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Per Curiam.
Defendant was convicted in a bench trial of first-degree felony murder, MCL 750.316; MSA 28.548, and of the commission of a felony while in the possession of a firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to a mandatory term of life imprisonment on the felony-murder conviction and a two-year term of imprisonment on the felony-firearm conviction and now appeals as of right.
The evidence introduced at trial established that the defendant and his brother attempted to stop two boys riding their bicycles in Dearborn Heights, Michigan. One bicyclist managed to get away, but not before the defendant shot him in the leg. As he road away to seek help, he looked back and observed the defendant walk toward his companion, who was struggling with the defendant’s brother. His companion’s body was later found in the same location with a bullet wound in the head.
On appeal, the defendant contends that: (1) the magistrate abused his discretion in binding over the defendant on the first-degree murder charge, (2) the defendant received inadequate assistance of counsel at trial, and (3) the trial court erred in ruling, after a Walker hearing, that the defendant’s confession had been voluntarily made.
The primary purpose of a preliminary examination is to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed the crime. People v Dunigan, 409 Mich 765, 769; 298 NW2d 430 (1980); People v Charles D Walker, 385 Mich 565, 573; 189 NW2d 234 (1971). A magistrate’s decision to bind over an accused may not be re versed unless it appears on the record that the decision constitutes an abuse of discretion. People v Talley, 410 Mich 378, 385; 301 NW2d 809 (1981). In determining whether probable cause exists to charge a defendant with a crime, a magistrate must judge the weight and competency of the evidence as well as the credibility of witnesses. Talley, supra, p 386.
Defendant contends that the magistrate’s bind-over decision was erroneous because the prosecution failed to introduce sufficient evidence to establish probable cause to believe that a first-degree felony murder had been committed. Defendant specifically argues that the prosecution failed to establish the existence of malice, independent of the underlying intent to commit the felony of robbery, which the Michigan Supreme Court held to be an essential element of the crime of felony murder in People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980).
In Aaron, the Court engaged in an extensive discussion of the felony-murder rule in Michigan and determined that malice remained an essential element of first-degree murder, even under the felony-murder doctrine. A mens rea separate from the intent to commit a felony must now be established to support a first-degree felony-murder conviction. Aaron, p 716. Thus, the felony-murder doctrine may not be applied where the death is accidental. Aaron, p 731. However, the trier of fact may infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. Aaron, p 729.
In this case, we conclude that the prosecution introduced sufficient evidence at the preliminary examination from which the magistrate could properly have inferred the existence of malice, independent of the intent to commit the underlying felony, on the part of the defendant when he shot the decedent. According to the evidence, the defendant aimed at and shot one bicyclist and then purposefully turned and approached the other who was struggling with the defendant’s partner. The other bicyclist was subsequently found dead with a bullet wound in his head. We find no abuse of discretion in the magistrate’s finding of the existence of probable cause to believe that the crime of felony murder had been committed.
Defendant also argues that the magistrate abused his discretion in finding probable cause to believe that it was the defendant who had committed the crime charged. Defendant’s identity as the perpetrator of the crime was primarily established by his confession to the police and by his admission to an acquaintance of his. Defendant relies upon People v Barron, 381 Mich 421; 163 NW2d 219 (1968), and argues that extrajudicial statements and admissions may not be admitted to establish the corpus delicti of a crime.
While it is true that a criminal defendant’s extrajudicial statements or confessions, or those made by the defendant’s partner in the crime, are not admissible to establish that a crime has been committed, once the corpus delicti has been established through other evidence such statements are admissible. Barron, supra, pp 424-425. In the instant case, confessions by the defendant and his brother and the defendant’s admission to his acquaintance were not introduced until after the testimony of the surviving bicyclist and a police officer, which established each essential element of the first-degree felony-murder charge. The subsequent introduction of the defendant’s extrajudicial confession as well as the testimony of his acquaintance provided sufficient probable cause to believe that the defendant was one of the perpetrators of the crime. We conclude that the use of these extrajudicial statements was proper.
Defendant next argues that he was denied the effective assistance of counsel at trial. We analyze such a claim by applying the general, bifurcated test set forth by the Michigan Supreme Court in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). The first branch of inquiry focuses on the overall performance of defense counsel, which must be at least as competent as that expected of a lawyer with ordinary training and skill in the criminal law. Where the overall performance of the defense counsel is found to be adequate, the second branch of inquiry calls for an examination of particular mistakes of counsel to determine whether any mistake may have been decisive in obtaining the defendant’s conviction. Decisions attributable to trial strategy will not support a finding of ineffective assistance of counsel. People v Dyson, 106 Mich App 90, 101; 307 NW2d 739 (1981).
Defendant first alleges that his defense counsel failed to file a timely notice of his alibi defense. We find no merit to this argument. The record reveals that the prosecutor waived the notice requirement; in any event, the defendant never presented any alibi evidence.
Second, the defendant alleges that his defense counsel did not understand the Court’s holding in People v Aaron, supra, when he moved for a reduction of the crime charged. However, our reading of the transcript of that motion reveals that the defense counsel adequately understood the necessity of establishing malice as an essential element of felony murder.
Defendant also argues that his defense counsel seriously erred when he waived the defendant’s right not to have the trial court read the preliminary examination transcript and when he failed to object to the prosecutor’s introduction of a signed confession made by the defendant’s partner, which implicated the defendant in the shooting.
In People v Ramsey, 385 Mich 221, 224-225; 187 NW2d 887 (1971), the Michigan Supreme Court held that a defendant has the right, in a criminal bench trial, to be tried by a judge who has not viewed the preliminary examination transcript. The purpose of this rule is to preserve the defendant’s constitutional rights of confrontation and cross-examination. However, these rights can be waived if done so knowingly and voluntarily. People v McKinley, 383 Mich 529, 536; 176 NW2d 406 (1970).
In the instant case, the defense counsel requested that the trial judge read the preliminary examination transcript in connection with a pretrial defense motion. We conclude that this decision is attributable to trial strategy and, as such, did not render the defense counsel’s assistance ineffective. Garcia, supra, pp 263-266. Both the defendant and the defense counsel were carefully questioned about their choice of allowing the trial judge to read the preliminary examination transcript prior to sitting as the trier of fact in defendant’s trial, and it is apparent from the trial record that both wished to retain the same trier of fact. This Court will not second-guess what appears to be a knowing and intelligent decision on the part of the defense counsel and his client.
Finally, the defendant contends that the trial court erred in refusing to suppress evidence of his extrajudicial statement to the police wherein he admitted responsibility for the shooting of the decedent. Prior to the commencement of trial, the defendant moved for and was granted a hearing under People v Walker, (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), in order to challenge the voluntariness of his confession to the police.
In reviewing a trial court’s decision after a Walker hearing, this Court is required to examine the whole record and make an independent determination of the voluntariness of the defendant’s statement. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). We will reverse only where we have a definite and firm conviction that a mistake has been committed. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). We find no error here in the trial court’s conclusion that the defendant’s confession to the police was voluntarily made.
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] |
T. M. Burns, P.J.
On November 11, 1981, the trial judge issued an order granting judgment to plaintiff for $24,327.38. Defendant appeals as of right.
On December 2, 1977, Daniel Cassady drove his van (insured by defendant) into the front of Brat-ton and Marjorie Horn’s home (insured by plaintiff). The parties eventually decided that plaintiff would settle the claim with the Horns and would then submit to defendant its own claim as subrogee of its insured. Plaintiff eventually gave defendant written notice of subrogation on March 22, 1978. Between then and April 5, 1979, the two parties negotiated the claim. However, on that day, defendant denied liability claiming that the one-year period of limitation had run. MCL 500.3145(2); MSA 24.13145(2). Plaintiff sued on July 3, 1979. Defendant now claims that the trial judge erred in finding that the period of limitation had not run.
Although this particular case presents an issue of first impression, other cases have addressed very similar issues. In The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976), the Supreme Court held that a 12-month limitation contained in an insurance company’s policy was tolled between the time the company received notice and when it formally denied the claim.
Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1979), extended Tom Thomas to the statute of limitations set forth in MCL 500.3145(1); MSA 24.13145(1). There, the accident occurred on April 13, 1974. Six days later, the plaintiff gave the defendant notice. Over a year later, on June 10, 1975, the defendant refused to pay. Thirteen days later, the plaintiff sued. This Court held that the period of limitation had not run:
"To bar the claimant from judicial enforcement of his insurance contract rights because the insurance company has unduly delayed in denying its liability would run counter to the Legislature’s intent to provide the insured with prompt and adequate compensation.” 84 Mich App 634.
Richards has subsequently been followed by Lansing General Hospital, Osteopathic v Gomez, 114 Mich App 814; 319 NW2d 683 (1982). See also Andrews v Allstate Ins Co, 479 F Supp 481 (ED Mich, 1979).
On the other hand, Richards has been rejected by English v The Home Ins Co, 112 Mich App 468; 316 NW2d 463 (1982), Allstate Ins Co v Frankenmuth Mutual Ins Co, 111 Mich App 617; 314 NW2d 711 (1981), lv den 414 Mich 917 (1982), and Aldrich v Auto-Owners Ins Co, 106 Mich App 83; 307 NW2d 736 (1981). These three cases and the dissent in Lansing General have criticized Richards on four points. (1) Allowing tolling in this situation runs contrary to the statute’s plain language and thus amounts to judicial legislating. (2) "The insured is not barred from seeking judicial enforcement of his claim and we have heard no argument in favor of a declaration of public policy to the effect that resort to the courts is an unacceptable or undesirable alternative.” Aldrich, supra, p 87. (3) Interpreting a statute of limitations is different than interpreting a contractual limitation period as done in Tom Thomas. (4) The statute of limitations is designed to relieve the courts of stale claims. See Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838; 325 NW2d 602 (1982).
We find none of these arguments persuasive. Arguments (1) and (3) have been substantially undercut by Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22, 38; 319 NW2d 320, 325 (1982). There, the Supreme Court held that the statutory standard form fire insurance policy, MCL 500.2832; MSA 24.12832, is to be interpreted as tolling the period of limitation between the plaintiff’s giving notice and the insurance company’s denying the claim:
"Our present interpretation of the statutory policy as a whole comports with this purpose. This interpretation assures that the insured is given one full year to institute suit. At the same time, it places no untoward burden upon insurers.”
In fact, this language is somewhat similar to the following language used in Richards:
"Applying the approach taken by the Thomas Court to § 3145 would effectuate the legislative intent in enacting the no-fault act. Unable to profit from processing delays, insurance companies will be encouraged to promptly assess their liability and to notify the insured of their decision. At the same time, the insured will have a full year in which to bring suit.” 84 Mich App 635.
The statutory form fire insurance policy states:
"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.” MCL 500.2832; MSA 24.12832.
Conceivably, this statute is unambiguous and, therefore, cannot be interpreted to allow tolling. See Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22, 50; 319 NW2d 320, 330-331 (1982) (Ryan, J., dissenting). But the Supreme Court majority still interpreted the statute that way.
MCL 500.3145(2); MSA 24.13145(2) (the relevant statute in the present case) states: "An action for recovery of property protection insurance benefits shall not be commenced later than 1 year after the accident.” We do not believe that either this statute or MCL 500.3145(1); MSA 24.13145(1) more clearly rules out tolling than does MCL 500.2832; MSA 24.12832.
Argument (4) is likewise uncompelling. Preventing stale claims from reaching the courts is certainly a laudable consideration, but it does not apply in this case. The statute of limitations is primarily for a defendant’s benefit. The defendant insurance company can protect itself from stale claims by promptly responding to the plaintiff’s claim. As such, this particular matter is uniquely within the defendant insurance company’s control.
Argument (2) is facially intriguing. The plaintiff could always completely protect his claim by suing before the statute has run. Yet this argument ignores an important judicial policy — discouraging litigation. See Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974). Requiring such a suit would obviously encourage litigation. Furthermore, requiring the suit could adversely affect the negotiations between the parties. Parties negotiating usually wish to keep the process at least somewhat friendly. Requiring a lawsuit just to keep the claim alive may dampen the atmosphere. See Johnson v Railway Express Agency 421 US 454; 95 S Ct 1716; 44 L Ed 2d 295 (1975) (Marshall, J., dissenting).
On the other hand, policy considerations strongly favor tolling. Otherwise an insurance company can completely escape liability merely by refusing to process the claim. Such a result is obviously unjust and even borders on the fraudulent. The average plaintiff in this situation is most likely unsophisticated. He does not have the army of lawyers working for him that an insurance company has. The risk of the insurance company’s procrastination should not lie on the plaintiff.
Furthermore, as noted in Ford Motor and Richards, this interpretation comports with the statute’s intent. With the incentive to procrastinate removed, the insurance company will more likely process the claim expeditiously.
The present situation, however, is somewhat different. The basic distinction between this case and Richards is that plaintiff itself is also an insurance company: "plaintiff is an insurance company itself and is presumably well aware of the much-publicized insurance law of this state”. Home Ins Co v Rosquin, 90 Mich App 682, 686; 282 NW2d 446 (1979). Yet the preceding rationale applies here as well. Defendant should not be allowed the statute’s protection merely by announcing in the middle of negotiations that it will not be reimbursing according to its agreement merely because the statute has run. In fact, the testimony in this case indicated that insurance companies seldom invoke the statute under these circumstances. A defendant insurance company can, therefore, catch the other insurance company unaware. Furthermore, requiring the suit could just as easily hamper negotiations as in the Richards situation in addition to providing the defendant insurance company with an incentive to procrastinate.
Affirmed.
In Home Ins Co v Rosquin, 90 Mich App 682; 282 NW2d 446 (1979), lv den 408 Mich 855 (1980), the plaintiff sent the defendant Auto-Owners Insurance Company written notice of the December 13, 1974, accident on April 4, 1975. Four months and four days later, Auto-Owners denied liability. Plaintiff eventually sued Auto-Owners on May 8, 1976. Plaintiff argued that the period of limitation was tolled between the time it gave written notice and Auto-Owners’ rejection of the claim. This Court noted that even if it tolled the period of limitation during that time, plaintiff still did not sue soon enough. | [
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Bronson, P.J.
Defendant pled guilty to charges of armed robbery, MCL 750.529; MSA 28.797, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony (the armed robbery), MCL 750.227b; MSA 28.424(2). He appeals as of right.
Defendant’s armed robbery conviction must be reversed because the trial judge did not inform him that he could not be placed on probation if he pled guilty to that offense. People v Rogers, 412 Mich 669; 316 NW2d 701 (1982). The people cannot rely on our decision in People v Greene, 116 Mich App 205; 323 NW2d 337 (1982), rev’d 414 Mich 896; 323 NW2d 4 (1982), which was recently reversed by the Supreme Court.
The people’s argument that the decision in Rogers, supra, should not be given retroactive effect does not apply here. Trial courts have been re quired to comply with GCR 1963, 785.7(l)(f) since its adoption. In Rogers, the Court decided that reversal was the required remedy for violation of GCR 1963, 785.7(l)(f). Because the Supreme Court did not impose on trial courts a new rule of law but merely set forth a new remedial rule to be followed by appellate courts, our application of Rogers to this case is not retroactive.
We need not consider defendant’s claim that the trial court erred by failing to inform him of a mandatory minimum sentence for armed robbery.
Defendant, in general, requests that his conviction for felony-firearm, based on the armed robbery, be reversed. He has presented, and we see, no reason why his felony-firearm conviction should be reversed. That plea was properly taken in accordance with the court rules and there is no logical connection between its validity and the defect in the armed robbery plea. The only plausible reason for reversing defendant’s felony-firearm conviction is to bring more pressure to bear on prosecutors and trial courts in order to secure compliance with the guilty plea rules. We believe that the remedies now in place are adequate for this purpose.
Defendant’s armed robbery conviction is reversed; his other convictions are affirmed.
Cynar, J., concurred.
This would not be true if the defect in the armed robbery plea was the failure properly to elicit a factual basis, where the factual basis was not separately set forth in the felony-firearm plea. | [
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Allen, P.J.
Defendant Victory Wisdom Nonprofit Housing, Inc., is a Michigan nonprofit corporation and the operator of a licensed adult foster care facility for the care of not more than six adults located at 21225 West Twelve Mile Road in the City of Southfield. The facility is owned by defendants Joseph Pignatiello and Kim D. Rust. Plaintiff Greentrees Civic Association, is a neighborhood association for homeowners in the Green- trees Subdivision, the area immediately adjacent to 21225 West Twelve Mile Road.
Greentrees Civic Association and intervening plaintiff, City of Southfield, sought to enjoin the use of the facility alleging that: (1) the contemplated use of the facility — to care for mentally ill persons — is prohibited by the Adult Foster Care Facility Licensing Act, MCL 400.701 et seq.; MSA 16.610(51) et seq.; (2) § 3b of the city or village zoning act, MCL 125.583b; MSA 5.2933(2), does not exempt adult foster care facilities licensed under the Adult Foster Care Facility Licensing Act from compliance with the local zoning ordinance and, consequently, the use of the property as an adult foster care facility is precluded by the Southfield zoning ordinance which limits the subject property to single family residential use; and (3) the Adult Foster Care Facility Licensing Act violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, therefore the licensing of defendants’ facility is null and void. The trial court rejected the second and third arguments but ruled in favor of plaintiffs on the first argument. On July 1, 1981, the trial court issued an order permanently enjoining placement of mentally ill persons in the facility. However, the facility could be used to care for aged, emotionally disturbed, developmentally disabled, or physically handicapped adults. Defendants appeal as of right the court’s holding on the first argument; plaintiffs cross-appeal the court’s rejection of their second and third arguments.
As to the trial court’s holding that the Adult Foster Care Facility Licensing Act prohibits the placement of mentally ill persons in small group homes, we reverse for the reasons set out in Oxford Twp v Dep’t of Social Services; 120 Mich App 103; 327 NW2d 409 (1982).
As to the trial court’s holding that facilities licensed under the Adult Foster Care Facility Licensing Act are exempt from compliance with the local zoning ordinance, we affirm. Plaintiffs’ claim, that § 3b of the city or village zoning act no longer exempts residential care facilities from compliance with local ordinances, has been rejected by numerous panels of this Court. Dearborn v Dep’t of Social Services, 120 Mich App 125; 327 NW2d 419 (1982); Livonia v Dep’t of Social Services, 119 Mich App 806; 328 NW2d 1 (1982). See, also, Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300; 312 NW2d 238 (1981), and Oxford Twp v Dep’t of Social Services, supra, which rejected the same argument as it applied to the identical language of the Township Rural Zoning Act.
Finally, the trial court correctly rejected plaintiffs’ claim that the Adult Foster Care Facility • Licensing Act violates the title-object clause of the state constitution. Const 1963, art 4, § 24, provides in part: "No law shall embrace more than one object, which shall be expressed in its title.” The purpose of the constitutional limitation is to insure that both the legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). However, in effectuating these purposes, the "one object” provision is to be construed reasonably and not in so narrow or technical a manner as to frustrate the legislative intent. Kuhn v Dep’t of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971). An act may contain all matters germane to its object and any provisions which "directly relate to, carry out and implement the principal object”. Advisory Opinion, supra, pp 465-467.
The purpose of the Adult Foster Care Facility Licensing Act, as stated in its title, is to "provide for the licensing and regulation of adult foster care facilities; to provide for the establishment of standards of care for adult foster care facilities; to prescribe powers and duties of the department of social services and other departments; to prescribe penalties; and to repeal certain acts and parts of acts”. Plaintiffs argue that § 33 of the act, MCL 400.733; MSA 16.610(83), goes beyond the stated purpose by exempting state licensed residential facilities from local building codes. Section 33 provides:
"This act supersedes all local regulations applicable specifically to adult foster care facilities. Local ordinances, regulations or construction codes regulating institutions shall not be applied to adult foster care large group homes, adult foster care small group homes, or adult foster care family homes. This section shall not be construed to exempt adult foster care facilities from local construction codes which are applicable to private residences.”
The purpose of § 33, state preemption in regulating adult foster care facilities, clearly relates to the principal object of the act.
Reversed in part and affirmed in part. Costs to defendants.
Wahls, J., concurred. | [
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Danhof, C.J.
Plaintiff commenced this action on March 24, 1980, and alleged that the Art Studio located on Van Dyke Road in the City of Warren was a nuisance pursuant to MCL 600.3801; MSA 27A.3801, in that it was being used "for the purpose of assignation or prostitution, or, for the use of prostitutes”. After a bench trial which was commenced on December 16, 1980, the trial court entered an order enjoining defendants from operating the premises for those purposes and ordered the building closed for a period of one year. Defendants appeal as of right.
The Art Studio was a massage parlor operated by Art Studios, Inc., which leased the building from defendant S.M.R. Corporation. S.M.R. leased the building from Michigan Diversified Business Services, Inc., which in turn leased it from defendant H. C. Mesk, the owner of the property. The complaint alleged that on February 27, 1980, the Art Studio was visited by an undercover police officer who was employed by the Warren Police Department. After requesting a massage and selecting a "model”, the officer was led to a room where he was instructed to disrobe and lie on the massage table. The model, who was nude from the waist up, was questioned by the officer concerning the availability of sexual services. She responded by stating that she would engage in fellatio or perform manual stimulation for the payment of a specified sum. After the officer paid the woman the agreed upon amount, and after she began preparations to perform the sexual act, the officer identified himself as a police officer and placed her under arrest.
At trial, over defense counsel’s objections, plaintiff was permitted to introduce evidence concerning similar incidents which took place at the Art Studio between different undercover police officers and other models on July 25, 1980, November 11, 1980, and November 29, 1980.
On appeal, defendants make numerous assignments of error, none of which require reversal. Defendants first claim that the Legislature’s failure to define the term "prostitution” violates due process in that it failed to put them on notice that the performance of manual stimulation for the payment of money is prohibited by the statute. The public nuisance abatement statute, MCL 600.3801; MSA 27A.3801 provides:
"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, storing, possessing, transporting, sale, keeping for sale, giving away, bartering, furnishing or otherwise disposing of any narcotic and/or hypnotic drug as defined by law or of any vinous, malt, brewed, fermented, spirituous or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating, is hereby declared a nuisance and the furniture, fixtures and contents of any such building, vehicle, boat, aircraft, or place and all such intoxicating liquors therein are also declared a nuisance, and all such narcotic and/or hypnotic drugs and nuisances shall be enjoined and abated as hereinafter provided, and as provided in the court rules. Any person, or his servant, agent or employe who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance.”
In order to satisfy due process requirements with respect to vagueness, a penal statute must give a person of average intelligence fair notice that his conduct is forbidden. United States v Harriss, 347 US 612; 74 S Ct 808; 98 L Ed 989 (1953). Although it does not appear that the term prostitution, as used in the statute, has heretofore been defined by a panel of this Court, we have little difficulty in concluding that the complained-of acts are included within the proscriptions of the statute and that defendants were afforded fair notice of the same.
In State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), the Supreme Court ruled that motion picture theaters which show obscene films may not be enjoined under the abatement statute. In the opinion, the Court stated that the meaning of the terms lewdness, assignation and prostitution, as used in the abatement statute, "is clear”. See also Morgan v Detroit, 389 F Supp 922, 929 (ED Mich, 1975); Detroit v Recorder's Court Judge, 104 Mich App 214, 235; 304 NW2d 829 (1981). Although the Court did not expressly define the terms, it noted that its decision was in accord with the decisions of other jurisdictions which involved similar legislation and it quoted from an Illinois Court of Appeals decision, Chicago v Geraci, 30 Ill App 3d 699, 703; 332 NE2d 487 (1975), wherein the Court defined the terms as follows:
" 'However, we find, no confusion in the meaning of these terms. Although traditionally the term 'lewdness” is viewed as being broader than and including the term "prostitution, ” (People v Lackaye, 348 Ill App 542; 109 NE2d 390 [1952]; opinion adopted by Illinois Supreme Court, 1 Ill 2d 618; 116 NE2d 359 [1953].) such terms refer to the same general class of activities which are normally associated with houses of prostitution (or whatever such establishments may be called). They are intended to designate and prohibit sex acts of whatever nature which are performed for money. (Emphasis supplied.)’ ” 396 Mich 250, fn 13.
In a subsequent decision, the Illinois Supreme Court, in construing an abatement act similar to ours, rejected a claim by defendant that the term "prostitution” did not include acts involving manual stimulation:
"The defendants contend that in order to be considered a violation of the ordinance, and therefore a public nuisance, their conduct must constitute an act of 'prostitution.’ They argue, too, that the city council, in enacting the ordinance, intended that 'prostitution’ be defined, as in the Criminal Code of 1963 (Ill Rev Stat 1975, ch 38, ¶ 11-14), to include only acts of sexual intercourse and deviate sexual conduct. We do not agree that such a narrow definition of 'prostitution’ was intended by the city council; nor is such an interpretation constitutionally required.
"The activities of a house of prostitution involve commercial sexual acts of every sort. Clearly, a masturbatory massage parlor is engaged in commercial acts of sexual gratification involving the sex organs of one person and the hand of another.” Chicago v Cecola, 75 Ill 2d 423, 427-428; 389 NE2d 526 (1979).
In State ex rel Gilchrist v Hurley, 48 NC App 433, 443; 269 SE2d 646 (1980), a North Carolina Appellate Court stated the following in rejecting defendant’s claim that North Carolina’s red light abatement act was unconstitutionally vague:
"[Reference to the criminal code — i.e., NC G S § 14-203 — is not required to understand what the term 'prosecution’ means or, in our opinion, what conduct is encompassed within its meaning. We are not inadvertent — and we doubt that few are — to the activity’s common, if not accurate, reputation as 'the world’s oldest profession.’ The term is precise on its face and gives fair notice of what is forbidden. Accord, Morgan v Detroit, 389 F Supp 922 (ED Mich, 1975). We decline defendants’ invitation to interpret the term so narrowly as to exclude the conduct charged in this record. We hold that prostitution plainly includes the offering or receiving of the body, in return for a fee, for acts of vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person’s genitals, pubic area, buttocks or breasts. We hasten .to add that our cataloguing of these acts of sexual behavior is not intended to exclude other acts of sexual conduct offered or received for pay.” But see contra, State ex rel Clemens v Toneca, Inc, 265 NW2d 909 (Iowa, 1978).
Although we find it unnecessary to decide whether the term prostitution, as used in our abatement statute, should be defined as broadly as the term was defined by the North Carolina Court, we are convinced that the term does include manual stimulation of another person for the payment of money and that persons of average intelligence were provided with fair notice that the statute proscribed such conduct.
Defendant next complains that the activity involved was consensual activity between adults and that the proscriptions contained in the abatement statute constitute an unwarranted invasion into their constitutionally protected right of privacy.
Although the right of privacy is not expressly provided for in the United States Constitution, such a right has been recognized as arising out of the Fourteenth Amendment’s concept of personal liberty. Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). Although the limits of this right have never been expressly defined, it is clear that the right extends to the right of persons to make certain decisions concerning marriage, procreation and child rearing. Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965); Loving v Virginia, 388 US 1; 87 S Ct 1817; 18 L Ed 2d 1010 (1967); Eisenstadt v Baird, 405 US 438; 92 S Ct 1029; 31 L Ed 2d 349 (1972); Roe v Wade, supra. In Whalen v Roe, 429 US 589, 598; 97 S Ct 869; 51 L Ed 2d 64 (1977), the Court described the privacy right as protecting two different kinds of interest. The first is the individual interest in avoiding disclosure of personal matters. The other is the interest in independence in making certain kinds of decisions without governmental interference. It is this latter interest which defendants assert is involved here.
