretion in permitting the jury to consider the photograph, with the possibly conflicting testimony of the examining physicians, in determining the fact of the injury causation.
II
Prior to instructing the jury, a codefendant requested that a special instruction be given concerning the credibility of accomplice testimony, since the prosecution’s only substantial evidence connecting the defendant with the crime was the testimony of an accomplice. Not only was the accomplice implicated in this crime, but he was apparently involved in a number of other crimes for which he received immunity from prosecution or acceptance of a plea to a lesser offense, all in consideration for his testimonial cooperation. No instruction was requested by defendant, nor did he object to its omission or raise it as error in his motion for new trial. Nevertheless, defendant contends that deletion of the instruction was error.
We find it unnecessary to decide whether a codefendant’s request for an instruction is operative as to all defendants. Rather, it is our conclusion that even if requested, under the circumstances in this case the trial judge properly denied the request.
Our Supreme Court recently considered the trial court’s obligation to give an instruction on accomplice testimony in People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), and People v Atkins, 397 Mich 163; 243 NW2d 292 (1976). The circumstances presented and emphasized by the Court in McCoy disclose the policy and application of its principles.
As in the case under review, in McCoy the prosecution offered the testimony of an accomplice. This was the only substantive evidence linking the defendant with the crime. In response, the defendant offered the testimony of an alibi witness as a defense. At the conclusion of the case, the trial judge in his instructions tended to disparage the value of the alibi defense while omitting any cautionary instruction concerning the credibility of the accomplice. Although no special instruction was requested, the McCoy Court reversed the defendant’s conviction, concluding that the imbalance in the instructions deprived defendant of a fair trial.
The Supreme Court applied the McCoy rule under similar circumstances in Atkins. However, Atkins resulted in affirmance of the defendant’s conviction. The Court emphasized that McCoy was based primarily upon the imbalance in jury instructions, stating:
"In McCoy, error was found in the trial court’s failure to balance care and caution language actually used in the instruction on alibi with similar language relating to the accomplice who testified against the defendant. Third, the jury in the case at bar was fully apprised of the criminal past, and possible motivation of witness Nero [the accomplice]. It would not be an unfair assessment of the record herein to say that as much testimony was elicited on the issue of Nero’s credibility as on that of defendant’s guilt or innocence.” 397 Mich at 171; 243 NW2d at 295.
We cannot conclude that the McCoy decision was intended to preclude all discretion of the trial judge in assessing the necessity of giving a special instruction on accomplice credibility. Although in both McCoy and Atkins no request was made for an instruction, that factor is not of itself determinative, as indicated in the opening paragraph of the Court’s conclusion in McCoy:
"The combination of an erroneous alibi instruction, failure to balance the defendant-denigrating alibi instruction with an appropriate instruction on the credibility of an accomplice’s testimony, plus improper closing remarks of the prosecutor are convincing that the defendant did not receive a fair and balanced trial.” 392 Mich at 240; 220 NW2d at 460.
The instant case presents no instructional imbalance. No alibi defense was offered by the defendants. During the accomplice’s testimony, the trial judge interjected a special instruction to the jury that the accomplice’s involvement in other crimes and the consideration given for his testimony were to be considered by the jury in assessing credibility. As in Atkins, the jury was fully apprised of the accomplice’s criminal background. Again, in the jury instructions, the trial judge gave a general instruction on factors to be considered in evaluating the witnesses’ credibility.
Under the circumstances, it is our conclusion that it was within the trial judge’s discretion to deny a request for a further instruction aimed at the accomplice’s credibility. A contrary conclusion would be tantamount to ruling that, in the face of a request for a special instruction, the trial court has no discretion to deny the request, notwithstanding the trial circumstances. Such a rule would create a substantial risk of an imbalance diametric to that in McCoy, destroying the balanced trial presentation that was the objective of that decision.
Ill
Defendant also contends that the trial court’s instruction on felony murder was erroneous. It is argued that error was committed by instructing the jury that any killing, even if accidental, attributable to the act or acts of the defendant occurring during the perpetration of, or attempt to perpetrate, a felony enumerated by statute, constitutes first-degree murder. This instruction, according to defendant, eliminated the element of malice from the jury’s consideration, citing People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976).
In Fountain, another panel of this Court concluded that Michigan has neither a statutory nor common law felony-murder rule. Therefore, it was opined that malice must be found, as to a killing occurring during the course of a felony, as a separate element from the malice associated with the felony itself. Were that decision controlling, we would be compelled to accede to defendant’s claim. However, we decline, with due deference to that panel, to follow the Fountain decision.
As the Fountain Court correctly noted, the Michigan statute is a verbatim duplicate of the Pennsylvania provision. In that regard, the Pennsylvania caselaw becomes illustrative of the statute’s intended application. See, e.g., Commonwealth v Martin, 465 Pa 134; 348 A2d 391 (1975), cert den, 428 US 923; 96 S Ct 3234; 49 L Ed 2d 1226 (1976), Commonwealth v Yuknavich, 448 Pa 502; 295 A2d 290 (1972), Commonwealth v Redline, 391 Pa 486; 137 A2d 472 (1958). See also, Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U Pa L Rev 50 (1956).
In Redline the defendant was convicted of first-degree felony murder for the death of his co-felon caused by police gunfire occurring during their efforts to apprehend the felons. The defendant’s conviction was reversed. Reversal was based not upon the absence of an intent to kill, for clearly the facts disclosed the absence of defendant’s intent to kill his accomplice, but because the killing was justifiable and therefore not murder at common law.
However, in its reassessment of the felony-mur der doctrine the Pennsylvania Court spoke at length about the interrelationship of the act of killing, malice, and the perpetration of an enumerated felony, stating:
"All felony-murder in Pennsylvania other than such as is committed in the perpetration of one of the common law felonies specified in our degree statute is murder of the second degree by virtue of the express terms of that statute respecting 'All other kinds of murder’. It is plain enough that neither the Act of 1794, supra, nor any of its subsequent re-enactments made all homicides occurring in the perpetration of felonies murder of the first degree. Logically, therefore, the basic determination of the fact of murder is to be made according to the rules of the common law, including the felony-murder theory of imputed malice, and, upon a finding of guilt, the degree statute automatically raises the murder to first degree if it happened, inter alia, to have been committed in the perpetration of arson, rape, robbery, burglary or kidnapping.
"In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine. 'It is necessary * * * to show that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony * * * and not merely coincidence’.
* * *
"' * * * if a person killed another in doing or attempting to do another act, and if the act done or attempted to be done was a felony, the killing was murder. There was thus supplied the state of mind called malice which was essential to constitute murder. The malice of the initial offense attaches to whatever else the criminal may do in connection therewith.’ ” Id. at 495; 137 A2d at 476. (Emphasis in original, citations omitted.)
Accordingly, insofar as the element of malice is concerned, a finding by the jury that the killing was a result of the felony constitutes common-law murder, and the statute elevates it to first-degree murder. That the killing was accidental or unintended does not alter the degree of criminal responsibility, since the malice necessary for murder is implied from the perpetration of the initial felony. See also Yuknavich, supra at 292.
While the Pennsylvania decisions are enlightening as to that state’s application of the statute, they are not necessarily binding upon the courts of this state. See In re Cameron’s Estate, 170 Mich 578; 136 NW 451 (1912). A common-law felony-murder doctrine must exist in Michigan to obtain a result congruent to that of Pennsylvania. See Bliss v Caille Brothers Co, 149 Mich 601; 113 NW 317 (1907).
In Fountain it was posited that the cases of People v Utter, 217 Mich 74; 185 NW 830 (1921), People v Treichel, 229 Mich 303; 200 NW 950 (1924), and People v Andrus, 331 Mich 535; 50 NW2d 310 (1951), led inexorably to the conclusion that Michigan has no felony-murder rule and that malice is a question for the jury. Although we agree that the existence of malice is a jury ques tion, in contradistinction to Fountain, our conclusion is that a finding that the killing was a consequence of the felony is a sufficient finding of malice to sustain a conviction of murder.
Our divergence from the Fountain rationale derives from two sources. First, we do not agree that the trilogy of cases considered in Fountain compels the conclusion that Michigan has no common law felony-murder doctrine. Second, while we agree that malice may be defined as an "intent to kill either express or implied”, our conclusion is that the perpetration or attempt to perpetrate a dangerous felony is equivalent to malice.
The cases alluded to in Fountain establish that it is for the jury to determine whether a killing results from the commission of a felony so as to form the essential link between the killing and the malice associated with the commission of the felony. A finding of malice may be made without finding an intention to kill. Malice is a state of mind that, while encompassing an intent to kill, may also exist absent such an intent. It may exist where one engages in the commission of an act dangerous to human life in wanton and wilful disregard of the unreasonable risk that death or serious bodily harm may result. People v Hansen, 368 Mich 344, 350; 118 NW2d 422, 425 (1962). As stated by Professor Perkins:
"Any intent to kill under other circumstances [other than justification, excuse, or mitigation] is malicious. The more difficult aspect of the problem is that there may be malice aforethought without an actual intent to kill. The older authorities assumed the necessity of an intent to kill and then resorted to an 'implied intent’ of this nature when none in fact existed. But now the courts speak more factually and say frankly that murder may be committed under some circumstances without an intent to kill (unless such intent is required by statute in the particular jurisdiction).” Perkins on Criminal Law, 35-36 (2d ed, 1969).
An indication that the Utter, Treichel, and Andrus cases do not abolish the common law felony-murder doctrine may be found in People v Podolski, 332 Mich 508; 52 NW2d 201 (1952). There the defendant was charged with first-degree murder for the death of a police officer who was shot by a fellow officer in the effort to apprehend defendant. Defendant and his co-felon were, at the time, about to escape after robbing a bank. The Court affirmed defendant’s conviction. In an opinion issued three months after the Andrus case the Court quoted at length from the Pennsylvania case of Commonwealth v Moyer, 357 Pa 181; 53 A2d 736 (1947), approving its reasoning.
Moyer is a felony-murder case in which the following enlightening observation was made:
"The numerous states which have copied this Pennsylvania statute, (including the states of Massachusetts, New York, Connecticut, New Jersey and Michigan) all use in their respective statutes the word 'murder’ instead of the word 'homicide’ for the reason that a killer in the malicious perpetration of one of the specified felonies has committed common law murder. The felon obviously possesses that 'wickedness of disposition, hardness of heart, and recklessness of consequences and a mind regardless of social duty’ which constituted malice.” Id. at 189; 53 A2d at 741. (Citations omitted.)
Indeed, the existence of a common law felony-murder rule is the only ratio decedendi upon which the Podolski opinion could be founded. Similarly, other Michigan decisional authority mandates an opposite conclusion to that reached in Fountain. See, e.g., People v Page, 198 Mich 524; 165 NW 755 (1917), People v Crandell, 270 Mich 124; 258 NW 224 (1935) [an accidental killing during the course of a robbery constitutes first-degree murder], and People v Carter, 387 Mich 397; 197 NW2d 57 (1972). See also Comment, Homicide Under the Michigan Revised Criminal Code, 14 Wayne L Rev 904, 913-922 (1968).
The apparent import of Fountain is that unless an intent to kill, either express or implied, can be found from the act causing death, a conviction of murder would omit the essential element of malice. Thus, if a killing occurs as a consequence of an enumerated felony, but is unintentional, e.g., accidental, and the felon is convicted under the felony-murder rule, this amounts to a conviction of murder without a finding of malice. We do not agree.
As stated by Professor Perkins:
"Confusion results from the assumption sometimes entertained that the felony-murder rule results in conviction of murder where the killing has been without malice. Nothing could be farther from the common-law concept which is that one perpetrating or attempting to perpetrate a dangerous felony 'possesses a malevolent state of mind which the law calls "malice”; * * *.’ In other words the intent to engage in such a felony is malice aforethought.” Perkins, supra, at 45. (Emphasis in original, footnotes omitted.)
However, the malice derived from the felony must be connected with the act of killing. This is a question for resolution by the trier of fact in finding that the death was a consequence of the felony and not a mere coincidence. The following statements elucidate this aspect of the felony-murder doctrine:
"The felony-murder rule does not apply unless the killing occurs during the commission of or the attempt to commit the felony.
"For the felony-murder rule to apply, it is necessary that the homicide be a natural and probable consequence of the commission or attempt to commit the felony; that the homicide be so closely connected with such other crime as to be within the res gestae thereof; or the natural or necessary result of the unlawful act; or that it be one of the causes. It is not necessary that the defendant believed or foresaw that death would result from his act.
"Something more than a mere coincidence of time and place between the wrongful act and the death is necessary. It must appear that there was such actual legal relation between the killing and the crime committed or attempted that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt Or purpose to commit it.” (Footnotes omitted.) 1 Wharton’s Criminal Law and Procedure, 540-541, 543-545 (1957).
Apparently, the impetus for the Fountain rationale stems from an overly-accentuated concern for the distinction in meaning between the terms "murder”, used in the statute, and "killing”, used in the trial court’s jury instruction. That distinction does not, however, gainsay the existence of a felony-murder doctrine nor require a finding that the death was intentional. Noting specially the use of the term murder, Professor Perkins makes the following observation:
"The remaining type of homicide made murder in the first degree by such a statute, is any murder committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, or burglary (or perhaps one or more additional felonies). In discussing the general subject of malice aforethought it was pointed out that homicide resulting from the commission of a dangerous felony, such as one of these, is murder at common law. This reference, however, suggests a matter entitled to attention. While homicide by poison might not be first-degree murder under the statute, because for example it was the result of an innocent accident; and while a wilful, deliberate and premeditated homicide might be justifiable, as the act of the officer in executing the sentence of death; any homicide resulting from one of these felonies is first-degree murder under the statute, because it is murder as a matter of the common law regardless of the attending circumstances. Such is the proper interpretation of the typical first-degree murder statute. In Missouri the language of the statute reaches this result with peculiar precision:
" 'Every murder which shall be committed by means of poison or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.’ ” Perkins, supra at 94. (Emphasis in original, original footnotes omitted.)
In Carter, supra, construed in Fountain as rejecting the felony-murder doctrine, the Court reaffirmed the existence of the felony-murder rule as it applies to the statutorily enumerated felonies and also provided insight into the purpose of using the term murder in the statute. Quoting from Carter:
"Both murder and manslaughter deal with the wrongful killing of another person. If there has been a killing during the commission of one of the felonies enumerated under ñrst-degree murder, this establishes the degree. If the killing occurs during the commission of some other felony, malice may be implied but the nature of the felonious act must be considered. Many felonies are not inherently dangerous to human life. To hold that in all cases it is murder if a killing occurs in the commission of any felony would take from the jury the essential question of malice.
"Finally, to constitute murder, even though malice may be implied from felonious acts, the killing must be attributable to the accused. So, in People v Austin, 370 Mich 12; [120 NW2d 766] (1963), the killing of one of three robbers by the victim of the attempted robbery was held to be justiñable homicide. It was not a killing committed by felons.” Id., at 422; 197 NW2d 69. (Emphasis added.)
Thus, not every killing will be attributed to the felon, only those caused by his own acts in furtherance of the felonious purpose. But if the killing is attributed to those acts and occurs during an enumerated felony, it will constitute first-degree murder, even if, absent the felony, it would constitute manslaughter (an unjustifiable homicide com mitted without malice aforethought). See also, People v Austin, supra. Accordingly, the use of the term "murder” is to require that the killing be attributable to the felon’s acts, not those of others, before it will come within the purview of the statute.
Further affirmation that a felony-murder rule obtains in this state may be found in the recent case of People v Allensworth, 401 Mich 67; 257 NW2d 81 (1977). There the trial judge instructed the jury that the litigants agreed that the killing occurred as a result of a robbery and, therefore, first-degree murder had been proven as a matter of law. In reversing the conviction our Supreme Court stated:
"The instant trial judge’s instruction removed the element of the felony and the element of death from the jury’s consideration. She said there was an 'agree ment’ that a robbery or attempted robbery had occurred and Thigpen had been killed as a result of it. There was no agreement.” Allensworth, supra, at 71. (Emphasis added.)
Regarding the felony-murder rule Justice Coleman, in a dissenting opinion in which Justices Ryan and Moody concurred, stated:
"Here we have a felony-murder. A killing in the course of the commission of a felony is all that need be found to establish the offense of murder in the ñrstdegree (no premeditation, no intent need be found).” Allensworth, supra, at 75. (Dissenting opinion, emphasis added.)
The foregoing statements are well-nigh impossible to reconcile with the Fountain edict that "Michigan has neither a statutory felony-murder doctrine nor a common-law felony-murder doctrine.” 71 Mich App at 505; 248 NW2d at 596. Rather, the diametric conclusion is inescapable.
The legislative policy underlying the felony-murder rule persists: to discourage those who would commit, or attempt to commit, felonies inherently dangerous to human life by imposing a greater penalty than would otherwise obtain for deaths attributable to their acts in furtherance of the felonious purpose. We, therefore, conclude that the trial court’s instruction on felony-murder was proper.
While we have attempted to carefully and logically reach this conclusion, the trial bench should be advised that doubt as to the existence of a common law or statutory felony-murder rule may continue until the Legislature or the Supreme Court speaks definitively to the issue. We would therefore advise trial judges to instruct on malice as applied to the killing.
IV
Closely related to the foregoing claim is defendant’s contention that the trial judge erred in failing to instruct the jury on lesser included offenses of first-degree murder.
Undeniably, our Supreme Court has firmly established that there are lesser included offenses in first-degree felony murder. People v Carter, 395 Mich 434, 437; 236 NW2d 500, 502 (1975). Further, that Court has modified pre-Carter convictions by remanding the cases for resentencing of defendants on the lesser-included offense of second-degree murder. People v Crawl, 401 Mich 1; 257 NW2d 86 (1977). Such action was taken where the issue was preserved by a request for instruction or objection to its omission.
Defense counsel for a codefendant requested an instruction on the lesser included offenses of second-degree murder and voluntary manslaughter. That request was denied by the trial judge. The denial applied equally to defendant Till, and it was not necessary to have his counsel repeat the request, under the circumstances of this case. Accordingly, the substance of the proceedings, not its form, requires we follow the decisions of the Supreme Court. Therefore, the defendant’s conviction is reduced to one of second-degree murder, and the case is remanded for resentencing. If the prosecutor determines that justice shall be better served by a retrial, then upon notice to the trial court prior to resentencing, the defendant’s conviction shall be vacated and a new trial shall be ordered on the charge of first-degree murder.
Remanded for proceedings not inconsistent with this opinion.
P. R. Mahinske, J., concurred.
MCLA 750.316; MSA 28.548.
Defendant was tried with two other defendants whose trials were consolidated on this charge.
In consideration for his testimony in this and other cases, the accomplice was given the following considerations:
(1) In a robbery armed/rape case upon which he was charged before turning state’s evidence:
(a) he received a bond reduction sufficient to enable him to make bail and be released;
(b) he was allowed to plead guilty to assault with intent to rob while armed and given a sentence of 15 to 35 years;
(c) the sentencing judge promised to assist in obtaining an early parole in exchange for his continued cooperation and improvement;
(d) the sentencing judge wrote a letter to the Jackson Prison officials regarding his cooperation;
(2) In the instant case he was granted immunity from prosecution;
(3) He was also granted immunity in four other murder cases.
The enumerated felonies are "arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping * * * .” MCLA 750.316; MSA 28.548.
The pertinent portion of the trial court’s instructions to the jury is as follows:
“Now in order to make a homicide, as I have defined it, murder, the People must show that it is the felonious or unlawful killing of the human being with malice aforethought. And that’s why you have heard arguments concerning what is malice, and I will define malice for you.
"Malice aforethought may either be expressed or implied. Malice aforethought is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose, and with a wanton disregard for human life, or when the killing is a direct cause or result of the perpetration, or attempt to perpetrate a felony enumerated in the statute — and that would include robbery, of course. The mental state constituting malice aforethought does not necessarily require any illwill or hatred of the person killed. Likewise aforethought does not imply deliberation or premeditation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act. In other words, the word, 'malice’ is not used in a technical sense here. It is not restricted to merely hatred or revenge or anger, but every other unlawful and unjustifiable motive. It is not confined to particularly illwill to the deceased, but it is intended to denote an action flowing from a corrupt and wicked motive. The books call that malo animo.
"In considering the subject you should carefully weigh the evidence bearing on the act charged and all the surrounding circumstances surrounding that act; the means or instrument used, if any were used —in this case it is not charged, nor is there any evidence offered that there was an instrument — and all facts throwing any light upon the nature of the act charged that has been committed.
"Now, members of the Jury, I have defined for you what homicide is and what murder is. You will recall that the third element I mentioned was that it was committed in the perpetration of one of the enumerated felonies. In this case it is alleged specifically that it was in the perpetration of a robbery. So the People must show that this killing was done pursuant to the specific intent to commit the offense of robbery.
"The unlawful killing of a human being whether intentional, unintentional or accidental which occurs as the result of the commission of, or an attempt to commit the crime of robbery, or where there was in the mind of the perpetrator the specific intent to commit such crime is murder of the first degree. Of course, the specific intent to commit robbery in the commission or the attempt to commit such crime must be proven beyond a reasonable doubt. So I will define for you what the robbery is.
“So, members of the Jury, you cannot convict unless you find the intent specifically to commit the crime of robbery, but you don’t have to find the intent to kill, only the intent to commit robbery.
"You may draw the inference as to the intent with which the acts were done as you draw all other inferences from any facts in evidence which to your minds fairly proves its existence.”