The right of privacy with respect to decision making has been held to protect: (1) the right of marital privacy, Loving v Virginia, supra; (2) the right of privacy in the home, which encompasses both decisions concerning child rearing and decisions about a family living arrangement, Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972); and (3) the right to make decisions concerning the integrity of one’s body, Roe v Wade, supra. See Johnson v San Jacinto Junior College, 498 F Supp 555 (SD Tex, 1980). In none of these decisions has the Court ruled that the right of privacy includes the right of individuals to engage in sexual relations for the payment of money. In our opinion, the commercial nature of the activity coupled with the fact that it took place between unmarried individuals, clearly takes it outside the scope of the constitutional protections. We are in agreement with the Supreme Court of Colorado in People v Mason, 642 P2d 8, 12 (Colo, 1982), wherein the Court stated the following:
"For purposes of due process, the state’s interest in curbing prostitution cannot be denied. The health hazards posed by this activity as well as the high incidence of other criminal conduct associated with it are legitimate considerations which by themselves support legislative intervention in this area. See, e.g., State v Armstrong, 282 Minn 39; 162 NW2d 357 (1968); Hensley v City of Norfolk, 216 Va 369; 218 SE2d 735 (1975); Salt Lake City v Allred, 20 Utah 2d 298; 437 P2d 434 (1968); Seattle v Jones, 79 Wash 2d 626; 488 P2d 750 (1971). The legislative decision to restrict prostitution to commercial sexual activity between persons who are not married to each other is consistent with the heightened privacy interest which the constitution accords to the marital relationship. Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965); see also Zablocki v Redhail, 434 US 374; 98 S Ct 673; 54 L Ed 2d 618 (1978).”
Defendants also complain that the state’s attempt to punish these activities abridges their First Amendment freedoms of speech and association. They claim that this is especially so with respect to the incident which occurred on November 11, 1980, because that incident merely involved an offer to perform sexual services for the payment of money, as opposed to a completed agreement. They claim that such an offer involved "pure speech” entitled to the greatest First Amendment protections. We disagree.
We first note that an offer to perform sexual services for the payment of money constitutes assignation for purposes of prostitution and is prohibited by the statute. State ex rel Wayne County Prosecuting Attorney v Levenburg, 406 Mich 455, 466; 280 NW2d 810 (1979). Furthermore, it is clear that the state has a legitimate interest in regulating the commercialization of sexual activities. See discussion, supra. However, because the Statute prohibits offering or agreeing to engage in sexual conduct for the payment of money, it does have some impact on speech. Despite that fact, we do not agree that the First Amendment prohibits the state from regulating this activity. Speech incident to assignation for prostitution is essentially commercial in nature and intended solely for the purpose of selling a product. Morgan v Detroit, supra, p 926. Therefore, it is not entitled to full First Amendment protection. Metromedia, Inc v San Diego, 453 US 490, 507-508; 101 S Ct 2882; 69 L Ed 2d 800 (1981); Woll v Attorney General, 409 Mich 500, 523; 297 NW2d 578 (1980). In our opinion, the statute directly advances an important state interest without unnecessarily, restricting other protected activities. Therefore, we find no First Amendment impediment to application of the statutory scheme.
Defendants’ final constitutional claim is that an action under the abatement statute unlawfully deprives the owner of the premises of the right to a trial by jury. See GCR 1963, 782.1. We find it unnecessary to address this claim since it is clear that defendants waived any right to a jury trial by failing to make a demand for the same. GCR 1963, 508.4; Yon v The All American Transport Co, Inc, 104 Mich App 97, 100; 304 NW2d 495 (1981).
Defendants also raise numerous procedural and evidentiary claims. They first contend that the trial court erred by permitting plaintiff to introduce evidence of other occurrences which took place after the complaint was filed. We find this claim to be without merit. In order to establish the right to injunctive relief pursuant to the statute, plaintiff was required to prove that the nuisance was of a continuing nature. State ex rel Oakland County Prosecutor v Motorama Motel Corp, 105 Mich App 224, 229-230; 307 NW2d 349 (1981). Furthermore, in order for the court to acquire jurisdiction in this abatement proceeding, the complaint had to allege at least one act of assignation or prostitution which occurred 30 days prior to the date complaint was filed. MCL 600.3815; MSA 27A.3815; State ex rel Wayne Prosecuting Attorney v Weitzman, 21 Mich App 705, 709; 176 NW2d 463 (1970). Since it is apparent that it would often be impossible to establish the continuing nature of the nuisance without resorting to proof of other acts which occurred outside of the 30-day period, we find nothing objectionable in permitting plaintiff to introduce evidence of subsequent acts. In Weitzman, supra, p 709, the Court ruled that evidence of acts occurring prior to the 30-day period was admissible.
Despite the fact that plaintiffs complaint did not specifically allege the commission of the subsequent acts and although the complaint was not amended to contain such allegations, the evidence was fully considered by the trial court and defendants do not claim that they were unfairly prejudiced by the admission of the evidence. GCR 1963, 118.3. Therefore, since it would constitute a mere formality for us to remand the case to the trial court to permit such an amendment, the pleadings are deemed amended to include those allegations. Browder v International Fidelity Ins Co, 413 Mich 603, 609; 321 NW2d 668 (1982).
Defendants next complain that the trial court erred by permitting plaintiff to introduce evidence concerning statements made by the models to the undercover police officers. They claim that evidence of those statements constituted inadmissible hearsay. The statements in question related to offers to perform the acts of prostitution. It was those offers which served as the very basis of plaintiffs cause of action. As such, the evidence was not offered to prove the truth of the matter asserted, i.e., that the models would in fact perform in accordance with the offer. Rather, they were offered only to prove that the offers were made. Therefore, they did not constitute hearsay. MRE 801(c); Stachowiak v Subczynski, 411 Mich 459, 464; 307 NW2d 677 (1981).
Defendants next claim that, because one of the models was acquitted of criminal charges which grew out of these events, the doctrine of collateral estoppel precluded plaintiff from maintaining this action. Assuming that issues decided in a separate criminal proceeding could operate to bar a subsequent claim for injunctive relief to abate a nuisance, see Micks v Mason, 145 Mich 212, 215; 108 NW 707 (1906), it would not operate to estop plaintiff from maintaining this claim. The acquittal in the criminal proceeding occurred after trial took place in this case. Collateral estoppel only bars the relitigation of issues previously decided. Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727; 209 NW2d 843 (1973). Furthermore, defendants have denied that the models were their employees. Therefore, it cannot be said that the criminal litigation involved an action between the same parties. Finally, even assuming that collateral estoppel did bar plaintiff from introducing evidence of the offer made by the model who was acquitted, it did not preclude evidence from being introduced concerning other illicit acitivity.
Defendants’ remaining claims concern the sufficiency of the evidence introduced at trial. They first contend that insufficient evidence was established to support a finding that the nuisance was of a continuing nature. The evidence established that, during a period of nine months in 1980, four undercover police officers visited the Art Studio and inquired concerning the availability of sexual services. On each occasion, the models agreed to perform the services requested, with three agreeing to perform such services on the premises. We find it unnecessary to determine the number of illegal acts which must occur to constitute a nuisance. See State ex rel Wayne Prosecuting Attorney v Weitzman, supra. It was not merely the number of occurrences which was determinative. Rather, it was the rate of occurrences which was the most damaging evidence against defendants herein. On virtually every visit by the police, an offer to engage in illicit sexual activity was made. Under these circumstances, we believe that the trial court was correct in concluding that the nuisance was of a continuing nature.
Defendants finally claim that it was not shown that they had knowledge that the nuisance existed. Although the statute provides that knowledge is not required, MCL 600.3815; MSA 27A.3815, it appears that the Courts have imputed such a requirement in a certain class of cases. State ex rel Wayne County Prosecuting Attorney v Levenburg, supra, p 462, fn 1; State ex rel Oakland County Prosecutor v Motorama Motel Corp, supra. Assuming that this case is among the class in which proof of knowledge was required, we do not agree that the evidence was insufficient. In Levenburg, supra, the Court stated that a judgment of abatement could be upheld if shown that the "owners or operators” of the place found to be a nuisance had knowledge that the prohibited conduct was taking place on the premises. Although it may be conceded, for purposes of this discussion, that defendants did not have knowledge of the nuisance prior to the time the complaint was filed, it is clear that the operator of the establishment did have such knowledge. In any event, even if knowledge of the owner is required, we agree with the trial court’s conclusion that the owner was placed on notice of the activity when she was served with a copy of the complaint and that her failure to take action thereafter to insure that the illegal activity was discontinued supported a finding of knowledge. State ex rel Oakland County Prosecutor v Motorama Motel Corp, supra, p 229.
Affirmed. Costs to plaintiff.
The July 25, 1980, incident involved an agreement to perform manual stimulation on the premises for $20, and an offer to perform fellatio off of the premises; the November 1Í, 1980, incident involved an offer to perform manual stimulation off of the premises for $50; the November 29, 1980, incident involved an agreement to perform fellatio on the premises for the sum of $75.
US Const, Am XIV.
An alternative basis for our decision is found in Morgan v Detroit, supra, p 926.
The statute is not intended to punish wrongdoing on the part of the owner. Rather, it is intended to protect society by insuring that the nuisance is abated. State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich App 204, 208-209; 226 NW2d 56 (1974). As between society and the owner of the premises, it is not unfair that the risk of loss be placed on the owner who leased the premises to the person who used the premises for the unlawful purpose. The owner’s remedy is to recover damages from the lessee or, at the discretion of the trial court, to take advantage of the protections afforded by MCL 600.3840; MSA 27A.3840. | [
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Per Curiam.
On July 28, 1981, the trial judge entered an order granting a $42,040.67 judgment for plaintiff but refused to grant attorney fees. Plaintiff appeals by leave granted from this refusal.
This is the second time this case is before this Court. The facts are found in our first opinion:
"On May 23, 1977, a motor vehicle accident involving a car owned and driven by defendant, Michael Stanley Biddis, and the second vehicle driven by Manuel Mello resulted in serious injuries to defendant’s passenger, Diedre Ann Biddis. Because defendant’s motor vehicle was uninsured, Diedre Biddis filed an application with the Assigned Claims Facility pursuant to § 3172 of the no-fault automobile insurance act. MCL 500.3172; MSA 24.13137. The claim was assigned to plaintiff, Auto-Owners Insurance Company, which paid Diedre Biddis benefits totalling $34,098.98. Plaintiff, seeking to recover this money plus costs in handling the assigned claim pursuant to §3177 of the no-fault automobile insurance act, MCL 500.3177; MSA 24.13177, commenced this suit against defendant as owner and operator of the uninsured vehicle.” Auto-Owners Ins Co v Biddis, 107 Mich App 173, 174; 309 NW2d 192 (1981).
At that time, this Court ruled that plaintiff was entitled to recover against defendant even without establishing defendant’s fault. On remand, the trial judge entered a judgment in favor of plaintiff but refused to award attorney fees.
MCL 500.3177; MSA 24.13177 states:
"An insurer obligated to pay personal protection insurance benefits for accidental bodily injury to a person occupying an uninsured motor vehicle or to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle may recover such benefits paid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his estate. ” (Emphasis added.)
The question before us is whether the words "loss adjustment costs” in this statute allow the trial judge to award attorney fees.
Generally in Michigan, attorney fees may not be awarded unless expressly authorized by either statute or court rule. Davis v Koch, 118 Mich App 529; 325 NW2d 482 (1982); State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71; 212 NW2d 821 (1973). In fact, "[t]he general rule in Michigan prohibits the awarding of attorney’s fees as an element of cost of damages”. H & L Heating Co v Bryn Mawr Apartments of Ypsilanti, Ltd, 97 Mich App 496, 506; 296 NW2d 354 (1980).
This Court, however, has found exceptions in two analogous situations. MCL 691.1203(3); MSA 14.528(203X3) (§ 3 of the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act) states:
"Costs may be apportioned to the parties if the interests of justice require.”
Even though this section does not expressly use the words "attorney fees”, this Court has held that it gives the trial judge discretion to award them. Three Lakes Ass’n v Kessler, 101 Mich App 170; 300 NW2d 485 (1980), lv den 411 Mich 1056 (1981); Superior Public Rights, Inc v Dep’t of Natural Resources, 80 Mich App 72; 263 NW2d 290 (1977), lv den 406 Mich 926 (1979); Taxpayers & Citizens in the Public Interest v Dep’t of State Highways, 70 Mich App 385; 245 NW2d 761 (1976).
Section 2715 of the Uniform Commercial Code, MCL 440.2715(1); MSA 19.2715(1), states:
"Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incidental to the delay of other breach.”
Relying on Superior and Taxpayers, this Court ruled in Cady v Dick Loehr’s, Inc, 100 Mich App 543; 299 NW2d 69 (1980), that this statute confers discretion on the trial judge to award attorney fees as an element of damages for breach of warranty.
The assigned claims provisions of the no-fault act clearly indicate that uninsured motorists are to be penalized by personally bearing all economic costs, without regard to fault, which might have been avoided if they had complied with the act’s mandatory insurance provisions. Therefore, the insurer assigned to the claim should be able to reach a break-even point. To deny the insurer recovery of reasonable attorney fees would impose on the system costs which we believe the Legislature has directed uninsured motorists to bear. As such, we believe that the phrase "loss adjustment costs” in this act includes reasonable attorney fees, and such fees should be awarded in this case.
Reversed and remanded with instructions to proceed consistent with this opinion.
"Loss adjustment costs” include litigation costs. OAG, 1981, No 6016, p 491 (December 1, 1981).
We do realize that Superior has. been criticized in Oscoda Chapter of PBB Action Committee, Inc v Dep’t of Natural Resources, 115 Mich App 356; 320 NW2d 376 (1982). | [
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Per Curiam.
This case is here on remand from the Supreme Court. It involves a claim by defendants that plaintiff breached a licensing agreement entered into in 1963. The circuit court ruled that plaintiff was not in breach of the agreement and that plaintiff had a legal right to use the trade name Ziebart in the operation of his business. The court issued an order restraining defendant from terminating the agreement and from "harassing or obstructing or interfering in any way with the conduct of the [plaintiffs] business”.
In its prior opinion, this Court ruled that plaintiff was required to comply with reasonable performance standards which were included in the 1963 agreement, but we held that the trial court was correct in its finding that defendants failed to satisfy their burden of proving the standards which applied in 1963 and that plaintiff breached those standards. However, we reversed the trial court’s decision on another ground. We ruled that the 1963 agreement was terminable at will subject to the requirement that the agreement continue for a sufficient duration to permit plaintiff to recoup his investment. Therefore, we ordered the case remanded to the trial court to determine whether such recoupment had in fact occurred. 93 Mich App 60; 285 NW2d 795 (1979).
The Supreme Court reversed our decision in Lichnovsky v Ziebart International Corp, 414 Mich 228; 324 NW2d 732 (1982). The Court ruled that the agreement was terminable only for cause and agreed that cause had not been shown. Therefore, it remanded the case to this Court to resolve the remaining issues raised by defendants.
Defendants claim that the trial court’s finding that the 1963 agreement entitled plaintiff to use the Ziebart trade name was clearly erroneous. We disagree.
In paragraph three of plaintiffs complaint, he alleged that the license agreement gave him the exclusive right in Genesee County to operate an auto body rustproofing business using "the name Ziebart”. In their answer, defendants admitted the truth of that allegation. Defendants did not move to amend their pleadings thereafter. Therefore, they are bound by their admission. GCR 1963, 604; Ambo v Holcomb, 29 Mich App 258; 185 NW2d 59 (1970).
Defendants’ remaining claims relate to the injunctions issued by the trial court. The trial court’s entry of the permanent injunction following the issuance of its opinion renders moot defendants’ claim concerning the injunction issued prior thereto. Therefore, we find it unnecessary to address that claim. However, we do agree with defendants that the form of the second part of the permanent injunction fails to comply with the requirements of GCR 1963, 718.9.
The first part of the injunction restrains defendants from terminating the licensing agreement. However, the second part of the injunction enjoins defendants from "harassing or obstructing or interfering in any way with the conduct of the [plaintiffs] business”. The difficulty with that order is that although defendants failed to establish at trial that plaintiff did not comply with the required performance standards, it does not follow from that finding that those standards no longer govern plaintiff’s operation. On the contrary, plaintiff is required to comply with those standards as long as he continues to operate pursuant to the licensing agreement. Furthermore, it is apparent that those standards have little meaning if defendants are precluded from monitoring plaintiffs operations and from enforcing the standards. Since such conduct would constitute "interference” with plaintiffs business, defendants would be violating the court’s order merely by attempting to enforce their rights under the contract.
Therefore, we remand the case to the trial court to conduct a hearing at which the court is to determine whether and under what conditions defendants’ employees may enter plaintiffs business premises to inspect his operations. The court shall then enter an order which provides in detail the conduct which is prohibited. GCR 1963, 718.9(3).
The findings of the trial court are affirmed. The case is remanded for proceedings in accordance with this opinion. | [
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R. L. Tahvonen, J.
Defendant was convicted by a jury of assaulting a jail custodian, MCL 750.197c; MSA 28.394(3), and appeals by leave granted. We reverse because the trial court erred in concluding that the defendant was not prejudiced by the failure of the prosecution to exercise due diligence to produce two endorsed res gestae witnesses at trial.
On February 18, 1979, defendant was arrested on a charge of assault with intent to murder and was taken to the Berrien County Jail for booking.
While incarcerated in a holding cell near the front desk, defendant observed the booking of Roy Coleman. One of the police deputies misidentified Coleman as Ricky Norwood, defendant’s brother. Defendant immediately denied that Coleman was his brother. Coleman resisted when the deputies began to search him and was advised to place his hands on top of a screen to permit the officers to search him. When Coleman refused to remove his shoelaces, the deputies "laid him on the ground”. Deputy Chandler produced a pocket knife and threatened to cut off the shoelaces, so Coleman relented and removed them himself.
Defendant felt the guards were using unnecessary force with Coleman, and there is credible testimony that excessive force was in fact used. Defendant began to yell that the guards were abusing Coleman and that he would testify for Coleman if a police brutality suit were brought.
The guards responded to defendant’s outbursts by telling him to "shut up”. There is a dispute whether the guards threatened defendant with "the same” treatment given to Coleman. Although defendant and other prisoners testified that Officer Chandler threatened defendant with physical harm, the guards testified that Chandler merely threatened to move defendant to a rear cell.
What next occurred is hotly disputed. According to Chandler, he walked over to the front holding cell, opened the door, and ordered defendant to come out in order to transfer him to a rear cell. Defendant, on the other hand, testified that he thought Chandler was coming to rough him up. In any case, defendant refused to leave the cell and stated that Chandler would have to remove him forcibly.
Chandler entered the cell and grabbed for defendant’s arm. Defendant yanked his arm away, and a scuffle ensued. The testimony is inconsistent as to who struck first. The guards and prisoners Forker and Hurst testified that defendant struck first, but prisoners Harrell and Kimble, and defendant himself, testified that Chandler struck first.
Deputy Doak testified that when the scuffle broke out, he immediately went to Chandler’s aid. According to Doak, he and Chandler attempted to restrain defendant, but defendant managed to punch Doak in the face. Defendant and Chandler then fell to the floor struggling.
Defendant’s account of the scuffle differs materially. He testified that Chandler entered the cell and hit him and that he tried to defend himself. Doak then entered the cell and grabbed him around the neck. Doak held him from behind and together the three fell to the floor, with Doak on the bottom, defendant in the middle, and Chandler on top. Defendant suggested that Doak may have been injured in the fall, but denied punching him. The fight ended when two other guards came into the cell, and defendant agreed to accompany them to the rear cell. Both defendant and Doak suffered bruises and scrapes requiring minor medical attention, and assault charges were filed against defendant.
I
Defendant first claims that the trial court erred in denying his motion fot a new trial following a Pearson hearing held four months after his conviction. The hearing was held to determine whether the prosecution had failed to exercise due diligence in producing two res gestae witnesses, Claude Lawrence and Lawrence Kimble, and whether the defendant had been prejudiced as a result. The trial judge ruled that the two individuals were res gestae witnesses and that the prosecu tion had not been duly diligent in its efforts to produce them at trial. However, the trial judge concluded that their testimony was cumulative to that of other witnesses and thus their nonproduction did not prejudice the defendant. Accordingly, the motion for a new trial was denied.
We review the trial court’s determination that the nonproduction of the witnesses did not prejudice the defendant only to ascertain whether there was an abuse of discretion. People v Donald, 103 Mich App 613; 303 NW2d 247 (1981). We are convinced that the trial judge abused his discretion in ruling that the testimony would be cumulative and therefore reverse the defendant’s conviction.
At the Pearson hearing, Claude Lawrence testified that he was in the cell with defendant when Coleman was brought in for booking. Lawrence was moved to another cell immediately before the scuffle broke out and could not see the fight. However, he did testify that undue force was used to subdue Coleman and that this provoked defendant’s vociferous protests.
Lawrence Kimble testified that he, too, was in the cell with defendant when the fight occurred. Contrary to the guards’ testimony that Coleman was rather gently "laid” on the ground, Kimble stated that the guards "slammed” him to the floor. Kimble also refuted Deputy Chandler’s testimony that he did not threaten defendant with the same treatment given Coleman.
The trial court erred in ruling this testimony to be "merely cumulative”. "Merely cumulative” usually means cumulative to the prosecution's case; cumulative evidence which rebuts the prosecutor’s case should be admissible if it assists the defendant. People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). Clearly, the testimony of these two witnesses would have been helpful to defendant, since their testimony supported defendant’s account of the incident in several particulars and would likely have enhanced his credibility in the eyes of the jury.
The purposes of requiring the production of res gestae witnesses include protecting the defendant against false accusation, People v Davis, 343 Mich 348; 72 NW2d 269 (1955); preventing suppression of testimony favorable to the accused, People v Phillips, 61 Mich App 138; 232 NW2d 333 (1975); and ensuring the disclosure of all the circumstances, People v Fudge, 66 Mich App 625; 239 NW2d 686 (1976). All these purposes were thwarted by the nonproduction of Kimble and Lawrence.
One other issue was raised at the Pearson hearing and on appeal here, although not addressed by the trial court. The prosecutor argues that, because defendant had taken the names and addresses of these witnesses soon after the incident occurred, the prosecution was excused from endorsing them.
The burden of producing res gestae witnesses is on the prosecution. An exception to this rule excuses the prosecution only when the witness’s identity is known only to the defendant. People v Gillam, 93 Mich App 548; 286 NW2d 890 (1979). Here, the prosecutor was also aware of the identities of Kimble and Lawrence.
II
Defendant next claims that no evidence was presented on the element of "lawful imprisonment” to sustain a conviction under MCL 750.197c; MSA 28.394(3).
Mindful that evidence must be introduced on each element of the crime charged to sustain a conviction and that a conviction unsupported by the evidence violates due process, People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), we reject defendant’s allegation.
Evidence was introduced that defendant was lawfully arrested at the time of the incident. It is immaterial that the charge of assault with intent to murder was later dismissed. Evidence of a lawful arrest suffices to establish the required element of lawful imprisonment under the statute.
Ill
Defendant’s third allegation of error is that the trial judge erred in failing to instruct the jury that it must find that defendant acted with specific intent in order to convict him of assault. In People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), the Supreme Court held that it is reversible error not to instruct on the element of intent in an assault case. The Court held that the jury must be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery. 407 Mich 210.
In light of the need for a new trial, we will not address the question of Johnson’s retroactivity, compare, e.g., People v Ideis, 101 Mich App 179; 300 NW2d 489 (1980), lv den 411 Mich 854 (1981), and People v Starghill, 99 Mich App 790; 298 NW2d 641 (1980). We merely hold that on retrial the jury should be instructed on the element of intent.
IV
Defendant’s fourth claim of error is that the trial court failed to specifically instruct the jury that the prosecution had the burden of disproving self-defense.
When a defendant introduces evidence of self-defense, the burden of proof to exclude the possibility that the defendant did act in self-defense rests on the prosecution. People v Watts, 61 Mich App 309; 232 NW2d 396 (1975). However, if the charge to the jury, when read as a whole, is not misleading, the instructions will be upheld. Watts, p 311.
Although we are not convinced that the instructions given in this case were misleading, and would decline to reverse on this ground, on retrial the jury should be specifically instructed that the prosecution has the burden of disproving self-defense beyond a reasonable doubt.
V
Fifth, defendant claims that the prosecutor violated the district court’s sequestration order by allowing police witnesses to read the transcript of their preliminary examination testimony, thus denying defendant a fair trial.
We regard this claim as specious. It is a well-recognized and common practice of prosecutors and defense attorneys alike to meet with their witnesses before trial to review earlier statements, depositions, and transcripts. People v Rodgers, 388 Mich 513; 201 NW2d 621 (1972); People v Turner, 41 Mich App 744; 201 NW2d 115 (1972). Other jurisdictions have properly held that a sequestration order expires when the defendant is bound over for trial. Kansas v Freeman, 223 Kan 362; 574 P2d 950 (1978).
VI
Defendant’s final claim, that rebuttal evidence was improperly admitted for impeachment on a collateral matter, has not been preserved for review, since no objection was made at trial. People v Buschard, 109 Mich App 306; 311 NW2d 759 (1981).
Reversed and remanded for a new trial.
People v Pearson, 404 Mich 698; 273 NW2d 856 (1979). | [
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Mackenzie, P.J.
After a jury trial, defendant was convicted of two counts of first-degree murder, MCL 750.316; MSA 28.548. Defendant was sentenced to imprisonment for two concurrent life terms and appeals by right.
I
A key prosecution witness was Jeffrey Pippins, an accomplice of defendant. On direct examination of Pippins by the prosecutor, the following exchange occurred:
"Q. And you and your attorney entered into a plea agreement, is that correct?
"A. That’s correct.
”Q. Part of that agreement was that you would tell the truth, is that correct?
"A. Yes, that is correct.
"Q. And that if you did so and you completely testified, you would be allowed to plead to a charge of manslaughter or unarmed robbery, is that correct?”
Defendant argues that this reference to a plea agreement containing a promise of truthfulness impermissibly bolstered the credibility of the prosecution witness. However, defendant made no objection to this testimony at trial, and under such circumstances we will reverse only if presented with manifest and serious error resulting in fundamental injustice. See, for example, People v Therrien, 97 Mich App 633, 634; 296 NW2d 8 (1979).
The prosecution has a duty to disclose promises made to obtain an accomplice’s testimony. People v Atkins, 397 Mich 163, 173; 243 NW2d 292 (1976). This was not a case like People v Lytal, 415 Mich 603; 329 NW2d 738 (1982), in which evidence of an accomplice’s conviction was admitted ostensibly to show that no consideration was given to obtain the testimony. People v Buschard, 109 Mich App 306, 316; 311 NW2d 759 (1981), like the case now before us, involved a plea agreement containing a promise of truthfulness. The Court concluded that whether reversal was required depended on the circumstances of the particular case:
"[W]e cannot hold that any reference to a plea agreement containing a promise of truthfulness is in itself grounds for reversal. A more accurate statement of the law appears to be that, although such agreements should be admitted with great caution, admissibility of such an agreement is not necessarily error unless it is used by the prosecution to suggest that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully.” (Emphasis in original.)