In Utter the prosecution alleged that the defendant participated in a robbery, during the course of which the victim was killed from a blow struck to facilitate appropriation of his property. Defendant was charged and convicted of first-degree murder and claimed error in failing to instruct the jury on lesser included offenses. In affirming, the Court referred to other cases of non-felony first-degree murder in which the omission of lesser-included offense instructions was approved and concluded a fortiori:
"It is true these are not cases of murder while perpetrating robbery, but murder in the first degree so committed, as defined by statute, does not even include the element of a premeditated or directly intended killing, which seems to yet more restrict the range of legitimate inquiry and inference.” People v Utter, 217 Mich at 87; 185 NW at 835. (Emphasis added.)
We agree that a reasonable implication is raised that if other evidence is presented, e.g., that the killing was not a direct result of some act in furtherance of the felonious purpose, an instruction on lesser included offenses would be required. But this does not mandate a conclusion that the felony-murder rule is repudiated. Rather, the language used by the Court tacitly recognizes its existence.
In Treichel, the defendants were tried on an open charge of murder. While Fountain construes Treichel as indicating a repudiation of the felony-murder rule, it becomes clear upon a reading of the case that the felony-murder doctrine was not at issue or addressed by the Court. Rather than disclaiming the existence of a felony-murder doctrine, the apparent import of the Court’s opinion is that, from the evidence, a jury could find that the relationship between the perpetration of the felony and the victim’s death was so far attenuated as to negate a finding that the killing was a direct result of the felony. This comports with the prevailing view as to the proper application of the felony-murder rule. See, e.g., 1 Wharton’s Criminal Law and Procedure 540-541, 543-545 (1957), quoted infra.
It should also be noted that the case of People v Arnett, 239 Mich 123; 214 NW 231 (1927), decided less than three years after Treichel, dispels the notion that the felony-murder rule was abandoned. There, defendant was convicted of second-degree (common law) murder. The killing occurred while defendant was resisting arrest for drunkenness. Defendant asserted at trial that he was trying to throw the gun away when the victim grabbed it, after which it accidentally discharged. In describing these events in its conclusion, the Court stated:
"Edgar Arnett admitted he was intoxicated. He was in a public place. It was the duty of the sheriff, upon view of his intoxication, to arrest him without a warrant. The sheriff did arrest him. He resisted, and in so doing he committed a felony. 3 Comp. Laws 1915, § 14994. In the course of such felony a revolver in his hands gave the sheriff a mortal wound. Both defendants were aware that Mr. Henkel was an officer in the performance of his official duty, and it was of no moment that they did not know he was the sheriff. The law exacts duties of peace officers and protects them in the performance thereof by rendering it a felony to resist or obstruct lawful arrest, and constitutes it murder to kill, either intentionally or even per mischance, such officer in resisting or obstructing a lawful arrest. Edgar did not excuse himself at all in claiming that, when the sheriff told him he must come with him, he thought of the revolver in his pocket, and, fearful it would be found on his person, took it in his hand to cast it in the back of the automobile, and, as he pulled the revolver from his pocket, the sheriff seized hold of it and it was discharged. Edgar was clearly guilty of murder in the second degree, as found by the jury.” Id. at 134-135; 214 NW at 235. (Emphasis added.)
As with Treichel, cases subsequent to Andrus either impliedly or expressly recognized the existence of a felony-murder doctrine. See, e.g., People v Carter, 387 Mich 397; 197 NW2d 57 (1972), People v Austin, 370 Mich 12; 120 NW2d 766 (1963), People v Podolski, 332 Mich 508; 52 NW2d 201 (1952).
People v Morrin, 31 Mich App 301, 310; 187 NW2d 434, 439 (1971). Notwithstanding the definition phrased in terms of intent, that opinion also notes that "[t]he common-law felony-murder rule is an example of implied intent or implied malice aforethought”. Id. at 311. Further, that opinion notes with ostensible agreement, Professor Perkin’s suggested replacement of the term "malice” with the term "man-endangering-state-of-mind”, which is said to encompass:
"(1) an intent to kill, or (2) an intent to inflict great bodily injury, or (3) an intent to do an act in wanton and wilful disregard of an unreasonable human risk (i.e., the wilful doing of a wanton act under such circumstances that there is obviously a plain and strong likelihood that death or great bodily injury may result), or (4) an intent to perpetrate a dangerous felony. Perkins on Criminal Law (2d ed), p 46.” Morrin, supra, 322, fn 28. (Emphasis added.)
Accord, People v Austin, 221 Mich 635; 192 NW 590 (1923). Interestingly, the Court also stated:
"To constitute murder, the killing must have been perpetrated with malice aforethought, either express or implied. The intent to kill will be implied when death results from poison intentionally administered. If it appears that the poison was not administered with intent to take life, but to aid in the perpetration of another crime, or in order to accomplish an unlawful act, it is no less murder. But where it is not so administered, and where death as a result is so remote a contingency that no reasonable person could have taken it into consideration when administering the poison and could not have contemplated that death would result therefrom, the homicide is manslaughter only.” Id. at 644; 192 NW at 593. (Emphasis added.)
We note with approval that the proposed Michigan Criminal Jury Instructions on felony-murder conform to the result of our decision. In pertinent part they state:
"CJI 16:1:15
"Felony-murder-Proof of Crime
"For murder of the first degree, there must be proof beyond a reasonable doubt that the killing occurred as a result of the crime of [state felony], and that the defendant was at the time engaged in committing, attempting to commit or aiding another in the commission of that crime.
"USE NOTE” The felony must be one of those enumerated in the first-degree murder statute, MCLA 750.316; MSA 28.548.
"CJI 16:1:16
"Accident, Self-defense or Defense of Others Is Not a Defense to Felony-murder
"It is not a defense to this charge that the death was the result of [accident/self-defense/defense of others] if you find beyond a reasonable doubt that the death occurred as a result of the crime of [state felony] being committed, attempted or aided in commission by [name defendant].
"USE NOTE: This instruction is optional and is to be used with caution, only where appropriate.
"The felony must be one of those enumerated in the first-degree murder statute, MCLA 750.316; MSA 28.548.”
The felony-murder statute was amended to include larceny of any kind, extortion or kidnapping among the enumerated felonies. Arguably, this is an unwarranted extension of felony-murder to non-violent crimes. See Wise, Criminal Law and Procedure, 17 Wayne L Rev 381, 400 (1971). However, the type of crimes to be included within the enumerated felonies is exclusively a legislative determination and does not, in our opinion, disestablish the existence of a felony-murder rule.
The author of this opinion acknowledges his concurrence in the opinion of People v Martin, 75 Mich App 6; 254 NW2d 628 (1977). That opinion contains language inconsistent with the result we reach today. To the extent of the inconsistency this author directs the reader to footnote 17 of People v Brocato, 17 Mich App 277, 301; 169 NW2d 483, 495 (1969). | [
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Allen, J.
Where, in the course of robbery armed, an employee is taken hostage, is error committed by giving Michigan Criminal Jury Instruction 19:1:02, as it interprets People v Adams, 389 Mich 222; 205 NW2d 415 (1973)? This question comes to us on defendant’s appeal of right following a conviction by jury of armed robbery, MCLA 750. 529; MSA 28.797, and kidnapping, MCLA 750.349; MSA 28.581. Sentenced to concurrent terms of imprisonment of not less than 12 years nor more than'- 40 years, defendant appeals from the conviction of kidnapping only.
About 7 p.m., on December 15, 1975, Ms. Moore, an employee of the Chatham Food Store at the Tel-Twelve Mall in Southfield, was eating lunch in the store office with the assistant store manager. Hearing what sounded like a gunshot she rose and saw defendant standing in one of the store aisles brandishing a pistol. Whereupon defendant ordered the assistant manager out of the office, pointed a pistol at the manager’s head and ordered Ms. Moore to empty the contents of the safe into a purse. While removing the money from the safe Ms. Moore pulled a switch activating a camera. After receiving the contents of the safe, defendant took hold of Ms. Moore, left the office and ordered one of the checkout clerks to proceed to each checkout counter and empty their contents into a bag. This money, along with the money from the safe, was dumped into a wastebasket. When all the money had been collected, defendant said to Ms. Moore, " 'You’re coming with me’ ”, grabbed her by the collar or hair and, with gun pointed at her head, pushed her toward the store exit, dragging the wastebasket filled with money with his other hand.
Once outside, the two started down the sidewalk at the side of the store with defendant still holding his victim with the gun pointed at her head. As they crossed to the parking lot, police were observed pulling into the parking lot. Upon seeing the officers defendant ordered Ms. Moore to place her hands over her head so that the police would know that defendant had custody of her. Ms. Moore complied with the order and the two continued to cross the driveway to a parked automobile —a distance of some 150 feet. There, defendant pulled Ms. Moore down with him beside one of the parked cars. The police followed calling to the defendant to give up since he was surrounded. Within a few minutes either Ms. Moore grabbed the gun from the defendant or the defendant voluntarily gave her the gun, and the police moved in, recovering the wastebasket containing approximately $7,000.
On appeal to us, defendant raises two questions: (1) Were the trial court’s instructions on the charge of kidnapping, particularly on the element of asportation, in compliance with the rules laid down in People v Adams, supra, and (2) was the evidence presented at trial sufficient to permit the jury to make a finding of guilt on the charge of kidnapping? We will consider the questions in the reverse order in which they are presented.
The record is clear — in fact undisputed — that defendant took Ms. Moore against her will and at gunpoint into the parking lot after all of the cash had been collected and the robbery completed. People v Worden, 71 Mich App 507; 248 NW2d 597 (1976), holds that asportation has independent significance when it occurs after a robbery has been completed. There, the defendant, after robbing a gasoline station and collecting money from the cash register, informed the attendant he was to be taken "for a ride down the road”. The attendant was driven a quarter of a mile down the road and released. Defendant appealed from the conviction of kidnapping, alleging that the movement of the attendant was incidental to the commission of the robbery. This is the same defense raised in the present case. Our Court rejected the argument, saying:
"Adams itself holds that one factor to be used in determining whether a victim’s movement is independent is whether the movement increased the risk of harm or the threatened risk of harm beyond the risk inherent in the underlying crime.
"In each of the three recent cases, where the victim was forced into defendant’s car, driven some distance and a robbery or rape was then committed, this Court, relying upon the fact that moving the victim to a secluded spot increased the danger to the victim, held the movement was not merely incidental to the other crimes charged. * * * Here, the record is clear that although Protasiewicz was asported a shorter distance and confined in the car for a lesser period of time than the victims in Keeth, Baker and Hardesty, supra, both the threat and the risk of harm to him were increased by defendant’s conduct. The robbery occurred in the lonely early morning hours. When forced at gunpoint into the car, Protasiewicz was not informed by his abductors that he would be driven but a short distance and quickly released. Though there were some houses in the area where Protasiewicz was released, there were no street lights. In the highest probability he may well have believed it was his last ride. Were this Court to hold that such conduct under such circumstances is merely incidental, we would not only be allowing criminal conduct to go unpunished, we would actually be encouraging such conduct. The law is not so foolish.” (Citations omitted.) Worden, supra, at 515-516.
Although Ms. Moore’s asportation was but some 150 feet — substantially less than the attendant’s "ride down the road” in Worden, supra, the danger to the victim was even greater. Defendant did not release Ms. Moore when he first observed the police. He continued to hold her as a hostage as his security to avoid capture. Miraculously, a shoot-out, which might have wounded Ms. Moore, was avoided. Clearly, Worden, supra, is authority for rejecting defendant’s claim that the evidence was insufficient to support a conviction on kidnapping.
The propriety of the jury instructions given by the court on the kidnapping count presents a difficult and complicated question. In his charge to the jury the trial judge gave the following instruction concerning kidnapping.
"First, the victim, Barbara Ann Moore, must have been forcibly confined or imprisoned.
"Secondly, the victim must have been so confined or imprisoned against her will, and without lawful authority.
"Third, during the course of such confinement the Defendant must have forcibly moved the victim or caused her to be moved from one place to another for the purpose of abduction and kidnapping. If the evidence convinces you beyond a reasonable doubt that there was movement, and that it was either for the purpose of abduction of the victim or to take the victim as a hostage during the armed robbery, this is sufficient for this element of the crime.
"Fourth, at the time of such confinement the Defendant must have intended to so kidnap the victim.
"Fifth, at the time of such confinement the Defendant must have acted willfully and maliciously.
"Willfully and maliciously means that the Defendant intentionally confined the victim, knowing such confinement to be wrong and he did so without legal justification or excuse.” (Emphasis supplied.)
Except for the four words underscored above, the instruction delivered by the trial court is identical to Michigan Criminal Jury Instruction (MCJI) 19:1:02. After the jury was removed from the courtroom the trial court asked if either side requested changes in the charge. Defendant’s counsel responded by requesting clarification of that portion of the kidnapping charge pertaining to asportation. Specifically, counsel asked the following:
"MR. SOMA: For the record, Your Honor, I would request the Court further instruct the Jury along the lines of People versus Adams, which is at 389 Michigan 22[2], specifically page 238, wherein the Court suggests the considerations and factors that are to be made in determining whether there has been a 'independent action to cover the crime of kidnapping’. There are specifically six considerations the Supreme Court has outlined, and I would request the Court expand its past instructions to include some of that.”
This request was denied.
Within a short time the jury foreman sent a note to the trial judge reading "Explain the points of law for kidnapping”. The jury was then reconvened and, over objection from defense counsel who repeated the same objection first made, the trial court read verbatim the charge on kidnapping as first given by the court. At 4:30 p.m. the jury was reconvened and, following discussions whether they should return the next day (Wednesday) or Thursday, was dismissed until Thursday. However, during the discussions the jury foreman asked that the kidnapping charge be again explained. On Thursday morning, defense counsel requested that the court give an instruction similar to the trial court’s additional instruction on kidnapping approved in People v Widgren, 53 Mich App 375, 383; 220 NW2d 130 (1974). Again the trial court ruled against the defense and repeated the same instructions given the first and second times. After further deliberation the jury returned a verdict of guilty on both counts.
In People v Adams, supra, the Supreme Court held that since most underlying offenses involving a person contain some element of temporary or short confinement or forced movement and, in order to avoid the unconscionable result of permitting prosecutors to convert a single offense into two offenses, a jury should be charged — with certain exceptions hereinafter noted — that the offense of kidnapping does not occur unless the movement of the victim is not merely incidental to the commission of the underlying crime. It was in response to this holding that the charge, albeit in somewhat abbreviated form, was approved in People v Widgren, supra, and was developed and appears in more detailed language in MCJI 19:1:01. On the first occasion, defense counsel did not set forth the precise language of his requested instruction. But the record is clear that he was asking the court to give a 19:1:01 charge. Instead, the trial court opted to give, with the four-word modification, the 19:1:02 type charge.
The Adams opinion made at least four factual situations in which it would not be necessary to instruct the jury that the movement element must not be merely incidental to the commission of the underlying crime.
"2. The movement element is not sufficient if it is 'merely incidental’ to the commission of another underlying lesser crime.
"3. If the underlying crime involves murder, extortion or taking a hostage, movement incidental thereto is generally sufficient to establish a valid statutory kidnapping.” Adams, supra, p 238. (Emphasis supplied.)
Situation "2” appears to state that where the underlying offense is co-equal in degree, viz: —a capital offense, Adams is inapplicable. Situation "3” carves out exceptions where the offense involves murder, extortion or the taking of a hostage. MCJI 19:01:02 is the Michigan Bar Association’s response to the four exceptions noted above.
In the instant case the trial court did not posit its denial of defendant’s request for instructions on the rationale that the underlying offense was another capital offense. Instead, the trial court denied the request on the "taking of a hostage” language found in situation "3” quoted above. We have already ruled that the evidence undeniably discloses that Ms. Moore was taken as a hostage after the robbery was completed. It follows that MCJI 19:1:02 would be a proper instruction and defendant’s request for further instructions would be properly deniable under MCJI 19:1:02 as written had the court not made the four-word modification. The problem arises because the trial court added the qualifying language "during the armed robbery”. Literally construed, the judge informed the jury that kidnapping could be supported if the purpose of the movement was to take the victim as a hostage during the armed robbery. There is ambiguity in the Supreme Court’s language "if the underlying crime involves * * * taking a hostage”. Did the Supreme Court intend "hostage” to mean as little as holding a person in restraint while the underlying offense occurred? Or did it intend that hostage mean the asportation of a person in a getaway attempt or an attempt to avoid capture after the underlying offense was completed? Under either interpretation we find no reversible error in this case; if there was error, for multiple reasons, we find the error harmless.
First, and most significantly, no miscarriage of justice occurred. The evidence is overwhelming that after the robbery was completed, the victim was held at gunpoint in an attempted getaway. Further, the evidence is overwhelming that the victim was exposed to danger over and beyond the danger to herself during the robbery itself. Adams, supra, explicitly states that where the movement adds a greater danger or even the threat thereof, it is a factor to be considered in determining whether there was kidnapping. Worden, supra, holds that where this occurs, such conduct is not merely incidental to the underlying offense. Second, the jury may well have concluded that the trial court’s words "during the armed robbery” meant during the whole episode which climaxed in defendant’s capture in the parking lot. To a lay jury, an armed robbery is the total sequence of the events occurring at the site of the offense. If this be so, then no prejudicial error occurred, since the jury would have found that the victim was taken as a hostage after the money was collected. Third, assuming, arguendo, that the jury construed the offending language "during the armed robbery” to include only that period of time during which the victim was held at gunpoint inside the store, paragraph four of the disputed instructions mandated a finding by the jury that at the time of confinement the defendant intended to kidnap the victim. Thus, the jury was asked to make a finding of kidnapping. In criminal cases, instructions must be read in their entirety to determine whether prejudicial error exists. People v Parsons, 59 Mich App 79, 86; 228 NW2d 852 (1975). The instructions as given told the jury that it could convict of kidnapping if it found that the underlying crime involved taking a hostage and if it found movement for the purpose of abduction. This satisfies the requirements of Adams, supra.
Affirmed.
"(2) First, the victim,_, must have been forcibly confined or imprisoned.
"(3) Second, the victim must have been so confined or imprisoned against his will and without lawful authority. (Footnote omitted.)
"(4) Third, during the course of such confinement the defendant must have forcibly moved the victim or caused him to be moved from one place to another for the purpose of abduction and kidnapping. If the evidence convinced you beyond a reasonable doubt that there was movement and that it was either for the purpose of abduction of the victim or to [murder the victim/extort money or other valuables from the victim/take the victim as a hostage/(state other capital offense)] this is sufficient for this element of the crime.”
" 'Further, I charge you any assault or crime, such as rape, involves some confinement, and the mere movement of the victim does not constitute kidnapping under the statute unless such movement substantially increases the risk of harm to the victim above and beyond and independent of the intended crime, which is assault.’ ”
"Fourth, at the time of such confinement the Defendant must have intended to so kidnap the victim.” | [
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Per Curiam.
Plaintiff Delores Saunders was a passenger in an automobile owned and driven by her husband, plaintiff William Saunders, and insured by defendant, Detroit Automobile Inter-Insurance Exchange (DAIIE). Delores Saunders was seriously injured when she was struck by a projectile, either a rock or a piece of concrete, which was thrown through the open passenger window of the automobile. The source of the projectile was never determined.
Plaintiffs commenced this action seeking personal injury protection (PIP) benefits under the no-fault policy. A jury trial was held and, following the close of plaintiffs’ proofs, the trial court granted defendant’s motion for a directed verdict. The trial court found that Delores Saunders’ injuries resulted from an intentional assault and that, as a matter of law, the injury did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). This Court granted plaintiffs’ application for delayed appeal.
In order to obtain PIP benefits under the no-fault act, the injured party must establish a causal connection between the injury sustained and the ownership, maintenance, or use of the automobile. The injury must be foreseeably identifiable with the normal use, maintenance, or ownership of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975).
This Court has held many times that an individual’s presence in an automobile at the time an assault occurs does not establish the requisite causal connection. Hamka v Automobile Club of Michigan, 89 Mich App 644; 280 NW2d 512 (1979); O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979). However, in Mann v Detroit Automobile Inter-Ins Exchange, 111 Mich App 637; 314 NW2d 719 (1981), the Court noted an important distinction between an ordinary assault perpetrated upon one who by mere fortuity happens to be in an automobile and an assault which occurs when a projectile is propelled at a moving vehicle. In the latter case, the assault is directed at the automobile itself, rather than at the driver or passenger. Such an assault is, unfortunately, part of the normal risk of operating a motor vehicle and it must be considered foreseeably identifiable with the normal use of the vehicle. On the authority of Mann v Detroit Automobile Inter-Ins Exchange, supra, we hold that there was a direct causal relationship between Delores Saunders’ injury and her use of the motor vehicle. The trial court erred in granting a directed verdict for defendant.
Reversed and remanded for trial. | [
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V. J. Brennan, P.J.
On June 2, 1981, a hearing officer found plaintiff guilty of rioting, Department of Corrections major rule violation 022. Plaintiff brought this action for judicial review pursuant to MCL 24.301 et seq.; MSA 3.560(201) et seq., seek ing to overturn the hearing officer’s decision. The circuit court affirmed the action of the Department of Corrections, and plaintiff appeals as of right.
On May 26, 1981, an inmate riot occurred at the Marquette Branch Prison. A body of approximately 100 to 125 inmates disobeyed repeated orders to return to their cells. When the disturbance was eventually brought under control, a list of the residents forcibly removed from the prison yard was compiled for future identification. Subsequently, a misconduct report issued charging plaintiff with participation in the riot. Specifically, the misconduct report alleged that plaintiff remained in the prison yard during the riot, ignoring an order to disperse and return to the lockup. The report further asserted that it was necessary for members of the prison staff to bodily secure plaintiff and return him to his cell.