Defendant points to the following remarks by the prosecutor in rebuttal to defendant’s closing argument, to which, however, defendant made no objection:
"You know, he agreed to tell the truth and the truth was he did have that shotgun for a while, did have it and he exchanged, like he said, because Harold Williams had told him he was going to kill them and that is the gun that he was going to use to kill them and that he would handle it, and it would be just like shooting a pheasant or another animal, it wouldn’t bother him.
"So if Jeffrey Pippins is not telling you the truth and making up this story, I guess he is not a very good story maker, or he at least could have made up another one, because, as I stated to you, the only way we got Mr. Pippins here to testify as to the statement. You heard no other evidence other than after he gave us a statement.”
In his closing argument, counsel for defendant contended that Pippins should not be believed in view of his plea bargain and suggested that Pippins himself had been the killer. The prosecutor’s rebuttal, argument referred to the promise of truthfulness contained in the plea agreement, but the prosecutor did not suggest that he had some special knowledge, unknown to the jury, that Pippins was testifying truthfully. Instead, the prosecutor emphasized that Pippins’ testimony was consistent with the statement he made to the police and that the statement was against Pippins’ penal interest. No manifest and serious error resulting in fundamental injustice is presented.
II
Defendant argues that the trial court erred by declining to admit evidence of the results of a polygraph examination taken by Pippins. Testimony on a separate record showed that the polygraph indicated that Pippins was deceptive in answering in the negative to the following questions: "Did you pull the trigger?”, "Did you help in any way to cause these individuals’ deaths?”, and "Are you deliberately withholding any information?”
Testimony concerning the results of polygraph examinations is inadmissible because polygraphs are not generally accepted as reliable by the scientific community. People v Barbara, 400 Mich 352, 377; 255 NW2d 171 (1977). Defendant relies on cases such as Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967); Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1972), and Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974), in which state rules rendering certain types of evidence inadmissible were held to deny criminal defendants the due process of law guaranteed by US Const, Am XIV, because the rules in question prevented defendants from presenting evidence which would have been relevant and material to their defense and prevented defendants from effectively cross-examining and impeaching adverse witnesses. The distinction between those cases and the one now before us is best shown by Chambers. In that case, the confession of another man to the crimes with which defendant was charged was excluded as hearsay under a state rule which recognized an exception to the hearsay rule for declarations against pecuniary interest but not for declarations against penal interest. The Court held, 410 US 302:
"The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.”
Because it was precisely the untrustworthiness of the results of polygraph examinations which led to the rule in Barbara, application of that rule here did not deny defendant due process. Compare People v Paquette, 114 Mich App 773, 776-779; 319 NW2d 390 (1982).
Ill
Defendant complains that the trial judge misstated the evidence in response to a question by the jury. The testimony of Jeffrey Pippins contains the following exchange:
"Q. When you gave the original statement to the police, you didn’t have an attorney, is that correct?
"A. That is correct.”
However, during its deliberations, the jury sent two questions to the judge. The following then took place:
"The Court: The record should reflect this is being done in the presence of the jury, the lawyers on both sides and the defendant.
"The jury has sent two questions to the court; one reads, 'We would like to know if Pippins acquired a lawyer before talking to the police.’
"I think it’s been agreed by counsel that the evidence was that he in fact did have a lawyer before talking with the police, is that correct, Mr. Hunter [prosecutor]?
"Mr. Hunter: Yes, your Honor.
"The Court: Mr. Ainsworth [defense counsel]?
"Mr. Ainsworth: That is correct, your Honor.”
The inadvertent misstatement by the trial judge of testimony regarding an important question of fact has been held to be reversible error in a civil case. See, for example, Hammock v Sims, 313 Mich 248, 256-257; 21 NW2d 118 (1946). Here, however, counsel for defendant agreed that the trial judge had stated the testimony correctly. Moreover, it is difficult to see how the question of whether Pippins had an attorney when he gave his original statement to the police can be regarded as important. Defendant suggests that it might have influenced the jury’s decision as to Pippins’ credibility, but since nothing in the record suggests that the statement given to the police differed in any way from the statements made after appointment of counsel and plea bargaining, we cannot see how it could have such an effect. Any error in this regard was harmless beyond a reasonable doubt.
IV
At a pretrial hearing on his competence to stand trial, defendant exercised his right under MCL 330.2030(3); MSA 14.800(1030)(3) to object to the introduction of the report prepared by the Center for Forensic Psychiatry pursuant to MCL 330.2028; MSA 14.800(1028). The prosecution therefore called as a witness the psychologist who prepared the report. The psychologist was not personally present in the courtroom, but was examined and cross-examined, despite defendant’s objection, through a conference telephone call. Defendant argues that this procedure denied him his right, under US Const, Ams VI, XIV, and Const 1963, art 1, § 20, to confront the witnesses against him in a criminal prosecution.
In Mattox v United States, 156 US 237, 242-243; 15 S Ct 337; 39 L Ed 409 (1895), the Court emphasized the importance of a face-to-face confrontation:
"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
However, the constitutional right of confrontation does not extend to pretrial hearings on competency to stand trial. See Commonwealth v Iacobino, 319 Pa 65, 69; 178 A 823 (1935):
"A defendant charged with a crime who invokes a statutory or common law remedy to determine his sanity before trial or after conviction has no constitutional right to be confronted by or cross-examine witnesses or the members of the commission appointed to ascertain that fact. Such inquiries are for the determination of a fact apart, separate and distinct from that of guilt of the crime itself, as to which trial or sentence may or may not be ordered.”
See also Commonwealth v Novak, 395 Pa 199; 150 A2d 102 (1959), and People v Cook, 39 Cal 2d 496; 247 P2d 567 (1952).
Due process nevertheless requires that state procedures be adequate to protect a defendant’s right not to stand trial while incompetent. Pate v Robinson, 383 US 375, 386; 86 S Ct 836; 15 L Ed 2d 815 (1966), Martin v Estelle, 546 F2d 177, 179 (CA 5, 1977). Some courts have taken the position that adequate procedures must include, as a minimum, a hearing on the record at which both parties are given the opportunity to examine all the witnesses who testify or report on defendant’s competence. Hansford v United States, 124 US App DC 387, 390, fn 8; 365 F2d 920, 923 (1966); Blunt v United States, 128 US App DC 375, 377; 389 F2d 545, 547 (1967). However, the record here contains no indication that presentation of this witness through a conference telephone call prevented counsel for defendant from conducting a full cross-examination of the witness. We cannot say that a face-to-face confrontation with an expert witness testifying as to defendant’s competence is essential to ensure that a pretrial hearing on competence is adequate to protect defendant’s right not to stand trial while incompetent.
Affirmed.
C. W. Simon, J., concurred. | [
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Per Curiam.
This case arose out of a slip and fall incident that occurred at the Hazel Park Harness Raceway in May, 1975. At trial, the jury returned verdicts against defendant Hazel Park Harness Raceway and in favor of plaintiffs Charles and Sarah Perry in the amounts of $183,544.88 and $39,600, respectively. Defendant appeals as of right raising six issues.
Defendant first alleges that the trial judge erred by failing to provide the jury with special verdict form SJI 66.01.
GCR 1963, 516.1 requires that requests for jury instructions be made in writing and that a copy of such requests be served on the adverse party. Under GCR 1963, 516.6(2), such a properly requested instruction must be given if it is applicable and if it accurately states the law. Javis v Ypsilanti Bd of Ed, 393 Mich 689, 697; 227 NW2d 543 (1975).
The Javis rule, however, applies only when the requested instruction strictly complies with the language of the Standard Jury Instruction. Cox v LaLonde, 101 Mich App 342; 300 NW2d 564 (1980), lv den 412 Mich 875 (1981); Green v Richardson, 69 Mich App 133, 136-137; 244 NW2d 385 (1976), lv den 397 Mich 852 (1976). The instruction requested by defendant was a significantly modified version of SJI 66.01. As a result, the rule in Javis does not apply. Further, defendant’s later objection appears from the record to be aimed at the instruction as requested and not to a “new” request for SJI 66.01. Because we believe that the policies underlying Cox and Green apply equally to procedurally defective requests for Standard Jury Instructions, defendant’s failure to make its request in writing as required by GCR 1963, 516.1, precludes a finding of error on this issue.
Defendant also suggests two additional bases for the assignment of error on this issue. First, defendant’s claim that the trial judge’s failure to provide the special verdict form "thwarted” the jury’s function is not preserved for appeal because no objection on that basis was raised below. Cox, supra, p 352. Second, defendant contends that a separate special verdict form was required for plaintiff Mrs. Perry. Because no separate form was requested below and because this issue is raised for the first time on appeal, it is not properly before the Court. See GCR 1963, 516.1 and 516.2.
Defendant next argues that the trial judge erred when he instructed the jury that defendant could be found negligent based on its failure to employ slip-preventing devices. The challenged instruction in the case at bar was taken directly from McNabb v Green Real Estate Co, 62 Mich App 500, 512-513; 233 NW2d 811 (1975), lv den 395 Mich 774 (1975).
The text of the instruction states:
"I further charge you, members of the jury, that a proprietor of a building may be found negligent in failing to employ adequate slip-preventing devices in connection with common areas that have become slippery as a result of foreseeable tracking or accumulation of water. If you find from the evidence that a reasonable prudent person in the position of the defendant would have realized the benefits of such devices, and equipped the common areas with such devices, I instruct you that the proprietor of a building may be found negligent for failing to employ these devices, if you find that such devices would be of benefit insofar as safety is concerned.”
The defendant in McNabb challenged the use of a similar instruction. The McNabb Court held that, where there is no Standard Jury Instruction on point, the trial court mpy give additional " 'concise, understandable, conversational, and non-argumentative’ ” instructions consistent with GCR 1963, 516.6(4). McNabb, supra, p 513. As with the ■ Standard Jury Instructions, the instruction must be applicable and accurately state the law. GCR 1963, 516.6(2). See, also, Socha v Passino, 405 Mich 458, 466-467; 275 NW2d 243 (1979).
In McNabb, a slip and fall case, plaintiff submitted evidence that showed that defendant failed to use non-skid strips, that such strips were beneficial and that the plaintiff slipped and fell. The Court ruled that, based on the evidence presented by plaihtiff, the challenged instruction was appropriate. See, also, Mulcahy v Argo Steel Construction Co, 4 Mich App 116, 122; 144 NW2d 614 (1966), lv den 378 Mich 741 (1966), where on similar facts this Court held that the trial judge properly instructed the jury on the defendant’s failure to provide electrical grounding devices.
Plaintiffs presented evidence that Mr. Perry fell as a result of water that had accumulated on the second floor of the grandstand area of defendant’s racetrack. Plaintiffs also introduced evidence of an available slip-preventing device. Although defendant introduced evidence that pumice was added to the paint that was applied to the floor, plaintiffs’ expert witness testified that the floor, as painted, was more slippery, both wet and dry, than bare cement. The Supreme Court has held that an inadequate safety device is the practical equivalent of no safety device at all. Tulkku v Mackworth Rees Div of Avis Industries, Inc, 406 Mich 615, 621; 281 NW2d 291 (1979). While defendant pre sented some evidence that pumice was mixed with the paint applied to the grandstand floor, plaintiffs’ evidence indicated that defendant’s paint mixture decreased the friction coefficient and made the cement floor more slippery. Hence, the mixture applied by defendant increased the danger to patrons of the racetrack in the event the floor became wet. On these facts, the trial judge properly gave the McNabb instruction.
Defendant next alleges error on the ground that the trial judge failed adequately to instruct the jury on the issue of invitor-invitee liability. Defendant properly requested two separate instructions on invitor-invitee liability. The first instruction was given as requested. The judge found that the subject matter of the instruction was adequately covered by the first instruction. *
Except as limited by the rules governing requests for Standard Jury Instructions, see Javis; supra; Socha, supra, where the charge to the jury otherwise covers the substance of an instruction as requested by a party, the court need not follow the "precise form” requested by that party. Ferries v Copco Steel & Engineering Co, 344 Mich 345, 350; 73 NW2d 850 (1955); Bank of Lansing v Stein, Hinkle, Dawe & Assoc Architects, Inc, 100 Mich App 719, 727; 300 NW2d 383 (1980).
In this case, both the instruction given and the instruction denied were requested by defendant. Neither instruction was a Standard Jury Instruction. Besides the instructions on invitor-invitee liability, instructions on general negligence and comparative negligence were given. Defendant’s "theory of the case” as presented to the jury by the court referred to Mr. Perry’s duty to protect himself.
Viewing the jury instructions as a whole, we find that the court did not err when it failed to give both invitor-invitee instructions as requested by defendant because other instructions adequately covered the subject matter of the instruction that was not given. Ferries; supra; Berlin v Snyder, 89 Mich App 38, 41; 279 NW2d 322 (1979), lv den 407 Mich 867 (1979).
Defendant next avers that it was entitled to a directed verdict because plaintiffs, failed to present adequate proof of defendant’s liability as an invitor. Where a party appeals from a denial of a motion for directed verdict, this Court is limited on review to the question of whether the party opposing the motion offered evidence about which reasonable minds could differ. Light v Schmidt, 84 Mich App 51, 59; 269 NW2d 304 (1978).
Mr. Perry, his companion and the nurse employed by the racetrack all testified that there was water all over the floor with the result that the entire area was slick and hazardous. Other testimony indicated that Mr. Perry was walking in a normal fashion when he fell. Mr. Perry stated that he was conscious of the risk and proceeded with caution in an attempt to avoid it.
The issue of an invitor’s breach of duty as to an invitee raises a question of fact for the jury. Kroll v Katz, 374 Mich 364, 371-373; 132 NW2d 27 (1965); Conerly v Liptzen, 41 Mich App 238, 241-242; 199 NW2d 833 (1972), lv den 388 Mich 779 (1972). A defendant is not relieved from liability as a matter of law merely because an invitee has discovered the danger and attempted to protect himself against it. See Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 258-259; 235 NW2d 732 (1975); 2 Restatement Torts, 2d, § 343, pp 215-216. Rather, the question is whether he can reasonably expect invitees to pro tect themselves against the hazard. As Prosser notes:
"[W]here the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases, the jury may be permitted to find that obviousness, warning or even knowledge is not enough.” (Footnote omitted.) Prosser, Torts (4th ed), § 61, pp 394-395.
This is not a case like Jones v Michigan Racing Ass’n, 346 Mich 648; 78 NW2d 566 (1956), where the hazard to be avoided was a puddle that the plaintiff could have avoided by walking around it. This case is analogous to the "icy steps” cases. Mr. Perry should not be charged with negligence for attempting to safely negotiate an unavoidable hazard. The trial judge correctly denied defendant’s motion for directed verdict on this basis.
Defendant also argues that the trial judge should have granted its motion for directed verdict and its motion for judgment notwithstanding the verdict or a new trial because plaintiffs failed to establish defendant’s control over the premises.
The trial court’s rulings were correct. A possessor of land is subject to liability for physical harm to invitees. Quinlivan, supra. There is no issue of "control” when the action is brought against the one in possession. That issue arises when the action is brought against someone other than the invitor-possessor, such as the landlord. See, e.g., Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399; 97 NW2d 90 (1959); Siegel v Detroit City Ice & Fuel Co, 324 Mich 205; 36 NW2d 719 (1949); Whinnen v 231 Corp, 49 Mich App 371, 375; 212 NW2d 297 (1973), lv den 391 Mich 787 (1974). Plaintiffs presented evidence that defendant possessed the property in question.
After plaintiffs had submitted their proofs, defendant’s general manager admitted that the lease between defendant and Hazel Park Racing Association imposed upon defendant an obligation to maintain the premises. According to defendant’s manager, the obligation included a duty to maintain the grandstand area free from the accumulation of water. Evidence presented by the defendant at trial must be considered on review of the trial judge’s denial of defendant’s motion for judgment notwithstanding the verdict. Kasza v Detroit, 370 Mich 7, 10-11; 120 NW2d 784 (1963). Defendant’s admissions were sufficient as a matter of law to establish defendant’s control over the premises and to defeat defendant’s motion for judgment notwithstanding the verdict.
Finally, defendant argues that the trial judge erred when he admitted samples of the floor surface at the racetrack and plaintiffs’ expert’s accompanying testimony because the samples were not obtained until five years after the accident occurred. Before the floor samples and the expert testimony offered by plaintiffs could be admitted into evidence, plaintiffs had the burden of establishing that the surface of the grandstand floor at the time Mr. Perry fell was substantially similar to the grandstand floor surface at the time plaintiffs’ expert obtained samples of the surface for the purpose of testing the floor for "slipperiness”. Savage v Peterson Distributing Co, Inc, 379 Mich 197; 150 NW2d 804 (1967). The admission of such evidence is left to the broad discretion of the trial court. Muniga v General Motors Corp, 102 Mich App 755, 761; 302 NW2d 565 (1980); Moldovan v Allis Chalmers Mfg Co, 83 Mich App 373, 384; 268 NW2d 656 (1978), lv den 406 Mich 916 (1979).
The evidence that was introduced indicates that the floor surface samples tested by plaintiffs’ expert were similar to the floor surface on the night that Mr. Perry fell. A witness for defendant testified that the floor was first painted with the allegedly defective paint-pumice mixture in 1973 or 1974 and annually thereafter. Mr. Perry fell in 1975. The defense witness also testified that the floor sample offered by plaintiffs looked and felt similar to the floor as he remembered it in 1975. Further, the floor sample offered by plaintiffs is remarkably smooth when compared with the sample of the slip-preventing paint-ferrous oxide mixture offered by plaintiffs as evidence of an adequate slip-prevention measure.
In view of all of these facts, we cannot say that the trial judge abused his discretion when he admitted the floor samples and the testimony of plaintiffs’ expert.
The judgment is affirmed. Costs to plaintiffs. | [
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Quinn, J.
Following the decision of this Court in the above case, 76 Mich App 377; 256 NW2d 601 (1977), plaintiff applied for leave to appeal to the Supreme Court. On October 27, 1977, the Supreme Court entered the following order in this cause:
"Leave to appeal considered October 27, 1977. Pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals is reversed and the cause is remanded for consideration of the issues raised in plaintiffs brief in that Court. The Court of Appeals erred in requiring plaintiffs complaint to allege 'ultimate facts’ and in disregarding plaintiffs allegations that plaintiff’s decedent was taken against her will to a vacant house owned by the defendant and there strangled to death. A motion for summary judgment under GCR 1963, 117.2(1) requires that the court 'examine the complaint and decide whether it states a claim. We are not free to disregard any well pleaded fact, nor to expand the allegations by inference.’ Roulo v Automobile Club of Michigan, 386 Mich 324, 326 [192 NW2d 237] (1971). Modern pleading under the General Court Rules of 1963 does not require a complaint to allege 'ultimate facts’. '[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v Gibson, 355 US 41, 45; 78 S Ct 99; 2 L Ed 2d 80 (1957). This Court retains no further jurisdiction.” 401 Mich 847 (1977).
On. reconsideration of this case pursuant to the above order, we find that we have no alternative but to reverse the trial court and remand this case for trial.
Reversed and remanded but without costs. | [
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J. H. Gillis, P. J.
Plaintiff, Superior Public Rights, Inc. (hereinafter referred to as SPRI) commenced this action on September 24, 1973, pursuant to the Michigan Environmental Protection Act. MCLA 691.1201 et seq.; MSA 14.528(201) et seq.
Plaintiffs suit seeks to invalidate agreements which permit the private use of public trust land for railroad and coal unloading facilities. Plaintiff also seeks to nullify an easement agreement which permits the expansion of an electrical power generating plant on adjacent public trust lands.
The trust land in question lies within Presque Isle Harbor near Marquette, Michigan.
The defendants in the instant action include 1) the State of Michigan Department of Natural Resources (hereinafter referred to as DNR), which is responsible for the maintenance and preservation of the trust land, 2) the Upper Peninsula Generating Company (hereinafter referred to as GENCO), which applied for, and received an easement through public trust land from defendant DNR for the construction of underground intake/ discharge pipes for its generating facility, and 3) the Lake Superior and Ishpeming Railroad (hereinafter referred to as LS&I Railroad), which applied for, and received a permit from defendant DNR for the use of over 40 acres of public trust land pursuant to the Great Lakes Submerged Lands Act. MCLA 322.701 et seq.; MSA 13.700(1) et seq.
A brief history of the bottomland in question is necessary for an understanding of the issues raised on appeal.
It appears that LS&I Railroad constructed two docks upon the trust land in the late 1800’s and early 1900’s to facilitate the loading and unloading of coal and iron ore transported by the railroad.
In spite of its continued use of these docks over the years, LS&I Railroad apparently never obtained formal permission to occupy the trust land which supports them. Indeed, it is not clear that any statute existed providing for state authorization of such occupancy until 1955. That year the Legislature passed the Great Lakes Submerged Lands Act, MCLA 322.701 et seq.; MSA 13.700(1) et seq. The stated purpose of the act was to give the Department of Natural Resources the power to grant, convey or lease unpatented Great Lakes bottomland belonging to the State of Michigan or held in trust by it and "to permit the private and public use of waters over submerged patented land and the making of agreements limiting and regulating the use thereof, and to provide for the disposition of revenue derived therefrom and to provide penalties” for violations of the act. Shortly after passage of the Great Lakes Submerged Lands Act, a study of the Upper Peninsula was conducted to determine if there were any illegal encroachments on state-owned bottomland. The only encroachments found in upper Presque Isle Harbor were the two docks operated by LS&I Railroad.
The unauthorized occupation was legitimized by an agreement executed between defendants DNR and LS&I Railroad, which is now part of the subject matter of this lawsuit.
Defendant, LS&I Railroad, sought to expand these facilities with the installation of a coal unloader, and applied for the use of an additional .37 acre of bottomland for this purpose. This application was granted by defendant DNR pursuant to the Great Lakes Submerged Lands Act, supra, during the pendency of the instant action in 1975. Plaintiff SPRI amended its complaint and chal lenged the validity of this agreement as well as the first agreement that was executed by the parties in 1971.
Defendant GENCO operates a power generating plant situated on the Dead River near the Lake Superior shoreline.
All of GENCO’s power generating units require cooling water for the purpose of condensing steam after it has been used to drive the unit’s turbine. A "once through” cooling system is employed, meaning that water is drawn in from a natural source, is used to condense the steam and is then discharged back into the source.
Defendant GENCO sought to expand its generating capacity to meet the demands of the mining industry in the area. In order to expand its capacity, a new intake/discharge system was necessary in order to provide the new and existing generating units with sufficient cooling water. The current system, which used the waters of the Dead River for cooling purposes, was inadequate from both an environmental and an operational standpoint. Hence, defendant GENCO applied for an easement across state-owned trust land in order to run a new intake/discharge cooling system into Lake Superior.
Before it could construct and operate its new intake and discharge system, defendant GENCO had to obtain a series of permits from the Army Corps of Engineers and from various divisions of defendant DNR. The Army Corps of Engineers compiled a comprehensive environmental impact statement dated March 28, 1973, which concluded that the proposed system met Federal pollution standards, and that no serious harm would befall the environment from the construction of the proposed system. Defendant DNR then granted an easement to defendant GENCO for the use of state-owned trust land for the project.
Plaintiff then commenced this action in circuit court challenging the validity of the 1971 land use agreement between defendants, LS&I Railroad and DNR, and the aforementioned easement agreement executed between defendants, GENCO and DNR. As noted earlier, the complaint was later modified to also challenge the 1975 land use agreement between defendants, LS&I Railroad and DNR.
The circuit court issued an opinion and a final judgment in favor of all defendants on March 24, 1976. Plaintiff appeals from that judgment as a matter of right.
Plaintiff first contends that the burden of proof was improperly thrust upon the plaintiff during the 1975 DNR hearings concerning defendant LS& I Railroad’s application for the use of additional trust land, and therefore the trial court erred in adopting the findings made at the hearing.
MCLA 322.714; MSA 13.700(14), provides that the Department of Natural Resources may conduct a public hearing on an application for the use of Great Lakes bottomland. In addition, Administrative Rule 15, being 1967 AACS, R281.915, promulgated pursuant to the rule-making authority granted by MCLA 322.709; MSA 13.700(9), provides, in part:
"The department upon its own motion, or upon the request of any interested party, may hold a hearing before consideration of any application for a deed, lease, agreement, boundary certificate, or permit to fill or dredge unpatented bottomland or water area over patented bottomland. Any hearing under these rules shall be conducted in accordance with Act No. 197 of the Public Acts of 1952, as amended, being sections 24.101 to 24.110 of the Compiled Laws of 1948. * * * On termination of the hearing, and after review of the testimony, a decision shall be made on the merits and the application approved or disapproved, and thereafter if approved, shall be submitted to the conservation commission and state administrative board for final disposition.”
However, neither the Great Lakes Submerged Lands Act nor the rules promulgated under MCLA 322.709; MSA 13.700(9) by the DNR, nor the Administrative Procedures Act allocates the burden of proof between the parties at such a hearing.
"Agencies may, by rule or decision, allocate burdens of proof in a manner consistent with the legislative scheme being administered. Thus, it is proper for the agency to impose the burden of producing evidence on a party having superior access to the relevant facts. [Citing Michigan Tool Co v Employment Security Commission, 346 Mich 673; 78 NW2d 571 (1956).]
"In determining whether a party has carried a burden of proof, no special requirement of a degree of persuasion is generally applied. The agency finding of fact must be supported by evidence, and reflect a judgment that the evidence preponderates in favor of the finding, but it may be based on reasonable inferences of fact. [Citing, by way of example, Zytkewick v Ford Motor Co, 340 Mich 309; 65 NW2d 813 (1954).]” Cramp-ton, Holmes, The New Michigan Administrative Procedures, Institute of Continuing Legal Education, 1970, pp 121-122.
In the instant matter, LS&I Railroad requested an agency, the DNR, to issue a permit to allow it to use public trust lands for private commercial purposes. Under such circumstances, the applicant had the burden of establishing that it was entitled to the permit. An examination of the record reveals that in conjunction with its application to the DNR, defendant LS&I Railroad submitted all the information required by MCLA 322.704; MSA 13.700(4), and the applicable administrative rules. 1967 AACS, R 281.902-281.906. A reading of the hearing examiner’s opinion also reveals that defendant, LS&I Railroad, supplied the examiner with relevant data about the project. There is nothing in the record to indicate that the burden of proof was ever thrust upon plaintiff at the administrative level.
The trial court, in its opinion, clearly indicated that it made a de novo interpretation of the evidence surrounding LS&I’s application for use of the land in question, and concluded that LS&I Railroad had the burden of proof at the DNR hearing. This Court will not disturb the findings of fact made by the trial court unless they are clearly erroneous. City of Muskegon v Lipman Investment Corp, 66 Mich App 378, 383; 239 NW2d 375 (1976).
Accordingly, we find that the defendant, LS&I Railroad, had the burden of proof at the administrative level.
Plaintiff next contends that defendant, DNR, deprived plaintiffs members of their constitutional due process rights by failing to hold a public hearing before granting defendant, LS&I Railroad, the right to use additional bottomland for the construction of a coal unloader.
A two-part analysis is required to determine the validity of plaintiff’s due process claim.