Plaintiff claimed that he had been playing handball with other inmates when the riot broke out. He further claimed that he was unable to return to his cell as ordered, because certain armed inmates had threatened to harm anyone complying with the order. The hearing officer found that plaintiff had had an opportunity to return to his cellblock when it was secured by officers but had chosen instead to remain among the rioters. On appeal, plaintiff claims that numerous procedural errors were committed by the hearings division and that the hearing officer’s decision was not supported by substantial evidence.
In Lawrence v Dep’t of Corrections, 88 Mich App 167; 276 NW2d 554, lv den 407 Mich 909 (1979), this Court observed that the Department of Corrections is an administrative agency and held that prison disciplinary hearings are "contested cases” for the purposes of the Michigan Administrative Procedures Act of 1969 (hereinafter MAPA). While the MAPA provisions governing procedure in contested cases do not apply to such hearings, Penn v Dep’t of Corrections, 100 Mich App 532; 298 NW2d 756 (1980), lv den 411 Mich 858 (1981), the judicial review provisions do, MCL 791.255; MSA 28.2320(55). The scope of judicial review under the MAPA is defined by MCL 24.306; MSA 3.560(206), which provides:
"(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
"(a) In violation of the constitution or a statute.
"(b) In excess of the statutory authority or jurisdiction of the agency.
"(c) Made upon unlawful procedure resulting in material prejudice to a party.
"(d) Not supported by competent, material and substantial evidence on the whole record.
"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
"(f) Affected by other substantial and material error of law.
"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.”
In Wolff, Warden v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974), the Supreme Court ruled that a state prisoner was entitled under the Due Process Clause of the Fourteenth Amendment to notice and some kind of hearing in connection with disciplinary determinations involving serious misconduct. Parshay v Dep’t of Corrections, 61 Mich App 677, 680; 233 NW2d 139 (1975). In Wolff, the prisoner had been faced with a loss of "good time”. However, the due process right to a hearing in Michigan has been broadened to encompass any situation in which a prisoner may be "deprived of a right or significant privilege”. DeWalt v Marquette Warden, 112 Mich App 313, 316; 315 NW2d 584 (1982). Such a hearing must include: (1) advance written notice of the charges at least 24 hours prior to the disciplinary hearing; (2) a written statement by the factfinder explaining the reason for any disciplinary action, such statement to be supplied to the prisoner; and (3) the opportunity to call witnesses and present documentary evidence if this would not be unduly hazardous to institutional safety or correctional goals. Wolff v McDonnell, supra. The Michigan Legislature has recently fashioned misconduct hearing procedures designed to comply with the due process mandate of Wolff v McDonnell. MCL 791.251 et seq.; MSA 28.2320(51) et seq., effective February 1, 1980. Thus, where a hearing is arguably violative of procedural due process, a prisoner has both a claim actionable under 42 USC 1983, Dickerson v Marquette Warden, 99 Mich App 630, 636-637; 298 NW2d 841 (1980), and an independent issue for appellate review under the MAPA, MCL 24.306(l)(c); MSA 3.560(206)(l)(c).
Plaintiff’s initial complaint is that he was denied access to relevant documents which he had requested, specifically reports and statements of the prison officials mentioned in the May 29, 1981, misconduct report. This report, completed by an official called a "reviewing officer”, contains "yes” and "no” boxes which are to be appropriately checked according to whether the resident requests a hearing investigator, witnesses, or relevant documents. The reviewing officer checked the "no” box under the category of relevant documents. Since plaintiff claims that he directed his request for documents to the hearing investigator, who was not assigned until after the misconduct report was completed, such a request would not appear, on the report.
The Hearings Handbook, which contains specific procedural provisions supplementing those of MCL 791.251 et seq.; MSA 28.2320(51) et seq., makes the following provisions with regard to inmate access to documents: "This means that a resident who requests a specific document may receive a copy of it if: (1) it is used as evidence at the hearing, even if the hearing officer does not specifically base his/ her decision on that document; and, (2) its disclosure does not present a threat to personal or institutional safety.” Again, plaintiffs request was for reports and statements of the prison officials mentioned in the misconduct report. A three-page memorandum from Lt. Forstrom, one of these witnesses, became part of the hearings record. This report is dated June 1, 1981, the day before the hearing. Unrebutted allegations in plaintiffs brief indicate that he did not receive a copy of this document; in fact, it appears that plaintiff did not learn of the existence of this report even at the June 2, 1981, hearing.
- The statutory provisions governing these hearings, MCL 791.252; MSA 28.2320(52), provide in part:
"(h) * * * [a] hearings officer may deny access to the evidence to a party if the hearings officer determines that access may be dangerous to a witness or disruptive of normal prison operations. The reason for the denial shall be entered into the record.”
The Forstrom memorandum was clearly within the ambit of plaintiffs request; that request was prima facie legitimate because the report appears in a hearing record and must be assumed to have been considered as evidence. No reason appears in the record for denial of access to this report to plaintiff. As previously noted, the MAPA provides that an agency decision may be' set aside when "[m]ade upon unlawful procedure resulting in material prejudice to a party”. MCL 24.306(l)(c); MSA 3.560(206)(l)(c). A finding of reversible error is further contingent upon a determination that the "substantial rights of the petitioner have been prejudiced”. MCL 24.306(1); MSA 3.560(206X1). We find these requisites satisfied in this case. Consider the following statement from the Forstrom report:
"Two residents then yelled that they wanted to talk to me. I agreed and met residents Tocco and Macklin at the baseball backstop. They were on the south side. I was on the north side. They stated they would go back to their cells but wanted to return to their own cells and not all made to go to G-Unit. I agreed and they wanted ten minutes to talk with the other residents. After ten minutes I talked to the residents again. At this time they asked for news media, complete amnesty with no action against the residents. I informed them, Tocco and Macklin, that I could not give them amnesty or their other demands. At this time they said there is no reason to talk.”
The hearing officer could well have concluded from this statement that Tocco was an active participant in the riot, if not a ringleader. Denied access to this report, plaintiff would have no way to anticipate and prepare rebuttal to these allegations. The denial of access to this report, uncontested on appeal and unexplained in the hearing record was, therefore, reversible error. Plaintiffs remaining allegations of procedural error in the hearings process are without merit.
Plaintiff further asserts that the decision should be set aside as not supported by competent, material, and substantial evidence on the whole record. MCL 24.306(l)(d); MSA 3.560(206)(l)(d); Viculin v Dep’t of Civil Service, 386 Mich 375; 192 NW2d 449 (1971); Bloomfield Hills Bd of Ed v Miner, 113 Mich App 388, 394; 317 NW2d 638 (1982). While the "substantial evidence” test has been held to require more than a scintilla of evidence, it may be substantially less than a preponderance of the evidence. Meadows v Marquette Prison Warden, 117 Mich App 794, 798; 324 NW2d 507 (1982). Plaintiff admitted to being in the midst of the riot. His defense was that he had been in the prison yard for a legitimate purpose prior to the beginning of the riot and was afraid to leave the prison yard after the riot erupted. Rebuttal evidence was submitted in the form of an answer given by Lt. Forstrom to written questions submitted by plaintiff: "The armed inmates were driven back and then the others had a chance to go to their cells.” This statement, coupled with the attested-to allegations in the misconduct report, constitutes substantial evidence that plaintiff committed the violation.
Because the Forstrom report was a relevant document, the revelation of it, on this record anyway, would not "be dangerous to a prisoner or disruptive of normal prison operations”.
The judgment of the hearings division is reversed and the matter is remanded for a new hearing.
Reversed and remanded. | [
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Allen, J.
Must a plaintiff make an election between inconsistent theories of recovery before proceeding to trial? The trial court, in an order dated June 8, 1981, held yes, requiring plaintiff to elect to proceed in equity against defendants Martin and Samuels for rescission or to proceed against all of the defendants at law for damages resulting from the alleged fraud committed upon him. The action was stayed by the trial court per the parties’ stipulation and the order was certified by the court as final for purposes of appeal under GCR 1963, 518.2. Plaintiff appeals as of right. We reverse.
In July, 1978, plaintiff purchased a business, Bill’s Cafe, which is located in Bay City, from defendants Martin and Samuels, the owners. The property was listed by the sellers with defendant Kenneth Warner, a real estate broker for defendant Warner Realty, Inc. Plaintiff sought the services of defendant Joseph Malenfant, a real estate broker for defendant Real Estate One of Bay County, Inc. Malenfant was involved in the negotiations between the owners and plaintiff, drafted the purchase and sales agreement, and was present at the closing of the property. Upon taking possession of the premises and after beginning remodeling, plaintiff discovered that the city would be constructing a sewer in the area of Bill’s Cafe and, as a result, streets and sidewalks would be torn up, the parking lot would be unavailable at times, utilities would be cut off for periods of time, and the traffic on the streets bordering the restaurant would be interrupted.
By letter dated August 18, 1978, plaintiff offered to rescind the transaction and demanded repayment of the down payment and reimbursement for remodeling and other expenses. Rescission was denied by Martin and Samuels. However, on November 2, 1978, plaintiff reconveyed the property to Martin and Samuels by quitclaim deed pursuant to an agreement signed by the sellers and plaintiff. The agreement provided that restoration of the premises to Martin and Samuels would not constitute a release or waiver of any rights of plaintiff arising out of the transaction, including an action for breach of contract, rescission and fraud, nor would restoration constitute acceptance by the sellers of a rescission of the contract.
Plaintiff filed the present action on April 9, 1979. For a full understanding of the issues involved, we find it necessary to set out the counts of plaintiff’s complaint in detail. In Count I plaintiff sought rescission of the contract, alleging that Martin and Samuels had prior knowledge of the impending sewer construction but intentionally withheld the information to induce plaintiff to make the purchase. Plaintiff alleged that, upon learning of the fraudulent concealment by Martin and Samüels, he immediately tendered the property back to the owners and demanded rescission and that Martin and Samuels refused to rescind the contract. In Count II of his complaint, plaintiff sought damages in connection with the contract which resulted from Martin and Samuels’ fraudulent concealment of information concerning the sewer project. In Counts III and IV plaintiff sought damages from Malenfant and his employer, Real Estate One of Bay County, Inc., for Malenfant’s negligence in failing to discover or advise plaintiff that Bill’s Cafe was an unprofitable business and of the impending sewer construction in the vicinity. Count V deals with piercing the corporate veil of Real Estate One of Bay County, Inc.
After deposing Samuels, plaintiff learned that Samuels had informed the listing agent, Kenneth Warner, of the sewer project prior to closing on the property. On March 6, 1980, plaintiff was granted leave to add Warner and Warner Realty, Inc., as defendants and file an amended complaint. In addition to the first five counts stated in the original complaint, in Counts VI and VII plaintiff sought damages from Warner, alleging that Warner had a duty to disclose to plaintiff the material fact of the sewer construction and that Warner intentionally withheld this from plaintiff to induce plaintiff to purchase Bill’s Cafe and, as a result, committed a fraud upon plaintiff. In Count VIII plaintiff sought to pierce the corporate veil of Warner Realty, Inc. In Count IX plaintiff alleged that Warner had negligently breached a duty owed to plaintiff by failing to inform him of the sewer project. Finally, in Count X, plaintiff sought damages from Warner Realty under a theory of corporate agency.
Two weeks before trial, defendants Warner and Warner Realty, Inc., filed a motion to require plaintiff to make an election of remedies. After oral arguments and submission of briefs, the motion was granted in an order dated June 8, 1981. The order required plaintiff to choose between proceeding against Martin and Samuels in equity for rescission, with the result that all other defendants would be dismissed, or to proceed against all defendants for damages resulting from the alleged fraud committed upon him.
This case requires us to consider the continued viability of the common-law doctrine of election of remedies. It has long been stated that a party who elects to proceed on one theory of recovery is thereafter barred from asserting any inconsistent remedy. Ielmini v Bessemer National Bank, 298 Mich 59; 298 NW 404 (1941); Gloeser v Moore, 284 Mich 106; 278 NW 781 (1938). Generally, the doctrine applies only where two or more inconsistent remedies were available and the party has actually chosen and pursued the one to the exclusion of the other. Ielmini v Bessemer National Bank, supra, pp 66-67. That situation is in contrast to the instant case where the aggrieved party has not yet chosen one remedy to the exclusion of the other. The inconsistency in the present case stems from plaintiffs request for rescission of the contract, which involves disaffirmance of the contract, and plaintiffs request for damages resulting from fraud committed on him, which involves affirmance of the contract.
Plaintiff herein, by seeking inconsistent remedies simultaneously, has not "elected” a remedy. Nevertheless, several cases from other jurisdictions support defendants’ claim that the trial court may compel an election between inconsistent remedies at any stage of the proceedings. 25 Am Jur 2d, Election of Remedies, § 31, pp 673-674. However, no Michigan case is cited therein for such proposition. Furthermore, while we have found dicta that election of inconsistent remedies may be compelled at any stage of the proceedings (Willard v Shekell, 236 Mich 197, 206; 210 NW 260 [1926]), we have found no Michigan case prohibiting the simultaneous pursuit of inconsistent remedies. In fact, the only Michigan case directly on point held that the plaintiff should not have been required to elect between a count in réscission and a count for breach of contract.
Modern rules of civil procedure, the election of remedy doctrine expressed in the current legal periodicals cited earlier, and the Supreme Court’s decision in Gruskin v Fisher, 405 Mich 51; 273 NW2d 893 (1979), lead us to conclude that plaintiff may simultaneously pursue all of his remedies against the sellers and other defendants herein regardless of legal consistency, so long as plaintiff is not awarded double recovery. While defendants emphasize the basic repugnance of allowing plaintiff to "blow hot and cold” at the same time, the inconsistency only involves legal theories of recovery. Under rescission plaintiff would be required to restore all benefits received and would be entitled to the purchase price of the restaurant and consequential damages, Mock v Duke, 20 Mich App 453; 174 NW2d 161 (1969), whereas his actual damages, which are the same regardless of which defendant committed the fraud upon him, consist of plaintiffs loss of the bargain measured by the difference between the actual value of the property and its value if it had been as represented. Hubert v Joslin, 285 Mich 337, 346; 280 NW 780 (1938); Barker v Fordville Land Co, 264 Mich 95, 96-97; 249 NW 491 (1933). There is no inconsistency in the factual basis plaintiff relies upon in support of each theory. We believe it unfair to require plaintiff to choose which theory to proceed under prior to trial since res judicata would prevent him from proceeding under his alternative theory should the first choice prove unsuccessful. We also note that defendants are adequately protected from the plaintiff’s changing course in midstream by our doctrines of equitable estoppel, waiver, accord and satisfaction and res judicata.
Several other jurisdictions have rejected the election prior to trial doctrine by case law, or by statute. Our rejection of election prior to trial is consistent with Michigan’s rules of civil procedure. Under GCR 1963, 111, every pleading is a simple, concise statement of the facts on which relief can be granted on any sustainable legal theory regard less of consistency and whether based on legal or equitable grounds or both.
"Declaratory relief, in cases of actual controversy, may be claimed. Relief in the alternative or of several different types may be demanded.
"(2) Inconsistent claims or defenses are not objectionable, and when a party is in doubt as to which of 2 or more statements of fact is true, he may allege them in the alternative. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or upon both.” GCR 1963, 111.1(3) and 111.9(2).
Further, the plaintiff may join as many defendants as may be liable in one action, GCR 1963, 206, and GCR 1963, 505.2 and 509.3 give the trial court discretion to bifurcate trial and control the sequence of proof so as to facilitate complex trials and the determination of judge and jury issues.
Finally, the Supreme Court’s decision in Grus-kin v Fisher, supra, supports our conclusion. There, the Court abrogated the longstanding rule that a vendor’s decision to accept forfeiture by the vendee under a defaulted land contract constitutes an election of remedies which precludes subsequently seeking a foreclosure and deficiency judgment based upon the contract. In regard to the legal inconsistency between the vendor’s notice of forfeiture, which involves disaffirmance of the land contract, and an action for foreclosure and money damages, which involves enforcement of the land contract, the Court stated:
"Today inconsistency in pleadings is permitted, inconsistent remedies may be sought and alternative relief granted. The concept of election of remedies has undergone considerable change in recent years. This development in the jurisprudence, eliminating artificial rules regarding consistency of remedies, gives secured creditors generally alternative remedies.” 405 Mich 51, 66 (footnote ommitted).
We reiterate that, while plaintiff is entitled to complete relief, he is not entitled to double recovery. Hence, if verdicts are eventually returned against the sellers, defendants Martin and Samuels, for both rescission and damages, judgment may be entered on only one since these are alternative measures of plaintiffs loss. If judgment for damages is entered against the sellers, the other defendants may be held jointly and severally liable if a verdict is rendered against them. However, if judgment for rescission is entered against the sellers, the other defendants may only be held liable to the extent that the rescission judgment has failed to restore the status quo (because of the sellers’ insolvency or otherwise).
Reversed and remanded for further proceedings. Costs to plaintiff.
Numerous articles have been written about the election doctrine; none are favorable. See Fraser, Election of Remedies: An Anachronism, 29 Okla L Rev 1 (1976); Patterson, Improvements in the Law of Restitution, 40 Cornell L Q 667 (1955); Yerkes, Election of Remedies in Cases of Fraudulent Misrepresentation, 26 S Cal L Rev 157 (1953); Note, Election of Remedies: A Delusion?, 38 Colum L Rev 292 (1938); Hine, Election of Remedies, A Criticism, 26 Harv L Rev 707 (1913); Dobbs, Remedies, § 1.5, p 13; 1 Palmer, Law of Restitution, § 3.10, p 283.
Glover v Radford, 120 Mich 542; 79 NW 803 (1899).
Note, Election of Remedies: A Delusion?, 38 Colum L Rev 292, 295 (1938).
We also see nothing repugnant in allowing a party to proceed on theories which involved contradictory factual statements where allegations are made in good faith and the party is unable to ascertain what the actual facts are at the time of trial.
For example, the plaintiff could recover in an action based on rescission but not for damages due to fraud if the proofs showed that the misrepresentation, while material to the plaintiff, would be immaterial under an objective standard. See Dehring v North Michigan Exploration Co, Inc, 104 Mich App 300; 304 NW2d 560 (1981). On the other hand, the plaintiff would be entitled to damages, but not rescission, if the proofs showed that plaintiff had not complied with the tender requirement or restoration of the status quo cannot be achieved. Grabendike v Adix, 335 Mich 128, 140-141; 55 NW2d 761 (1952).
Breeding v Massey, 378 F2d 171 (CA 8, 1967); North American Graphite Corp v Allan, 87 US App DC 154; 184 F2d 387 (1950); Williams v Marshall, 37 Cal 2d 445; 235 P2d 372 (1951); Moon v Brewer, 89 Idaho 59; 402 P2d 973 (1965); Deal v Madison, 576 SW2d 409 (Tex Civ App, 1978).
NY CPLR § 3002(e) (McKinney) states that in any case based on fraud, claims for rescission, based on rescission or for damages shall not be deemed inconsistent and the aggrieved party shall be allowed to obtain complete relief in one action, but such complete relief shall not include duplication of benefits. Ga Code § 3-114 states that a plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them. See, also, UCC § 2-703, which eliminates the election doctrine in sale-of-goods cases.
In contrast to today’s system of fact pleading, the election doctrine developed during a time of theory pleading and the division of courts of law and equity. | [
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Per Curiam.
Defendant appeals as of right from the circuit court’s order granting summary judgment in favor of plaintiff.
In May, 1981, plaintiff Linda M. Smith left her marital home in Detroit and went to San Antonio, Texas. Plaintiffs minor children from a previous marriage, who had been domiciled in the Detroit home with plaintiff and her husband, went with plaintiff to Texas. On July 6, 1981, William Walker filed a complaint for divorce in the Wayne County Circuit Court against his estranged wife, plaintiff herein. On July 9, 1981, plaintiffs minor child, Theresa Smith, was injured when she was struck by an automobile in San Antonio, Texas. At the time of the accident, William Walker was the owner of a pickup truck which was insured under a policy of no-fault insurance by defendant Auto-Owners Insurance Company.
On January 26, 1982, plaintiff commenced this action individually and as next friend of Theresa Smith, seeking personal injury protection (PIP) benefits under William Walker’s insurance policy. Plaintiff filed a motion for summary judgment. For purposes of the motion, the parties stipulated that on July 9, 1981, plaintiff was not domiciled in the same household as William Walker, and that Theresa Smith was not the daughter of William Walker. The trial court granted plaintiff’s motion and ordered defendant to pay plaintiff all PIP benefits due, plus interest. Defendant appeals.
Section 3114(1) of the no-fault act, MCL 500.3114(1); MSA 24.13114(1), provides in relevant part:
"Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.”
The issue is whether this statute applies to the child of a named insured’s spouse where the child was domiciled with the named insured and his spouse during the period when the parties were living together, but where, at the time the injury occurred, the child was domiciled in a separate household with his natural parent, i.e., the insured’s estranged spouse.
In Bierbusse v Farmers Ins Group of Companies, 84 Mich App 34; 269 NW2d 297 (1978), the issue was whether the statute applied to the daughter of the named insured where, at the time of the accident, the daughter was domiciled in a separate household with the estranged spouse of the named insured. The Court first noted that the no-fault statute is remedial and therefore must be construed liberally in favor of persons intended to be benefited by it. The Bierbusse Court held:
"When a couple is separated pending divorce and one spouse is the named insured on a no-fault policy, the other spouse and the children of the named insured are covered by the no-fault policy, even though they are domiciled in separate households, until the divorce is finalized.” Bierbusse, supra, pp 37-38.