"In analyzing due process claims, the United States Supreme Court first determines '[wjhether any procedural protections are due’ and then decides 'what process is due.’ Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
"In determining whether any procedural protection is required, the Court considers 'whether the nature of the interest is one within the contemplation of the "liberty or property” language of the Fourteenth Amendment’ Morrisey v Brewer, supra, p 481.” Dow v Michigan, 396 Mich 192, 202-203; 240 NW2d 450 (1976).
We must first determine whether or not the plaintiff, representing citizens of this state, is entitled to any procedural protection when the state allows for the private use of lands held in trust for the general public.
Plaintiff cites a long line of cases in support of its contention that the public should receive notification under the circumstances of this case. However, the cases cited by plaintiff deal with the deprivation of individual rights of property and liberty. In the instant matter, we are concerned with the rights of every citizen of this state since the land in question is held in trust by the state for the benefit of the general public.
Although the property rights of the citizens of this state in public trust lands may be superior to their rights in public property in general, due process is not an appropriate vehicle to use for the protection of those rights. In such a situation, the citizens must rely on their representative government to protect their interests.
Even if this Court were to rule that plaintiff’s members were entitled to notice and a right to be heard at a hearing before the state could allow the private use of trust lands, there would be no error in the instant matter. The notice given to the public in the case at bar complied with the requirements set forth in the Dow case, supra.
"Addressing the question of what process is due, we note that 'due process is flexible and calls for such procedural protections as the particular situation demands.’ [Citing Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972).] 'The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’ Boddie v Connecticut, 401 US 371, 378; 91 S Ct 780; 28 L Ed 2d 113 (1971).” 396 Mich 192, 204-205.
Given the flexibility of due process requirements, the limited property interest of any one citizen in public trust land, and the notoriety of the project by virtue of newspaper articles and published notice by the United States Army Corps of Engineers, it is this Court’s opinion that due process was satisfied.
Plaintiff also claims that defendant DNR’s failure to comply with MCLA 322.714; MSA 13.700(14), resulted in denying interested parties due process of law. A careful reading of the aforementioned statute indicates that it only applies to the construction of artificial waterways which connect into the Great Lakes.
Hence, we find no deprivation of due process rights in conjunction with defendant DNR’s approval of LS&I Railroad’s application for the use of additional bottomland.
Plaintiff further alleges that defendant DNR failed to apply appropriate standards and make necessary findings of fact based upon sufficient evidence in determining whether or not to grant defendant LS&I Railroad’s and GENCO’s applications for use of the bottomland.
Plaintiff first contends that the standards set forth in MCLA 322.702, 703, 705; MSA 13.700(2), (3), (5), are in conflict with the common-law public trust doctrine and are therefore void. We disagree.
"The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. * * * The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them,- so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.” Illinois Central R Co v People of the State of Illinois, 146 US 387, 453; 13 S Ct 110; 36 L Ed 1018 (1892). (Emphasis supplied.)
The Illinois Central R Co case, supra, expressly authorizes the state to permit the private use of public trust lands when 1) the private use will improve the public trust, or 2) the private, use will not substantially impair the trust lands and waters that remain.
The Great Lakes Submerged Lands Act, supra, also authorizes the state to commit public trust lands to private use.
"The lands covered and affected by this act are all of the unpatented lake bottomlands and unpatented made lands in the Great Lakes, including the bays and harbors thereof, belonging to the state or held in trust by it, including those lands which have heretofore been artificially filled in. The waters covered and affected by this act are all of the waters of the Great Lakes within the boundaries of the state. This act shall be construed so as to preserve and protect the interests of the general public in the aforesaid lands and waters and to provide for the sale, lease, exchange or other disposition of unpatented lands and the private or public use of waters over patented and unpatented lands and to permit the ñlling in of patented submerged lands whenever it is determined by the department of conservation that the private or public use of such lands and waters will not substantially affect the public use thereof for hunting, físhing, swimming, pleasure boating or navigation or that the public trust in the state will not be impaired by such agreements for use, sales, lease or other disposition.
"The department of conservation, hereinafter referred to as the 'department’, after ñnding that the public trust in the waters will not be impaired or substantially affected, is hereby authorized to enter into agreements pertaining to waters over and the filling in of submerged patented lands, or to lease or deed unpatented lands, after approval of the state administrative board.” MCLA 322.702; MSA 13.700(2), MCLA 322.703; MSA 13.700(3). (Emphasis supplied.)
The tests set forth in Illinois Central R Co, supra, and the Great Lakes Submerged Lands Act, supra, are nearly identical, and go about protecting public trusts in a similar manner.
Accordingly, we find no inconsistency between the tests.
Plaintiff next seeks to invoke MCLA 322.705; MSA 13.700(5), and compel defendant DNR to make a finding that the proposed private use of public trust lands by the defendants is within the "public interest”.
"Should the department determine that it is in the public interest to grant an applicant a deed or lease to such lands or enter into an agreement to permit use and improvements in the waters or to enter into any other agreement in regard thereto, the department shall determine the amount of consideration to be paid to the state by such applicant for the conveyance or lease of unpatented lands.
"(a) The department may permit, by lease or agreement, the filling in of patented and unpatented submerged lands and permit permanent improvements and structures after finding that the public trust will not be impaired or substantially injured.” MCLA 322.705; MSA 13.700(5). (Emphasis supplied.)
Plaintiff interprets the aforementioned section to require the defendant DNR to find that every private use of public trust lands is in itself beneficial to the public interest before authorizing the use.
Such an interpretation is clearly erroneous.
MCLA 322.702 imposes standards that defendant DNR must follow when determining whether or not to allow the private use of public trust lands. While MCLA 322.703; MSA 13.700(3) and MCLA 322.705; MSA 13.700(5) reiterate these standards in shortened form, they do so for other purposes.
MCLA 322.703; MSA 13.700(3) authorizes the DNR to enter into agreements and make dispositions of public trust land. MCLA 322.705; MSA 13.700(5) prescribes the formula to be used in determining the consideration to be received by the state for the private use of trust lands.
A careful review of the statutes at issue reveals that the Legislature did not intend to impose another "public interest” test in addition to the requirements enumerated in § 2 of the statute.
Such an interpretation is consistent with the "public trust doctrine” set forth in Illinois Central R Co, supra.
Therefore, we rule that MCLA 322.702; MSA 13.700(2) sets forth the requirements to be considered by the DNR when determining whether or not to allow the private use of public trust lands. MCLA 322.705; MSA 13.700(5) imposes no additional requirements.
Plaintiffs final argument in respect to this issue alleges that defendant DNR failed to analyze sufficient evidence to render a fair decision on the applications made by the other defendants for the private use of public trust lands. Plaintiff alleges that defendant DNR improperly delegated its fact-finding duties by relying upon the environmental impact statement prepared by the United States Corps of Engineers. Plaintiff goes on to suggest that this was the only evidence considered by the DNR when it was weighing defendants’ applications for private use of the trust lands.
Plaintiff offers no evidence to support this contention. Defendant DNR claims additional evidence was considered before the applications were granted. The DNR conducted hearings for nine days in respect to LS&I Railroad’s application for use of the trust lands. The trial court concluded that the DNR weighed sufficient evidence in granting the applications.
Based upon this record we find that the DNR weighed sufficient evidence in granting defendants’ applications for use of the public trust lands.
Plaintiff next challenges the sufficiency of consideration received by the state in exchange for granting defendants, GENCO and LS&I Railroad, the right to use and occupy public trust lands.
"The consideration to be paid to the state or the conveyance or lease of unpatented lands by such applicant shall be not less than the fair, cash market value of the lands determined as of the date of the fíling of such application, minus any improvements placed thereon but in no case shall the sale price be less than 30% of the value of the land. In determining the fair, cash market value of the lands applied for, the department may give due consideration to the fact that such lands are connected with the riparian or littoral property belonging to the applicant, if such is the case, and to the uses, including residential and commercial, being made or which can be made of said lands.” MCLA 322.705; MSA 13.700(5). (Emphasis supplied.)
As noted by MCLA 322.704; MSA 13.700(4), the Great Lakes Submerged Lands Act restricts the class of applicants who may request the use of bottomland to "riparian or littoral owner or owners of property touching or situated opposite the unpatented land or water area over patented lands applied for or an occupant of said land”. With the limited market for bottomlands, it is open to question whether the lands have any "market” value at all.
While plaintiff does not contest the method of computation used in the instant matter, it argues that the property rights acquired by defendants, GENCO and LS&I Railroad, are of much greater value since they are needed to overcome a bottleneck to mining expansion.
However, plaintiff’s approach is inappropriate to determining the fair, cash market value. In the related area of taxation, the courts of this state have held that duress is not an appropriate factor for consideration in assessing the market value of property.
"[T]he words 'cash value’ as defined by MCLA 211.27; MSA 7.27 is the usual selling price that could be obtained at the time of assessment, but not the price that could be obtained at a forced or auction sale.” Helin v Grosse Pointe Township, 329 Mich 396, 403; 45 NW2d 338 (1951).
If stripped of its argument that the state should exercise economic duress over the parties, plaintiff has no real argument concerning the value of the consideration received.
Accordingly, we rule the consideration received by the state for the use of the trust lands was the fair cash market price in accordance with MCLA 322.705; MSA 13.700(5).
Plaintiff finally claims that the trial court erred in failing to assess costs and by ruling that MCLA 691.1203(3); MSA 14.528(203X3) does not authorize the court to award attorney fees. We agree.
The Michigan Environmental Protection Act states that:
"Costs may be apportioned to the parties if the interests of justice require.”
This Court in Taxpayers & Citizens in the Public Interest v Department of State Highways, 70 Mich App 385; 245 NW2d 761 (1976), interpreted this section to authorize the award of attorney fees if the statutory test was met.
"The authority for an award of fees and costs, includ ing taxable attorney fees and reasonable expert witness fees, is statutory. MCLA 600.2405; MSA 27A.2405, MCLA 600.2164; MSA 27A.2164. It is denoted in MCLA 600.2401; MSA 27A.2401 that '[e]xcept as otherwise provided by statute, the supreme court shall by rule regulate the taxation of costs’. The controlling court rule is GCR 1963, 526.1:
" 'In any action or proceeding, costs shall be allowed as of course to the prevailing party, except when express provision therefor is made either in a statute or in these Rules, or unless the court otherwise directs, for reasons stated in writing and filed in the cause.’ Falling within the 'except when express provision * * * in a statute’ supervention is the appropriate section of the Environmental Protection Act (EPA), MCLA 691.1203(3); MSA 14.528(203X3): 'Costs may be apportioned to the parties if the interests of justice require.’
"Construed in concert, as they must be, these provisions yield one indisputable principle: the award of costs and fees in cases such as this is within the broad and unfettered discretion of the trial judge, a discretion that must, however, be recognized and exercised. We only look to see if such discretion has been exercised, and, if so, abused.” 70 Mich App 385 at 387, 388.
A review of the record reveals that the trial court failed to determine if the "interests of justice” require that costs be apportioned.
The trial court also expressly excluded attorney fees when it considered apportioning costs. Accordingly, the case must be remanded to the trial court to allow it to apply the appropriate standards in determining whether or not costs should be apportioned. The other issues raised on appeal do not merit discussion by this Court.
Affirmed in part; reversed in part for proceedings consistent with this opinion. No costs, a public question being involved. We retain no further jurisdiction.
Plaintiff, Superior Public Rights, Inc., is a Michigan non-profit corporation. All of its incorporators and members are residents of Marquette County. They actually use the trust land, which is the subject matter of this lawsuit, for fishing, boating, swimming and other recreational purposes.
The 1971 "Agreement for Use of Great Lakes Bottomland” between the DNR and the LS&I Railroad encompassed a total of 42.7 acres of submerged land including that directly beneath the docks. According to the then chief of the DNR’s Submerged Lands Management Section, George Taack: "The area that was under agreement was for the purpose of using it for the surface, for the movement of goods by ship and it was intended to grant them the right to maneuver their boats, moor them, load them, unload them, whatever they were doing in the manner that they had been doing since the early 1900’s.”
It appears that during periods when the flow through the Dead River is restricted (either due to seasonal variations or due to the operation of hydroelectric power plants located upstream) GENCO’s requirements for cooling waters would reverse the flow of the Dead River drawing in water from the harbor. On occasion sand bars would block the mouth of the Dead River requiring routine maintenance dredging to keep the mouth of the Dead River open. From an environmental standpoint, it was believed that the use of the Dead River waters, under the circumstances described above, created a barrier to the migration of anadromous fish up the Dead River to spawn and to the migration of fingerlings into Lake Superior after hatching.
The cases cited by plaintiff include: Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), Sniadach v Family Finance Corp, 395 US 337; 89 S Ct 1820; 23 L Ed 2d 349 (1969), North Georgia Finishing, Inc v Di-Chem, Inc, 419 US 601; 95 S Ct 719; 42 L Ed 2d 751 (1975). | [
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H. L. Heading, J.
Fireman’s Insurance Company brings this appeal from a judgment of the trial court awarding plaintiffs $6,993.76 under a contract of insurance between the insurance company and defendants Christian and Esther York. This case was previously before us on appeal, and was remanded to the trial court for findings of fact and conclusions of law as mandated by GCR 1963, 517.1, Wilson v Fireman’s Insurance Company of Newark, New Jersey, 60 Mich App 76; 230 NW2d 315 (1975). Defendant insurance company now alleges several errors in those findings of fact and conclusions of law.
On February 28, 1966, plaintiffs entered into a land contract to purchase a certain house from defendants Christian and Esther York for a total price of $4,500. The contract contained a provision requiring plaintiffs to insure the premises against fire for the benefit of sellers, any proceeds from that insurance to be paid to sellers and applied against the balance due on the land contract. The contract further provided that if the buyers failed to maintain insurance, the sellers could obtain insurance and add the amount of the premium to the balance owed on the land contract. Plaintiffs never obtained insurance coverage, and the Yorks continued the policy in effect at the time the land contract was entered into, adding the cost to the balance of the land contract. The policy limits were $6,000 on the house and $3,500 on its contents.
On December 3, 1970, the house and its contents were destroyed by fire. On September 26, 1971, the insurance company paid Mrs. York (Mr. York having died on December 14, 1970) the sum of $2,506.24 in payment of her claim under the insurance policy, representing the value of her interest in the insured property. Before receiving payment on the policy, Mrs. York was required to sign an agreement indemnifying the insurance company against claims by plaintiffs and by the estate of her husband, Christian York, to the insurance proceeds paid her.
Subsequently, plaintiffs filed this lawsuit against the insurance company and Mrs. York claiming a right to payment under the contract of insurance between the Yorks and the insurance company for the loss they suffered through the destruction of the subject property by fire. By stipulation of the parties, the case was submitted to the trial court, sitting without a jury, for decision on the pleadings, depositions and exhibits.
In his findings of fact and conclusions of law, the trial court articulated the basis for his judgment in part as follows:
"The Insurance Company may not withhold payment of the full amount of the policy, merely because the Land Contract vendor’s insurable interest in the property did not equal the amount of the policy benefits. The Insurance Company was required to pay the full benefits to the vendors who then hold the remaining amount in a constructive trust for the benefit of the vendee. Since this is an equitable action, it is unnecessary at this time to require payment to the vendor, but this Court will order payment of the balance owed to be paid to the vendee. Defendant’s position that they are not required to make such a payment because they have no privity of Contract with the vendee is inapplicable in the instant case, because the vendees were third party beneficiaries. This was clearly a mistake on the part of the insuring vendors, since they had a Contract with the vendee, and equity may intervene to carry out the intent of the parties, the Insurance Company would not have changed its policy if they had known, but would have provided for a division of proceeds. Therefore the Insurance Company cannot claim they are prejudiced by the result. Since the vendee had paid for the Contract they are entitled to the proceeds, less the amount of the vendor’s insurable interest in the property.”
It appears that the trial court concluded that the policy of insurance covered not merely the York’s interest in the insured premises, but all interests therein to the full value of the property up to the limits of liability set out in the policy; that the Yorks intended that plaintiffs’ interest be protected under their policy; and that the fact that the premiums were charged to plaintiffs under the terms of the land contract gives them an equitable interest in the proceeds.
We note first of all that plaintiffs based their claim on contract, asking only for money damages, and that the trial court’s invocation of his equitable powers was inappropriate to this action. Weinhardt v Addison Community Schools, 347 Mich 683; 81 NW2d 240 (1957), Arnold v Ellis, 5 Mich App 101; 145 NW2d 822 (1966).
As to the trial court’s conclusion that the insurance policy issued to the Yorks covered not only their interest, but also plaintiffs’ interest in the subject property, the evidence is to the contrary. In a memorandum of insurance issued by the insurance company, the following appears:
"[F]or the term of years specified above from inception date shown above At Noon (Standard Time) to expiration date shown above At Noon (Standard Time) at location of property involved, to an amount not exceeding the amount(s) above specified, does insure the insured named above and legal representatives, to the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured, against all DIRECT LOSS BY FIRE, LIGHTNING AND BY REMOVAL FROM PREMISES ENDANGERED BY THE PERILS INSURED AGAINST IN THIS POLICY, EXCEPT AS HEREINAFTER PROVIDED, to the property described herein while located or contained as described in this policy, or pro rata for five days at each proper place to which any of the property shall necessarily be removed for preservation from the perils insured against in this policy, but not elsewhere.” (Emphasis supplied.)
There is nothing in the record to indicate that defendant Fireman’s Insurance intended to extend its coverage beyond the limits set out above.
Neither is there clear evidence that defendants York intended to purchase insurance for anything beyond their own interest. A letter from Mrs. York to plaintiffs, dated November 24, 1970, is offered by plaintiffs as evidence that Mrs. York believed that plaintiffs’ interest in the subject property was insured. In the letter, Mrs. York urges plaintiffs to obtain insurance coverage, noting that the policy maintained by the Yorks would expire on December 4, and that plaintiffs would not be covered thereafter. She goes on to warn that if a loss occurred, plaintiffs would lose their entire investment. Although this might be interpreted as plaintiffs suggest, it is equally likely that Mrs. York intended to warn plaintiffs that they were about to lose even the limited benefit provided by the Yorks’ insurance, any proceeds from which would be applied to reduce the land contract balance. In the absence of other evidence that defendants York intended to insure plaintiffs’ interest, the latter interpretation of the letter seems most plausible.
Moreover, even if there were sufficient evidence to establish an intent on the part of the Yorks to insure plaintiffs’ interest, it was not the intent of the insurance company to do so, and the insurance company cannot be charged with a duty to carry out the Yorks’ intent absent, at a minimum, knowledge of that intent. The insurance company, however, denies any knowledge whatsoever of the plaintiffs or their interest in the property. Plaintiffs, on the other hand, allege only that they knew of the existence of the insurance policy and believed that it covered their interest. To justify reformation of the insurance contract to give effect to the intent of the parties, both parties must share that intent. The court was, in effect, applying the doctrine of mutual mistake, Kidder v Collum, 61 Mich App 281; 232 NW2d 384 (1975). That one party and a stranger to the contract intended its terms to be different than set forth in the contract of insurance is not sufficient. Thus, the trial court’s finding that the insurance policy should be reformed to give effect to the intent of the parties is clearly erroneous.
Finally, the trial court found that the fact that plaintiffs were required under the terms of the land contract to pay the cost of the premiums on the insurance policy gave them an equitable interest in the proceeds, and on that basis awarded plaintiffs the excess of the policy limits over the amount paid Mrs. York for her interest. Whatever plaintiffs’ claim to the proceeds payable under the insurance policy, a matter governed by the terms of the land contract, their interest is derivative of the interest of the named insured and cannot be imposed as an additional liability on the insurance company. "It is elementary that an insurer cannot be held liable on a risk which it did not elect or choose to assume.” Consolidated Mortgage Corp v American Security Insurance Co, 69 Mich App 251, 256; 244 NW2d 434 (1976).
As to that portion of the award to plaintiffs which represented recovery for loss of the contents of the dwelling, we note that no evidence establish ing such a loss was presented at trial. Therefore, this portion of the recovery was barred by lack of proof as well as lack of contractual obligation.
The judgment in favor of plaintiffs must be reversed, and a judgment of no cause for action entered. In view of the result reached, we find it unnecessary to consider defendant Fireman’s Insurance Company’s claim that the trial court erred in holding that the insurance company was not entitled to indemnification from Mrs. York. We note, however, that the indemnification agreement signed by Mrs. York appears to be unsupported by consideration and therefore void, Milks v Tritten, 264 Mich 414; 250 NW 262 (1933).
Defendant York in her brief asks us to remand to the trial court for a determination of her counterclaim against plaintiffs, alleging that the trial court erred in failing to rule on her counterclaim. The claim of error, however, is not properly before this Court because defendant York failed to file a claim of appeal. We therefore decline to consider it.
Reversed. Costs to appellant. | [
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R. E. Robinson, J.
Defendant was charged jointly with Louis Edward Williams with first-degree murder and conspiracy to commit first-degree murder contrary to MCLA 750.316; MSA 28.548 and MCLA 750.157a; MSA 28.354(1) in the August 5, 1971, killing of Samuel Royal in Detroit, Michigan. Following trial which commenced on June 5, 1975, a Detroit Recorder’s Court jury found both defendants guilty as charged on each count on June 12, 1975. On the same date, both defendants were sentenced to a term of life imprisonment on each charge. Defendant Scotts now appeals those convictions and sentences, raising several issues for our consideration. The pertinent facts follow.
Mrs. Royal, the victim’s wife, was granted immunity and testified that she was referred to defendant Williams regarding a divorce because of marital difficulties. Although she was led to believe that Williams was an attorney, the record does not support that conclusion. Mrs. Royal testified that Williams suggested that she have her husband killed instead of divorcing him, and she ultimately agreed. She further stated that defendant Scotts was present at two of the three meetings at which the murder was discussed, and that she had delivered a key to her house to Williams at the second meeting. In addition, Mrs. Royal testified that Williams had referred to defendant as his partner.
James Hendricks, a friend of both Williams and defendant, testified that he lived near the victim and that both defendant and Williams came to his house on the evening of August 5, 1971. At that time defendant was wearing a handgun. Williams said that he and defendant were "going to take care of some business * * * around the corner”, and left. The two men returned half an hour later; defendant drove away, but Williams went into Hendricks’ house and related the details of the murder, implicating defendant as the one who pulled the trigger.
Hendricks also testified that defendant had given the same details of the murder as Williams while a guest at Hendricks’ house for a barbeque about a month after the crime occurred. At that time, however, defendant added that $30,000 or $35,000 was involved.
Previous testimony established that the victim was found lying prone on the kitchen floor with his hands bound behind his back and a telephone cord, with the telephone attached, wrapped around his neck. He had been shot in the back of the head. The medical examiner testified that the cause of death was a gunshot wound and that the wound was a "contact” wound, i.e., the muzzle of the gun was pressed against the victim’s head when the shot was fired.
Defendant first argues that the evidence of conspiracy was insufficient; he asserts that Hendricks’ testimony concerning Williams’ statement inculpating defendant was erroneously admitted because the statement was made after the conspiracy had ended. It is true that statements of a conspirator are hearsay and not properly admissible against a co-conspirator unless made before the conspiracy has ended. People v Nankervis, 330 Mich 17, 21; 46 NW2d 592 (1951).
"The rationale is that the agency relation charges each conspirator with declarations and admissions of other co-conspirators.” People v Stewart, 397 Mich 1, 9; 242 NW2d 760 (1976).
The conspiracy involved here, however, was one to kill Mr. Royal and collect his life insurance proceeds. Thus, even if defendant did not participate in the collection process, the conspiracy itself, i.e., the agency relationship, was still continuing when Williams told Hendricks of the murder. In People v Ryckman, 307 Mich 631, 642; 12 NW2d 487 (1943), the Michigan Supreme Court quoted the following language now found at 15A CJS, Conspiracy, § 40, pp 739-740:
"Conspiracy implies concert of design and not participation in every detail of execution, and it is not necessary that each conspirator should have taken part in every act, or know the exact part performed or to be performed by the others in the furtherance of the conspiracy.”
Consequently, the hearsay rule did not bar admission of Williams’ statement because it was attributable to defendant.
With respect to that statement, defendant also argues that it was not properly admitted because the conspiracy was not first established by other evidence. Although a conspiracy must be established independently of and prior to admission of statements of a co-conspirator, Stewart, supra at 9; People v 68th District Judge, 44 Mich App 553, 554; 205 NW2d 608 (1973), so that the agency relation can properly be relied on, a prima facie case of conspiracy can be established by circumstantial evidence. Stewart, supra at 6. Here, the evidence introduced before Hendricks testified to Williams’ statement was sufficient to justify an inference of defendant’s guilt of the conspiracy.
The conspiracy itself was established by Mrs. Royal’s testimony that she agreed with Williams to kill her husband and collect the insurance proceeds, because the two elements of conspiracy were thereby proved: 1) an agreement 2) to do what is unlawful. People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974). Likewise, proof of the victim’s unnatural death was introduced earlier in the trial. Previous testimony established that defendant was present at two meetings at which the murder was discussed and that Mrs. Royal turned over her house key to Williams. Also, Hendricks had testified that defendant appeared, wearing a handgun, at Hendricks’ home near the victim’s home with Williams at the appointed time shortly before the murder occurred. This circumstantial evidence was sufficient to support the inference that defendant had joined in the conspiracy prior to introduction of Hendricks’ testimony concerning Williams’ statement. The latter statement was therefore properly admitted. Stewart, supra at 6-7.
Under this analysis, of course, Mrs. Royal’s testimony that Williams told her that defendant was his partner was not properly admitted because defendant’s participation in the conspiracy was not established until Hendricks testified that defendant appeared with Williams wearing a gun on the night of the murder. Defense counsel, however, failed to object to this testimony, and its admission did not constitute a miscarriage of justice requiring reversal. GCR 1963, 529.1; People v Redfern, 71 Mich App 452, 454; 248 NW2d 582 (1976). Since Hendricks’ testimony was admissible, defendant’s argument that the evidence was insufficient to support his conviction without that testimony is moot; all of the evidence taken together was sufficient to support defendant’s conviction on the conspiracy charge.
Relying on Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), defendant further argues that the admission of Williams’ statement inculpating defendant denied him his right of confrontation because Williams was a codefendant and did not testify. In Bruton, the Court found that the defendant’s Sixth Amendment rights were violated where the trial court admitted extra-judicial statements of a nontestifying codefendant inculpating the defendant. In that case, however, the codefendant’s statement was pure hearsay with respect to the defendant, and no hearsay exception applied. The Court explicitly recognized this state of facts and observed:
"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.” Bruton, supra, 391 US at 128, fn 3.
In the case at bar, there is an applicable hearsay exception. Because Williams was not only a co-defendant but also a co-conspirator, his statements were attributable to defendant due to the agency relationship arising out of the conspiracy. Consequently, no hearsay problem was involved, and Bruton, supra, does not mandate the conclusion that defendant’s right to confront witnesses was violated.
This reasoning was adopted by a majority of the United States Supreme Court in Dutton v Evans, 400 US 74; 91 S Ct 210; 27 L Ed 2d 213 (1970). The statement involved there was made after the conspiracy had ended, but the case arose in Georgia, and under that state’s law, statements made even during the concealment stage of a conspiracy fall within the conspiracy exception to the hearsay rule. Federal courts, however, apply the same rule that Michigan uses in this respect.
Nevertheless, a majority of the Supreme Court concluded that Bruton did not preclude admission of the statement because there was no hearsay exception involved in that case. It further held that admission of a conspirator’s statement inculpating a co-conspirator does not violate the co-conspirator’s right to confrontation where the statement was made spontaneously and was made against the declarant’s penal interest. Evans, supra, 400 US at 86-89. Since the conspiracy exception to the hearsay rule applies to the case at bar and because Williams’ statement was spontaneous and against his penal interest, defendant’s right to confrontation was not violated.
Defendant also challenges the sufficiency of the evidence to convict him of murder, arguing that the only evidence was hearsay from witnesses whose credibility was questionable. As observed above, however, Williams’ statement to Hendricks falls within the conspiracy exception to the hearsay rule. Furthermore, the credibility of witnesses is a matter of weight, not sufficiency. Determinations of credibility are made by the jury which heard the testimony and observed the witnesses, and this Court will not substitute its judgment on this issue. People v Atkins, 397 Mich 163, 172; 243 NW2d 292 (1976).
With respect to the sufficiency of the evidence of murder, defendant further argues that Hendricks’ testimony of both Williams’ and defendant’s statements was improperly admitted because the corpus delicti of murder, specifically premeditation, was not previously established. The "corpus delicti” rule provides that the extra-judicial confession of a defendant or a co-participant may not be admitted until the corpus delicti has been established, i.e., "the elements of the offense charged have been established and hence that someone committed that offense”. People v Barron, 381 Mich 421, 424; 163 NW2d 219 (1968).
In People v Oster, 67 Mich App 490, 497; 241 NW2d 260 (1976), this Court said:
"Premeditation can be inferred from various kinds of evidence, such as the prior relationships between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing, and the defendant’s post-homicide conduct. (Citations omitted.) We have noted in the past that evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: evidence which shows that the defendant had been engaged in planning the killing, evidence establishing a motive for the killing, and evidence that the nature of the killing was such that the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way.”
Defendant’s argument that premeditation was not established before the admission of his and Williams’ statements must be rejected. The testimony given earlier that the victim was shot in the back of the head while his hands were bound behind him creates an inference of an intentional killing according to a preconceived design. Moreover, previous testimony as to defendant’s presence at two of the meetings between Mrs. Royal and Williams and his appearance at Hendricks’ home at the appointed time shows that defendant was engaged in planning the killing. Thus, evidence sufficient to sustain a finding of premeditation under at least two of the three categories set out in Oster, supra, was presented before Hendricks testified to the disputed statements, and the statements were properly admitted.
Defendant also urges this Court to find error in the prosecutor’s reference to a polygraph examination while questioning Mrs. Royal on redirect examination. The following colloquy occurred:
"QUESTION: All right. Were you ever asked to take a polygraph test?
"ANSWER: Yes.
"QUESTION: Do you know who — do you recall who asked you to do that?
"MR. BERG [defense counsel]: Well, your Honor, wait a minute. I’m going to ask that the jury be excused for a second.”
The court denied defendant’s motion for a mistrial, but ruled that no further reference be made to the polygraph. The jury was returned to the courtroom, and the court cautioned them "to disregard any statements or comments about a polygraph test”.
This Court has reversed convictions where the fact of taking a polygraph examination or its results were introduced to bolster a witness’s credibility. People v Rodgers, 66 Mich App 658, 661-662; 239 NW2d 701 (1976), and cases cited therein; People v Leroy Goodwin, 40 Mich App 709, 716; 199 NW2d 552 (1972). On the other hand, where a reference to a polygraph examination has been made with no suggestion of the results obtained and where a cautionary instruction was given, it has been held that there was no manifest necessity for a mistrial. People v Alvin Johnson, 396 Mich 424, 438; 240 NW2d 729 (1976); People v Maguire, 38 Mich App 576, 581; 196 NW2d 880 (1972). In Alvin Johnson, supra at 435, the Supreme Court said:
"Particularly helpful is People v Paffhousen, 20 Mich App 346, 350; 174 NW2d 69 (1969), where the complain ing witness explained she had changed her story because 'you don’t fool a polygraph machine’. The trial court denied counsel’s motion for a mistrial.
" 'Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would he tantamount to requiring a mistrial every time the word "polygraph” is mentioned in a criminal prosecution. It was not established that the complainant had submitted to a polygraph examination nor was an attempt made to introduce the results of any such examination. The word "polygraph” was not used by counsel, but was volunteered by the witness. It was properly objected to, and the trial court properly ruled that the subject not be pursued any further. It was not, in fact, pursued, and no prejudicial error resulted.’ 20 Mich App 351. (Emphasis added.)”
Although it was the prosecutor who used the word "polygraph” in the case at bar, it was not established that Mrs. Royal took a polygraph test, nor were any test results introduced. In fact the prosecutor explained that he was attempting to show that Mrs. Royal was asked to take a polygraph test but refused on Williams’ advice. The prosecutor intended to demonstrate that Mrs. Royal’s false statements to the police, which were brought out on cross-examination, were probably also made on Williams’ advice. The reference to a polygraph test was promptly objected to, and the court properly ruled that no further reference be made to it. In addition, the court cautioned the jury to disregard the reference to a polygraph test.
The case at bar does not involve "a pattern of contumacious conduct on the part of the prosecutor”. Alvin Johnson, supra at 437. Here neither polygraph test results nor the fact of taking such a test were introduced, nor was the intent behind the reference to the polygraph to bolster Mrs. Royal’s credibility because she passed such a test. The jury learned only that Mrs. Royal was asked to take a polygraph test; it was not even told who requested it. Any prejudice arising from that knowledge was cured by the court’s cautionary instruction, and reversal is not required. Alvin Johnson, supra at 435, citing People v Paul F Baker, 7 Mich App 471, 476; 152 NW2d 43 (1967); Maguire, supra at 581.
Defendant raises several other arguments which must also be rejected. The trial court did not commit reversible error in failing to give sua sponte an instruction on the lesser included offense of second-degree murder. People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503 (1975), which requires that such an instruction be given in first-degree murder prosecutions after January 1, 1976, does not affect defendant’s trial which was held in June, 1975. In addition, defense counsel’s explicit request that no lesser included offense instructions be given bars reversal. People v Thompson, 69 Mich App 465, 468; 245 NW2d 93 (1976), lv den 398 Mich 806 (1976).
Likewise, the trial judge did not err in failing to disqualify himself. GCR 1963, 405.1 provides that a judge is disqualified if he "has been consulted or employed as counsel by a party pertaining to the subject matter to be litigated”. Although Mrs. Royal testified that she had contacted the judge while he was an attorney, she consulted him about a divorce, not the subject matter of the instant case: murder and conspiracy committed by defendant. The drafter’s comments to this court rule indicate that a judge may hear a case even though he has been employed as counsel by one of the parties in a matter unrelated to the subject matter being tried before him. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 278.
Consequently, the trial court was not disqualified under GCR 1963, 405.1, from presiding over defendant’s trial for murder and conspiracy simply because the prosecutor’s witness had consulted the judge concerning her divorce. Moreover, defendant was tried before a jury and has shown no prejudice on the record. Therefore, the court did not err in failing to disqualify itself. People v Tillman, 59 Mich App 768, 770-771; 229 NW2d 922 (1975).
Finally, defendant asserts that he was subjected to double punishment and therefore double jeopardy by being prosecuted for both conspiracy to commit and the commission of first-degree murder. Although double jeopardy would have barred a second trial if the two counts had been prosecuted separately since defendant committed both crimes in pursuit of only one objective, People v Robertson, 67 Mich App 603, 606; 242 NW2d 24 (1976), conspiracy and murder are entirely separate crimes.
The conspiracy to commit first-degree murder charge requires that each of the conspirators have the intent required for murder; it also requires proof of a mutual understanding or agreement, People v Hintz, 69 Mich App 207, 217-218; 244 NW2d 414 (1976), but no overt acts need be established. People v O’Connor, 48 Mich App 524, 526; 210 NW2d 805 (1973). Murder, on the other hand, cannot be established without proof of the overt act of killing, People v Fountain, 71 Mich App 491, 499; 248 NW2d 589 (1976), but no agreement need be proved.
Thus, in People v Tinskey, 394 Mich 108, 109; 228 NW2d 782 (1975), the Michigan Supreme Court observed that "the crime of conspiracy is distinct from the substantive offense”. Because the crimes were distinct but were committed in the same transaction, no double jeopardy violation occurred here.
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Quinn, P. J.
On motion of plaintiff, these two appeals were consolidated for submission and decision. In No. 30308, plaintiff appeals a summary judgment entered in favor of defendants. In No. 77-2136, defendant appeals a summary judgment entered in favor of plaintiff.
Plaintiff owns a residential lot located in Ann Arbor, the rear six feet of which are reserved by easement for public utility access. Defendant Detroit Edison, hereinafter Edison, maintains poles and transmission lines across that easement. Michigan CATV Associates, hereinafter CATV, held a franchise from Ann Arbor to operate a community antenna television system within the city. In exercising the franchise, CATV contracted with Edison to string cable TV wires on Edison poles. The installation of such wires across the easement on plaintiff’s property generated this litigation. Section 2.105 of CATV’s franchise provides:
"The poles used by Grantee’s transmission and distribution system, wires and appurtenances shall be located, erected and maintained on existing utility facilities where possible, and Grantee shall go underground when utilities do but not necessarily in the utility facilities.”
By his action in No. 30308, plaintiff sought damages for trespass by CATV and for an accounting from Edison for all monies paid to it by CATV since January 1, 1974, for use of Edison poles by CATV. The latter relief was sought on a theory of unjust enrichment.
CATV alleged that it was a public utility within the meaning of the Plat Act, being MCLA 560.1 et seq.; MSA 26.431 et seq., now the Subdivision Control Act of 1967, being MCLA 560.101 et seq.; MSA 26.430(101) et seq. In granting summary judgment in favor of defendants, the trial court held that CATV was a public utility within the meaning of MCLA 560.102(1); MSA 26.430(102)0) and that as such it was entitled to use Edison poles under contract with Edison. Thus no trespass occurred and there was no foundation for plaintiffs claim for an accounting from Edison.
MCLA 560.102(1); MSA 26.430(102)0) provides:
" 'Public utility’ means all persons, firms, corporations, copartnerships or municipal or other public authority providing gas, electricity, water, steam, telephone, sewer, or other services of a similar nature.”
We hold that CATV comes within "other services of a similar nature” and is a public utility within the Subdivision Control Act. Therefore, we affirm the trial court.
In No. 77-2136, plaintiff filed a complaint for a declaratory judgment declaring defendant’s community antenna system ordinance unconstitutional, or, in the alternative, declaring certain sections thereof unconstitutional, or, alternatively, that the court order defendant to hold an election so the electors of defendant could express themselves on the ordinance. The theory on which this action was based was that community antenna television systems are public utilities within Const 1963, art 7, § 25.
Defendant’s answer denied that community antenna television systems are public utilities; alleged that no justiciable case or controversy existed and that plaintiff lacked standing to bring the action.
In granting summary judgment in favor of plaintiff, the trial court held that community antenna television systems are public utilities within the constitutional provision specified above, that a justiciable case existed and that plaintiff had standing.
The antecedent provision of Const 1963, art 7, § 25, was Const 1908, art 8, § 25, which read in pertinent part:
"Nor shall any city or village acquire any public utility or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless such proposition shall have first received the affirmative vote of three-fifths of the electors of such city or village voting thereon at a regular or special municipal election; * * * .”
In Holland v Clerk of Garden City, 299 Mich 465; 300 NW 777 (1941), the Supreme Court held that the last quoted constitutional provision applied only to public utilities for supplying water, light, heat, power and transportation. The Holland case involved acquiring by construction certain water and sewer mains.
Const 1963, are 7, § 25, reads:
"No city or village shall acquire any public utility furnishing light, heat or power, or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless the proposition shall first have been approved by three-fifths of the electors voting thereon. No city or village may sell any public utility unless the proposition shall first have been approved by a majority of the electors voting thereon, or a greater number if the charter shall so provide.”
Since the framers of a constitution are presumed to have a knowledge of existing laws and to act in reference to that knowledge, People ex rel Hughes v May, 3 Mich 598 (1855), the change in language and structure found in Const 1963, art 7, § 25 as compared to Const 1908, art 8, § 25, reflects the intent of the framers of the constitution of 1963 to make sure that the limited application of Const 1908, art 8, § 25, as reflected by Holland, supra, was assured in Const 1963, art 7, § 25. This analysis comports with the convention comment found at the end of Const 1963, art 7, § 25: "The words 'furnishing light, heat or power’ are added to the second sentence to define the power of municipalities to acquire utilities. The three-fifths majority required for purchase of a utility is continued because such purchase implies commitment to a large investment of public funds and should not be lightly undertaken. The municipality should have sound assurance that the utility will be supported by its citizens.”
In Schurtz v Grand Rapids, 208 Mich 510, 524; 175 NW 421 (1919), public utility is defined as: " '[P]ublic utility’ means every corporation, company, individual, association of persons, their trustees, lessees, or receivers, that may own, control, or manage, except for private use, any equipment, plant or generating machinery in the operation of a public business or utility. Utility means the state or quality of being useful.” Under the reasoning of May, supra, the framers of Const 1963 adopted that meaning for public utility in Const 1963, art 7, § 25. That meaning is broad enough to include community antenna television systems and the trial court correctly found them to be within the constitutional provision referred to.
There was a justiciable case and plaintiff had standing. We affirm the trial court.
No. 30308 is affirmed with costs to defendants. No. 77-2136 is affirmed with costs to plaintiff. | [
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] |
R. B. Burns, J.
Defendant was convicted by jury of unarmed robbery, MCLA 750.530; MSA 28.798, and appeals. Although his codefendant, Elmer Suratt, was also charged with unarmed robbery, he was convicted of the lesser offense of assault and battery, MCLA 750.81; MSA 28.276, and has not appealed.
Ten witnesses testified that defendant and three others repeatedly visited their campsite. The last visit precipitated a fight between Suratt and one of the campers, which escalated into an assault on the campers by the visitors. After the visitors subdued the campers, they rummaged through the campsite, and carried away a cooler, a chain saw, and tent poles. As the visitors left, defendant kicked one of the campers in the face.
Defendant testified that he was at a party at the time of the assault, and presented three corroborating witnesses. Suratt admitted being involved in the incident, but claimed to have fought and taken the tent poles in self-defense.
Both defendant and Suratt requested jury instructions on the lesser offense of assault and battery. Although the trial court granted Suratt’s request, it ruled that defendant had waived instructions on any lesser included offenses by interposing the defense of alibi; Defendant objected to the court’s failure to give the requested instruction. After four hours of deliberation, the jury returned to the courtroom to ask the trial court if defendant could "be charged with just assault and battery”. The trial court answered in the negative. When the jury was polled after returning the verdict, the following transpired:
"THE CLERK: [W]as that your verdict, Mrs. Hull?
"JUROR HULL: Yes, I believe he was there.
"THE CLERK: Was that your verdicts, Mr. Bankson?
"JUROR BANKSON: He was there.
"MR. FOSTER: If the Court please, I do not believe the first two persons answered the question correctly, their answer to my understanding was that Mr. Byrant was there.
"THE COURT: Mrs. Hull, the question was, was that your verdict, the verdict in the case of Alan Bryant?
"JUROR HULL: We had to accept the way it was written and that was our verdict.
"THE COURT: And Mr. Bankson.
* * *
"JUROR BANKSON: Right, that’s the way it was written.”
Defendant argues on appeal that assault and battery was a cognate lesser included offense upon which the trial court was required to instruct. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461, 465 (1975). Plaintiff argues that assault and battery is not a cognate lesser included offense; that even if it is, Ora Jones is not retroactive and does not apply in this case.
We note initially that the trial court’s ruling cannot be sustained on the rationale advanced by it. Although there is merit to the argument that it is inconsistent for a defendant to both assert that he was not at the scene of the crime and that, if he was, the crime he committed was a lesser offense than that charged, a defendant "may advance inconsistent claims and defenses”. People v John Willie Williams, 26 Mich App 218, 222; 182 NW2d 347, 349 (1970).
"A defense of alibi, per se, does not mean that a defendant may not be convicted of a lesser offense. A jury may disbelieve a defendant’s alibi but nevertheless find that a disputed element of the principal charge was not proven.” People v Membres, 34 Mich App 224, 232 fn 7; 191 NW2d 66, 69 fn 7 (1971).
We are not unmindful that People v Clemons, 74 Mich App 448, 452-454; 253 NW2d 795, 796-797 (1977), dealt with a situation similar to that in the instant case. In Clemons this Court distinguished Ora Jones on the basis that it was unclear that Ora Jones was to be applied retroactively, that Ora Jones did not involve an alibi situation, and that the trial court "properly applied the law as it was then understood”. The Court did not discuss why an alibi defense should waive a defendant’s right to instruction on lesser included offenses, nor did it review the analyses in Williams or Membres. We agree with the concurring opinion in Clemons "that the alibi makes not a whit of difference”, 74 Mich App at 459; 253 NW2d at 800 (D. C. Riley,-J„ concurring), and hold that assertion of an alibi defense does not deprive a defendant of his right to instruction on appropriate lesser included offenses.
Was assault and battery a lesser included offense of unarmed robbery in the instant case? MCLA 750.530; MSA 28.798 states that
"[a]ny person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of [unarmed robbery].”
Assault has been defined as
"any intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented.” Tinkler v Richter, 295 Mich 396, 401; 295 NW 201, 203 (1940).
Battery is
"the wilful touching of the person of another by the aggressor or by some substance put in motion by him; or, as it is sometimes expressed, a battery is the consummation of the assault.” Id.
An assault and battery is therefore a consummated assault. A necessarily included lesser offense is one such that it is impossible to commit the greater without first having committed the lesser. People v Ora Jones, supra, at 387; 236 NW2d at 464. Since it is possible to commit an unarmed robbery by some method of "putting in fear” other than through an assault and battery, assault and battery is not a necessarily included lesser offense of unarmed robbery. An offense is a cognate lesser included offense where it shares overlapping elements with the greater, and the overlapping elements relate to a common statutory purpose. Whether a lesser offense is a cognate included offense depends upon whether the facts in a given case will support a conviction on the lesser offense. People v Ora Jones, supra, at 389-390; 236 NW2d at 464-465. In the instant case there was evidence that defendant’s group beat the campers into submission and then carried off their equipment. Since the "force and violence” through which the unarmed robbery was accomplished was an assault and battery, the unarmed robbery in this case shares all the elements of assault and battery. Although the unarméd robbery statute has the dual purpose of protecting persons and their property, the overlapping elements have the shared purpose of protecting persons. Therefore, assault and battery was a lesser included offense of unarmed robbery in the instant case.
Ora Jones requires that instructions on cognate lesser included offenses be given where requested by the defendant. The defendant in this case was found guilty prior to the release of the opinion in Ora Jones. Does Ora Jones apply retroactively? The Supreme Court has not explicitly addressed this issue. It has, however, consistently applied Ora Jones retroactively, albeit without discussing the retroactivity issue. See People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Thomas, 399 Mich 826; 249 NW2d 867 (1977). See also People v Bills, 396 Mich 819; 238 NW2d 803 (1976), People v Dates, 396 Mich 820; 238 NW2d 360 (1976), People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976), People v Aaron, 396 Mich 843; 239 NW2d 602 (1976), People v Watson, 396 Mich 870 (1976), People v Delvin Jones, 397 Mich 871 (1976). The Court of Appeals has split on the issue, with some panels deciding that the acts, if not the words, of the Supreme Court should be followed, while other panels have determined that substantial reliance on the old rule requires Ora Jones be given only prospective application. Since the Supreme Court has not explicitly decided this issue, and there is no consensus on the issue in this Court, we proceed to determine whether Ora Jones should be applied retroactively as to an instruction on a cognate lesser included offense.
As a general principle full retroactivity is the rule, and prospectivity is the exception. People v Markham, 397 Mich 530, 548; 245 NW2d 41, 49 (1976) (Levin, J., dissenting). However, retroactivity may be limited where a balancing of three factors so dictates. The three factors are (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect on the administration of justice of the new rule. People v Markham, supra, at 535; 245 NW2d at 42, people v Hampton, 384 Mich 669, 674; 187 NW2d 404, 405 (1971).
Hampton is instructive as to the importance of the first factor. In holding retroactive a new rule that a trial court must, on request, instruct that a defendant found not guilty by reason of insanity would not be released, the Supreme Court said:
"It is clear that the primary purpose of this instruction is to ijisure that a defendant will not be found guilty because the jury fears that he will be set free if an insanity verdict is returned. Thus, this decision goes to the very heart of our jury trial system. The United States Supreme Court has applied decisions retroac tively where the guilt or innocence of the defendant was at stake.” 384 Mich at 676; 187 NW2d at 406.
The rule in Ora Jones maximizes a jury’s discretion with regard to what verdict to render, institutionalizes the jury role as the conscience of the community, and prevents jury conviction on a higher offense merely because the jury recognizes a defendant committed some offense. The rule goes to the "very heart of our jury trial system”. See People v Hampton, supra. However, we do not feel that the rule announced in Ora Jones is as fundamentally important as that made retroactive in Hampton. In any given case it is speculative that a jury would have convicted on a lesser charge, and the former rule, denying instruction only when there was no evidence to support a finding of a lesser offense, renders a finding of prejudice in any given case even more speculative.
The second and third factors may be considered together. People v Markham, supra. There was substantial reliance upon the old rule. See People v Wilkinson, 76 Mich App 109; 256 NW2d 48 (1977), People v Clemons, 74 Mich App 448; 253 NW2d 795 (1977), People v Harrison, 71 Mich App 226, 229-231; 247 NW2d 360, 361 (1976) (Bashara, P. J., concurring). Because of that reliance, the impact on the administration of justice has been substantial. However, this impact has been lessened to an extent by the practice of remanding for resentencing on the lesser included offense, with the prosecutor maintaining the option to retry on the greater offense. See, e.g., People v Thomas, 399 Mich 826; 249 NW2d 867 (1977), People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503, 504 (1975).
We feel the proper equilibrium in balancing the above factors is that reached by Judge Brennan in his dissent in People v Thurmond, 75 Mich App 310, 317-319; 254 NW2d 879, 882 (1977), limiting retroactivity to those cases in the process of appeal December 18, 1975, the date of the Ora Jones opinion. At some point the interest in the finality of the criminal process outweighs the value of granting full retroactivity. The point chosen has the advantage of insuring that Court of Appeals cases will receive the same disposition that Supreme Court cases have in the past.
Another factor militates against affirmance. When the jury asked whether defendant could be found guilty of assault and battery, the trial court affirmatively excluded as an option jury consideration of the lesser charge. This had long been considered as error. People v Lemmons, 384 Mich 1; 178 NW2d 496 (1970), People v Jones, 273 Mich 430; 263 NW 417 (1935). Although People v Henry, 395 Mich 367, 370-374; 236 NW2d 489, 492-493 (1975) , ambiguously states "a repudiation of the doctrine, first articulated in People v Jones, supra, but endorsed and followed in Lemmons, that 'affirmative exclusion’ is erroneous but 'implied exclusion’ is not”, the holding is narrow.
"[W]ith the sole exception of first-degree murder cases, failure of the trial court to instruct on lesser included offenses will not be regarded as reversible error, absent requests for such instructions before the jury retires to consider its verdict.” 395 Mich at 374; 236 NW2d at 492.
In light of the CóUrt’s decision to maximize jury discretion as to what verdict to return, Ora Jones, supra, wé do not feel that the Court intended to repudiate Lemmons and Jones where counsel requested the instruction, and the exclusion was as patently affirmative as it was in this case.
We reverse the conviction of unarmed robbery and remand for entry of a judgment of conviction on tHq lesser included offense of assault and battery find for resentencing. If, however, the prosecutor is persuaded that the ends of justice would be better served, upon notification to the trial cóurt before resentenciUg, the trial court shall vacate the judgment of conviction and grant a new trial on the charge of uharmed robbery.
People v Page, 73 Mich App 667; 252 NW2d 239 (1977), People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), and People v Harrison, 71 Mich App 226; 247 NW2d 360 (1976), held Ora Jones retroactive on the basis of Lovett in cases involving necessarily included offenses without distinguishing cognate offenses. People v Charles Jackson, 71 Mich App 395; 249 NW2d 132 (1976), held Ora Jones retroactive as to both necessarily included and cognate offenses, without distinguishing the two, based on Lovett. People v Jones, 76 Mich App 601, 605; 257 NW2d 185, 187 (1977), held Ora Jones retroactive as to a cognate offense, relying on People v Thomas, 399 Mich 826; 249 NW2d 867 (1977). People v Jones, 71 Mich App 270; 246 NW2d 381 (1976), and People v Jackson, 70 Mich App 478; 245 NW2d 797 (1976), held Ora Jones retroactive as to necessarily included offense, but questioned whether it was retroactive regarding cognate offenses. People v Thomas, 68 Mich App 302; 242 NW2d 564 (1976), rev’d 399 Mich 826 (1977), held Ora Jones prospective, and People v Wilkinson, 76 Mich App 109; 256 NW2d 48 (1977), and People v Clemons, 74 Mich App 448; 253 NW2d 795 (1977), refused to accord Ora Jones retroactive effect.
The Court observed that, the jury having found guilt of first-degree murder, it must necessarily have found the lesser offense of second-degree murder. We note also that the presumed effect of failure to instruct on the lesser charge is that a defendant was not found guilty on the lesser charge, not that the instruction might have resulted in acquittal. Thus, the limited remand would be appropriate where the lesser offense is cognate rather than necessarily included.
Did the Court repudiate the notion that "affirmative exclusion” is erroneous or that "implied exclusion” is not erroneous? The Court goes on to discuss the duty of the trial court to instruct on relevant law and indicates that it is considering formulation of a court rule requiring instruction on lesser offenses absent request by counsel. It thus appears to indicate dissatisfaction with the "implied exclusion” rule. Other language in the opinion implies the Court was overruling Lemmon and Jones, yet such an overruling would appear to be unnecessary to the decision and dicta, at least as it applies to the situation in the instant case where a jury affirmatively asks if it may convict on a lesser offense and the trial court answers "no”. People v Hager, 72 Mich App 664, 667-668 fn 1; 250 NW2d 754, 755 fn 1 (1976) , would interpret the Court’s language as totally removing from the jury’s consideration all uncharged lesser offenses. | [
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] |
M. F. Cavanagh, J.
Charles and Sharon Killingsworth appeal by right their jury convictions for welfare fraud, MCLA 400.60(2); MSA 16.460(2).
It was alleged that Sharon Killingsworth applied for and received public assistance benefits (ADC), and that she continued to receive them while breaching her statutory obligation:
"(2) There is imposed upon every person receiving relief under this act [MCLA 400.1 et seq.; MSA 16.401 et seq.] either upon his own application or by his inclusion, to his knowledge, in the application of another the continuing obligation to supply to the department issuing the relief:
"(c) information concerning changes in his circumstances or those of other persons receiving relief through the same application which would decrease the need for relief.” MCLA 400.60(2); MSA 16.460(2).
Charles was charged as an aider and abettor of Sharon, his wife. MCLA 767.39; MSA 28.979.
I
At the close of the prosecution’s case defense counsel made what he styled a motion to dismiss the complaint against defendant Charles Killings-worth on the ground that the prosecution had failed to present sufficient evidence that defendant knew his wife was receiving ADC benefits. GCR 1963, 504.2. Since this was a jury trial the correct motion would have called for a directed verdict of acquittal (GCR 1963, 515.1), and we will treat the motion as such.