In reaching this conclusion, the Court observed that:
"It is also quite clear that when the policy was issued the defendant calculated its premium on the basis of the named insured, his wife and their children. To allow defendant to escape liability by concluding that the daughter was not within the zone of risk contemplated by the defendant is absurd and would create a windfall in favor of defendant.” Bierbusse, supra, p 37.
In the opinion of this Court, the rule adopted in Bierbusse is equally applicable to the children of the named insured’s spouse who were domiciled in the same household with the named insured and his spouse at the time the parties were living together. As in Bierbusse, defendant herein calculated its premium on the basis of the named insured and his nuclear family, i.e., the spouse and the spouse’s children living with them.
Our conclusion also follows from the language of § 3114(1). That section states that coverage applies to "the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household”. (Emphasis supplied.) Since the statute was apparently intended to place the named insured and his spouse on equal footing, the rule announced in Bierbftsse cannot be distinguished merely because the injured party was a child of the spouse only, rather than a child of both the spouse and the named insured.
Contrary to defendant’s contention, extension of the Bierbusse rule to step-children of the named insured does not abrogate the prerequisite of domicile nor does it impair the insurer’s ability to reasonably calculate the scope of its risk. Rather, our holding is limited to the children of the named insured’s spouse who were domiciled in the marital home at the time the parties were living together, but were domiciled in a separate household with the named insured’s spouse pending a divorce.
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Per Curiam.
Plaintiffs appeal by leave granted from a directed verdict in this automobile products liability action.
The case arises out of an accident that occurred on June 20, 1974, while Sally Chambers was operating plaintiffs’ 1973 Pontiac LeMans, purchased new on March 9, 1973. After Sally Chambers put the LeMans’s automatic transmission in drive, the car unexpectedly surged forward out of her control and rammed into a tree. She sustained serious injuries.
Following plaintiffs’ proofs, the trial court granted defendants’ motion for directed verdicts on the basis that plaintiffs had failed to introduce evidence sufficient to establish that an injury-causing defect was attributable to the manufacturer or seller. We agree.
To withstand a directed verdict in a products liability action, plaintiffs need not establish the exact nature of the alleged defect but must show through direct or circumstantial evidence a reasonable probability that the defect is attributable to the manufacturer or seller. Kupkowski v Avis Ford, Inc, 395 Mich 155, 161; 235 NW2d 324 (1975); Dayhuff v General Motors Corp, 103 Mich App 177, 181; 303 NW2d 179 (1981), lv den 412 Mich 914 (1982). However, where the evidence establishes two or more equally plausible causes for the injury, the selection by the jury of one of the causes would not be based upon a reasonable inference but rather would be based upon mere conjecture. Kaminski v Grand Trunk Western R Co, 347 Mich 417, 422; 79 NW2d 899 (1956); Schedlbauer v Chris-Craft Corp, 381 Mich 217, 220; 160 NW2d 889 (1968). In such cases, directed verdicts are proper.
In reviewing directed verdicts rendered in auto mobile products liability cases, the courts have relied upon the following general principle. If the part alleged to be defective is relatively inaccessible and is not generally required to be repaired or maintained, it may be reasonable to infer that the defect is attributable to the manufacturer. Holloway v General Motors Corp (On Rehearing), 403 Mich 614, 624; 271 NW2d 777 (1978), rev’g 399 Mich 617; 250 NW2d 736 (1977); Vanderberg v General Motors Corp, 96 Mich App 683, 690; 293 NW2d 676 (1980). Conversely, where the part alleged to be defective is accessible to other sources of interference and, under the circumstances of the case, two or more equally plausible explanations of the defect are reasonable, then a finding of manufacturer liability would be based upon conjecture. Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972).
In this case, plaintiffs did not provide any evidence regarding the nature of the defect alleged. Plaintiffs’ proofs did establish that the LeMans was involved in two prior minor accidents causing front-end damage. Plaintiffs took the LeMans to a Pontiac dealer other than defendant Jim Causley and to a local gas station for repairs. Furthermore, ten days prior to this accident plaintiffs took the car to a Lincoln-Mercury dealer for repairs. Plaintiffs did not introduce any evidence of accelerator system problems and, in fact, testified that they had 16 months and 16,000 miles of defect-free service.
In order to find manufacturer or seller liability, the jury would have had to find either that the alleged defect occurred in an enclosed system not accessible to other sources of interference or that the part was accessible but had not been interfered with during servicing by others. Such find ings would clearly be conjecture on the part of the jury since it is equally plausible that the repairs made by the Lincoln-Mercury dealer, or any other nonparty repairperson, resulted in some damage to the accelerator system, eventually causing the accident. Moreover, the jury could plausibly find that the two prior accidents caused some mechanism or part to jar loose or some process to begin which eventually caused the alleged defect. Therefore, plaintiffs failed to introduce evidence sufficient to establish that a defect was attributable to the defendants and not to some other equally plausible source.
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] |
Per Curiam.
This appeal arises out of an injunction issued by the circuit court which requires the Michigan Employment Security Commission to allow representation of employers in proceedings before the commission, its referees, and the Employment Security Board of Review by non-attorney agents, in particular the Michigan Hospital Association and its agents and employees. The State Bar of Michigan intervened in the proceedings in circuit court as a defendant and cross-claimant and appeals by right.
The issues before us arise out of MCL 421.31; MSA 17.533, which provides in part:
"Any individual claiming benefits in any proceeding before the commission or a court may be represented by counsel or other duly authorized agent; but no such counsel or agents shall either charge or receive for such services more than an amount approved by the commission.
"Any employer may be represented in any proceeding before the commission by counsel or other duly authorized agent.”
A cardinal rule of statutory construction is that every word in a statute is presumed to have some force or meaning and no portion of a statute should be rendered nugatory. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). It is with this rule in mind that we examine the phrase "duly authorized agent”. In Stephenson v Golden (On Rehearing), 279 Mich 710, 734; 276 NW 849 (1937), the Court said:
"What is an agent?
" 'An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.’ Bowstead on Agency (4th ed), pi.”
Authorization is thus implicit in the concept of agency. If we were to construe "duly authorized agent” to mean merely "agent duly authorized by the principal”, we would be failing to give the phrase "duly authorized” any force or effect, because if the Legislature intended such a construction, it need only have said "agent”.
The parties have devoted much attention to argument concerning the relative scope of the judicial and legislative powers in the area of definition and regulation of the practice of law. Whatever the relative scope of those powers, in Michigan the Legislature has traditionally left definition of the practice of law to the courts. Ingham County Bar Ass’n v Walter Neller Co, 342 Mich 214, 221; 69 NW2d 713 (1955); State Bar of Michigan v Cramer, 399 Mich 116, 132-133; 249 NW2d 1 (1976). We discern no legislative intent in the statute to alter generally accepted definitions of the practice of law or abandon the traditional scheme of regulation of such practice. By using the phrase "duly authorized agent”, the Legislature indicated its intention to have the circumstances in which non-attorneys may represent clients in proceedings before the commission determined by application of the general rules concerning the practice of law.
Representation of clients in contested cases before administrative bodies is generally held to constitute the practice of law. People ex rel Chicago Bar Ass’n v Goodman, 366 Ill 346; 8 NE2d 941 (1937) (workers’ compensation board); In re Unauthorized Practice of Law in Cuyahoga County, 175 Ohio St 149; 192 NE2d 54 (1963) (industrial commission); Kentucky State Bar Ass’n v Henry Vogt Machine Co, 416 SW2d 727 (Ky, 1967) (unemployment insurance commission); Public Service Comm v Hahn Transportation, Inc, 253 Md 571; 253 A2d 845 (1969) (public service commission). See also 7 Am Jur 2d, Attorneys at Law, § 107, pp 178-179, and the cases discussed therein. Moreover, the giving of personal advice to a particular person on a specific legal problem constitutes the practice of law. State Bar of Michigan v Cramer, supra, pp 137-138. It is difficult to see how plaintiff can represent clients in contested cases before the commission without doing this.
Our construction of the statute does not render the phrase "duly authorized agent” nugatory, because not every proceeding before the commission is a contested case at which representation of clients is generally held to constitute the practice of law. For example, the commission engages in formal rulemaking pursuant to MCL 421.4; MSA 17.504. In connection with such rulemaking, employers may make a request pursuant to MCL 24.238; MSA 3.560(138) for promulgation of a rule and may participate in public hearings on proposed rules pursuant to MCL 24.241; MSA 3.560(141). Representation of clients in such proceedings would not fall within generally accepted definitions of the practice of law.
Our construction of the statute is also supported by other considerations. Courts must construe a statute so that it will be constitutional unless the contrary clearly appears. Sullivan v Michigan State Bd of Dentistry, 268 Mich 427, 429-430; 256 NW 471 (1934); People v McQuillan, 392 Mich 511, 536; 221 NW2d 569 (1974). Const 1963, art 3, § 2 precludes the Legislature from exercising powers belonging to the judiciary. It is clear that, whatever the scope of the exclusive power of the judiciary to define and regulate the practice of law, it at least extends to the practice of law before the courts. Detroit Bar Ass’n v Union Guardian Trust Co, 282 Mich 216, 225-228; 276 NW 365 (1937); State Bar of Michigan v Cramer, supra, p 158, fn 24 (opinion of Levin, J.). The phrase "duly authorized agent” is used in the statute to describe a person who may represent an individual claiming benefits in any proceeding before the commission or before a court. If we were to construe the statute to allow non-attorney agents to represent clients in proceedings in which generally accepted definitions of the practice of law limit representation to attorneys, we would be giving the statute a construction which would render it an unconstitutional infringement of the judiciary’s exclusive power to define and regulate the practice of law in the courts.
Moreover, the practice of law is regulated for the protection of the public. State Bar of Michigan v Cramer, supra, p 134; In the Matter of Grimes, 414 Mich 483, 491; 326 NW2d 380 (1982). Yet if we were to give the statute the construction advocated by plaintiff, we would be holding that the Legislature intended to authorize representation by agents without regard to the qualifications or character of the agents. In this connection, see Cobb v Judge of Superior Court of Grand Rapids, 43 Mich 289, 290-291; 5 NW 309 (1880), in which the Court construed Const 1850, art 6, § 24, which provided:
"Any suitor in any court of this state shall have the right to prosecute or defend his suit, either in his own proper person, or by an attorney or agent of his choice.”
The Court said:
"If the word 'agent’ as used in the Constitution, is not to be construed as synonymous with the word 'attorney,’ what is to be the result? Parties may appear by agents possessing no legal qualification or even ordinary intelligence, and of the worst possible character; they may be minors, and may even be persons who have been disbarred and removed by this court from practicing as attorneys and solicitors. They could not practice as attorneys, possessing neither the legal nor moral qualifications for such a position, and yet they could appear as agents. They would possess the rights of attorneys but not be subject to the responsibilities; their removal by the court, if they could be removed, would be a mere idle ceremony. Litigants might again employ them and authorize them to appear and represent their interests, so that persons who could not practice as attorneys could as agents, with equal rights and powers. Such could not have been the intention of the framers of our fundamental law, or of the people in adopting it.”
Judicial review of contested cases before the commission is limited to the record made before the commission, and findings of fact in such contested cases are conclusive if supported by competent, material, and substantial evidence on the whole record. MCL 421.38; MSA 17.540. Parties represented by agents untrained in the law may find, when their case reaches circuit court, that the record made before the commission was fatally flawed. Regulation of the practice of law is based in part on the necessity of ensuring that persons who represent litigants meet minimum standards of training and skill. The language employed in the statute at issue here does not convince us that the Legislature intended to place parties before the commission at the mercy of unscrupulous or unskilled practitioners by abandoning the safeguard of a regulated bar.
We hold that MCL 421.31; MSA 17.533 does not permit non-attorneys to represent employers in contested cases before the commission.
Reversed and remanded for entry of an injunction on the cross-claim consistent with this opinion. | [
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M. J. Kelly, J.
Plaintiff initiated this action in the Ingham County Circuit Court for declaratory and injunctive relief in regard to the Racing Law of 1980, MCL 431.61-431.88; MSA 18.966(31)-18.966(58). A declaratory judgment was rendered, favoring the position advocated by plaintiff and defendant racing commissioner. The remaining defendants appeal as of right.
Effective December 18, 1980, the Racing Law of 1959 was repealed by the Racing Law of 1980. Under the 1959 law, the Michigan Racing Commissioner acted with virtually unlimited power in allocating racing dates to the various racing tracks in the state. The new law, however, directs that the racing commissioner is to (1) grant or deny each application for a particular form of race meeting license and (2) "allocate or deny racing dates for which application has been made”. MCL 431.69; MSA 18.966(39).
Plaintiff claims that the above-quoted provision is ambiguous. According to plaintiff, the language can be interpreted as allowing the racing commissioner to (1) only grant or deny an application for race dates in its entirety, (2) grant or deny an application in total or decrease the dates requested, or (3) allocate dates as he deems proper, regardless of what dates were requested. Although arguing the statute is ambiguous, plaintiff claims that the Legislature clearly intended the third result. The trial court agreed with plaintiff, ruling that the statutory language allowing the commissioner to allocate or deny only racing dates "for which application has been made” was inadvertently included in the statute due to an oversight. "Nobody really noticed it”, reasoned the court, "and it went through”. Finally, the court ruled that if the Legislature did intend to restrict the commissioner’s authority to allocate dates, "such would constitute an improper delegation of legislative authority to a private entity contrary to the Michigan Constitution”.
I
Michigan courts have sometimes castigated the state Legislature, a co-equal branch of government, for producing hasty legislation and crude, ambiguous legislative acts. See, e.g., Wales v Lyon, 2 Mich 276, 282 (1851). In interpreting legislation, however, the courts must be careful not to usurp legislative power. See Const 1963, art 3, § 2 (no person exercising powers of one branch of government shall exercise powers properly belonging to another branch). Under modern jurisprudence, therefore, if the wording of a statute is unambiguous, there is no room for courts to attempt to "construe” it. Detroit v Redford Twp, 253 Mich 453, 455; 235 NW 217 (1931); Pittsfield Twp v Saline, 103 Mich App 99, 104; 302 NW2d 608 (1981). Where a statute is clear and complete on its face, the courts are not to assume a mistake has been made or that the Legislature inadvertently used one word or phrase instead of another. Detroit, supra, p 456. Rather, every word and phrase of the statute should be given meaning and not treated as mere surplusage or rendered nugatory. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971).
The statutory language involved in the instant case empowers the racing commissioner to "allocate or deny racing dates for which application has been made”. MCL 431.69; MSA 18.966(39). These words cannot be treated as mere surplusage. Rather, contrary to prior practice, these words limit, the racing commissioner’s power to allocate racing dates to granting or denying only those dates for which application has been made. The commissioner may not compel a licensee to conduct races on dates for which application has not been made.
The commissioner’s power is embodied in a two-step process. He may grant or deny a race meeting license and, if the license is granted, then allocate the racing dates applied for. This two-step process implies a measure of discretion in the commissioner to award racing dates. Otherwise, the commissioner’s power presumably would have been limited to merely granting or denying race meeting licenses. Thus, under the Racing Law of 1980, the commissioner may grant or deny any portion of racing dates which the licensee has applied for. That this limited discretion was intended by the Legislature is clear from the words of the statute. The term "allocate” implies an apportionment, distribution, or division. The commissioner may, therefore, "apportion” to a licensee whatever part or parcel of the dates the licensee has applied for that the commissioner deems appropriate.
II
The trial court’s declaratory judgment order expressly directed the racing commissioner to allocate racing dates "without regard to the words 'for which application has been made’ ”. The trial court clearly erred in negating this statutory language.
In its order, the trial court stated that if the Legislature had intended to restrict the commissioner’s authority to allocating only dates which a licensee has applied for, such would constitute an improper delegation of legislative authority. Indeed, the Legislature may not delegate its lawmaking powers. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956). See generally Const 1963, art 4, § 1. In the instant case, however, there has been no delegation of lawmaking powers. The Legislature has merely placed a limit on what dates the commissioner can compel a licensee to hold races. By legislative mandate, the commissioner cannot license or compel an applicant licensee to conduct races on any date he has not requested. Such is not a delegation of lawmaking power.
Ill
Plaintiff-appellee asserts that restricting the racing commissioner’s power to allocate racing dates would deprive plaintiff of substantive and procedural due process and equal protection and violate the title-object clause of the State Constitution. These constitutional claims were raised by plaintiff in its complaint. The trial court, however, addressed only the improper-delegation-of-legislative-authority claim. Since the trial court did not address the other constitutional issues, and plaintiff has not filed a cross-appeal, these remaining issues are not properly before this Court. See Therrian v General Laboratories, Inc, 372 Mich 487, 490; 127 NW2d 319 (1964); Huey v Campbell, Wyant & Cannon Foundry Co, 55 Mich App 227, 233; 222 NW2d 191 (1974), aff'd 395 Mich 169; 235 NW2d 545 (1975); Detroit Automobile Inter-Ins Exchange v McMillan, 97 Mich App 687, 696; 296 NW2d 147 (1980). Nevertheless, we have reviewed these issues and find them to be without merit.
Our resolution of the above issues renders defendants’ final issue on appeal, that the trial court’s declaratory judgment established an unconstitutional regulatory scheme of taking private property without just compensation, moot.
Reversed. | [
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V. J. Brennan, P.J.
On October 25, 1978, plaintiffs filed a four-count complaint alleging that contaminated ground water from defendants’ sewage treatment plant was degrading plaintiffs’ wells. In response to information produced at a July 24, 1981, pretrial conference, plaintiffs moved to adjourn trial, which had been set to commence on August 13, 1981. At a hearing held on August 10, 1981, plaintiffs’ motion to adjourn was denied. Plaintiffs then moved for a voluntary dismissal. This motion was also denied and the case was dismissed with prejudice. Plaintiffs’ subsequent motion for reconsideration was denied on August 24, 1981. Plaintiffs appeal as of right from these judgments.
Plaintiffs’ complaint alleged that the defendants had constructed and operated a sewage treatment facility utilizing lagoons and spray irrigation of effluent and that, through improper design or operation or both, they had permitted the contamination of ground waters under and near the plant. The complaint further alleged that these contaminated ground waters flowed in the direction of plaintiffs’ properties and had contaminated the ground water underneath plaintiffs’ properties, thus contaminating plaintiffs’ domestic wells and causing other damage. The grounds for relief advanced by plaintiffs were: (1) inverse condemnation, (2) nuisance, (3) common-law water rights, (4) negligence, and (5) relevant provisions of the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act, MCL 691.1201 et seq.; MSA 14.528(201) et seq.
On October 27, 1978, defendants filed an answer, conceding that the general ground water flow was as described in the complaint but alleging that an interceptor ditch prevented seepage of contaminated water from the sewage treatment facility. The answer also indicated that analysis of well water from some of plaintiffs’ private wells revealed that it met all state and federal quality requirements.
In response to plaintiffs’ interrogatories, defendants alleged that plaintiffs’ water degradation problem was unrelated to the sewage system and that instead it was caused by a high iron content indigenous to area soils. Defendants alleged that, in the immediate area of the sewage facility, ground water flowed toward the waste water system rather than away from it. Defendants felt that part of the blame for the problem was contamination from road salt.
During the course of this litigation, two studies were commissioned by defendants and performed by Keck Consulting Services. The studies were ordered by Dr. Y. A. Demirjian, Director of the Muskegon County waste water system. This raw data was compiled into reports drafted by Robert Minning, Keck’s president. The initial Keck study was undertaken during the fall of 1979 and focused on the movement of ground water in the vicinity of the sewage facility. The study indicated the existence of a ground water divide, i.e., a line from which ground water flows in opposite directions, in the area of Apple Road near where plaintiffs reside. The study concluded that the perimeter ditch was an effective interceptor of all lagoon seepage and also pulled in some of the natural water flow. The report also stated that two ground water divides could be formed, either during periods of excessive rain or when water was being pumped from the ditch into the HH & G drain. However, the report indicated the county was not discharging from the interceptor ditch into the H H & G drain at the time the study was conducted because the drain was being repaired and cleaned.
Trial was first set for late August and early September, 1980, but was adjourned by agreement of the parties for more discovery. On October 23, 1980, defendants filed a motion to appoint a master, pursuant to a provision of the environmental protection act, MCL 691.1203; MSA 14.528(203). A master (hereinafter special master) could be employed under the EPA to take testimony, make a record, and report findings to the court on complex and technical matters. This motion was granted, with the result that trial had to be adjourned a second time while an appropriate master was found. The parties eventually agreed on Wayne Pettyjohn, who had the unique qualifications of being both an attorney and a hydrogeologist.
At a pretrial conference held on June 25, 1981, special master Pettyjohn suggested that more information be gathered. Several new test wells were set up, water measurements were taken, and experts from both sides analyzed the resulting data. Findings were presented to the special master at a second pretrial conference on July 24, 1981. These findings substantially corroborated those of a second Keck study which was ordered by the county but was unrelated to the instant litigation. Certain findings of the second Keck study which related to the instant case became available to the parties at this meeting. The report placed the ground water divide further south than had been previously suspected, which made it more likely that road salt was contributing to the pollution problem. The report also showed that discharge of water into the HH & G drain created a "mounding” in the ground water table, i.e., a high point from which water migrated radially. This resulted in some ground water migration south or southwest toward Apple Road, where it possibly might reach some or all of plaintiffs’ wells.