The applicable standard of review was stated in People v Royal, 62 Mich App 756, 757-758; 233 NW2d 860, 861-862 (1975):
"In passing on a motion for a directed verdict of acquittal in a criminal case, the reviewing court must 1) consider only the evidence which had been introduced at the time the motion was made, * * * 2) view that evidence in the light most favorable to the prosecution, * * * and 3) determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt.” (Citations and footnotes omitted.)
The evidence before the lower court at the time this motion was made included the investigating officer’s testimony that defendant had admitted knowledge that his wife was receiving ADC benefits. There was also evidence that Charles had resumed residence with Sharon. The prosecuting attorney argued to the trial court that this fact supports an inference that Charles had knowledge of Sharon’s receipt of benefits.
As to Charles’ admission to the investigating officer, the prosecution’s appellate counsel concedes that this was an extrajudicial confession. It is a well settled rule of law that the case against a defendant is insufficient unless the corpus delicti of the crime is established by proof independent of his out-of-court confessions. People v Barron, 381 Mich 421, 423-424; 163 NW2d 219, 220 (1960). See also, People v Allen, 390 Mich 383; 212 NW2d 21 (1973), adopting dissenting opinion of Levin, J., in People v Allen, 39 Mich App 483, 494 et seq.; 197 NW2d 874, 880 et seq. (1972). Thus, the issue framed by the briefs and the proceedings below is whether proof of a husband’s cohabitation with his wife is sufficient to establish his knowledge of her receipt of ADC benefits.
However, the answer to this question is not necessary to the disposition of this case. The crime charged against Sharon Killingsworth was not the receipt of the benefits, but the failure to report facts decreasing her need for relief. Charles Killingsworth was accused of having procured, counseled, aided or abetted this offense. Even if we assume that there was sufficient proof that Charles knew that Sharon was getting ADC, this would not establish his knowledge that she had failed to report changed circumstances decreasing her need for relief. Even if we were to go still further, and assume that the proofs justify an inference that Charles knew that Sharon was failing to report, we would come ineluctably to the conclusion that the proofs here were insufficient.
"[T]he law in this state is clear that the corpus delicti of an offense is not established until the people have introduced evidence from which the trier of fact may reasonably find that acts constituting all the essential elements of the offense have been committed and that someone’s criminality was responsible for the commission of those acts.” People v Allen, supra, 39 Mich App at 496; 197 NW2d at 881.
As both the statute and case definitions imply, see People v Palmer, 392 Mich 370, 378; 220 NW2d 393, 396-397 (1974), and as the Supreme Court and this Court have held, one of the essential elements of aiding and abetting is an act by the defendant.
" 'Mere presence, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor or a principal in the second degree nor is mere mental approval, sufficient, nor passive acquiescence or consent.’ ” (Citation omitted.) People v Burrel, 253 Mich 321, 323; 235 NW 170 (1931).
Accord, People v Recorder’s Court Judge #1, 73 Mich App 150, 155; 250 NW2d 809, 812 (1977), People v Trudeau, 51 Mich App 766, 772; 216 NW2d 450, 453 (1974), lv den, 391 Mich 839 (1974), cert den, 419 US 868; 95 S Ct 125; 42 L Ed 2d 106 (1974).
There is not one shred of evidence on this record that Charles Killingsworth acted to aid or abet, or counsel or procure, the commission of the alleged crime. Cf. People v Akerley, 73 Mich App 321, 324; 251 NW2d 309, 310 (1977). Therefore, as a matter of law, the evidence was insufficient, and it was reversible error to allow the case to go to the jury.
II
In his prayer for relief, Charles Killingsworth’s appellate counsel requests this Court to reverse and dismiss all charges. Conceding error on an issue to be discussed below (see discussion at section III, infra), appellate counsel for the prosecution states that he "does not oppose the Defendant-Appellant’s demand for a new trial”. Because the parties are in evident disagreement as to the relief appropriate here, and because our decision of the previous issue makes it necessary to grant the request of one or the other, we turn now to a discussion of which, and why.
In People v Keith Lester, 78 Mich App 661; 261 NW2d 33 (1977), this Court held that, where the trial judge grants a defense motion for a directed verdict of acquittal, a prosecution appeal is barred by the double jeopardy provisions of the Federal and state constitutions. US Const, Am V; Const 1963, art 1, §15. See also, MCLA 763.5; MSA 28.858. In Lester the Court reasoned that: (1) the defendant was placed in jeopardy when the jury was sworn, (2) there had been a failure of proof on an essential element of the crime and a dismissal, which was tantamount to an acquittal, and (3) a second trial would place the defendant twice in jeopardy. Therefore, held the Court, a prosecution appeal was barred because the only available relief, retrial, would be prohibited by the constitutional provisions on double jeopardy.
We are persuaded that Lester's reasoning is sound, and should control here. Here, as in Lester, the prosecution failed to carry its burden of proof on an essential element of the offense. By our resolution of the sufficiency issue we find that defendant was entitled to the same relief which the trial court in Lester granted the defendant therein. We see no persuasive reason for distinguishing the cases, and holding that retrial here would be permissible. Had the trial court granted defendant’s motion, retrial would have been barred. It should make no difference in the result that it is the appellate court which grants the defendant the relief which is his due.
Analysis of the policies behind the double jeopardy provisions supports this result. The United States Supreme Court identified those policies in Green v United States, 355 US 184, 187-188; 78 S Ct 221, 223; 2 L Ed 2d 199, 204 (1957):
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
If those policies apply where the jury acquits, then they should apply even more forcefully where the prosecution’s case was so weak that it should not even have been submitted to a jury.
We are aware of authority to the contrary in the Federal courts. In Bryan v United States, 338 US 552, 560; 70 S Ct 317, 321; 94 L Ed 335, 342 (1950), the Supreme Court flatly rejected this position, stating:
"Petitioner’s contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. '* * * where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.’ ” (Citations omitted.)
In two subsequent decisions the Supreme Court appears to have retreated from Bryan. Sapir v United States, 348 US 373; 75 S Ct 422; 99 L Ed 426 (1955), Forman v United States, 361 US 416; 80 S Ct 481; 4 L Ed 2d 412 (1960). Those cases have been interpreted as establishing the rule that where a conviction is reversed for want of sufficient evidence, whether there may be a retrial depends upon whether defendant joined with his motion for acquittal in the trial court a motion for a new trial. United States v Musquiz, 445 F2d 963, 966 (CA 5, 1971); 2 Wright, Federal Practice and Procedure: Criminal (1969), § 470. The rule has been criticized by commentators and at least one Federal circuit court, United States v Wiley, 170 US App DC 382, 384-388; 517 F2d 1212, 1214-1218 (1975); 2 Wright, supra, § 470; Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv L Rev 1, 13 (1960), but continues to hold sway in the Federal courts.
The Federal rule seems inconsistent with the reasoning of Lester and the cases upon which it relies. However, we need not here decide whether we would reject the Federal rule and hold, on the basis of state constitutional and statutory authority, that retrial is barred whenever this Court reverses the denial of a motion for a directed verdict. Defendant’s motion for a directed verdict of acquittal requested that relief only, not a new trial. Therefore, even under the Federal rule, he may not be retried.
Ill
Defendant Sharon Killingsworth took the stand and testified in her own defense. During cross-examination the prosecutor asked her if she or her husband went to church. The prosecution’s appellate counsel rightly concedes that this was reversible error. People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977), People v Hall, 391 Mich 175; 215 NW2d 166 (1974).
Sharon Killingsworth’s conviction is reversed. Charles Killingsworth’s conviction is reversed and it is ordered that the charges against him be dismissed.
Judge Kelly concurs in the result only.
It should be recognized that the foregoing analysis would draw one inference from another in order to establish the elements of the offense, and that this is impermissible. People v Atley, 392 Mich 298, 315; 220 NW2d 465 (1974). We have made these inferences here only to demonstrate how far removed the evidence was from legally sufficient proof of the defendant’s guilt.
But see United States v Jenkins, 420 US 358, 369-370; 95 S Ct 1006, 1013; 43 L Ed 2d 250, 259 (1975):
"Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 USC § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand.”
If this language is correctly understood as a general test for the former jeopardy defense, it would seem to bar retrial in cases such as that at bar where the appellate court orders entry of a judgment discharging defendant on the basis of "a resolution of the factual issues against the Government”. | [
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Beasley, J.
On April 1, 1976, plaintiff commenced an action for a declaratory judgment that the Michigan statute prohibiting solicitation of personal injury claims was unconstitutional. He claimed that since he and his law firm represent persons suffering injury by accident, including workmen’s compensation claims, an actual controversy existed between himself and defendants by reason of a grand jury investigation then in progress.
Defendants filed an answer and motion for accelerated and/or summary judgment, claiming that there was no "actual controversy”. However, this motion was rendered moot when, on April 29, 1976, plaintiff was indicted by a Wayne County Citizens Grand Jury in an indictment charging him and others with, among other things, conspiracy to solicit personal injury claims and solicitation of personal injury claims in violation of the above mentioned anti-solicitation statute.
Plaintiff then moved for summary judgment based on the allegation that no genuine issue of fact existed; this change in the form of the action was deemed appropriate in light of the entry of the indictment. The trial court ruled on the motion in an opinion determining that the anti-solicitation statute is unconstitutional on the grounds that it is overbroad and denies equal protection of the law. Defendants appeal as of right from the order entered in accordance with the opinion.
In his carefully prepared opinion, the trial judge concluded that the anti-solicitation statute was not inherently and impermissibly vague. We agree. While the outer boundaries of the anti-solicitation statute may be imprecise, there is no ambiguity concerning the proscribed hardrcore ambulance chasing with which plaintiff lawyers are charged. The statute affords adequate notice to lawyers, such as these plaintiffs, of what is prohibited.
The court then considered whether the statute, on its face, was so overbroad as to be an unconstitutional infringement upon First Amendment rights. The court held that the statute was unconstitutionally overbroad, that the possibility of a narrowing construction was limited, and that, based upon Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, the commercial nature of the regulated activity did not change the applicable measure of constitutional protection.
For purposes of this opinion, the controlling question is whether the trial court applied the correct constitutional standard to the challenged criminal statute. We hold that the trial court erred when it held that the statute was unconstitutional under the standard of so-called "facial overbreadth”. We further hold that, in the context of review of a criminal statute prohibiting certain forms of commercial speech and conduct, the standard to be used is whether the statute, as applied in the case in controversy, infringes on constitutionally. protected rights.
Helpful perspective on the present issue is gained by a review of prior cases. In 1927, in Kelley v Judge of Recorder’s Court of Detroit, the Michigan Supreme Court found no problem in adjudicating the statute constitutional. That Court defined ambulance chasing in disparaging terms. In Hightower v Detroit Edison Co, the Supreme Court dealt at greater length with the evils of ambulance chasing, in denying attorney fees to an attorney who had been hired by a lay solicitor of personal injury claims.
In 1947, the anti-solicitation statute was amended to include organizations of any kind. The amendment did not alter the rulings in the two cited Michigan cases.
The anti-solicitation statute was involved in the long, drawn out litigation in United Transportation Union v State Bar of Michigan. Defendant, State Bar, had obtained an injunction in 1962 enjoining the union from, among other things, furnishing legal advice regarding potential claims, giving to selected attorneys the names and addresses of potential claimants, and advising members that a recommended lawyer will defray costs on the ground that these acts violate the Michigan anti-solicitation statute. After the decision in the Virginia case, the Michigan Supreme Court had, accordingly, remanded for modification of the injunction. Then the Michigan Supreme Court had heard further appeal. In none of these decisions did the constitutionality of the anti-solicitation statute come squarely in issue. Rather, the U. S. Supreme Court held that the particular acts of the union were entitled to First Amendment protection. The thrust was not to strike down the statute as unconstitutional. However, the Supreme Court decision made it unmistakably clear that with respect to the conduct described in the injunction, the anti-solicitation statute would be (or was) unenforceable and unconstitutional.
The trial judge, in reliance upon the preceding cases, stated:
"It is therefore clear that in the context of group legal practice, state regulations and statutes against solicitation must fall in the face of the First Amendment.”
Of Course, we are not here dealing with group legal services in the context of the cited Federal cases. Rather, we have a charge of ambulance chasing as defined in the Michigan cases. As a matter of fact, in Brotherhood of Railroad Trainmen v Virginia, Justice Hugo Black expressly distinguished ambulance chasing in the following language:
"Here what Virginia has sought to halt is not a commercialization of the legal profession which might threaten the moral and ethical fabric of the administration of justice. It is not 'ambulance chasing’. The railroad workers, by recommending competent lawyers to each other, obviously are not themselves engaging in the practice of law, nor are they or the lawyers whom they select parties to any soliciting of business.”
Under traditional procedure, the issue in this case would be, is the conduct here charged against plaintiff lawyers in the criminal information, constitutionally protected speech under the First Amendment to the U. S. Constitution? In Broa drick v Oklahoma, the U. S. Supreme Court, with Justice White writing, has articulated in clear, straight forward words, the very few classes of cases where the constitutionality of a statute may be reviewed on the ground of facial overbreadth:
"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. * * * A closely related principle is that constitutional rights are personal and may not be asserted vicariously. * * * These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws. * * * Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court:
"In the past, the Court has recognized some limited exceptions to these principles, but only because of the most 'weighty countervailing policies’. * * * Another exception has been carved out in the area of the First Amendment.
"It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. * * * As a corollary, the Court has altered its traditional rules of standing to permit — in the First Amendment área— 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regu lated by a statute drawn with the requisite narrow specificity’. * * * Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
"Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate 'only spoken words’. * * * In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Over-breadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. * * * Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, * * * and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights.
"The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. * * * Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. * * * The Court did not hold that the offense 'known as breach of the peace’ must fall in toto because it was capable of some unconstitutional applications, and, in fact, the Court seemingly envisioned its continued use against 'a great variety of conduct destroying or menacing public order and tranquility’. * * * Similarly, in reviewing the statutory breach-of-the-peace convictions involved in * * * the Court considered in detail the State’s evidence and in each case concluded that the conduct at issue could not itself be punished under a breach-of-the-peace statute. * * * Additionally, overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner.
"It remains a 'matter of no little difficulty’ to determine when a law may properly be held void on its face and when 'such summary action’ is inappropriate. * * * But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech’ towards conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. * * * To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. It is our view that § 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.”
Thus, in Broadrick, the Court recognized a very limited exception in the First Amendment area, but went on to hold that the Oklahoma statute prohibiting partisan political activity by certain state employees did not come within the exception.
In spite of the quoted portions from Broadrick, the trial court concluded the anti-solicitation statute is unconstitutional as overbroad. In so ruling, the able trial judge concluded that Kelley and Hightower, supra, viewed in the light of the greatly expanded concepts of freedom of expression, cannot serve as narrowing interpretations that would limit the thrust of the statute to matters not constitutionally protected.
He says the broad sweep of the statute might prohibit possible plans for group legal services by "labor unions, consumer groups, [and] civic organizations”, (that is, if it were not for the cited Federal cases which hold such plans to be constitutionally protected speech under the First Amendment).
He concludes that the statute must be struck down as unconstitutional, whether or not it would be unconstitutional as applied to the conduct charged to plaintiff lawyers. In fact, he suggests that an amended statute could, perhaps, prohibit ambulance chasing if it were sufficiently limited, that is, not overbroad in the sense that he concludes.
Subsequent to the trial court’s decision, the U. S. Supreme Court decided Bates v State Bar of Arizona, holding that the blanket suppression of advertising by the organized bar violated the free speech clause of the First Amendment to the U. S. Constitution since lawyers may constitutionally advertise the prices at which certain routine legal services will be performed.
In so many words, the Bates Court declined to apply the overbreadth doctrine to professional advertising. The Court stated:
"In the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally to suppress speech would end our analysis. In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. * * * Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts.
"The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. * * * The reason for the special rule in First Amendment cases is apparent: an overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. * * * Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.
"But the justification for the application of over- breadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in * * * there are 'common sense differences’ between commercial speech and other varieties. * * * Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. * * * Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. * * * Since overbreadth has been described by this Court as 'strong medicine’, which 'has been employed * * * sparingly and only as a last resort’, * * * we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective.”
In reliance upon Broadrick and Bates, we hold that this criminal statute limiting certain commercial solicitation is not a proper subject for facial overbreadth analysis.
Having held that the statute is not subject to attack under a facial overbreadth standard, it remains to be answered whether the statute, in this case, is being applied in violation of plaintiffs constitutionally protected First Amendment rights. We hold that its application here is constitutional.
The trial court did not have the benefit of two decisions which greatly assist the consideration of this statute. First of all, in the very language in which it declined to decide the question, Bates gives guidance as to the types of activities which may be constitutionally restrained:
"Second, we also need not resolve the problems associated with in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or "runners”. Activity of that kind might well pose dangers of over-reaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us.
"Similar objections might justify restraints on in-person solicitation.”
Second, the Michigan Supreme Court now has given further guidance regarding what type of conduct constitutes impermissible solicitation by an attorney. In State Bar Grievance Administrator v Jaques, it was alleged that defendant, four days after the tragic Port Huron tunnel explosion, had initiated an in-person meeting with potential claimants with whom defendant had no prior professional contact. Further, it was alleged that defendant had requested a union agent and others to recommend defendant to survivors of explosion victims. In applying their own disciplinary rules, the Court said:
"Conduct violating rules of ethics adopted by this Court and conduct exposing the profession to obloquy, contempt, censure or reproach are grounds for discipline. State Bar Rule 15, §§ 2(2), 2(3) and 2(4). The kind of solicitation involved in this case remains the classic example of the public conception of "ambulance chasing” which not only exposes the profession to public contempt, but unjustly exposes its thousands of innocent individual members to concomitant derision and contempt despite their steady allegiance to ethical norms and professional self-discipline.”
The type of activity charged in this case goes well beyond that found to be impermissible solicitation in Jaques. For example, one count of the indictment states, in part:
"* * * is and was at times relevant herein President of United * * * Union Local * * *. The said * * * invited retired Local * * * members to numerous meetings by letter, stating that they could make application for workmen’s compensation at the meeting. He further stated that the President’s Office (himself) was the only person in Local * * * who was authorized to assist them in making their claims. At the meetings he told the retired members that they had all worked for a number of years and had all probably suffered injuries and that they had workmen’s compensation awards coming to them. He had distributed and collected cards for the members to fill in their names and addresses. He introduced Attorney ARTHUR S. WOLL to them who spoke to them. After the meetings, the retired members were contacted by ARTHUR S. WOLL, ROBERT A. KOZLOW or a person from the law firm of KOZLOW, JASMER & WOLL, P. C. and asked to give information regarding their claim. * * * President of Local * * * , and * * * , Recording Secretary of Local * * * , then received lump sum checks from the law firm of KOZLOW, JASMER & WOLL, P. C. ranging from approximately $55.00 to $110.00 per claimant. The checks were in amounts between $110.00 to $1,750.00 and amounted to over $15,000.00 in one year’s time in the partial amount of checks that the Grand Jury looked at.”
We will not dignify this alleged conduct with an extensive discussion. Suffice it to say that we see no problem in the application of this statute to restrain the charged conduct.
In so ruling, we do not suggest that the anti-solicitation statute could be lawfully applied to the kinds of group legal services that enjoy First Amendment protection under National Association for the Advancement of Colored People v Button and its successors.
We also note that People v Posner was decided by another panel of this Court before release of Bates v State Bar of Arizona, supra.
The trial court also concluded that the anti-solicitation statute denied defendant equal protection of the laws because it proscribes solicitation of personal injury claims, but not property damage claims.
We disagree. As indicated in Kelley and Hightower, supra, the statute is directed at ambulance chasing. We do not find the classification irrational or arbitrary. Failure to include solicitation of property damage claims is an inadequate basis for a finding of an unconstitutional denial of due process. The possibility of big verdicts which is what gives rise to ambulance chasing is directed primarily to jury assessment of pain and suffering in personal injury situations; property damage claims are not significantly involved in the evil to which the statute is directed.
Reversed.
OCR 1963, 521.
MCLA 750.410; MSA 28.642.
425 US 748; 96 S Ct 1817; 48 L Ed 2d 346 (1976).
Much attention, both judicial and academic, has been devoted to the difference between measuring the constitutionality of a statute by examining its plain terms and by examining its application to the actual facts in question. For example, an excellent presentation of the history, purpose and utilization of both is set forth in The First Amendment Overbreadth Doctrine, 83 Harv L Rev 844 (1970).
239 Mich 204; 214 NW 316 (1927).
"Evidently 'ambulance-chaser’ is a recognized colloquial word of our English vocabulary. * * * [I]n later years as personal injury litigation increased and ethical restrictions on the legal profession decreased, that sinister compound word appears to have assumed in popular usage the following meaning, as defined by some lexicographers:
" 'A person, either a lawyer or the agent of a lawyer, who follows up cases of accident in the streets and tries to induce the injured person to bring suit for damages.’ Cent. Diet, and Cyclop.
"Though both are torts, there exists a marked difference between injuries inflicted on the person and injuries done to property, plainly recognizable in fact and reasonably distinguishable in law. Property, whether personal or real, has as a rule some fairly determinable market value susceptible of definite proof, within limits beyond which neither evidence nor expectation can range. Market value for personal injuries is unknown. The measure of damages and rules of proof are distinctly different in injury to property and personal injury cases. Pain and suffering, disfiguration, permanency, humiliation and other personal elements foreign to property which have no distinct standard of money measurement are permissible elements of damages in the latter. This may and often does in the minds of many give rise to great expectations and surrounds such claims with a tempting atmosphere of speculation unknown to property tort actions inviting to litigation and exploitation as generally known and so indicated by the proportion of such actions crowding our courts. These and other special attributes of personal injury claims fairly suggest a reasonable basis of distinction between them and other kinds of claims and even between the kinds of persons who might engage in soliciting them for collection. Extended discussion of the subject of classification is not necessary for the purposes of this case. The fundamental rule of classification is that it shall not be arbitrary, must be based on substantial distinctions and be germane to the purpose of the law.” 239 Mich 204, 210, 213-214; 214 NW 316 (1927).
262 Mich 1; 247 NW 97 (1933).
401 US 576; 91 S Ct 1076; 28 L Ed 2d 339 (1971), reversing 383 Mich 201; 174 NW2d 811 (1970), which grew out of 374 Mich 152; 132 NW2d 78 (1965); also see, United Mine Workers of America, District 12 v Illinois State Bar Association, 389 US 217; 88 S Ct 353; 10 L Ed 2d 426 (1967), and Brotherhood of Railroad Trainmen v Virginia ex rel Virginia State Bar, 377 US 1; 84 S Ct 1113; 12 L Ed 2d 89 (1964).
It is interesting that the Supreme Court editor in State Bar of Michigan v Brotherhood of Railroad Trainmen, 374 Mich 152; 132 NW2d 78 (1965), described the injunction as enjoining the "channeling of liability claims of its members to its regional counsel”.
Brotherhood of Railroad Trainmen v Virginia State Bar, supra.
State Bar of Michigan v Brotherhood of Railroad Trainmen, 383 Mich 201; 174 NW2d 811 (1970).
Brotherhood of Railroad Trainmen v Virginia State Bar, 377 US 1, 6-7; 84 S Ct 1113, 1117; 12 L Ed 2d 89, 93 (1964).
413 US 601, 610-616; 93 S Ct 2908, 2915-2918; 37 L Ed 2d 830, 839-842 (1973). (Citations omitted; emphasis added.)
413 US 601, 618; 93 S Ct 2908, 2919; 37 L Ed 2d 830, 843-844 (1973).
433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977).
433 US 350, 379-381; 97 S Ct 2691, 2707-2708; 53 L Ed 2d 810, 833-834 (1977). (Citations omitted; emphasis added.)
The prior reported case involving plaintiff is of no assistance on the question of impermissible solicitation since that issue was not addressed. State Bar of Michigan v Woll, 387 Mich 154; 194 NW2d 835 (1972).
433 US 350, 366, 384; 97 S Ct 2691, 2700, 2709; 53 L Ed 2d 810, 825, 836 (1977).
401 Mich 516; 258 NW2d 443 (1977).
401 Mich 516, 543-544; 258 NW2d 443 (1977). (Footnote omitted.)
371 US 415; 83 S Ct 328; 9 L Ed 2d 405 (1963).
79 Mich App 63; 261 NW2d 209 (1977). The one opinion decides the issues arising from both the indictment of Samuel Posner and that of Noel Keanne.
See the last paragraph of n 6, supra. | [
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Allen, J.
On December 17, 1976, the Bay County Probate Court issued an order directing that the plaintiff, Bay County Department of Social Services, take temporary custody of the child of defendants Gary and Carol Dittrick. The situation presented is novel because the child was not born until February 2, 1977, 45 days after the order was issued. This appeal challenges the plaintiffs asserted authority to act in this manner and the probate court’s asserted jurisidiction to issue the challenged order. The appeal comes to this Court following circuit court affirmance of the preliminary probate court order.
The record shows that the defendants’ parental rights over defendant Carol Dittrick’s first child were permanently terminated in May of 1976, following allegations of continuing physical and sexual abuse. Criminal charges against both defendants are now pending as a result of those abuse allegations.
Shortly before the parental rights over the first child were terminated, defendant Carol Dittrick became pregnant with the child who is the subject of the present litigation.
Believing that the birth of this present child was imminent, the plaintiff filed a petition in probate court on December 17, 1976, seeking an order of temporary custody pending further hearings. JCR 1969, 2.1; MCLA 712A.11; MSA 27.3178(598.11). The defendants were not notified of the filing of this petition. The requested order was entered the same day and was served on the defendants on December 30, 1976. After some initial procedural maneuvering, the defendants appealed the order to the Bay County Circuit Court which dismissed their appeal and remanded the proceedings to the probate court for the required preliminary and (possibly) formal hearings. JCR 1969, 4, 7, 8; MCLA 712A.ll-19a; MSA 27.3178(598.11)-(598.19a). The defendants appeal from that order.
The defendants have raised multiple statutory and constitutional issues. We address only two of those issues; the remainder are without merit and, in any event, are made moot by our rulings on the first two.
Defendants first argue that the probate court could not find neglect and order a change of custody based on allegations that they had abused defendant Carol Dittrick’s first child. In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), properly answers and rejects this argument. Defendants attempt to distinguish LaFlure by arguing that it only permits a finding of anticipated future neglect of a second child where a finding of past neglect of the second child has already been made. We reject that distinction because we believe that the reasoning of LaFlure is sound, even when applied to a situation where no prior determination of neglect has been made.
However, we are persuaded by the defendants’ alternative argument that the probate court did not have jurisdiction to enter the contested order because it could not acquire jurisdiction over an unborn child. The probate court jurisdiction in such matters is defined by MCLA 712A.2; MSA 27.3178(598.2). Subsection (b) of that statute provides that the probate court has:
"Jurisdiction in proceedings concerning any child under 17 years of age found within the county
"(2) whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in.”
We recognize that the word "child” could be read as applying even to unborn persons. However, our reading of other sections of Chapter XIIA of the Probate Code convinces us that the Legislature did not intend application of these provisions to unborn children. For example, MCLA 712A.11; MSA 27.3178(598.11), requires that a petition for change of custody state the birthdate of the subject child. This was obviously impossible in the present case. Nothing in the Juvenile Court Rules of 1969 expands the jurisdiction granted by the statutory provisions.