At the final pretrial conference, special master Pettyjohn prepared a report which made the following preliminary conclusions:
1. Chloride contamination of private wells in the vicinity of the waste water system was not related to the operation, design, or management of the waste water system.
2. The contamination problem appeared to arise from the use of deicing salts.
3. Chloride-rich waste water from the H H & G drain might be carried by the ground water flow in the direction of certain of plaintiffs’ wells, resulting in contamination.
4. A few shallow wells placed between the H H & G drain and the allegedly contaminated wells near Apple Road would suffice to determine the direction of ground water flow.
Before this pretrial conference plaintffs’ theory of liability against the defendants, based upon the complaint, was that contamination to their wells was caused by the operation of the waste water system. However, the second Keck report and the special master’s findings, and the evidence upon which both were based, tended to negate that theory. After the pretrial conference, plaintiffs believed that the contamination resulted from road salt and/or the HH & G drain discharge. Further, plaintiffs believed that they might be able to refute the road salt theory or show that the road salt was reaching their wells only as a result of the operation of the county’s waste water system. With the trial only two weeks away, plaintiffs were uncertain whether their pleadings were sufficiently broad to encompass the H H & G drain discharge as a causative factor, and the probability that deicing salts played a major role in the contamination meant that the Muskegon County Road Commission would have to be joined as a party. Therefore, on July 29, 1981, plaintiffs moved to adjourn the trial to permit them to perform further testing and to obtain additional information.
Plaintiffs’ motion was heard on August 7, 1981. Plaintiffs contended that the second Keck report revealed new information and they could not proceed to trial until they obtained the following information: (1) water flow information as to whether the discharge from the HH & G drain was proceeding in the direction of the ground water flow to the plaintiffs’ wells; (2) the results of tests from water samples from certain wells to confirm or refute the road salt theory; and (3) the extent and nature of the plume of contaminants moving south from the H H & G drain discharge. Further, plaintiffs contended that the defendants had intentionally or negligently failed to produce in a timely manner the second Keck study, which plaintiffs asserted had been available in January, 1981. Also, at the hearing it was revealed that plaintiffs had filed a second lawsuit (referred to herein as Rosselott II) against the county and the Muskegon County Road Commission based upon the HH & G drain discharge and upon the road salt theories. Plaintiffs also commenced a lawsuit against the Michigan Department of Transportation based upon the road salt theory.
In denying the motion, the trial court stated that the lawsuit was three years old and during those three years the parties had the time and resources available to them for sufficient discovery. The court then advanced the possibility that plaintiffs residing near the HH & G drain could be dealt with separately and that a mid-trial adjournment could be provided with respect to that group to allow further testing near the H H & G drain. Plaintiffs did not accept the court’s proposition and stated that, in view of the court’s denial of the motion to adjourn, they were forced to move for a voluntary dismissal. The court ruled that it would deny the motion with respect to that part of the suit unrelated to the HH & G drain, but would dismiss without prejudice as to that issue. Defense counsel was willing initially to stipulate to such a partial dismissal with prejudice. However, plain tiffs were unwilling to allow this cause to be bifurcated with the result that the case was dismissed with prejudice in its entirety and with defense counsel threatening accelerated judgment based on res judicata with respect to the H H & G theory in Rosselott II.
Plaintiffs moved for reconsideration of their various motions at an August 24, 1981, hearing. Plaintiffs renewed their allegations that defendants had suppressed discovery of the second Keck study. Plaintiffs’ motion was denied.
Plaintiffs raise two issues. First, they claim that the trial court abused its discretion in denying their motion for an adjournment. Plaintiffs contend that the defendants affirmatively concealed crucial information from plaintiffs until right before trial. Further, plaintiffs contend that they have been diligent in gathering information, that they have not caused unnecessary delays, and that the denial of the adjournment motion prejudiced plaintiffs in a legal sense because they face res judicata and statute of limitations problems in Rosselott II.
GCR 1963, 503.1 controls and provides in pertinent part:
"It is the policy of this rule to encourage the diligent preparation and trial of cases. Except where the court, within its discretion and to promote the ends of justice, adjourns a cause, continuance of any trial or hearing upon stipulation shall not be granted unless the stipulation is made in writing or made orally only in open court and is based upon good cause shown to the satisfaction of the court under all of the circumstances of the case and with a view toward speedy and substantial justice.”
The grant or denial of an adjournment is, there fore, within the discretion of the trial court, and will not be disturbed absent a finding that this discretion was abused. Moldovan v Allis Chalmers Mfg Co, 83 Mich App 373, 382; 268 NW2d 656 (1978); Michigan State Highway Comm v Redmon, 42 Mich App 642, 647; 202 NW2d 527 (1972). In Hackett v Connor, 58 Mich App 202, 206; 227 NW2d 292 (1975), this Court found that at least three factors should be considered in determining whether to grant or deny a motion for an adjournment:
"Cases upholding a trial court’s denial of a motion to adjourn have always involved some combination of the same facts: an extended trial, numerous past continuances, Sams v O’Sheskey, 323 Mich 177; 35 NW2d 234 (1948); no showing of diligence by this movant, McKay v Black, 5 Mich App 711; 147 NW2d 735 (1967); and a lack of injustice to the movant, Snyder v Snyder, 42 Mich App 573; 202 NW2d 504 (1972).”
After reviewing the facts in the instant case, we find that there was no abuse of the trial court’s discretion in denying plaintiffs’ motion for an adjournment. This lawsuit was nearly three years old at the time plaintiffs’ motion was heard. Although the suit was complex, the trial court found that the parties had the time and resources available to them to complete discovery. We agree.
In arguing that the trial court abused its discretion, plaintiffs claim that the defendants knowingly concealed the second Keck report until right before trial and if the report had been available to them in January, 1981, when it was first allegedly compiled, there would have been no need for a continuance. On this point, the trial court found that, while the second Keck report may have been in draft form in January, 1981, it was not received by the defendants until shortly before the second pretrial conference. The court found that the defendants did not delay in making the report available to plaintiffs. We find that the record supports the trial court’s conclusion. The defendants commissioned Keck to do the second study for a matter unrelated to the instant lawsuit. It was not until after that study was in progress that it was extended to include gathering information relating to the HH & G drain. The trial court heard testimony from both Minning and Dr. Demirjian as to when the report was mailed to and received by the county, and found Dr. Demirjian’s testimony that the report was not received until July, 1981, to be credible. We have reviewed the testimony and find no error on the part of the trial court in reaching that conclusion.
In addition, plaintiffs have not established that they could not acquire the same information through their own efforts. Their reliance on the first Keck study, which stated that it was incomplete because the HH & G drain was not operating at the time, was unreasonable when independent studies conducted during the summer of 1981 under the master’s direction revealed both the H H & G mounding and the revised ground water divide. We find that this indicates that plaintiffs could have been more diligent in their own testing efforts. Plaintiffs’ conduct indicates a lack of diligence on their part in failing to conduct tests that would have defined whether the likely cause of contamination was from the waste water plant, the HH & G drain, or road salt. Plaintiffs have not been able satisfactorily to explain why they did not conduct the tests.
Finally, it became apparent from the second Keck study and the master’s findings that the treatment plant was not the cause of the contamination as alleged in plaintiffs’ complaint. This meant that proceeding on the original complaint, without addition of new theories or parties, would be fruitless. However, plaintiffs could have proceeded since the trial court stated that it would consider a midtrial adjournment for more tests, but plaintiffs rejected this proposal. On the basis of these facts, we find no abuse of the trial court’s discretion in denying plaintiffs’ motion to adjourn the trial.
Plaintiffs’ second claim of error is that the trial court abused its discretion in denying plaintiffs’ motion for a voluntary dismissal.
GCR 1963, 504.1(2) provides:
"By Order of Court. Except as provided in sub-rule 504.1(1), an action shall not be dismissed at the plaintiffs instance unless by order of court upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the court shall not order the action dismissed over the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal by order of court under this paragraph is without prejudice.”
As with a continuance, the grant or denial of a voluntary dismissal is within the trial court’s discretion. Roberson v Thomas, 13 Mich App 384; 164 NW2d 544 (1968). An abuse of discretion is found only if an unprejudiced person, upon considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made. Bruce v Grace Hospital, 96 Mich App 627, 632; 293 NW2d 654 (1980). Regarding voluntary dismissals, this Court in African Methodist Episco pal Church v Shoulders, 38 Mich App 210, 212; 196 NW2d 16 (1972), stated:
"Plaintiffs argue that the grant or denial of a voluntary dismissal is within the sound discretion of the trial judge. Roberson v Thomas, 13 Mich App 384; 164 NW2d 544 (1968). We agree; however, in exercising that discretion the trial judge is to weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays. Granger v Lundberg, 32 Mich App 462; 189 NW2d 14 (1971). Normally, such a motion should be granted unless defendant will be legally prejudiced as a result. Durham v Florida East Coast R Co, 385 F2d 366 (CA 5, 1967). As the purpose of GCR 1963, 504.1(2) is to protect defendant from the abusive practice of dismissal after much time and effort has been put into a lawsuit, any dismissal should be on terms and conditions which protect defendant. See American Cyanamid Co v McGhee, 317 F2d 295 (CA 5, 1963).”
After the trial court denied plaintiffs’ motion for an adjournment, plaintiffs immediately moved for a voluntary dismissal. The trial court ruled that it would deny the motion with respect to that part of the suit unrelated to the H H & G drain but would dismiss without prejudice as to any part of the suit that could relate to the HH & G drain if the parties agreed. Defense counsel was willing to stipulate that the dismissal would be without prejudice to any part of the complaint that could relate to the HH & G drain theory. However, plaintiffs refused because: (1) at that time they did not believe that the complaint related at all to the HH & G drain theory, and (2) they did not want their cause of action to be bifurcated. At that point, counsel for plaintiffs stated that if the court was unwilling to grant a voluntary dismissal without prejudice then he had to inform the court that he was simply not prepared to go to trial later that week on the issues presented by the pleadings. The court then dismissed the entire case with prejudice.
Plaintiffs argue that the trial court abused its discretion because: (1) they now face res judicata, collateral estoppel, statute of limitations, and other related bars to their cause of action in Rosselott II; (2) plaintiffs’ complaint contained a number of viable theories which are now lost; and (3) plaintiffs may lose their right to recover costs and legal fees incurred even if they prevail in the second suit.
We find no abuse of the trial court’s discretion in denying plaintiffs’ motion for a voluntary dismissal and in dismissing the entire case with prejudice. Shortly before trial, an assessment of the evidence indicated that there was no liability on the part of the defendants on the theories pled in plaintiffs’ complaint with the possible exception that the complaint could relate to the HH & G drain. It became clear that plaintiffs would have to pursue their cause of action by raising additional theories and by adding other parties. The second Keck report and the master’s findings confirmed these conclusions. Although plaintiffs argued at the hearing that the complaint did not relate in any way to the HH & G drain theory, the trial court and the defendants were uncertain. Apparently, the plaintiffs have changed their minds and now believe that the complaint may have related to the H H & G drain and the dismissal with prejudice will prevent them from asserting that theory in their second suit which expressly raised that theory. While we are not unsympathetic with plaintiffs’ predicament, we find that plaintiffs created this situation by leaving the trial court with no choice but to dismiss the entire case. Plaintiffs rejected the trial court’s proposal to dismiss without prejudice that part of the complaint that could relate to the HH & G drain, and then plaintiffs firmly stated that they would not appear for trial if their motion was denied. Left with no alternative, the trial court dismissed the case. Quite frankly, it appears that plaintiffs were faced with the disturbing truth that they had no lawsuit and sought unrealistically to hang on anyway.
Further, the defendants have spent considerable time and a substantial amount of money in defense of this lawsuit. If this lawsuit had been voluntarily dismissed without prejudice, defendants would have to spend additional time and money in defending a new cause of action. Moreover, defendants were prepared to go to trial on the date set. We find that the defendants would have been prejudiced by a voluntary dismissal without prejudice. It is clear that the trial court weighed the competing interests of the parties, and we find unpersuasive plaintiffs’ argument that the trial court abused its discretion in denying their motion for voluntary dismissal without prejudice.
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Per Curiam:.
On October 7, 1981, the trial judge granted defendant’s motion for accelerated judgment, GCR 1963, 116.1(2), and denied plaintiffs’ petition for leave to file a second amended complaint. Plaintiffs appeal as of right.
Plaintiffs alleged that on June 16, 1978, Tom Burgess and Hoppy Stepp, both employed by defendant, argued about union rules and regulations. As a result, Stepp shot and killed Burgess. Plaintiffs, Burgess’s wife and children, eventually sued defendant.
Plaintiffs alleged that Stepp was acting within the course of his employment when he shot Burgess. As a matter of law, plaintiffs cannot now argue that Burgess was outside the scope of employment. Before suing in circuit court, Marjory Burgess filed a workers’ compensation claim with the Bureau of Workers’ Disability Compensation. This claim was redeemed for $4,500. In Johnson v Harper-Grace Hospital, 92 Mich App 202, 207; 284 NW2d 520 (1979), this Court ruled:
"We hold that plaintiff’s acceptance of disability benefits by way of settlement and redemption where she claimed that her injury was employment-related bars her subsequent tort suit where she seeks to relitigate the issue of the bureau’s jurisdiction by alleging that her injury was not employment-related. The redemption order serves as a final adjudication of the rights of the parties in relation to this particular injury and estops plaintiff’s civil suit.”
Therefore, this case’s threshold question is whether or not this suit is barred by the exclusive remedy provision. MCL 418.131; MSA 17.237(131). In Sewell v Bathey Mfg Co, 103 Mich App 732, 736; 303 NW2d 876 (1981), this Court stated:
"It is beyond question that, when an injury is sustained which is compensable under the Worker’s Disability Compensation Act of 1969, the exclusive-remedy provision of the act bars any common-law tort cause of action by an employee against his employer arising therefrom.” (Footnote omitted.)
Plaintiffs attempt to avoid this exclusive remedy provision by claiming that the injury was outside the Worker’s Disability Compensation Act. As such, they allege an intentional tort. Intentional torts are in fact outside the act. Kissinger v Man-nor, 92 Mich App 572; 285 NW2d 214 (1979); Broaddus v Ferndale Fastener Div, Ring Screw Works, 84 Mich App 593; 269 NW2d 689 (1978), lv den 403 Mich 850 (1978). However, although an intentional tort has been alleged, defendant did not do it; Stepp did it. Merely alleging an intentional tort is not necessarily in and of itself sufficient to avoid the exclusive remedy provision. In McKinley v Holiday Inn, 115 Mich App 160; 320 NW2d 329 (1982), the plaintiff was raped by one of defendant’s guests while she was working as a maid for defendant. In distinguishing Kissinger, this Court noted:
"[I]t is necessary to focus on the nature of the tort alleged by the injured employee and to determine if the Legislature intended the exclusive remedy of the act to preclude the employee’s common-law recovery for injury suffered in such a tort.
"The instant plaintiffs complaint against defendant Holiday Inn is grounded solely in negligence. No intentional misconduct is alleged. There is no question that, if plaintiffs injuries have resulted in disability, as that term is understood for workers’ compensation purposes, she will be eligible to receive compensation benefits.” 115 Mich App 165-166.
Plaintiffs, consequently, allege that Stepp was defendant’s alter ego. However, plaintiffs have merely pled the conclusion that Stepp acted as defendant’s alter ego. They have not alleged any facts that would show that Stepp acted as defendant when he shot and killed Burgess. See, generally, Chester v World Football League, 75 Mich App 455; 255 NW2d 643 (1977).
As such, this case is controlled by Crilly v Ballou, 353 Mich 303, 326; 91 NW2d 493 (1958). There, the plaintiff was injured when he was hit by a shingle thrown by some boys working for the defendant. In ruling that that injury was compensable, under the Worker’s Disability Compensation Act, the Supreme Court stated: "[I]f the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable.” See also Fidelity & Casualty Co of New York v DeShone, 384 Mich 686; 187 NW2d 215 (1971).
Plaintiffs also argue that their pleadings did not foreclose the possibility that Burgess had initiated the altercation with Stepp. However, for a claimant to be barred from compensation due to his own misconduct, the conduct must involve a high degree of "moral turpitude”, defined as "an act of baseness, vileness, or depravity”. Andrews v General Motors Corp, 98 Mich App 556, 561; 296 NW2d 309 (1980), lv den 412 Mich 926; 315 NW2d 127 (1982). Plaintiffs have not alleged any such facts.
Plaintiffs next argue that the deceased’s survivors retain an independent action against defendant for loss of society and companionship. However, because this alleged loss derives from the chief claim itself, it is also barred by the Worker’s Disability Compensation Act. Moran v Nafi Corp, 370 Mich 536; 122 NW2d 800 (1963); Bourassa v ATO Corp, 113 Mich App 517; 317 NW2d 669 (1982), lv den 414 Mich 966 (1982); Cole v Dow Chemical Co, 112 Mich App 198; 315 NW2d 565 (1982).
Plaintiffs next argue that the trial judge abused his discretion in denying their motion to file a second amended complaint. GCR 1963, 118.1. Although such motions are within the trial judge’s discretion, they are to be freely granted whenever justice requires. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). We do not believe that the trial judge abused his discretion in this case. Allowing the amendment would have been futile. Plaintiffs, relying on Solo v Chrysler Corp (On Rehearing), 408 Mich 345; 292 NW2d 438 (1980), argue that the redemption agreement should have been set aside because of a mutual mistake of fact. However, Solo dealt with a mistake concerning the claimant’s injury. Here, plaintiffs are not arguing a mistake of fact but a mistake of law; they are arguing that the parties mistakenly believed that intentional torts fit within the bureau’s jurisdiction. A mistake of law is usually not a ground for equitable relief. Schmalzriedt v Titsworth, 305 Mich 109; 9 NW2d 24 (1943); Sinka v McKinnon, 301 Mich 617; 4 NW2d 32 (1942); Theisen v Kroger Co, 107 Mich App 580; 309 NW2d 676 (1981).
Plaintiffs lastly argue that the trial judge abused his discretion in denying their motion to add Stepp as a party defendant. However, plaintiffs have failed to appeal the August 19, 1981, order which denied their motion. As such, this issue is not properly before this Court. Smith v O’Harrow Construction Co, 95 Mich App 341; 290 NW2d 141 (1980), lv den 409 Mich 873 (1980).
Affirmed.
Although plaintiffs have not raised the following matter, we believe it should be addressed. The trial judge’s findings of fact were contained in this statement. "I think you should go to the separate action route here. If you file here, I am sure it will be assigned to me.” This finding is very similar to the finding found insufficient in Leahy v Henry Ford Hospital, 84 Mich App 719, 723; 271 NW2d 34 (1978), lv den 406 Mich 861 (1979): "It seems to me you are in effect starting a whole new lawsuit, a whole new cause ofoaction and these matters have to be resolved someplace”. Whenever a trial judge denies a motion to file an amended complaint, he must make findings that justice will not be served if the motion is granted. Hanon v Barber, 99 Mich App 851; 298 NW2d 866 (1980). | [
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Mackenzie, J.
Defendant was charged with car-, rying a concealed pistol, MCL 750.227; MSA 28.424. A pretrial motion by defendant to suppress the pistol, obtained through an illegal search and seizure, was granted and the case was dismissed. This Court granted the prosecution’s application for delayed appeal.
This Court will reverse a trial court ruling on a motion to suppress evidence only if the ruling was clearly erroneous. See, for example, People v Bandy, 105 Mich App 240, 244; 306 NW2d 465 (1981). Here it was not disputed that defendant was lawfully arrested by police officers for the misdemeanor of offering to engage the services of a female person for the purposes of prostitution, MCL 750.449a; MSA 28.704(1). At the time of his arrest, defendant was carrying a canvas handbag. The arresting officer testified that he took the handbag from defendant, noted that it was unusually heavy, felt the shape of a gun inside, and then opened the bag and discovered the gun. The officer then handcuffed defendant and frisked him.
When a person is arrested, it is reasonable for the arrested officer to search the person arrested or the area within his immediate control to secure weapons or other things which might be used to assault the officer or effect an escape and to secure evidence of the crime which the person arrested might otherwise destroy. Chimel v California, 395 US 752, 763-764; 89 S Ct 2034; 23 L Ed 2d 685 (1969). In this context, the area within the arrestee’s immediate control is the area from which the arrestee might gain possession of a weapon or destructible evidence. 395 US 763. In United States v Robinson, 414 US 218, 235; 94 S Ct 467; 38 L Ed 2d 427 (1973), the Court explained:
"A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable’ search under that Amendment.”
Defendant and the trial court relied upon United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), and Arkansas v Sanders, 442 US 753; 99 S Ct 2586; 61 L Ed 2d 235 (1979). In Chadwick, defendants were arrested when a trained police dog indicated that a footlocker which defendants had transported across the country on a train and then reclaimed contained controlled substances. The Court declined to create an exception for luggage searches which was analogous to the exception for automobile searches. The Court noted that, while luggage, like an automobile, is highly mobile, a greater expectation of privacy exists for the contents of luggage than for the contents of an automobile. The Court emphasized that the search in Chadwick could not be justified as incidental to the arrest, because it took place more than an hour after federal agents gained exclusive control of the footlocker and long after defendants were securely in custody. In Sanders, the Court reiterated its previous holding in Chadwick. The Court noted that the state had not attempted to justify the search as being incidental to a lawful arrest and pointed out that the searched luggage had been in the trunk of the automobile in which defendant was riding and so was not within defendant’s immediate control. Sanders, p 763, fn 11.
In New York v Belton, 453 US 454, 459-460; 101 S Ct 2860; 69 L Ed 2d 768 (1981), the Court held:
"When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of 'the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger com partment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].’ Chimel, 395 US 763. In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
"It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee, so also will containers in it be within his reach.” (Footnotes omitted.)
The Belton Court emphasized that neither Chadwick nor Sanders involved a search incidental to a lawful arrest. In view of Belton, reliance on Chadwick and Sanders by defendant and the trial court was misplaced. Defendant contends that his handbag passed beyond his immediate control when the arresting officers took it from him. Defendant emphasizes that he was outnumbered by the officers present and was handcuffed shortly after the handbag was taken. However, in Belton, defendant had been removed from the automobile, yet controlled substances found zipped into a pocket of a jacket which defendant had left in the passenger compartment of the automobile were properly seized. See 453 US 461, fn 5. The handbag here was as much within defendant’s immediate control as the jacket in Belton was within the immediate control of the defendant in that case.
Moreover, both Robinson and Belton emphasized the need for a simple rule which could be readily applied by a police officer confronted in the field with an immediate problem. Here defendant reasons that it would be unlikely that he would be able to grab the handbag back from two police officers and seize the gun, particularly since he was handcuffed shortly after the handbag was taken by the officers. We cannot adopt defendant’s reasoning if we adhere to the requirement of a simple, workable rule stated in Robinson and Belton. Defendant would have us determine, on a case-by-case basis, whether precautions taken by officers to ensure their safety were reasonable in light of the arrestee’s privacy interests. Belton mandates an objective test based on proximity in time and space of the search to the arrest, rather than a subjective test based on an appellate court’s appraisal of the likelihood that defendant posed a danger to the officers. In view of Belton, the trial court’s decision to grant defendant’s motion to suppress was clearly erroneous.
Defendant also argues that the Michigan Constitution provides greater protection than the federal constitution in the area of searches and seizures and that the trial court’s decision should be sustained as a matter of state constitutional law. However, the state guaranty of security from unreasonable searches and seizures is contained in Const 1963, art 1, § 11, which states:
"The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.”
This provision is, of course, ineffective to prevent application of a federal exclusionary rule. People v Pennington, 383 Mich 611; 178 NW2d 471 (1970). However, the provision prevents formulation of a state exclusionary rule applicable to the facts of this case.
Finally, we note that the trial court’s decision may not be upheld under the rule stated in People v Dixon, 392 Mich 691; 222 NW2d 749 (1974). In that case, the Court held that, where a defendant had been arrested for a misdemeanor, evidence seized in an inventory search at the police station should have been suppressed because an inventory search was unreasonable in view of defendant’s statutory right to immediate bail. However, the Court emphasized that its reasoning would not apply to a search incident to a lawful arrest. 392 Mich 706-707.
Reversed and remanded for further proceedings consistent with this opinion.
Cynar, P.J., concurred. | [
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R. M. Maher, P. J.
Plaintiff insurer appeals from an order granting defendants’ motion for summary judgment. We reverse.
Defendant Catherine Williams’ husband, Henry Williams, purchased a combination automobile policy from plaintiff on November 14, 1973. The policy included the coverage required by MCLA 500.3101 et seq.; MSA 24.13101 et seq. (no-fault), bodily injury and property damage liability coverage, comprehensive, collision and theft coverage, and "residual uninsured motorists” coverage. The policy covered two automobiles and had a total premium of $830. $20 was allocated for residual uninsured motorists coverage.
On January 26, 1974, defendant Catherine Williams was driving one of the insured automobiles in West Virginia. Defendants David and Beatrice Gilmer, West Virginia residents, were passengers. In Elkhorn, West Virginia, an uninsured motorist struck the Williams’ automobile. Catherine Williams and David and Beatrice Gilmer were all injured in the accident.
Plaintiff insurer has been paying defendants the personal protection benefits required by MCLA 500.3101 et seq.; MSA 24.13101 et seq. Defendants demanded arbitration of the limits of uninsured motorist coverage available from plaintiff. Plaintiff brought this action seeking a declaration that it had the right to reduce the amount owing under uninsured motorist coverage by the amount of personal protection benefits paid under the policy.
The policy contains the following provision:
"In consideration of the insurance afforded under Section 1 of this endorsement [personal protection coverage] and the adjustment of applicable rates any amount payable under the Protection Against Uninsured Motorists (Family Protection) Coverage shall be reduced by the amount of any personal protection benefits paid or payable under this or any other automobile insurance policy because of bodily injury to an eligible injured person.”
Plaintiff is correct in asserting that the provision, in a clear, straightforward way, authorizes the reduction of the insurer’s liability under uninsured motorist coverage by whatever payments it makes under personal protection coverage. The provision, consistent with the "residual” designation on the premium schedule, limits a recovery under uninsured motorist coverage to the policy limit less any recovery under the statutorily required personal protection coverage.
Defendants argue that several earlier decisions by this Court prohibit the offset that the provision authorizes. In Keyes v Beneficial Insurance Co, 39 Mich App 450; 197 NW2d 907 (1972), this Court would not permit an insurer to enforce a policy provision that allowed its liability under uninsured motorist coverage to be reduced by payments made under the medical payments coverage of the policy.
"To allow this insurer to deduct the $1,000 from the $10,000, which it is required by statute to pay, would have the effect of reducing the uninsured motorist coverage to a minimum of $9,000, thereby being in clear violation of the letter and spirit of MCLA 500.3010; MSA 24.13010.” 39 Mich App at 456.
MCLA 500.3010; MSA 24.13010, crucial to the decision in Keyes, was repealed by 1972 PA 345. Keyes, therefore, provides scant support for defendants’ position.
Michigan Mutual Liability Co v Karsten, 13 Mich App 46; 163 NW2d 670 (1968), and Michigan Mutual Liability Co v Mesner, 2 Mich App 350; 139 NW2d 913 (1966), both construed limits of liability provisions in uninsured motorist coverage to allow collateral benefits to be offset against the full amount of damages suffered, and not against the policy limits. The provision which plaintiff invokes is not found in the limits of liability provision, and the analysis of the structure of the policy in Karsten and Mesner is unhelpful here. Additionally, plaintiff is not attempting, as was the insurer in both Karsten and Mesner, to reduce his liability because of payments to the insured from an independent source.
A search for assistance from other jurisdictions has not been very fruitful. Apparently, only courts in Florida, Oregon and New York have considered the question of subtracting no-fault benefits from uninsured motorist liability. No reported decision has dealt with the provision contained in the policy plaintiff issued. In Florida, a statute continues to regulate uninsured motorist coverage. F.S. 1971, §627.0851(1); FSA §627.727(1). Stuyvesant Insurance Company v Johnson, 307 So 2d 229 (Fla App, 1975).
In Oregon, a section of that state’s no-fault legislation provided that no-fault benefits "shall be applied in reduction of the amount of damage that the insured may be entitled to recover from any insurer under bodily liability or uninsured motorist coverage for the same accident”. ORS 743.835. The section was amended by Oregon Laws, 1975, Chapter 784, § 10, to make even clearer an insurer’s ability to reduce uninsured motorist liability. In Monaco v United States Fidelity & Guaranty Co, 275 Ore 183; 550 P2d 422 (1976), an insurer sought to deduct the no-fault benefits it had paid from the $10,000 policy limit for uninsured motorist coverage. The policy involved included language similar to the statutory provision on reduction of uninsured motorist liability, and the court held that the insurer could offset the no-fault benefits it had paid.
"The defendant in the present case has clearly and unambiguously included a provision allowing a setoff of medical payments against the uninsured coverage. ORS 743.835 allows such a setoff. The plaintiff is not entitled to receive any further sums under the uninsured motorist coverage provisions of the policy issued by the defendant.” 275 Or at 192; 550 P2d at 426.
The provision in the policy plaintiff issued is no less clear and unambiguous. While Michigan statutes are presently silent on uninsured motorist coverage, reimbursement from a tort recovery is required. MCLA 500.3116; MSA 24.13116. But see Murray v Ferris, 74 Mich App 91; 253 NW2d 365 (1977).
The several New York decisions refusing to allow a setoff have found neither statutory nor policy authorization for such action. Ferebee v State Farm Mutual Insurance Co, 82 Misc 2d 874; 372 NYS2d 303 (1975), Szeszku v Government Employees Insurance Co, 87 Misc 2d 22; 384 NYS2d 652 (1976), Adams v Government Employees Insurance Co, 52 App Div 2d 118; 383 NYS2d 319 (1976).
There appears no reason why the policy provision under consideration should be disregarded. The court below was in error.
Reversed and remanded for entry of the appropriate order. Costs to plaintiff.
F. J. Borchard, J., concurred. | [
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] |
Per Curiam.
Defendant was charged with carry ing a concealed weapon. MCLA 750.227; MSA 28.424. He was convicted after a bench trial.
There was a motion to suppress the evidence made on the basis of the preliminary examination. It was denied by a circuit judge. The motion was renewed during trial before another circuit judge. It was again denied.
To reach the merits the facts are important. The court found the police were credible and the defendant was not. The defendant was driving his mother’s car. Larry Gates was a passenger. Both were wanted in another county on uttering and publishing warrants. The defendant saw a couple walking on the street. He did not know their names but had seen them around. He picked them up and agreed to drive them to a doctor’s for $1. He was stopped by the police. He and Larry were arrested on the basis of the warrants. Upon arrest the defendant was loud and boisterous and talked about a quantity of money that was his. There was money on the dashboard. The police told him they would inventory the car because of his complaints about the money. Defendant insisted he wanted to be sure all his tapes were in the car and that they were left there. The officer impounded the car, made an inventory search at the scene and found a gun in a tape box.
The search was not made incidental to the arrest as it was made after the defendant had been arrested and placed in the police car. There was no probable cause to search for contraband. However, the search can be sustained on two grounds:
(1) It was made at the request of the defendant since he asked that the officer be sure all his tapes were kept in the car.
(2) It was a valid inventory search. South Da kota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976).
The two bases are closely related. If the officer was making an "inventory” search solely to find contraband, it would be impermissible. The request to keep the tapes safe was made only after the announcement that the car would be impounded and was probably a result of that knowledge.
The inventory search was proper if the impoundment was proper. We feel in this case the impounding of the automobile was reasonable under the circumstances. This was a normal, standard police procedure. The defendant and his close friend in the front seat were arrested on felony charges. The people in the back seat were a couple defendant had seen around but he did not even know their names. The police need not entrust the defendant’s mother’s car to such people. The defendant did not ask that this be done, It would have been irresponsible to pull the automobile to the side of the road and leave it there.
Under the circumstances it was reasonable to impound the car. It was therefore proper to make an inventory of the car’s contents, especially in view of the defendant’s conduct and remarks about the money and his tapes.
The failure to produce the tape box went to the weight of the people’s case. The defendant should have been allowed to explain what happened to the uttering and publishing charge once that charge was brought to the attention of the court. Failure to do so, however, was harmless error. This was a bench trial and the weight of the evidence against the defendant was overwhelming.
Affirmed. | [
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D. E. Holbrook, J.
This is an action in equity brought by plaintiff mortgagor, to restrain defendant bank from foreclosing a mortgage until the value of a portion of the mortgaged property released by the mortgagee was duly ascertained and credited against the mortgage. Defendant bank counterclaimed for foreclosure. Plaintiff appeals as of right from a judgment of foreclosure in favor of defendant, wherein the value of the land partially released was determined to be $2,500.
Plaintiff claims that the trial court erred in that the market value of the released portion of the mortgaged premises greatly exceeded the value placed on the land and credited against the mortgage.
On July 31, 1972, plaintiff and her former husband, Lloyd A. Miller, borrowed from defendant bank the sum of $11,000 and executed a mortgage on certain property described as follows: The West 1/2 of the Northeast 1/4 pf the Northeast 1/4 of Section 36, Twp 27 North, Range 2E, Elmer Twp, Oscoda County, Michigan. Said mortgage was re corded in liber 29 of mortgages, page 71 in the Register of Deeds Office for Oscoda County.
On July 15, 1973, plaintiff was divorced from Lloyd A. Miller by a judgment of divorce entered in the circuit court of Oscoda County, Michigan.
Under the terms of the judgment of divorce, a property settlement between the parties was ratified and made a part of the judgment. It provided that plaintiff was awarded the north 1/2 of subject mortgaged property, and plaintiffs former husband, Lloyd A. Miller, was awarded the south 1/2 of said subject mortgaged property and therein said Lloyd A. Miller agreed to assume the existing mortgage. The plaintiffs property awarded therein consisted of the homestead and other out buildings. The property awarded to Mr. Miller was vacant land. The mortgage provided that it was to be paid back at $1,100 per year on principal and interest was payable semi-annually at the rate of eight percent per annum. On July 31, 1973, Mr. Miller borrowed money from the bank on a personal note in order to pay the first $1,100 which was duly paid against the mortgage. He also paid interest amounting to $860, due up to July 31, 1973.
At the time of the mortgage Miller was in business at Mio and subsequently experienced financial difficulties in the fall of 1974. At that time, he made arrangements with a realtor, Mr. John Booth, to borrow $7,500 on the south 1/2 of the mortgaged property and another ten acres close by. Finally, it was decided that Miller would deed the property to Booth, the realtor, and $5,000 was paid to Miller. Miller and Booth then saw Mr. Jenner, president of the defendant bank, about obtaining a release of the south 1/2 of the mortgaged property. At this time, Mr. Jenner under stood that there had been a divorce, that the property had been divided by the divorce judgment and that Mr. Miller had agreed to pay the mortgage. Mr. Jenner agreed to release the property for $2,500, which was paid by check by Booth to Miller and defendant bank. Miller indorsed the check and the defendant bank applied the proceeds first to an unindorsed note of Miller’s under his business name of Marsh Construction Company. Later the defendant bank, claiming error, applied said amount to the unindorsed personal note of Miller which was used to make the first payment on the mortgage. As a result, the defendant bank applied to the mortgage $792 interest to July 31, 1974, and $50.07 on the principal and interest of $393 paying interest to January 31, 1975. On November 20, 1974, date of the partial release, there was $9,900 due on the principal and interest of eight percent from July 31, 1973. There were other small amounts claimed for life insurance which are not material to a decision in this case.
The trial court disregarded the bank’s entries and granted the entire $2,500 received against the mortgage. The issue before this Court is whether the trial court erred in determining the market value of the released property at $2,500.
It appears to this Court that when the parties were divorced and property settlement was approved and made a part of the divorce judgment, they voluntarily apportioned the mortgaged property between themselves, with a further provision that Mr. Miller was to assume the mortgage. This is immaterial to a decision in this case, because subsequently Miller went into bankruptcy. The defendant bank, knowing that the parties had been divorced and that the land had been divided and apportioned between them and that the husband had agreed to assume the mortgage, was required to act in good faith in any partial release granted to the husband, Mr. Miller, of his portion of the mortgaged property. In 59 CJS, Mortgages, § 430, p 655, it is stated in part:
"Release or Purchase of Part by Mortgagee
"A mortgagee who releases or purchases a part of the mortgaged premises must credit the value of that part in favor of the purchasers of other parts, so that they can be charged only with the remainder of the debt.
"If the mortgagee releases or purchases a part of the mortgaged premises, he is held to have consented to an apportionment of the mortgage and the value of that part is to be credited on the mortgage in favor of the purchasers of other parts, so that they can be charged only with the remainder of the debt. * * * It has been held that the amount to be credited is the market value at the date of the release or purchase, even though it exceeds the ratable contributory shares of the others toward the total indebtedness.” (Footnotes omitted.)
We now review the testimony concerning market value of the released portions of the mortgaged premises. Five witnesses testified as to the value of the subject ten acres of land that was released from the mortgage by defendant bank and awarded to Mr. Miller under the divorce judgment.
Bobby E. Jenner, president of defendant bank, testified in part as follows:
”Q. [by Mr. Carl, plaintiff, counter-defendant’s attorney] There wasn’t any doubt in your mind, was there, Mr. Jenner, that the value of that south 10 acres, Parcel Number Two, was greater than the amount received by you, $2,500.00?
"A. Yes, it could be some greater, I didn’t think it was too far off.
”Q. Do you recall * * *
"THE COURT: (Interposing) Didn’t you say it was sold for seventy-five hundred?
"A. That’s 20 acres, sir, the one Number Four and Number Two sold for seventy-five hundred, I think, according to the deposition.
"THE COURT: The mortgage didn’t cover them before?
"A. No, just Number One and Two.
"Q. (Continued by Mr. Carl) Do you recall testifying at the deposition in the following manner, and my question, Page 24, Question * * *
"THE COURT: (Interposing) What page?
"Q. (Continued by Mr. Carl) Page 24, Question, But the land, itself, was worth more than $2,500.00? Answer, Yes, the 10 acres. You recall having testified to that?
"A. Shaking head yes.
"Q. Look at it — Question, Looking at it now, what would you consider that 10 acres of land to be worth? Answer, $10,000.00. You recall having testified to that?
"A. Yes. Now, I considered 1975 and not 1973 [sic 1974] when the transfer was made.
"Q. So, what is your position what the value of the land was in 1973 [sic 1974]?
"A. Oh, probably three to four thousand dollars.
”Q. And you’re telling us a 10-acre parcel increased in value in two years from three or four thousand dollars to $10,000.00?
"A. I question — I read the deposition, and I don’t know whether I was confused or whether the writer is confused, because there’s some other errors in there, but 10 acre parcels do sell for $10,000.00, and whether I was specifically referring to Parcel Number Two, or out on the market, you want to go out on the tree, you can find the right buyer that will pay ten, and I was a little confused about that statement, too, when I came across it.
”Q. But there isn’t any doubt that this parcel that was released was greater in value than the amount you received, the $2,500.00?
"A. Yes, I think I probably figured that I was getting two-thirds of the value, which would have been $2,500.00, and probably worth something like thirty-five or something like that.
"Q. Did you take into consideration comparable sales of property in the area in 1973 [sic 1974]?
"A. Yes, we finance quite a few parcels.
”Q. Not vacant parcels, have you, not vacant parcels, 10 acre parcels?
"A. No, but people build on them, and they buy them to build on.
”Q. Well, is it your testimony, then, from this deposition, that the property in 1975 when your deposition was taken was worth $10,000.00?
"A. No, I don’t think that parcel would be worth — I wondered after reading it maybe if it wasn’t both parcels worth $10,000.00. That figure confused me.
”Q. (Continued by Mr. Carl) Okay, why don’t you— okay, why don’t you refresh your recollection from Page 25.
"A. Yes, I can see that’s what I said, but I just feel that I must have been talking about the 20 acres.
”Q. Okay. What about the $6,500.00 figure that’s mentioned on Page 25, is that what you would consider to be the value of the 10 acres together with an easement?
"A. Yah, then, 1975, that would be a value, yah, I think that would be pretty close.
”Q. Now, the easement that I referred to, you did become aware at some point that an easement will be given by Mrs. Dusseau to Lloyd Miller, and that easement was 66 foot in width and runs along the west boundary of this Parcel Number Two and Parcel Number One, is that correct?
"A. You made me aware of that. I’ve never seen it legally, but you said something about it.
”Q. Well, if that easement were granted, that would increase the value of the 10 acre parcel, would it not?
"A. Yes, I think so.
”Q. And that is what you were referring to here on Page 25 of the deposition, $6,500.00, is that correct?
"A. Right.
”Q. I think you’ve indicated you knew that Mrs. Dusseau was in possession of the house, did you not?
"A. Yes, I think she was in possession.
”Q. So, you knew that she had some equities of some kind, did you not?
"A. Right.
"Q. And she was a party to the mortgage?
"A. Yes, sir.
”Q. And this property, Parcel Number Two, was included within that mortgage?
"A. Yes, sir.
”Q. You took it upon yourself to release this without even so much as a telephone call to her, is that correct?
"A. Yes, sir.
”Q. And yet when it came in default afterwards, after this transaction was over with, you looked to her for payment of it, is that correct?
"A. Yes, sir.
"Q. And when he [Mr. Miller] told you that, and when he took out this loan to make the mortgage payment, didn’t he also tell you that I got to make the mortgage payments?
"A. I imagine he did, yes, sir.”
Mr. Birdell T. Boyer, a licensed real estate broker since 1960 in the area of the subject land, testified in part as follows:
”Q. [By Mr. Carl] And you have sold property during this period of time?
"A. Yes, I have.
"Q. Now, did you at my request make an appraisal of the — of Parcel Number Two, which is described on this diagram?
"A. Yes, I did.
”Q. And do you recall when that was performed?
"A. Not off the top of my head I don’t. Excuse me a minute until I get my glasses on; around September the 15th, 1975.
"Q. I take it that that was the date that you went to the area and looked it over, is that correct?
"A. Yes, that’s correct.
"Q. Have you had occasion in the past few years to appraise other parcels of property?
"A. Yes, I have.
"Q. And you’ve appraised them for Probate Court purposes I assume?
"A. Yes, I have.
"Q. And have you also appraised property for people independently?
"A. Yes.
”Q. People who wanted to get an appraisal on property?
"A. Yes, I have.
”Q. Have you sold parcels of property similar to the one which is * * *
"A. (Interposing) I have.
"Q. * * * described as Parcel Number Two?
"A. I have.
"Q. A 10 acre parcel, and I assume that there are quite a few factors that you take into consideration in making an aopraisal [sic] of property of this nature?
"A. Yes.
”Q. And having viewed this property, and based on your past experience as an appraiser, did you form any opinion as to the value — fair market value of this land in September of 1975?