The Legislature may wish to consider appropriate amendments to the Probate Code. Indeed, the background of the present case has convinced us that such amendments would be desirable. However, the Code as now written did not give the probate court jurisdiction to enter its original order in the present case. We decline by judicial amendment to do that which, at the time of enactment, the Legislature did not contemplate.
Although the plaintiff Bay County Department of Social Services and the probate court acted without proper authority, we nevertheless believe that their actions were "correct” in the sense that the best interests of all concerned required that the defendants’ infant not be left in defendants’ custody. While we have ruled in the defendants’ favor on the legal question raised, we do not intend to cause an immediate change of custody back to the defendants. We therefore order that the present custody arrangement shall remain in effect until 60 days after the release date of this opinion. GCR 1963, 820.1(1), (7). This will allow sufficient time for a proper invocation of probate court jurisdiction in the event that plaintiff Bay County Department of Social Services believes that the parental home is still an unfit residence.
The defendants’ remaining arguments are without merit and most are rendered moot by the preceding analysis.
The judgment below is reversed. Temporary custody is continued for 60 days by order of this Court.
The preceding procedural history has been greatly simplified. In fact, the contested preliminary hearing has been held and a formal hearing has been ordered — all this pursuant to the circuit court’s order which is belatedly being challenged by this appeal. This confusion exists because the defendants waited until after the preliminary hearing had been held before requesting a clarification of the original circuit court order and then appealing from that clarification.
The defendants raised a number of constitutional arguments. Michigan has recognized that parental rights are of constitutional magnitude and are protected by the due process clauses of the Michigan and United States constitutions. In the Matter of LaFlure, supra, Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976) (opinion of Levin, J.). But we see no violation of these rights in the present case which has not been remedied by this opinion. | [
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Per Curiam.
On July 6, 1981, defendant pled guilty to transporting a female for the purpose of prostitution, MCL 750.459; MSA 28.714, and was sentenced to a term of from 5 to 20 years imprisonment. He appeals as of right.
Defendant first argues that the statute to which he pled guilty is unconstitutionally vague and overbroad. However, constitutional challenges on the basis of vagueness, other than those based on First Amendment rights, must be examined in the light of the case’s particular facts. People v Gilliam, 108 Mich App 695; 310 NW2d 843 (1981). Furthermore, for defendant to have standing to challenge the statute on overbreadth the statute must be "overbroad in relation to defendant’s conduct. One may not constitutionally challenge a statute on grounds of overbreadth against him when the statute clearly applies.” People v Burton, 87 Mich App 598, 601; 274 NW2d 849 (1978). Defendant’s hypotheticals for both constitutional attacks present some interesting problems. However, defendant’s conduct clearly fits within the statute. He intentionally drove in his car a woman from Saginaw to Midland to place her into a house of prostitution. Whatever else the statute may or may not cover, it applies here. As such, defendant has no standing to argue either constitutional issue.
Defendant also argues that the statute is unconstitutional because it impermissibly discriminates on the basis of sex. However, the operative word in the statute is the word "person”. As such, either men or women can violate this statute. Therefore, defendant does not have standing to challenge this statute on an equal protection basis. In United States v Garrett, 521 F2d 444, 446 (CA 8, 1975), the defendant appealed his Mann Act, 18 USC 2421, conviction claiming that it denied him equal protection of the laws because it applied only to transporting females and not to transporting males:
"The persons affected by a criminal statute are defendants. Garrett does not argue that similarly situated defendants are treated disparately on the basis of sex. * * * The statute may be violated by either males or females, it is thus sexually neutral and does not raise questions of an illegal classification.”
Similar results have been reached in United States v Bankston, 603 F2d 528 (CA 5, 1979); State v Zaehringer, 280 NW2d 416 (Iowa, 1979); United States v Smith, 574 F2d 988 (CA 9, 1978), cert den sub nom Komok v United States, 439 US 852; 99 S Ct 158; 58 L Ed 2d 156 (1978) (construing Washington law); Ex Parte Groves, 571 SW2d 888 (Tex Crim App, 1978); United States v Green, 554 F2d 372 (CA 9, 1977); People v Sherrod, 50 111 App 3d 532; 8 111 Dec 607; 365 NE2d 993 (1977); United States v Caesar, 368 F Supp 328 (ED Wis, 1973), aff'd sub nom United States v Harden, 519 F2d 1405 (CA 7, 1975).
Defendant next argues that the following factual basis elicited at his guilty plea is insufficient:
"The Court: All right. Tell me in your own words what happened which caused this information to be filed against you?
"The Respondent: I transported a female on a trip I was making for the use of prostitution.
"The Court: And when did this occur?
"The Respondent: On or about February 10th, 1981.
"The Court: All right. And what was the name of this female person?
"The Respondent: Dawn M. Neer.
"The Court: And did you transport her in the County of Midland?
"The Respondent: Yes, sir.
"The Court: The purpose was to either place her in a house of prostitution or to get her into prostitution; is that right?
"The Respondent: Yes, sir.
"Mr. Rhead: I don’t believe, your Honor, he was going to get her into prostitution. I think he — Mr. Green knew that she was a prostitute and transported her for that purpose.
"The Court: All right.
"The Respondent: Yes.
"The Court: If he wants to tell me that, fine.
"The Respondent: Yes, sir.
"The Court: She was a prostitute, you transported her; is that right?
"The Respondent: Yes, sir.
"The Court: And for that purpose?
"The Respondent: Yes, sir.”
Defendant argues that this recital was nothing more than just responding affirmatively to a legal conclusion as was condemned in People v Atcher, 57 Mich App 148, 151; 226 NW2d 77 (1974): "Defendant’s affirmative response required him to make a legal determination * * However, the present case presents more than just the legal determination based on three questions as in Atcher. A reasonable jury could have drawn an inculpatory inference from this factual basis and convicted defendant. People v Haack, 396 Mich 367; 240 NW2d 704 (1976); Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), cert den 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977). Here, defendant admitted to transporting Dawn Neer and to the fact that the object of the trip was for the purpose of prostitution. These statements constituted more than a mere admission that he was legally guilty.
Defendant next argues that he should be resentenced because the original presentence report did not comply with MCL 771.14; MSA 28.1144, which requires that the "report shall include a specific written recommendation for disposition”. The presentence report in this case states:
"Recommendation
"If incarcerated, he should be given credit for twenty-two (22) days served.
"If placed on probation, the following special terms are suggested: * * *.”
In failing to make any recommendation at all, this report does not comply with the statute. As such, this case is distinguishable from People v Joseph, 114 Mich App 70; 318 NW2d 609 (1982), where this Court ruled that the probation department had complied with the statute by recommending that the defendant not be placed on probation.
In People v Duhamel, 72 Mich App 77; 248 NW2d 670 (1976), the presentence report was oral. Because the statute specifically requires that it be written, this Court remanded for a resentencing. Where the presentence report clearly does not comply with the statute’s requirements, this Court will remand for a resentencing even though the defendant failed to object at sentencing. Pursuant to People v Triplett, 407 Mich 510; 287 NW2d 165 (1980), a new presentence report must be drawn up. Because we are remanding, defendant’s other issues are moot.
Defendant’s conviction is affirmed. This case is remanded for a resentencing.
Atcher is a pre-GCR 1963, 785.7 case. Whether or not it has any continuing validity need not be decided. | [
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R. A. Benson, J.
In this medical malpractice action the trial court granted defendant Dorfman’s motion for accelerated judgment on the basis of lack of jurisdiction because plaintiff Barbara McCloy (hereinafter plaintiff) had signed arbitration agreements with both Dorfman and Sisters of Mercy Health Corporation. Plaintiffs motion for rehearing was granted but the trial court affirmed its order of accelerated judgment. Plaintiff appeals by right.
Plaintiff first argues that the malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., is unconstitutional because the makeup of the arbitration panel provided for by the act violates the plaintiffs’ due process right to a fair and impartial tribunal. We agree. Although we recognize that there is a split of opinion among the members of our Court on this issue, we are persuaded that the reasoning set forth in Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), and Murray v Wilner, 118 Mich App 352; 325 NW2d 422 (1982), is the better view and we adopt that position.
However, the Michigan Supreme Court has granted leave to appeal in Jackson, supra, 412 Mich 885 (1981), as well as in Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), Iv gtd 412 Mich 884 (1981), which found the act to be constitutional, so the issue regarding the constitutionality of the act shall soon be resolved. Because the possibility exists that the Court will uphold the constitutionality of the act, we will address the plaintiffs’ remaining issues on appeal.
Plaintiff next argues that the arbitration agreement signed between the plaintiff and defendant Health Corporation does not cover defendant Dorfman because the agreement makes no reference to him and he did not sign it. The pertinent language of this agreement states:
"I understand that this agreement to arbitrate is binding on me and all my agents, representatives and heirs and assignees as well as on this hospital, its employees and those of its independent staff doctors, and consultants who have agreed to arbitrate.”
This Court interpreted language of a similar nature in Kukowski v Piskin, 99 Mich App 1; 297 NW2d 612 (1980). In that case we held that, by signing the agreement, the plaintiff clearly agreed to arbitrate claims involving parties other than the hospital, including independent staff doctors who had executed an agreement to arbitrate. We further held that the plaintiff’s unawareness of the defendant’s agreement to arbitrate was not fatal to the defendant’s position because the plaintiff had agreed to arbitrate any disputes arising from health care rendered by any doctor who had agreed to arbitrate. Kukowski, supra, p 4. The decision in Kukowski was recently affirmed on appeal by an equally divided Supreme Court. Kukowski v Piskin, 415 Mich 31; 327 NW2d 832 (1982).
In the case at bar, defendant Dorfman produced an agreement to arbitrate which was signed by him and by defendant Health Corporation; thus, it appears that defendant Dorfman was an independent staff doctor who had agreed to arbitrate within the meaning of the agreement signed by the plaintiff. However, defendant Dorfman’s agreement to arbitrate with defendant Health Corporation is not part of the trial record. It is well settled that a trial court record may not be enlarged on appeal. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Therefore, there is no basis in the record for us to hold that defendant Dorfman is an independent staff doctor who had agreed to arbitrate and was thus included in the agreement signed by the plaintiff. Accordingly, the trial court erred in allowing defendant Dorfman to rely on this agreement to compel arbitration of the matter.
Plaintiff next argues that the two arbitration agreements signed by the plaintiff and defendant Dorfman are void because they do not comply with MCL 600.5041(3); MSA 27A.5041(3). Plaintiff failed to raise this issue in the trial court. Issues not raised at the trial level may not be raised on appeal unless the claim is necessary to a proper determination of the case, involves a necessary question of law for which all the facts have been presented, or a manifest injustice would result. Szidik v Podsiadlo, 109 Mich App 446, 451; 311 NW2d 386 (1981). Our review of this claim reveals no special circumstances which would relieve the plaintiff of her burden to raise all applicable issues in the trial court, especially since we agree with defendant Dorfman that these two arbitration agreements are irrelevant to this appeal because they concern claims arising from outpatient care rendered to the plaintiff by defendant Dorfman, whereas the present case arises from health care rendered to the plaintiff in the hospital.
Plaintiff next argues that all three arbitration agreements are void because they did not comply with MCL 600.5041(6); MSA 27A.5041(6) and MCL 600.5042(7); MSA 27A.5042(7), which require a patient signing an arbitration agreement to be furnished with an information brochure which clearly details the arbitration agreement and revocation provision and the form of the agreement. We note again that the plaintiff did not raise this issue below; however, we will consider it because we are persuaded this is necessary to a proper determination of the case. Szidik, supra.
This Court considered this same argument in Rome v Sinai Hospital of Detroit, 112 Mich App 387; 316 NW2d 428 (1982). In Rome, the plaintiff claimed that the arbitration agreement in question was not enforceable because the defendant hospital failed to provide the plaintiff with the information brochure and a duplicate or original of the executed arbitration form. The Court held that, despite the strong public policy in favor of arbitration and the rule that arbitration clauses should be liberally construed, the plaintiff was entitled to a remand for an evidentiary hearing on the factual question of whether the plaintiff received an information brochure and a copy of the signed agreement. Rome, supra, pp 391-392. We conclude that the implication of the decision in Rome is that an arbitration agreement between a patient and a health care provider is unenforceable if the patient did not receive the information brochure and a copy of the executed agreement.
There is clearly a factual dispute in the instant case regarding whether the plaintiff received an information brochure and a copy of the agreement. Were it not for our decision to reverse on the basis of the unconstitutionality of the malpractice arbitration act, we would remand the case for an evidentiary hearing to resolve this dispute.
Plaintiff’s remaining issues on appeal merit little discussion. It is well settled that one who signs a contract will not be heard to say, when enforcement is sought, that he or she did not read it or thought its terms were different, absent a showing of fraud or mutual mistake. International Transportation Ass’n v Bylenga, 254 Mich 236, 239; 236 NW 771 (1931). No such showing has been made in this case. Lastly, there were no other genuine, material issues of fact which precluded the trial court from granting an accelerated judgment in favor of defendant Dorfman.
Reversed.
It must be remembered that the plaintiff did not argue in the trial court that the defendants’ failure to provide her with an information brochure or a copy of the agreement invalidated the agreement; thus, this was not a disputed fact before the trial court. | [
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Per Curiam.
Plaintiff appeals as of right from the January 29, 1982, order granting defendant City of Muskegon’s motion for summary judgment and the trial court’s February 16, 1982, order denying plaintiff’s motion for reconsideration.
On February 14, 1979, at about 1:09 a.m., plaintiff’s husband, Carl P. Beyer, was driving his own vehicle east on M-46, or Apple Avenue, near the intersection with Ambrosia Street in the City of Muskegon. While crossing railroad tracks that intersected M-46, Carl P. Beyer’s vehicle was struck by a train. Mr. Beyer died soon after._
On March 11, 1980, plaintiff filed her complaint initiating this wrongful death action. She alleged that the City of Muskegon (hereinafter city) failed in its duty to maintain M-46 by failing to remove obstructions and snow accumulations near the intersection with the railroad crossing. Plaintiff made similar allegations against the Muskegon Board of County Road Commissioners (hereinafter board).
On April 7, 1980, defendant city answered admitting that the accident occurred on M-46 but denying any negligence on its part. The city asserted plaintiffs decedent’s own negligence as an affirmative defense and asserted the right to raise additional affirmative defenses.
On April 17, 1980, defendant board filed a motion for accelerated judgment. In support of that motion, the board stated:
"1. The accident occurred on M-46 at a C & O crossing.
"2. That M-46 is a state trunkline highway as designated by the Michigan State Highway Department.
”3. In accordance with Michigan statutory authority, counties are relieved of all expenses and legal liabilities arising out of or in the course of construction, improvement, or maintenance of trunkline highways within this state. MCL 250.61 [MSA 9.901],
"4. Pursuant to MCL 250.61, the Board of County Road Commissioners for the County of Muskegon is relieved of all legal liability arising out of the accident occurring on or about February 14, 1979, as alleged in plaintiffs complaint.
"5. That, in addition to being relieved of all legal liabilities pursuant to MCL 250.61, this claim is also barred by the doctrine of governmental immunity as set forth in MCL 691.1407 [MSA 3.996(107)].
"6. Plaintiff has failed to state a cause of action for which relief can be granted.”
On May 20, 1980, the trial court granted the board’s motion for accelerated judgment and dismissed with prejudice the suit against the board.
Following the above dismissal, the case proceeded to discovery with interrogatories and depositions taken in late 1980. On August 19, 1981, the city moved for summary judgment, GCR 1963, 117, based upon a similar assertion of governmental immunity: "Defendant City of Muskegon is immune from liability because the Michigan State Highway Commission has jurisdiction over M-46, the state trunkline highway involved herein.” On January 14, 1982, the trial court filed its opinion granting the city’s motion.
On January 22, 1982, plaintiff moved for reconsideration. At the hearing on that motion, the trial judge ruled that only the state was liable, not the city. The trial court was not persuaded by plaintiff’s argument that Robinson v Emmet County Road Comm, 72 Mich App 623; 251 NW2d 90 (1976), was controlling because the city did not mislead plaintiff about its lack of jurisdiction. The trial court stated that plaintiff knew that she was dealing with M-46, a state highway trunkline, when she filed her complaint. The trial court denied the motion to reconsider.
By statute, governmental agencies are immune from tort liability if the agency was engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). A statutory exception to this general immunity is provided in MCL 691.1402; MSA 3.996(102), which states, in part:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.” (Emphasis added.)
The state has jurisdiction over all state trunk-line highways. Const 1963, art 5, § 28. By statute, the state must incur all maintenance costs and legal liabilities for state trunkline highways, relieving counties, townships, incorporated cities and villages of these responsibilities. MCL 250.61; MSA 9.901. Thus, as this Court has consistently recognized, Robinson, supra; Bennett v City of Lansing, 52 Mich App 289; 217 NW2d 54 (1974), despite its contract with the state to maintain M-46, the city was not the appropriate party to sue for damages. Only the state carries that liability.
In Robinson, two young people, a brother and sister, were killed in an auto accident on M-131. The defendant county road commission had a contract with the state to maintain that highway when the accident occurred. The plaintiff alleged that the defendant’s failure to duly maintain the highway proximately caused the accident that killed her two children.
In Robinson, the plaintiff filed her complaint about seven months after the accident occurred. The defendant answered within two weeks and moved for summary judgment alleging the accident-causing defect was on a side-portion of the highway which it had no duty to maintain. The motion was denied. About 21 months after the accident, when discovery and the pretrial were concluded, the defendant filed a motion for summary judgment, GCR 1963, 117.2(1), relying on MCL 250.61; MSA 9.901. The motion was denied because the defendant failed to include an affidavit specifying the defense it relied upon. Three months later, the defendant resubmitted the motion with a proper affidavit arguing that only the state had jurisdiction over M-131. By that date, the two-year statute of limitations had run against the state. MCL 691.1411(2); MSA 3.996(111)(2). Ultimately, the trial court granted the motion.
The Robinson majority recognized that the plaintiff should have filed suit against the State Highway Department in the Court of Claims and that the defendant county road commission had a valid defense. But the Robinson majority held that a motion for accelerated judgment was the appropriate pleading for raising the defense of governmental immunity. The Court then recognized the general rule that an incorrectly labeled motion will be considered as if correctly labeled if the non-moving party is not prejudiced. 72 Mich App 637. Robinson held that the defendant’s tardy pleading in the form of a motion for summary judgment had prejudiced the plaintiff because the statute of limitations had run against the state. The Court also found that the defendant had misled the plaintiff in its first motion for summary judgment wherein the defendant alleged the road involved was "essentially a local road”, but designated a state scenic route. The grant of summary judgment was reversed and the matter remanded to the trial court.
Plaintiff argues that Robinson is dispositive here, as defendant in this case also filed its motion for summary judgment after the statute of limitations had run against the state. However, for two reasons this Court concludes that Robinson is not dispositive and the trial court should be affirmed. First, a motion for summary judgment is the appropriate pleading for raising governmental im munity as a tort defense. White v Detroit, 74 Mich App 545, 547; 254 NW2d 572 (1977); Butler v Wayne County Sheriff’s Dep’t, 75 Mich App 202, 203; 255 NW2d 7 (1977); Dionne v Trenton, 79 Mich App 239, 241; 261 NW2d 273 (1977); St Vincent v Michigan, 86 Mich App 688, 691; 273 NW2d 525 (1978). See, also, Austin v Romulus, 101 Mich App 662; 300 NW2d 672 (1980).
Second, even if a motion for accelerated judgment were the proper pleading to raise governmental immunity, the facts in this case would not support the Robinson result. Plaintiff in this case has not been similarly prejudiced. Plaintiff obviously knew, or should have known, that M-46 was a state trunkline highway. Plaintiff named Apple Avenue as M-46 in her complaint. Furthermore, plaintiff had notice within weeks after she filed the complaint that only the state had jurisdiction. The board’s motion for accelerated judgment raised governmental immunity and relied on all the pertinent statutes. Finally, defendant city never misled plaintiff by stating it had jurisdiction over M-46 or that M-46 was anything but a state trunkline highway.
Therefore, granting the summary judgment was appropriate in this case.
Affirmed. Defendant may tax costs. | [
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Per Curiam.
Plaintiff, Michigan Mutual Insurance Company, appeals by leave granted from the trial court’s order granting summary judgment to defendants under GCR 1963, 117.2(1).
In -April, 1976, a tanker truck owned by defendant Carson City Texaco and insured under a policy of no-fault insurance by defendant State Farm Insurance Company was delivered to plaintiffs subrogor, Tank Truck Service, Inc. (hereinafter Tank Truck), for repair and maintenance work. While an employee of Tank Truck was calibrating a fuel meter, gasoline spilled onto the floor and was ignited by a light bulb. The ensuing fire destroyed much of Tank Truck’s property. Plaintiff, Tank Truck’s insurer, paid approximately $54,000 in benefits to Tank Truck. Plaintiff then brought this action claiming that it was entitled to reimbursement under the no-fault act. The trial court granted defendant’s motion for summary-judgment and denied plaintiff’s motion for rehearing. This Court granted plaintiff’s application for delayed appeal.
The question presented in this appeal is whether defendant State Farm is liable under the provisions of the no-fault insurance act for property damage caused by a fire which occurred during the course of a garage keeper’s maintenance work on the insured vehicle. Plaintiff alleges that State Farm is liable under § 3121 of the no-fault act, MCL 500.3121(1); MSA 24.13121(1), which provides:
"Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section and sections 3123, 3125 and 3127.”
Three panels of this Court have addressed the precise question presented here under factual circumstances nearly identical to those in the present case. In Liberty Mutual Ins Co v Allied Truck Equipment Co, 103 Mich App 33; 302 NW2d 588 (1981) , a panel of this Court held that the garage keepers’ liability act, MCL 256.541 et seq.; MSA 9.1721 et seq., rather than the no-fault insurance act, controlled. On the other hand, the Court in Buckeye Union Ins Co v Johnson, 108 Mich App 46; 310 NW2d 268 (1981), lv den 414 Mich 873 (1982) , and Liberty Mutual Ins Co v Ins Co of North America, 117 Mich App 197; 323 NW2d 650 (1982), held that the no-fault insurance act is controlling.
We agree with the reasoning set forth in Buckeye Union, supra, and adopted in Liberty Mutual v Ins Co of North America, supra. The damage in this case arose out of the maintenance work being performed on the insured’s truck. Since a causal connection was established under the no-fault act, "we can only conclude that the Legislature intended the no-fault act * * * to apply notwithstanding fault-based concepts such as those involved in the garage keepers’ liability act”. Buckeye Union, supra, 54. Moreover, we note that the rationale set forth in Buckeye Union is consistent with the principle that the no-fault insurance act is remedial in nature and should be broadly construed to effect coverage.
The trial court erred in granting summary judgment to defendants.
Reversed and remanded for further proceedings on plaintiffs complaint consistent with this opinion. | [
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M. J. Kelly, P.J.
Defendant pled nolo contendere to felonious assault, MCL 750.82; MSA 28.277. He was sentenced to a term of from 1-1/2 to 4 years imprisonment. He appeals as of right.
I
Defendant offered to plead nolo contendere because he was intoxicated at the time of the incident and could not sufficiently remember the event to provide-a factual basis to support a guilty plea. See generally GCR 1963, 785.7(3)(a). Pursuant to GCR 1963, 785.7(3)(b)(ii), the court conducted a hearing to establish support for defendant’s plea.
Michigan State Police Officer Michael Thomas testified that he approached defendant’s car after it had spun out of control into the wrong lane of traffic. When Thomas asked defendant for his driver’s license, he heard some profane comments. The defendant then put his car into gear and attempted to hit Thomas with the car. Following this testimony, the court accepted defendant’s plea.
On appeal, defendant argues that the prosecutor failed to provide a factual basis for defendant’s plea, since it was not shown that defendant had the specific intent to either injure Thomas or put him in reasonable apprehension of an immediate battery. Defendant argues that his intoxication negated the specific intent requirement of felonious assault and that the prosecution failed to refute his intoxication defense.
Felonious assault is a specific intent crime. Peo pie v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979). Thus, to be convicted of felonious assault, defendant must have had either an intent to injure or an intent to put his victim in reasonable fear or apprehension of an immediate battery. See Joeseype Johnson, supra, p 210. Whether the specific intent element of felonious assault can be negated by voluntary intoxication, however, has expressly been left undecided by the Supreme Court. See Joeseype Johnson, supra, p 210.
Intoxication may negate the element of specific intent.
"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed.” People v Walker, 38 Mich 156, 158 (1878).
We see no reason why felonious assault, which is a specific intent crime, should be treated differently. We hold that the defense of intoxication may negate the specific intent element of felonious assault.
When a nolo contendere plea is offered to a specific intent crime because the defendant was too intoxicated to remember the events of the involved incident, the prosecution must offer evidence refuting the intoxication defense. People v Stoner, 23 Mich App 598, 608; 179 NW2d 217 (1970), lv den 383 Mich 806 (1970); accord, People v Jasinski, 84 Mich App 670; 270 NW2d 485 (1978). Without any refutation, the specific intent element is without a sufficient factual basis.
We are uncertain whether the trial court considered both defendant’s intoxication defense and the question of whether the people had introduced sufficient evidence to refute the defense. While the testimony of Officer Thomas may or may not have been sufficient in and of itself to negate the defense, this is a question of fact to be decided by the plea-taking court.
We therefore remand to the trial court. The court is to reveal whether it previously considered and found that the people had introduced evidence refuting defendant’s intoxication defense. If the trial court had previously done so, defendant’s conviction will remain in force and effect. If the court had not previously considered defendant’s intoxication defense, but finds that the testimony previously presented was sufficient to negate the defense, defendant’s conviction shall remain in force and effect. If, however, the trial court is not satisfied that the evidence previously produced was sufficient to negate the intoxication defense, the prosecutor shall be permitted to produce evidence negating the defense. If the prosecutor is unable to do so, defendant’s conviction shall be set aside; if such evidence is produced, the matter shall be treated as a motion to withdraw the plea and the trial court shall decide the motion in the exercise of its discretion. Accord, Jasinski, supra, pp 673-674.
II
Pursuant to a plea agreement, the prosecution agreed not to oppose probation if it were recommended by the corrections department’s presentence report. The presentence report recommended probation. The trial court, however, sentenced defendant to a term of from 1-1/2 to 4 years imprisonment. Defendant argues that his plea should be vacated because the trial court failed to offer him the opportunity to withdraw his plea after the court decided not to sentence defendant to probation. In support of his position, defendant cites People v Hagewood, 88 Mich App 35, 38; 276 NW2d 585 (1979), where this Court held that a defendant should be allowed to withdraw his plea when the sentencing court refuses to follow the prosecutor’s sentencing recommendation. The defendant, however, never moved at the trial court level to withdraw his plea. Thus, this issue has been waived.
Remanded.
Since this opinion was written the Supreme Court has issued its opinion in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). On remand the trial court shall apply Killebrew if it finds that opinion to be applicable. | [
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] |
R. A. Benson, J.
In this medical malpractice case the trial court granted the defendants’ motions for accelerated judgment on the basis of lack of jurisdiction due to an arbitration agreement signed by the plaintiff. Plaintiff appeals by right.