"A. I did.
"Q. What was your opinion as to the value of Parcel Number Two?
"A. $8,000.00.
"Q. Did you also take into consideration the fact that there was an easement along the west boundary?
"A. Yes.
"Q. 66 foot in width?
'A. That I did.
"Q. And did you appraise that separately?
’A. Yes, I did.
”Q. And did that make it more valuable or less valuable?
'A. It made it more valuable.
"Q. And what did you appraise that at?
’A. $1,065.00.
"Q. Now, I realize that this was over a year ago, but I’m going to ask you to go — to attempt to give me your opinion as to the value of Parcel Number Two a year prior to the time that you actually made the appraisal inspection and appraisal.
’A. I think due to the recession real estate has been very stable in the last three, four years, hasn’t been any big change in it from my experience and from what I read.
,CQ. Do you have an opinion as to whether or not this land would be more or less valuable in November of 1974 as opposed to the time when you inspected it and submitted an appraisal in September of 1975?
’A. I would say it would be relatively no difference.”
Mr. Ellsworth Handrich, a real estate broker with United Farm Agency, a national real estate brokerage, for about ten years, testified in part as follows:
"Q. [By Mr. Carl] You did, however, at my request perform an inspection and appraisal of the property which has been described as Parcel Number Two in this case, have you?
'A. Yes, sir.
”Q. And was that — do you know the date that you perform [sic] that appraisal?
’A. I really don’t.
”Q. Would it have been in September of 1975?
”A. I would think it would be September or October, in that general time.
"Q. Have you had occasion in the course of your experience as a broker and/or salesman to sell 10 acre parcels of land?
"A. Yes.
"Q. Have you sold any within the past two or three years?
'A. Yes.
”Q. How many pieces of property, 10 acre parcels, have you sold in the past three or four years?
'A. I didn’t check back, but I would presume half a dozen.
”Q. What is your appraisal of the value of Parcel Number Two as of the time that you performed your inspection and appraisal in September of 1975?
'A. Eight thousand dollars.
"Q. And did you take into consideration an easement which runs along the west boundary of both Parcels One and Two, and is 66 foot in width?
'A. How do you mean did I take it into consideration?
”Q. Well, did you consider that this was landlocked property, or that it had access to it?
'A. No, I accepted the fact that there was an easement to the property.
”Q. And in your opinion, the value at the time you did this appraisal in September, 1975, was $8,000.00?
"A. Yes.
"Q. Now, you’ve been in the business for quite a few years. Would you say that that opinion of value in September of 1975 was significantly different, either more or less, than would have been the case in November of 1974?
"A. There could have been some. It could have been some less in value at that point, but how much * * *
"Q. (Interposing) What specific factors would have occurred between November of ’74 and September of ’75 that would cause the price to fluctuate?
'A. The market for 10 acre parcels.
"Q. Has increased I take it?
"A. It continues to be one of the better items in real estate.”
Mr. John Booth, the realtor who loaned Mr. Miller money on his 10 acres covered by the mortgage and another 10-acre parcel nearby and subsequently took a deed to the property for $7,-500 to $8,000, testified in part as follows:
”Q. [By Mr. Burzlaff, defendant, counter-plaintiff’s attorney.] Would you indicate to us what you have this property listed for?
"A. I’ve asked $12,000.00 for the 20 acres. That’s what I’ve advertised it for.
"Q. Twelve thousand for the entire 20?
"A. Yah, I don’t think I’ve had an advertisement out for less than $12,000.00 for the 20 acres, but I offered last week the west 10 acres for $4,500.00, and that offer is good yet today.
"Q. Did anybody take you up on it yet?
"A. No. I was talking with a person who wanted to buy it, called me from Lansing to ask me about it.
“Q. Do you think this property is worth, in your opinion as a real estate broker, do you think it’s worth $8,000.00?
"A. That 10 acres?
“Q. Yes, sir.
"A. With certain specific things, it might be.
”Q. How about in general? You’re saying a specific buyer might come along and be attracted, is that what you’re saying?
"A. It’s got a few features about it. One is that with very little effort you could make a two or three acre pond in there, and all that country up there they have pressure veins, you have flowing wells, and it would be possible to make quite a valuable piece of property out of it.
”Q. Well, when I asked you the question, do you think it’s worth $8,000.00, and I forget your exact reply, but I believe your intent was somebody might come along and offer eight thousand for it?
"A. That’s right.
"Q. But you’ve had it for sale, the entire 20, for $12,000.00, and you haven’t sold it for that?
"A. No.
”Q. And you’ve advertised it at that?
"A. I’ve advertised it at that.
”Q. And you’re willing to sell it for $4,500.00 now?
"A. That 10 acres.
"Q. That 10 acres.
"A. With the easement onto Kittle Road.
”Q. With the easement?
"A. Yah.
"A. [On cross-examination.] We talked that I would have the listing, the selling of it indefinitely until it was sold.
"Q. [Mr. Carl.] Right, and didn’t you attach to that listing agreement a breakdown of the Parcel Two into two lots, more or less, into two five acre parcels, you divided this?
"A. That breakdown, that’s the way it was surveyed and given to me. I didn’t make the breakdown, but the breakdown had been made, yes.
”Q. I see. All right. So that there was a parcel, that would be the south five acres, and a parcel, which would be the north five acres?
"A. That’s right.
"Q. And then this north five acres here was also listed for sale, that would be three five acre parcels, isn’t that correct?
"A. That’s right, yes, he wanted to keep that one five acres; that’s right.
”Q. And I assume he discussed with you the values that should be put on this for purposes of listing, did he not?
"A. He suggested, and I suggested, and we didn’t — we did come to an agreement that we’d sell it somewhere in between the two, less than what he wanted, but more than what I had suggested, in order to take care of the mortgage.
"Q. And isn’t it true that the five acre parcel was listed for $4,000.00, and the other five acre parcel for four thousand and the five acre parcel on 72 listed for $7,000.00?
"A Probably, but I don’t have the figures * * *
”Q. (Interposing) You wouldn’t disagree with that, though * * *
"A. (Interposing) * * * right at the present time.
”Q. * * * with the fact that they were listed that way?
"A. No, not unless I saw a listing that said different.
”Q. You don’t have those documents with you I take it?
'A. No.
"Q. So, what you’re saying, really, is that you don’t have a willing buyer at the present time to purchase this property from you?
'A. No.
"Q. But at least when you took out the listing you felt that this was not too far out of line to ask $8,000.00 for Parcel Number Two if you were selling it in five acre parcels?
"A. When the listing was made, I’m in the position of a broker, not the owner, he was still the owner. That was his price that he was willing to offer it on the market for.
”Q. But as a broker, I assume that you advise your clients that — what the value of this land is, or what
"A. (Interposing) I’m certain I did in that case, and his chances of getting that much money was quite slim, but with a — listing property, you can come down on price, but it’s quite hard to go up.
”Q. (Interposing) And you knew, in fact, when you loaned him this money that he did it for the purpose of saving equipment, that it was about ready to be foreclosed on, isn’t that true?
"A. His story was that he had just — since he had obtained a divorce that he was going to take all of the equipment, and I had supposed, anyway, it belonged to his father-in-law, and he had to come up with quite a lot of money, and then he had property settlement involved with the divorce, and it left him in a situation that was kind of close, and he needed more time to work his way out.
"Q. But at any rate, you did know from discussions with him, and from general knowledge in the area, that he was having difficulty in his finances and in the operation of his business in November of 1974, did you not?
"A. Just what he told me that he had, yes.
"Q. And when this mortgage release was obtained you knew that he was in pretty tough financial condition at that time?
'A. You mean a year later?
”Q. A year later, yes.
"A. He was in tough condition. He told me he wasn’t going to do anything about it. He said everybody was taking everything that he had, and I might as well get my share, and he said he’d give me a deed for it. That’s about the language he used.”
Mr. Clifford Schantz, equalization director of Oscoda County since March 1, 1975, and also township supervisor of Comins Township since 1967, testified in part as follows:
”Q. [By Mr. Burzlaff.] Now, I believe I made a request to you that you examine a parcel of property that’s been the subject of this particular lawsuit here and make an appraisal of it, and that it’s located out here in the vicinity of M-33 and M-72 and Kittle Road, and I believe it was — we’ve been referring to the subject parcel as Parcel Two here that’s described as the South Half of the West Half of the Northeast, of the Northeast, or it may also be described as the Southwest Quarter of the Northeast Quarter of the Northeast Quarter of Section 36, Town 27 North, Range 2 East. Did you make that appraisal for us?
"A. Yes.
”Q. And when did you make that appraisal?
"A. I believe it was in the last of April or first of May of ’76. It was last spring.
”Q. And did I advise you as to a particular date that I wanted as far as the value as of a particular date?
"A. You said that I should figure — derive at a value as of November of ’74,1 believe.
"Q. I see. Now, first, I assume that you did arrive at a value, is that true?
"A. Yes.
”Q. How did you arrive at a value, if you might indicate?
"A. Well, I went to the market and selected parcels of land that had sold over the last two or three years, and since each parcel of land is unique in itself, and you have — there are certain things that make it more valuable or less valuable, I took comparable parcels of 10 acre parcels and weighed — adjusted the comparable parcel to try and make it the same as the subject parcel.
”Q. In terms of what?
"A. Well, one thing that makes a smaller lot more attractive would be wooded, whether it’s wooded or not, whether you have access to that, whether it’s on a blacktop road, whether it’s on a gravel road, whether they have an easement to it, or the time of sale would have an effect on it, if the market is shifting.
”Q. And how many comparable properties did you use in arriving at your appraisal?
"A. I believe I looked at seven that I used on the appraisal.
”Q. I see, and how many did you feel, after you had examined them all, were comparable to the 10 acres that you were asked to appraise?
"A. Real exactly like it, none.
”Q. I see, but then all property is unique you said?
"A. Yes, but I don’t know of another parcel that sold in the last five years, three years, that would be exactly like that parcel.
”Q. Okay. Did you arrive at an opinion as to the value of this 10 acres in 1974, in November?
"A. Yes.
"Q. And what value did you determine?
'A. In my estimation, it’s worth $3,250.00.
”Q. $3,250.00?
'A. Right.
’’THE COURT: What is the range of parcels for 10 acres in this county no, sales?
"A. Probably nine thousand would be top, and four thousand low. You would occasionally find one maybe lower, but it would be something definite wrong with it that it would lower its value.
’’THE COURT: And what about in ’73?
”A. ’73, we’ve gone through a period when ’73, ’74 I think was fairly level in the values. Then, we went into a period in the fall of ’75, and there’s two — two or three parcels that I used were sold late in ’75, but we hit a low in the market from say September of ’75 until about April of this year.”
This being an equity action, on review this Court is governed by the rule set forth in the case of Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975), which states in part as follows:
"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. Meyering v Russell, 53 Mich App 695, 701; 220 NW2d 121 (1974); Stribley v Michigan Marine Inc, 42 Mich App 218, 221; 201 NW2d 702 (1972), lv den, 388 Mich 786 (1972).
"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; Meyering, supra; Rencsok v Rencsok, 46 Mich App 250, 253; 207 NW2d 910 (1973).”
The testimony of the five witnesses concerning value of the released portion of the mortgaged premises has been set forth herein from the record. The president of defendant bank testified and placed the value on the subject land at $3,500 to $3,750, stating that he figured the $2,500 amount was about two-thirds of the value; on another occasion he said the value was between $3,000 and $4,000; and on still another occasion he said the value of the property a year later (fall of 1975) was $6,500, but that the value had increased considerably in that one-year period.
Mr. Birdell T. Boyer, real estate broker, testified that in September 1975, he valued the subject property at $9,065 and that value would have been the same in the fall of 1974.
Mr. Ellsworth Handrich, real estate broker, testified that the value of the subject property in September 1975 was $8,000. Further, he said that the property could have been somewhat less in value in 1974.
Mr. John Booth, the realtor who purchased the property from Mr. Miller, stated he had it for sale at the time of trial for $4,500 and had not sold it as yet.
Mr. Clifford Schantz, equalization director of Oscoda County, testified that the value was $3,250 in November of 1974. He further testified that the range of value for 10-acre parcels sold in Oscoda County was between $4,000 and $9,000 and that values in 1973 and 1974 were constant and hit a low in the market from September 1975 until April 1976.
It is evident from the foregoing summaries of testimony that the $2,500 value placed on the property was clearly erroneous. We further determine that had we been occupying the position of the trial chancellor, we would have reached a different result.
After careful review of the record, we believe the value of the released portion of the mortgaged premises should have been set at $4,500.
On July 31, 1973, the balance due on the mortgage was $9,900. The $4,500 should be credited against the interest and principal of the mortgage —interest of $792 to July 31, 1974, plus $264 interest to November 30, 1974, or $1,056 on interest and $3,444 on principal for a balance of $6,456. The interest due to November 30, 1976, would be $516.48 for a total of $6,972.48 due November 30, 1976.
Foreclosure may be ordered for said amount as of November 30, 1976, plus interest of eight percent on $6,456 until paid.
Reversed and remanded for entry of judgment of foreclosure in accord with this opinion. Costs to plaintiffs.
Found in 41 CJ, Mortgages, § 842, p 762, fn 73: "Balen v Lewis, 130 Mich 567; 90 NW 416; 97 AmSR 499 [1902].” Also see, Hall v Edwards, 43 Mich 473; 5 NW 652 (1880). | [
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T. M. Burns, J.
This action involves provisions of the no-fault automobile insurance act. MCLA 500.3101, et seq.; MSA 24.13101, et seq.
On September 12, 1974, plaintiff was operating a motorcycle in the city of Flint when he was struck by an automobile owned and operated by defendant Runyon. Runyon’s automobile was covered by no-fault and liability insurance policies issued by defendant Aetna Life & Casualty Company. Plaintiff lived with his father and was covered for injuries received while motorcycling under no-fault policies issued by defendant Michigan Mutual Liability Company.
Plaintiff brought this suit claiming that he suffered serious personal injuries requiring extensive hospitalization and medical treatment, and loss of income as a result of this accident.
Count I of the complaint sought recovery of personal injury protection (PIP) benefits from Michigan Mutual. Michigan Mutual claimed a deductible of $5,000 as provided in the policies it had issued plaintiff’s father. Plaintiff asserted that a deductible in excess of $300 was in violation of the statute and that the legislative grant of authority to the Insurance Commissioner to approve deductibles above that figure was an unlawful delegation of legislative authority and therefore void. Plaintiff alleged in the alternative that to the extent he was not entitled to the first $5,000 of PIP benefits from Michigan Mutual, he was entitled to those benefits from Aetna Life & Casualty under the non-occupant provision of the no-fault act. MCLA 500.3115(1); MSA 24.13115(1).
In Count II plaintiff sought common law damages against Runyon based on negligence. In Count III plaintiff sought a declaration that the no-fault provision providing for repayment of no-fault benefits out of such a recovery was violative of the equal protection and due process clauses of the Michigan and U. S. Constitutions.
On motion for summary judgment brought by Michigan Mutual, the trial court ruled that since motorcycles were excluded from the no-fault act, plaintiff could not claim no-fault benefits from either insurer. Consequently, the court granted summary judgment against the plaintiff on Count I, the claim for no-fault benefits, and permitted plaintiff to amend Count II to claim additional special damages of $5,000. The trial court further ruled that the repayment rule of § 3116 was un constitutional. After entry of the order, plaintiff entered into a stipulation of dismissal with full prejudice with Aetna Life & Casualty and Runyon. All claims against these defendants were released in consideration of a $12,000 payment. Plaintiff appeals the trial court order as it relates to his claim against Michigan Mutual.
I
Motorcyclists are not "excluded from no-fault”. Motorcycle owners are not required to maintain personal injury protection insurance. See § 3101(1), (2).
Motorcycles are not included in the definition of motor vehicles in the act. § 3101(2). Under § 3115(1), a person injured in an automobile accident while other than an occupant of a motor vehicle must claim PIP benefits, as between insurers of the automobile owner and operator, first from the insurer of the owner. Since a motorcyclist is, under the act, not an occupant of a motor vehicle, the motorcyclist injured in an automobile accident may recover from insurers of the owner, and then operator, of the automobile. However, this priority section is not controlling in this case.
Section 3115(1) is qualified by § 3114(1). Section 3114(1) indicates that when PIP benefits are payable to an insured under his own policy, his insurer must pay all of these benefits even though the insured is also covered under another policy. Michigan Mutual, the company which issued the policy under which plaintiff was insured, is therefore liable to plaintiff for PIP benefits. Even though injured on a motorcycle, plaintiff may recover PIP benefits from his own insurer. Plaintiff elected to pay for this nonrequired coverage and may enforce the contract subject to the requirements of the act.
II
The more bothersome issue in this appeal concerns the validity of the $5,000 deductible in the Michigan Mutual policy.
Subsection 3109(3) of the no-fault act provides that PIP insurers may offer deductibles not in excess of $300 per accident, that this deductible may apply to any of the PIP benefits for a named insured, and that any other deductible provisions require the approval of the Insurance Commissioner. The parties to this appeal assume this language gave the commissioner authority to approve deductible provisions in greater dollar amounts. Although the wording of the statute certainly does not compel that interpretation, it could apply equally to the second sentence of the subsection, and we assume only for decision of this issue that such a construction is proper.
On October 1, 1973, the Insurance Commissioner approved a PIP endorsement providing for a $5,-000 deductible for injuries sustained while occupying a two-wheel motor vehicle. This endorsement was contained in the Michigan Mutual policies held by the plaintiff’s father.
The principles of separation of powers and due process of law forbid the delegation of legislative powers to an administrative agency unless those powers are accompanied by appropriate standards limiting their use. See Department of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976), and cases cited therein. In considering whether a statute has provided sufficient standards, three principles are to be followed:
1. The act in question must be read as a whole;
2. The standard should be as reasonably precise as the subject matter requires or permits;
3. 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. Seaman, supra, at 309.
The no-fault act, as it applies to the deductible in this case, contains no provision defining or limiting the power delegated the Insurance Commissioner in § 3109(3). See footnote 6. There is no indication of the goal sought to be achieved by the delegation of such power. The commissioner is not told what he can do, how he can do it or why he can do it. Looking to the Insurance Code as a whole, we still find no guidelines for the establishment or approval of deductible provisions.
Little can be said on what the subject matter requires or permits in the way of standards. There are no standards.
The no-fault act is remedial social legislation of complex proportions. Such legislation cannot be expected to be without flaws. It deals with a subject matter involving a high degree of regulation— insurance — which of necessity calls for the exercise of discretion and administrative authority. In such a case it may be more significant to seek standards created by the administrative agency itself to guide its decision making.
However the problem is viewed, though, we are faced with a situation in which a purely arbitrary decision was made by an administrative agency of the state — in the exercise of unlimited, undirected authority — which had the effect of creating an exception to a legislative prohibition (no deductible to exceed $300). Being action taken under a grant of legislative authority without proper standards for the exercise of that authority, the action was invalid. Michigan Mutual may claim no more than the statutory limit of a deductible of $300.
The order of summary judgment for Michigan Mutual against plaintiff on Count I is reversed. This cause is remanded for a determination of the amounts of PIP benefits which plaintiff is entitled to and has not yet received.
No costs.
A. E. Keyes, J., concurred.
MCLA 500.3109(3); MSA 24.13109(3).
MCLA 500.3116; MSA 24.13116.
"Sec. 3101. (1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.
"(2) 'Motor vehicle’ as used in this chapter, except for section 3103, means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels.” MCLA 500.3101; MSA 24.13101.
"Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.” MCLA 500.3115(1); MSA 24.13115(1).
"Sec. 3114. (1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.” MCLA 500.3114(1); MSA 24.13114(1).
"(3) An insurer providing personal protection insurance benefits may offer, at appropriately reduced premium rates, a deductible of a specified dollar amount which does not exceed $300 per accident. This deductible may be applicable to all or any specified types of personal protection insurance benefits but shall apply only to benefits payable to the person named in the policy, his spouse and any relative of either domiciled in the same household. Any other deductible provisions require the prior approval of the commissioner.” MCLA 500.3109(3); MSA 24.13109(3).
Effective June 3, 1974, the Legislature amended the no-fault act by adding § 3109a. That section provides:
"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.” MCLA 500.3109a; MSA 24.13109(1).
The Insurance Commissioner interpreted § 3109a as forbidding the inclusion of large deductible motorcycle coverage in policies issued after the effective date of the new statute. See, Section 7 of Bulletin ED Section 1 (4-74), Michigan Department of Commerce. No deductible was to exceed $300 in new or renewal policies processed after that date.
The policy in question here was issued before that date and had not been processed for renewal. The added section and the commissioner’s interpretation of it are not directly involved in this appeal. | [
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] |
R. E. Robinson, J.
In the late afternoon of June 28, 1969, plaintiffs decedents, Gilbert Cross and his wife Mary Ann, set out for a brief sail from their cottage on the Ontario shore of Lake Erie in a small sailboat accompanied by another couple, Norman and Beverly Lentz, the boat’s owners, who had recently purchased it new. Approximately 10 hours later, in the early hours of June 29, the boat was found partially submerged within a quarter of a mile from the point of departure. The bodies of the four occupants were found at various times up to August 10, 1969, and at various locations scattered over a distance of 50 miles from the Cross cottage. All were in Canadian waters or on Canadian shores.
On July 15, 1971, plaintiff sued Moulded Fiber Glass Companies, Inc., for wrongful death charging in two counts, negligence and warranty. There were other defendants who are not involved in this appeal.
Defendant moved for accelerated judgment, citing Ontario’s one year statute of limitations as a bar, and this motion was granted. On appeal, this Court reversed and returned for trial to establish the place of death. Szlinis v Moulded Fiber Glass Companies, Inc, 51 Mich App 620; 215 NW2d 777 (1974).
The proofs before a jury established, and both sides concede, that death could not have occurred in Michigan waters, but that it could have occurred either in Ontario or Ohio waters.
At the close of plaintiff’s proofs, defendant moved for a directed verdict on the grounds that plaintiff’s claim was barred under both Ontario’s one year statute of limitations and under Ohio’s two year statute. The trial court granted the motion as to the negligence count and denied it as to the warranty count. At the close of proofs, the jury returned a verdict against defendant-appellee in the sum of $235,000.
Subsequently defendant moved for judgment notwithstanding the verdict and this was ultimately granted, the trial court basing its decision on Parish v B F Goodrich Co, 395 Mich 271; 235 NW2d 570 (1975). Plaintiff’s appeal from that decision raises several issues worthy of discussion, the most critical one being the applicability of Parish to these facts.
I.
Plaintiff first charges that the trial court erred when it permitted defendant, during the trial, to amend its pleadings to assert the Ohio statute of limitations as a bar. We do not agree.
GCR 1963, 118.3 provides:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case an amendment of the pleadings to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, amendment to conform to such proof shall not be allowed unless the party desiring amendment satisfies the court that the amendment and the admission of such evidence would not prejudice the objecting party in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
The place of death has been uncertain from the beginning of this case and is uncertain as of this writing. The only thing known on the subject with certainty is that death did not occur in Michigan waters, and that it occurred either in Ontario waters or in Ohio waters. At this point, Michigan’s borrowing statute, being the Uniform Statute of Limitations on Foreign Claims Act, becomes important:
"The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim.” MCLÁ 600.5861(2); MSA 27A.586K2)
Defendant has from the beginning asserted limitations as a bar to plaintiff’s claim, the initial basis asserted being the Ontario statute. However, a reading of the trial transcript, particularly the testimony of Dr. Saylor, persuades us that from the pretrial on, by the implied consent of the parties, this case was tried with a view to determining whether death occurred in Michigan, Canadian or Ohio waters. The assertion of the Ohio limitations by amendment during the trial only made the pleadings conform to the proofs and raised no new issue. Pleger v Bouwman, 61 Mich App 558; 233 NW2d 82 (1975). Plaintiff relies heavily on Wilson v Eubanks, 36 Mich App 287; 193 NW2d 353 (1971), to support his claim that a failure to plead the bar of a foreign statute of limitations in the first responsive pleading is not amendable, but see Bigelow v Walraven, 392 Mich 566; 221 NW2d 328 (1974). We find no abuse of discretion by the trial judge in allowing this amendment to the pleadings.
II.
Plaintiff next charges error by the trial court in taking judicial notice of the Ontario and Ohio statutes of limitation. Again we disagree.
"Courts ordinarily do not take judicial notice of the laws of a foreign country, but the rule is otherwise where it is so provided by statute.” 31 CJS, Evidence, § 21, 867.
Former MCLA 600.2114; MSA 27A.2114 permitted courts to take judicial notice of the laws of a sister state, and Michigan case law which recognized such authority relied on this statute or its predecessor. But there is no authority under present statutes for our courts to take judicial notice of either the statutes of sister states or of a foreign government, MCLA 600.2114a, 600.2118a(3); MSA 27A.2114G), 27A.2118(1)(3).
In his brief in opposition to defendant’s motion for judgment notwithstanding the verdict, however, plaintiff stipulated that Ontario had a one year statute of limitations, RSO 1950, ch 132, § 5 (actually RSO 1970, ch 164, § 5, is the applicable section), and that Ohio had a two year statute of limitations (ORC 2125.02). He further stipulated the same during oral argument on defendant’s motion for directed verdict at the close of plaintiff’s proofs. Plaintiff cannot now assert for the first time on appeal that the trial court has no authority to take judicial notice of foreign statutes. Mauricio v Tobias, 52 Mich App 127; 216 NW2d 602 (1974), and cases cited therein.
Appellant makes the point that various Michigan (MCLA 600.5852; MSA 27A.5852, MCLA 600.5853; MSA 27A.5853), Ohio (ORC 2305.15), and Ontario (RSO 1970, ch 246, § 48) statutes tolled the running of the limitation statute. These statutes are directed toward defendants who are not amenable to the jurisdiction of the forum state and are not applicable to this case. But again this issue was not raised below and cannot be raised for the first time in this Court. Mauricio, supra.
III.
Plaintiff asserts that defendant extended the limitation period by fraudulently concealing the existence of plaintiffs cause of action. This issue Was not raised in the trial court and will not be heard here. Mauricio, supra.
IV.
Plaintiff finds error in the trial court’s ruling that a cause of action for wrongful death resulting froíñ a defective product accrues at the time of death. If the cause of action accrued at the time the defect was discovered, as urged by plaintiff, then plaintiffs claim is not barred by either the Ontario or Ohio limitations statute.
ffhe principle announced by Justice Cooley in Price v Hopkin, 13 Mich 318, 324 (1865), is still valid today:
"The general power of the legislature to pass statutes of limitation is hot doubted. * * * But the legislative authority is not so entirely unlimited that, under the name óf a statute limiting the time within which a party shall résort to his legal remedy, all remedy whatsoever may be taken away. * * * It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought.”
In the case before us, the jury apparently found that death resulted from latent defects in the construction of the sailboat, and there is support fór this finding in the record. Plaintiff contends that his cause of action should not accrue "earlier than the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered”, the claimed defect, paraphrasing Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973). Continuing, plaintiff urges that any earlier accrual date is directly contrary to the principle enunciated in Price, supra, since it was more than a year after death before testing by experts disclosed the defects, and such time, according to plaintiff, was the minimum time during which discovery could have been made with the exercise of reasonable diligence. Recent case law makes it unnecessary to inquire into the validity of this factual claim.
Michigan’s borrowing statute, supra, which makes applicable the law of the forum or the law of the situs "whichever bars the claim” (emphasis supplied), requires us to examine not only the time period of the limitation statute but also the accrual time of the cause of action which triggers the running of the limitation period. Waldron v Armstrong Rubber Co (On Remand), 64 Mich App 626, 636; 236 NW2d 722 (1975).
The basis for action in this case, whether applying the law of Michigan, Ontario or Ohio, rests in a wrongful death statute.
Michigan
The wrongful death statute—
"Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default * * * . All actions for such death, or injuries resulting in death, shall be brought only under this section”. MCLA 600.2922; MSA 27A.2922.
Limitations—
"The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property”. MCLA 600.5805(7); MSA 27A.5805(7).
MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805), the three-year statute of limitations, applies to wrongful death actions”. Rhule v Armstrong, 20 Mich App 573, 574; 174 NW2d 292 (1969), aff’d, 384 Mich 709; 187 NW2d 223 (1971), citing Coury v General Motors Corp, 376 Mich 248; 137 NW2d 134 (1965), and Kushmaul v Consumers Power Co, 3 Mich App 626; 143 NW2d 154 (1966).
Accrual—
"the cause of action for a wrongful death and damages resulting therefrom accrues when that death occurs”. Coury, supra, at 251, see also Rhule, supra, 384 Mich at 717.
Ontario
The wrongful death statute (The Fatal Accidents Act)—
"Where the death of a person has been caused by such wrongful act, neglect or default, as, if death had not ensued, would have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances amounting in law to culpable homicide”. RSO 1970, ch 164, § 2.
Limitations—
"Not more than one action lies for and in respect of the same subject-matter of complaint and every such action shall be commenced within twelve months after the death of the deceased and not afterwards.” RSO 1970, ch 164, § 5.
Accrual — Upon the death of the decedent. See RSO 1970, ch 164, § 5 above.
"The limitation period specified in the Fatal Accidents Act is absolute.” J. S. Williams, Limitation of Actions in Canada (1972), p 184. (Footnote omitted.)
Ohio
The wrongful death statute—
"When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the corporation which or the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured.” ORC 2125.01.
Limitations—
"Except as otherwise provided by law, every such action must be commenced within two years after the death of such deceased person.” ORC 2125.02.
Accrual — Upon the death of the decedent. See ORC 2125.02 above.
"It would seem, therefore, settled in Ohio that the time limitation in the wrongful-death statute does not constitute a remedial limitation upon the right of action. Commencing the action within the prescribed time is a necessary element of the right to bring it and if a petition shows upon its face that it is not filed within the two-year period, a demurrer to it must be sustained, not because a statute of limitation is interposed as a defense but because an averment of an essential element of the action is absent”. Sabol v Pekoc, 148 Ohio St 545, 554; 76 NE2d 84 (1947).
Since Michigan’s death act contains no statute of limitations, the limitation has been supplied by court construction which adopts the three-year tort statute as the limitation. Rhule, supra, 20 Mich App at 574. Contrary to our statute, the Ontario and Ohio death acts each contain their own limitations which commence to run on date of death.
Counsel on both sides of this controversy rely on Parish, supra, to support their positions in this case. It is our opinion that Parish, or that part of it which speaks to the limitation period and its accrual, is not applicable here. Although it, like this case, involves an assertion of liability based on warranty of an allegedly defective product, the asserted liability does not depend for its existence on the death act. It perhaps should be noted, however, that applying Parish, which found the three-year tort statute applicable to product warranty cases (whether based on tort or contract) and established the accrual date as the date when all the elements of the cause of action are present, would produce the same result as is reached here under the wrongful death act, i.e., a three-year limitation period commencing on date of death.
Plaintiff urges upon us Dyke, supra, in support of his claim that the period of limitations commences when the defect was discovered or by diligent effort should have been discovered. This argument overlooks the fact that the opinion in Dyke restricted this approach to malpractice cases. Likewise does Parish restrict such an approach to those cases involving consumer actions against suppliers of services. We hold that plaintiff’s claim accrued on the date of death, and, following Parish, supra, we hold that it accrued where injury (death) and damage were suffered. Whether this was in Ontario or in Ohio waters, plaintiffs claim is barred by the statute of limitations, be it Ontario’s one-year statute or Ohio’s two-year statute.
Plaintiff finally asserts that Michigan’s borrowing statute violates his right to equal protection of the laws by discriminating against Michigan residents killed outside the state. We disagree.
Contrary to plaintiffs first asserted claim of discrimination, Michigan obviously does provide a forum for those injured outside the state.
The more valid question is plaintiffs assertion that the borrowing statute discriminates between Michigan residents injured in Michigan and Michigan residents injured outside Michigan where the limitation periods are frequently shorter than Michigan’s. Since this is true, we must inquire whether there is a reasonable relation between the classes thus created and the purpose of the statute.
This purpose, as stated in Parish, is to resolve possible conflicts of laws that may arise when a plaintiffs claim arises outside the forum and to limit forum shopping. Parish, supra, at 278. The tendency of this statute is to bar residents of Michigan and nonresidents alike, who suffer personal injury outside of this state, from maintaining an action in Michigan unless commenced not later than the time allowed by the state of injury. Parish, supra, at 284. The borrowing statute unquestionably resolves many conflicts of laws questions. It thus appears not only that the purpose of the statute is reasonable, but that there is a reasonable relation between its purpose and the unequal classes which it creates.
If this appears to produce a harsh result, we refer the reader to Justice Levin’s comment in Parish, supra, at 283-284:
"But the Legislature could have both barred nonresidents from coming into this state in search of a longer statute of limitations and allowed Michigan residents (who generally are not forum shopping) the benefit of Michigan’s frequently longer limitational period by exempting, as many states have, its own residents from the restrictions of its borrowing statute.
"The Legislature, however, on the recommendation of the Commissioners on Uniform State Laws, has chosen an undifferentiating course barring Michigan residents, as well as nonresidents, from maintaining actions in Michigan courts that accrue in another state and which are time-barred in that state. This suggests that there is no legislative policy of special concern for Michigan residents overriding the considerations which prompted the Commissioners on Uniform State Laws to make residence irrelevant.”
Affirmed, with costs to defendants.
J. H. Gillis, P. J., concurred. | [
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Bashara, J.
This is an appeal by defendants from an order of the trial court granting, sua sponte, a summary judgment for plaintiffs, enjoining defendants from establishing the Saline River as an intercounty drain. Although the judgment of the trial court rests upon a procedural peculiarity, we need not address that aspect of the case. The gravamen of the controversy is the interpretation of pertinent sections of the Drain Code of 1956. MCLA 280.1, et seq.; MSA 11.1001, et seq.
A petition to the Director of the Department of Agriculture of the State of Michigan was submitted by the Townships of Milan, London, and Dundee to locate, establish, and construct the Saline River as an intercounty drain. Pursuant to statute, the defendant drainage boards were created. MCLA 280.514, 280.515; MSA 11.1514, 11.1515. Following the statutory scheme, meetings were held by the defendants, resulting in a final order of determination. MCLA 280.519; MSA 11.1519.
Subsequently, plaintiffs initiated suit to enjoin the defendants from proceeding further under the petition to develop the contemplated drain project. As the principal basis for relief, plaintiffs asserted that the petition, being filed pursuant to § 541 of the code, did not contain an agreement to pay, nor was it accompanied by a deposit for, the cost of planning and engineering, as required by § 542 of the code. See MCLA 280.542; MSA 11.1542. This, the plaintiffs argued, made the petition fatally defective and precluded further proceedings by the defendants under the petition.
Defendants maintained that the petition was filed pursuant to § 513, and therefore no accompanying agreement or deposit for costs was necessary. See MCLA 280.513; MSA 11.1513. It was the position of defendants that the petition was intended to establish the Saline River as an inter-county drain, not to assume jurisdiction over the river, as was the intent of petitions filed under § 541. See MCLA 280.541; MSA 11.1541. Notably, the opposing litigants each referred to the specific language of the petition to support their respective positions; i.e., plaintiffs contend that the petition is filed under § 541 while defendants maintain that the filing is pursuant to § 513.
Upon motion for summary judgment by defendants, the trial court ruled that the petition came within the provisions of § 541 and was, therefore, improperly filed, since the petitioners failed to comply with § 542, regarding a bond for prelimi nary costs. The trial court denied the defendants’ motion and granted injunctive relief to plaintiffs.
It is plaintiffs’ contention that whenever a petition is filed seeking to locate, establish, and construct an intercounty drain utilizing the bed, tributaries, banks, and floodplains of a natural watercourse, § 541 of the code sets the petition requirements. Plaintiffs argue that the terms "banks and floodplains” used in the petition are not within the definition of "drain” recited in MCLA 280.3; MSA 11.1003. This in conjunction with the petition’s description of the improvements to be made to the river indicates that the petition was filed under § 541. It is urged by plaintiffs that the failure to expressly request in the petition an assumption of jurisdiction over the river does not militate against concluding that § 541 governs, since the practical effect of the petition is tantamount to an assumption of jurisdiction.
Defendants claim that the legislative intent underlying § 541 is to provide for complete control over a natural watercourse to prevent flooding and pollution. The purpose of the petition, defendants argue, was to construct improvements to the river to facilitate its use as an intercounty drain. Complete control over the use of the river not being requested by the petition, defendants urge that it was properly filed under § 513.
We must resolve whether a petition to establish and make improvements to a natural watercourse as an intercounty drain must be filed under § 541 of the Drain Code of 1956, notwithstanding that the petition does not assert assumption of jurisdiction over the watercourse. That determination affects both the requirement of a bond for preliminary costs and the apportionability of those costs among the public corporations benefitted by the improvements.
We are . guided in our decision by the principles of statutory construction, since our research has disclosed no case law pertinent to the controversy under review. Most appropriate to our task is the rule that legislative enactments be read as a whole so as to harmonize the meaning of their separate provisions and give effect to the Legislature’s intent. Munro v Elk Rapids Schools (On Rehearing), 385 Mich 618; 189 NW2d 224 (1971), adopting the dissenting opinion in Munro v Elk Rapids Schools, 383 Mich 661, 688; 178 NW2d 450, 462 (1970). Applying this rule to chapter 21 of the Drain Code of 1956 leads us to conclude that the petition in question was properly filed pursuant to § 513. MCLA 280.513; MSA 11.1513.
In analyzing the distinction between § 513 petitions and those filed under § 541, it is important to observe the purpose contemplated by the language of those sections. Both § 513 and § 541 require public health necessities as a precondition to a properly filed petition. However, § 513 speaks in terms of petitioning for the location, establishment, and construction of an intercounty drain. See MCLA 280.513; MSA 11.1513. It also requires that the location and route of the drain be described only with such particularity that a reasonably certain determination may be made as to the areas to be served by the drain. Id.
Section 541, on the other hand, contemplates that a petition filed thereunder be for the purpose of assuming complete control over a natural watercourse. The statute, which is phrased in terms of an assumption of jurisdiction, intends that the control exercised over the watercourse have as its purpose the prevention or correction of conditions that "cause or increase the danger of flooding, pollution, desecration or obstruction” of such watercourse. MCLA 280.541; MSA 11.1541.
A companion provision to § 541 requires that the petition be accompanied by a bond for the cost of planning and engineering necessary to formulate a recordable description of the watercourse over which control is sought. MCLA 280.542; MSA 11.1542. Further, those costs are not assessable against any of the public corporations benefited by improvements to the watercourse, although the cost of the improvements may be so assessed. MCLA 280.545; MSA 11.1545. In contradistinction, all engineering and planning costs are accessible for drain projects initiated by a § 513 petition, and such petitions need not be accompanied by a bond for those costs.
Another important measure of distinction between § 513 and § 541 petitions is the degree of control exercised by the drainage boards created by those respective petitions. Under § 513 petitions the drainage board has a continuing responsibility for the maintenance and operation of the drain. MCLA 280.530; MSA 11.1530. However, contrary to plaintiffs’ contention, we do not construe this to vest the board with control equivalent to that obtained by an assumption of jurisdiction pursuant to a § 541 petition. We derive this conclusion from the authorization given by § 539 to public corporations assessed for drain project costs to exact connection and service fees from property owners utilizing the drain. MCLA 280.539; MSA 11.1539. It does not appear that the drainage board has control over the drain to the exclusion of all other public entities affected by the § 513 drain project.
By comparison, the authority obtained by the drainage board under a § 541 petition is absolute. Once the description of the watercourse required by § 542 is recorded, "no constructing, excavating, land filling, removing of structures, trees, plants or shrubs, dumping, or discharging of sewers or drains shall be permitted or continued in the bed, tributaries, banks or flood plains” of the watercourse "except upon written order or permit issued by the drainage board”. MCLA 280.543; MSA 11.1543. As declared in § 544, the recording "constitutes a regulation and limitation” on the use of the watercourse "to remove or lessen the danger of flooding, pollution, desecration or obstruction * * * ”, MCLA 280.544; MSA 11.1544. The description delimits the geographic extent of that regulation.
From the foregoing considerations we discern a distinguishable legislative intent underlying §§ 513 and 541. The former contemplates the design, construction, and operation of an intercounty drain, which may include the conversion of a natural watercourse for that purpose. See MCLA 280.3; MSA 11.1003. The latter contemplates the control and regulation of the use of a natural watercourse for purposes of flood and pollution prevention. Whether improvements are made to the watercourse for that purpose is immaterial. The gravamen of § 541 is regulation and control by a statutorily created drainage board.
Reviewing the petition in the instant case, we conclude that it sought to establish and construct an intercounty drain and nothing more. We find, contrary to plaintiffs argument, that regulation and control of the Saline River is not within the petition’s contemplation. The absence of language in the petition that jurisdiction is to be assumed over the river course is a material and pursuasive factor in our resolution of this controversy.
That the petition contains language also appearing in § 541 as to the banks and floodplains of the river is not indicative that the intent of the petition is congruent with the intent of that section. Rather, it is more reasonable to assume that the banks and floodplains may be affected by the drain construction and were specified in the petition for clarity as to the project’s scope.
Accordingly, we hold that the trial court erred in determining that since the petition sought to establish a drain utilizing the Saline River, it could not be sustained under § 513. Therefore, we reverse the judgment of the trial court granting injunctive relief to plaintiffs and remand for further proceedings consistent with this opinion.
Reversed and remanded. No costs, a public question being involved.
A final order of determination signifies that the drainage board has ascertained that the drain project is feasible and the petition therefor is sufficient, and that a tentative determination has been made by the board as to those public corporations subject to assessment for the cost of the drain project. See MCLA 280.519; MSA 11.1519.
The pertinent language in the petition reads as follows:
"The undersigned, Public Corporations of the State of Michigan, hereby petition that the bed, tributaries, banks and flood plains of the Saline River be located, established and constructed as an intercounty drain. Said River which carries drainage waters originating in the counties of Monroe and Washtenaw needs to be straightened out as required to prevent undercutting bridge approaches; brush, trees, and debris to be removed from the drain, in order to reduce the danger of flooding, pollution, desecration and obstruction of such river. This petition is filed pursuant to the provisions of Chapter 21 of Act 40 of the Public Acts of 1956, as amended, with said project being necessary for the public health.”
Section 513 states in pertinent part:
"Whenever it shall be necessary for the public health to locate, establish and construct an intercounty drain * * MCLA 280.513; MSA 11.1513.
Similarly, § 541 reads in part:
"A petition meeting the requirements of this chapter as to petitioners, execution and filing may request, for reasons of public health, that jurisdiction be assumed * * MCLA 280.541; MSA 11.1541.
We use the term "companion provision” because sections 541-545 were added to the Drain Code of 1956 by 1965 PA 194, § 1.
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