Plaintiff first argues that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., violates the plaintiffs due process rights to a fair and impartial tribunal because the statute requires that one of the three arbitrators be a physician or hospital administrator. There is currently a split of opinion on this Court as to whether the act is constitutional. Compare Murray v Wilner, 118 Mich App 352; 325 NW2d 422 (1982), and Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), lv gtd 412 Mich 885 (1981), with Cushman v Frankel, 111 Mich App 604; 314 NW2d 705 (1981); Williams v O’Connor, 108 Mich App 613; 310 NW2d 825 (1981), and Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), lv gtd 412 Mich 884 (1981) . We hope this split will soon be resolved by the Supreme Court in its consideration of Morris and Jackson. We are of the opinion that the reasoning set forth in Jackson, supra, and Murray, supra, is the better view and thus conclude that the act unconstitutionally deprives the plaintiff of his due process right to a fair and impartial tribunal.
Plaintiffs remaining, issues on appeal are without merit. The terms of the agreement do not unconscionably exceed the reasonable expectations of an ordinary person. See Morris, supra, p 115. Furthermore, the arbitration agreement is not a contract of adhesion. Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981); Morris, supra, p 115.
Reversed. | [
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] |
D. F. Walsh, J.
On February 7, 1980, a Wayne County citizens grand jury returned an indictment against 183 defendants, charging unlawful combination and conspiracy in unreasonable restraint of trade and commerce. MCL 750.558; MSA 28.826. The specific charge was combination and conspiracy to fix prices for services in the automobile collision repair business. The 183 defendants are the Automotive Service Councils of Michigan, Inc. (a trade association of automobile repair businesses), the officers of the association, and numerous automobile dealers, collision repair shops and individual officers, employees, and agents thereof.
In district court, defendants sought dismissal of the indictment, arguing: (1) inapplicability of MCL 750.558; MSA 28.826 to the activity alleged by the prosecution, (2) insufficiency of the evidence, and (3) prosecutorial misconduct. The district court, in a thoughtful and well-reasoned opinion, ruled that the Legislature did not intend that MCL 750.558; MSA 28.826 be applied to services, as opposed to articles and commodities. The court further found that the statute was "so poorly drafted, so confusing and ambiguous” that it could not support a criminal prosecution for the concerted fixing of prices for services. The indictment was, therefore, dismissed as to all defendants. In anticipation of the Attorney General’s appeal of its ruling, the district court resolved defendants’ remaining challenges to the indictment. Assuming arguendo the applicability of the statute to service activities, the court ruled that there had been sufficient evidence to indict all but 19 of the defendants, and the court found no prosecutorial misconduct which would justify dismissal of the indictment. The Attorney General’s motion for reconsideration was denied.
The Attorney General’s appeal to circuit court was limited to the district court’s ruling that the prohibitions of MCL 750.558; MSA 28.826 do not reach service activities. There was no challenge to the district court’s finding of insufficient evidence as to 19 of the defendants. The remaining defendants cross-appealed from the district court’s findings of sufficient evidence and absence of prejudicial prosecutorial misconduct. The circuit court affirmed the district court in all respects. By leave granted, the Attorney General now appeals from the circuit court’s order and the remaining defendants cross-appeal.
The sole issue presented in the Attorney General’s appeal is whether MCL 750.558; MSA 28.826 assigns criminal liability to the fixing of prices for services, as opposed, for example, to the fixing of prices of commodities. The statute provides in its entirety:
"A trust is a combination of capital, skill or arts by two or more persons, ñrms, partnerships, corporations or associations of persons, or of any two or more of them, for either, any or all of the following purposes:
"1. To create or carry out restrictions in trade or commerce;
"2. To limit or reduce the production, or increase or reduce the price of, merchandise or any commodity;
"3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodity;
"4. To fix at any standard or figure, whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, barter, use or consumption in this state;
"5. It shall hereafter be unlawful for two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them to make or enter into or execute or carry out any contracts, obligations or agreements of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of or transport any article or any commodity or any article of trade, use, merchandise, commerce or consumption below a common standard figure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity, or transportation between them or themselves and others, so as to directly or indirectly preclude a free and unrestricted competition among themselves, or any purchasers or consumers, in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine, or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as is deñned herein is declared to be unlawful, against public policy and void: Provided, however, That nothing contained in the provisions of this section shall be construed to forbid producers of farm or dairy products from co-operating or organizing corporations or associations not primarily for profit, for the purpose of insuring and providing a reasonably certain and stable market for, and distribution of, such products upon terms fair and reasonable to the public and to themselves, and bargaining with distributors of such products singly or collectively in relation thereto, nor shall such co-operative undertaking, corporations, associations or members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade.
"Any violation of the provisions of this section shall be and is hereby declared a conspiracy against trade, and any person who may become engaged in any such conspiracy or take part therein, or aid or advise in its commission, or who shall as principal, manager, director, agent, servant or employer, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates or furnish any information to assist in carrying out such purposes or orders thereunder or in pursuance thereof, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than two years or by a fine of not more than one thousand dollars. Each day’s violation of this provision shall constitute a separate offense.
"In any indictment for any offense named in this and the following section, it is sufficient to state the purpose or effects of the trust or combination, and that the accused is a member of, acted with or in pursuance of it, or aided or assisted in carrying out its purposes, without giving its name or description, or how, when and where it was created.
"In prosecutions under this and the following section, it shall be sufficient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonging to it, or proving or producing any article of agreement, or any written instrument on which it may have been based; or that it was evidenced by any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation as such.” (Emphasis added.)
Analyzing the statutory language, the district court observed:
"It is obvious both by a review of the statute and by the acknowledgement of the prosecution that [¶¶] 2, 3 and 4 do not encompass services. It is also clear that ¶ 5 specifically refers to articles, commodities, merchandise, etc., and would not include services. We are then led to the inquiry as to whether services are included under the 'trade or commerce’ language of [¶ ] 1.”
Even assuming that the phrase "trade or commerce” in ¶ 1 of the statute includes services, however, the court found that the statute does not set forth a general proscription against combinations "to carry out restrictions in trade or commerce”. In support of its conclusion that the activity described in the indictment had not been declared criminal, the court offered the following analysis of the statutory language:
"the statute makes a division into 'definitional provisions’ and 'conduct provisions’. The first portion of the statute [i.e., ¶¶ 1 through 4] seems clearly to provide a definition. It is of great significance that ¶ 5 commences with the words, 'It shall hereafter be unlawful.’ A plain reading would seem to indicate that the placement of those words at the beginning of |f 5 would be a clear indication that what went before ¶ 5 was not intended to be unlawful.”
The district court went on to discuss the principle of strict construction of criminal statutes, People v Hall, 391 Mich 175, 189; 215 NW2d 166 (1974), and the concomitant requirement of statutory clarity:
"It is a fundamental rule of construction of criminal statutes that they cannot be extended to cases not included within the clear and obvious import of their language. And if there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant.” People v Ellis, 204 Mich 157, 161; 169 NW 930 (1918).
In addition to its own difficulty in ascertaining the statute’s intended scope of coverage, the court observed that the Attorney General, in a November 14, 1978, memorandum to Governor William Milliken analyzing Senate Bill 1284 (a proposed revision of Michigan’s antitrust legislation which died in the House Judiciary Committee), had stated that "the present antitrust statute [1899 PA 255] * * * does not provide for coverage of services in the same manner as commodities, transportation and machinery”. Also cited was the text of a speech delivered by the assistant attorney general in charge of the consumer protection division of the Department of the Attorney General, in which the "absence of clear coverage of services, rather than just commodities, transportation and machinery” had been noted and advanced in support of adoption of Senate Bill 1254, which "[f]or the first time, [provided] a clear understanding * * * that services, as well as all kinds of commodities and property” were included within the definition of "trade and commerce”. (In contrast to the current statute, Senate Bill 1254 clearly set forth a blanket proscription against all contracts, combinations, and conspiracies in restraint of trade or commerce).
The district court further noted the comments made by the chairman of the state bar’s antitrust law section:
"[T]he trust or conspiracy sections [of Michigan’s current antitrust law] do not appear to apply to the sale of services, only goods and commodities. Services have of course become vastly more significant in modern times. The catch-all general language in the provision of the 1899 act * * * may embrace services, but the other parts of that statute are expressly limited to goods as are the 1889 initial act and the 1905 machinery statute.” Alterman, Toward a New Michigan Antitrust Law, 55 Mich St Bar J 19, 22 (1976).
Finding that the statutory language did not cover the activity charged in the indictment and, alternatively, that the statute lacked the requisite clarity to support this criminal prosecution, the district court dismissed the indictment. We follow the lead of the circuit court and affirm the district court’s order of dismissal.
No Michigan case has addressed the issue of whether the fixing of prices for services was intended to be covered by MCL 750.558; MSA 28.826. In Hunt v Riverside Co-Operative Club, 140 Mich 538; 104 NW 40 (1905), the Wayne County prosecutor sought injunctive relief, under 1899 PA 255, against two plumbers’ associations — the Master Plumbers’ Exchange and the Riverside Co-Operative Club. The members of the association had agreed that the price of plumbers’ supplies would be fixed by a committee and that member plumbers would buy all of their supplies from wholesale members, who agreed to sell only to qualified master plumbers and to charge nonmembers more than members. The master plumbers agreed not to sell their labor or materials at prices below those fixed by the club’s schedule, and members of the exchange agreed that, in bidding for contract work, they would estimate materials and labor at specified levels. The Supreme Court affirmed the circuit court’s determination that a violation of the statute had been established.
The Attorney General argues that the district court’s order in the instant case is at odds with the Supreme Court’s decision in Hunt. Careful scrutiny of the Supreme Court’s opinion, however, reveals the Court’s exclusive concern with the effects of the defendants’ agreements on the price of plumbing supplies. The Court expressly declined to determine whether the statute prohibits con tracts fixing installation charges. Hunt v Riverside Co-Operative Club, supra, pp 546-547. Mere characterization of the plumbing industry as a "service industry” is not dispositive of the issue raised in the instant case.
Also cited by the Attorney General is Barrows v Grand Rapids Real Estate Board, 51 Mich App 75; 214 NW2d 532 (1974), app dis 392 Mich 752 (1974), a civil action for injunctive relief against restraint of trade and monopoly. MCL 445.701; MSA 28.31, MCL 445.762; MSA 28.62. The Barrows case was discussed in Alteraran, supra, 55 Mich St Bar J, p 22, fn 14.
"Barrows v Grand Rapids Real Estate Board, 51 Mich App 75 (1974), challenged an exclusion from a real estate multiple listing service under the catch-all language in the 1899 act and the general language of the conspiracy to monopolize section of the 1905 monopoly statute. The court found the restraint reasonable. It did not discuss whether services are embraced by the catchall provision of the 1899 act, perhaps because services are included in the monopoly conspiracy section of the 1905 act.”
In the above-mentioned speech, the assistant attorney general also mentioned the insufficient clarity of the Barrows decision as it related to the issue of the coverage of agreements to fix the price of services. In addition, we note that Barrows was a civil, not a criminal, proceeding.
Cases which discuss Michigan’s antimonopoly statute, MCL 445.762; MSA 28.62, are inapposite, since the language of that statute differs significantly from the language of MCL 750.558; MSA 28.826. For the same reason, cases discussing the federal antitrust law, the Sherman Act, 15 USC 1 et seq., are not helpful to resolution of the instant controversy. The narrow issue presented is construction of the language in the Michigan criminal statute.
The district court’s determination that only those activities described in § 5 of MCL 750.558; MSA 28.826 were intended to be proscribed finds support in the early Texas case of Queen Ins Co v State, 86 Tex 250; 24 SW 397 (1893). With a few significant additions, the language of the 1899 Michigan statute echoed the 1889 Texas act. The Texas court described the economic climate which had prompted many states to enact antitrust legislation and identified
"the causes of popular discontent, and the evils which the Legislatures of several states sought to remedy by direct statutory enactments upon the subject. They were combinations organized for the purpose of affecting the prices of articles of prime importance in commerce, or the rates of transportation and intercommunication. The evils resulting from these operations were doubtless paramount in the minds of our legislators when they passed the statute under consideration; and it was to repress these practices that the law was enacted. By 'the plain import of its language’ it makes unlawful all combinations to raise or depress the price of all articles of commerce whatever, or to increase or diminish the rates of transportation of such articles.” 86 Tex 266-267; 24 SW 402.
The Texas court analyzed the language of the statute as follows:
"It seems to us, therefore, that the words in the first subdivision of section 1 of the act 'to create or carry out restrictions in trade,’ were intended only as a general expression of the purpose of the law, and that the acts defined in the subsequent members of the section were intended as a specific definition of what was meant in the first.” 86 Tex 267; 24 SW 402.
The court concluded that the Texas statute was not intended to reach agreements fixing rates of insurance and insurance agents’ commissions.
In Michigan, the Legislature prefaced ¶ 5 of MCL 750.558; MSA 28.826, in both its present and original versions, with an express declaration of the prospective illegality of the activity described in that paragraph and reiterated that declaration at the conclusion of the original version of ¶ 5. (This latter declaration is now found in the body of ¶ 5.) It is reasonable to presume some intentionality in the insertion of this additional language. The task of the courts in interpreting the statute is to discern the intent of the Legislature at the time of passage of the statute. Detroit Edison Co v Dep’t of Revenue, 320 Mich 506, 519; 31 NW2d 809 (1948). It is reasonable to conclude that the Michigan Legislature in 1899 was concerned with remedying the evils of only those activities in ¶ 5 of MCL 750.558; MSA 28.826.
While the district court’s construction of the statute is persuasive, we affirm on the narrower ground of the statute’s unquestionable lack of the clarity required of criminal statutes. The language of MCL 750.558; MSA 28.826 does not clearly and obviously embrace the activities with which the defendants have been charged. While the Legislature’s intention may have been to prohibit all agreements which unreasonably restrain trade or commerce, the prefatory language of ¶ 5 provides strong support for a more restrictive interpretation of the statute. Similarly, while the statement in ¶ 5 that "Every such trust as is defined herein is declared to be unlawful, against public policy and void” may constitute a legislative declaration of the criminality of all combinations described in ¶¶ 1 through 5, ¶ 5’s prefatory language and the general structure of the statute indicate otherwise. It is equally reasonable to construe ¶¶ 1 through 4 as statements of definition, general description, and purpose.
We are constrained to resolve the doubtful state of the statutory language in defendants’ favor. People v Ellis, supra, p 161. The Attorney General has himself recognized the statute’s ambiguity and urged passage of new legislation to remedy its inadequacies. We agree with defendants that the Attorney General’s pursuit of this criminal prosecution has been less than admirable and we affirm dismissal of the indictment. It is, therefore, unnecessary to address the issues raised on cross-appeal.
Affirmed.
The original version of the statute was 1899 PA 255, which provided for both criminal and civil actions against restraint of trade. The current civil counterpart of MCL 750.558; MSA 28.826 is MCL 445.701 et seq.; MSA 28.31 et seq. The current criminal statute (MCL 750.558; MSA 28.826) is, for purposes of resolution of the instant controversy, identical to §§ 1, 4, 5, and 6 of 1899 PA 255.
See also Michigan Ass’n of Psychotherapy Clinics v Blue Cross and Blue Shield of Michigan (After Remand), 118 Mich App 505; 325 NW2d 471 (1982). | [
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M. R. Knoblock, J.
This is an appeal from a circuit court order reversing a Michigan Employ ment Security Commission (MESC) board of review decision disallowing certain unemployment compensation benefits to appellee under the provisions of the Michigan Employment Security Act (MESA), MCL 421.1 et seq.; MSA 17.501 et seq. Appellant MESC appeals as of right.
The facts underlying this controversy are largely undisputed. Appellee George Robinson was employed for eight years at the Young Men’s Christian Association (YMCA) in Bay City, Michigan. He resigned effective March 31, 1976, to accept permanent full-time employment at the YMCA in Muncie, Indiana. He commenced his employment at the Muncie YMCA on April 1, 1976, but was discharged on June 30, 1976, for unsatisfactory job performance.
Appellee returned to Michigan and applied for unemployment compensation. The MESC determined that, since appellee had resigned from the Bay City YMCA to accept employment not covered by the MESA, he was disqualified under § 29(l)(a) of the act until he had served the 13-week requalification period as prescribed by § 29(3). This holding was affirmed by the MESC in a redetermination decision on September 14, 1976. The redetermination was appealed to a MESC referee who held that § 29(5) removed the disqualification, thereby entitling appellee to benefits without the need of requalification. This decision was initially affirmed by the MESC board of review but, upon rehearing, the board of review reversed its earlier holding and determined appellee to be disqualified. This determination was, in turn, appealed to the Bay County Circuit Court which, in an oral opinion, reversed the board of review, holding that § 29(5) applied irrespective of the fact that the Indiana employment was not subject to the juris diction of the MESC. The circuit court appeared to base its decision on a finding that construing § 29(5) to be inapplicable to claimants who quit to accept out-of-state employment not covered by the MESA would result in an infringement of appellee’s constitutional right to travel.
On appeal from a decision of the board of review, a reviewing court can reverse only if the order or decision is contrary to law or is unsupported by competent, material and substantial evidence on the record. Chrysler Corp v Sellers, 105 Mich App 715; 307 NW2d 708 (1981). Since there is no dispute as to the underlying facts relative to the issues raised in this appeal, the questions presented are to be treated as matters of law. Laya v Cebar Construction Co, 101 Mich App 26; 300 NW2d 439 (1980).
Our determination in this case necessitates interpretation of § 29 of the act, MCL 421.29(5); MSA 17.531(5) (the so-called quit-to-accept provision), which states:
"(5) If an individual leaves work to accept permanent full-time work with another employer, and performs services for that employer, or to accept a recall from a former employer, the disqualification provisions of subsection (1) shall not apply to that leaving; but the wages earned with the employer that the individual last left, including wages previously transferred under this provision to the last employer, shall, for the purpose of computing and charging benefits, be considered wages earned from the employer with whom the individual accepted work or recall, and benefits paid based upon those wages shall be charged to that employer. When issuing a determination covering that period of employment, the commission shall advise the chargeable employer of the name and address of the other employer, the period covered by the employment, and the extent of the benefits which may be charged to the account of the chargeable employer.”
Appellant MESC asserts this provision is inapplicable to the facts of this case because appellee left to accept employment out of state which is not subject to the jurisdiction of the MESA and, therefore, the MESC is without power to "charge” the out-of-state employer for benefits paid. In that regard, appellant would have us construe the phrase "to accept permanent full-time work with another employer” to refer only to employment subject to the MESA. We agree.
In Merren v Employment Security Comm, 3 Mich App 383; 142 NW2d 493 (1966), a panel of this Court unanimously held that the word "employer” in the phrase in question referred only to Michigan employers. This interpretation was affirmed by an equally divided Supreme Court. Merren v Employment Security Comm, 380 Mich 240; 156 NW2d 524 (1968). Though the holding of an equally divided Supreme Court is of dubious precedential value, the doctrine of stare decisis and our reading of the MESA compels us to reach the same conclusion.
Section 39 of the act states:
"As used in this act, unless the context clearly requires otherwise, the terms defined in this act shall be construed to have the meaning as prescribed and set forth in the several definitions.” MCL 421.39; MSA 17.541.
Sections 40 and 41, which define employing unit and employer, respectively, clearly state that the word "employer” means an entity having "in its employ 1 or more individuals performing services for it within this state”. MCL 421.40; MSA 17.542. Clearly the term employer as used in the act does not include out-of-state employers. Finally we note that, had the Legislature disagreed with the courts’ construction of this section in Merren, it could have revised the language of § 40 in its 1971 and 1977 Amendments. This it did not do.
We also agree with appellant’s assertion that the board of review’s construction of § 29(5) does not impinge upon appellee’s constitutional right to interstate travel. We find appellee’s reliance on Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969), and Memorial Hospital v Maricopa County, 415 US 250; 94 S Ct 1076; 39 L Ed 2d 306 (1974), inapposite. Both cases involved unconstitutional infringement of the right of classes of residents to equal protection of the law based on durational residency requirements. No such impermissible distinctions are made here. For the same reason, we find without merit appellee’s claim that this construction of the statute renders it unconstitutional as a denial of equal protection of the laws.
The decision of the circuit court is reversed and the holding of the MESC board of review on rehearing is reinstated. No costs, a public question. | [
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Per Curiam.
Plaintiffs appeal as of right the trial court’s denial of their motion for a new trial on the issue of damages or, alternatively, additur.
This case presents the following question: Where the plaintiffs present uncontroverted evidence of medical expenses and lost wages totaling $22,914.82, does a jury award of only $23,600 shock the judicial conscience?
Plaintiff Jerry Gregoricka was injured by a falling tree limb while playing golf during a windstorm on defendants’ golf course. Mr. Gregoricka suffered a ripped and torn bronchus, which required major reparatory surgery and 13 subsequent hospitalizations. He also suffered a fractured mandible, which was treated by a procedure requiring his jaw to be wired shut. Mr. Gregoricka faces the possibility of repreated hospitalizations, a continued shortness of breath, and increased risk of infection in his left lung. He spent ten days in intensive care after the accident.
This incident prompted Mr. Gregoricka and his wife, plaintiff Ann Gregoricka, to file a negligence suit against the defendants, alleging that they had failed to maintain their golf course in a reasonably safe condition. Mr. Gregoricka sought damages for medical expenses, lost wages, and pain and suffering; his wife requested damages for loss of consor tium. Plaintiffs presented evidence of out-of-pocket expenses totaling $22,914.82. The jury found the defendants 100% negligent but awarded Mr. Gregoricka only $23,600, and didn’t give Ann Gregoricka a cent. Plaintiffs unsuccessfully moved for a partial new trial on the damages issue and now appeal as of right.
GCR 1963, 527.1 provides:
"A new trial may be granted to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected, for any of the following causes:
"(4) A verdict which is clearly or grossly inadequate or excessive;
"(5) That the verdict or decision is against the great weight of the evidence, or is contrary to law.”
Because the question of damages is generally a factual determination, a partial new trial or additur are only appropriate where a verdict is so clearly or grossly inadequate and so contrary to the great weight of the evidence as to shock the judicial conscience. Hill v Henderson, 107 Mich App 551, 553; 309 NW2d 663 (1981). This determination is left to the discretion of the trial court and will not be reversed on appeal absent a palpable abuse. Moore v Spangler, 401 Mich 360, 372; 258 NW2d 34 (1977).
It is well settled that a jury verdict which is less than the uncontroverted out-of-pocket expenses is inadequate and must be overturned. Moore v Spangler, supra, p 372. In the instant case, however, the jury awarded Mr. Gregoricka more than his uncontroverted out-of-pocket expenses. We must therefore determine whether, in light of the evidence presented at trial, an award of $685.18 for all of the other damages Mr. Gregoricka sustained shocks the judicial conscience.
We find resolution of this issue very troubling. We are quite sure that if we had been members of the jury that found the defendants negligent we would have voted to return a considerably larger verdict. We find ourselves restrained, however, by the necessary limitations on judicial review of jury verdicts, as outlined in Moore v Spangler, supra. Our standard of review requires us to sustain jury verdicts that are inadequate, but not grossly so. This may seem a harsh result. Yet this standard of review is not intended to encourage small jury awards. For the same narrow standard applies where the jury verdict under review is allegedly excessive. See Stowers v Wolodzko, 386 Mich 119, 141-142; 191 NW2d 355 (1971). In either case, an appellate court may disturb the damage award only if it shocks the judicial conscience.
We are convinced that, although the jury award in this case seems inadequate, it is not grossly inadequate in light of the conflicting testimony on the critical damages issues.
The jury was presented with evidence that Mr. Gregoricka spent 10 days in intensive care, had his jaw wired shut to repair a broken mandible, endured major surgery to repair a torn bronchus, and underwent 13 subsequent preventative hospitalizations. The jury was also told that Mr. Gregoricka faced the possibility of future hospitalizations, continued shortness of breath, and increased risk of infection. On the other hand, the jury observed Mr. Gregoricka testifying about playing basketball, racketball, and softball after the accident, working 50-60 hours per week, and taking night classes. The jury was also exposed to testimony to the effect that he was leading a relatively normal life.
We simply find ourselves unable to conclude that the jury verdict in the instant case was so clearly or grossly inadequate and so contrary to the great weight of evidence pertaining to damages sustained by plaintiff as to shock the judicial conscience. We observe that the plaintiffs have not alleged that the jury award was influenced by the employment of improper methods by defense counsel. According to Teller v George, 361 Mich 118, 121; 104 NW2d 918 (1960), "In the absence of a clear showing of an improper verdict the [Supreme] Court has been loath to interfere with the judgment of a jury.” We perceive no significant modification of this position in the intervening years. As the Supreme Court noted recently:
"In reviewing damage awards in cases tried to juries, this Court has asked whether the award shocks the judicial conscience, appears unsupported by the proofs, or seems to be the product of improper methods, passion, caprice, or prejudice; if the amount awarded falls reasonably within the range of the evidence and within the limits of what reasonable minds would deem just compensation for the injury sustained, the verdict has not been disturbed.” Precopio v Detroit, 415 Mich 457, 465; 330 NW2d 802 (1982).
Accordingly, under the circumstances of this case, we hold that the trial court did not abuse its discretion in denying plaintiffs’ motion for a partial new trial.
Affirmed. Defendant may tax costs. | [
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Per Curiam.
Plaintiffs appeal as of right from the trial court’s order granting accelerated judgment to defendant Detroit Automobile Inter-Insurance Exchange (DAIIE).
Vida Kransz was injured in an automobile accident on September 6, 1976. On October 4, 1976, she submitted a written claim for personal injury protection benefits to her insurer, DAIIE. Thereafter, DAIIE made payments on the claim, the last payment occurring on March 17, 1977.
On April 27, 1978, Vida Kransz submitted additional medical bills to defendant DAIIE for payment. DAIIE formally refused payment of the bills on April 11, 1979. On September 4, 1979, Vida Kransz and her husband, Robert Kransz, instituted this action against DAIIE and the other driver involved in the accident. Plaintiffs’ answers to DAIIE’s interrogatories state that Vida Kransz continues to receive medical treatment as a result of the accident.
The trial court, relying on Dozier v State Farm Mutual Automobile Ins Co, 95 Mich App 121; 290 NW2d 408 (1980), lv den 409 Mich 911 (1980), and Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978), lv den 406 Mich 868 (1979), granted accelerated judgment against the plaintiffs on the motion of defendant DAIIE. The court ruled that MCL 500.3145(1); MSA 24.13145(1) created a one-year period of limitation which, by the giving of notice, could be extended for an additional one year. The court held that, in the instant case, plaintiffs were required to commence the suit not later than September 6, 1978, plaintiffs being entitled to the additional one-year period of time. The court concluded that, since the complaint was not filed until September 4, 1979, the claim against defendant DAIIE was barred.
The question on appeal is whether the trial court correctly interpreted § 3145(1) and correctly applied that statute to the facts of the instant case.
MCL 500.3145(1); MSA 24.13145(1) provides in pertinent part:
"An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.”
This Court in Dozier, supra, p 126, stated that "it is clear beyond peradventure that this section is a one-year statute of limitations, with a provision enabling claimants to extend the period for recovery of personal protection insurance benefits up to one additional year by giving notice”. The rule in Dozier would require that the suit be brought, at the latest, within two years after the accident occurs. This interpretation finds no support in the statute and has been rejected by recent panels of this Court. We agree with the following interpretation stated in Allstate Ins Co v Frankenmuth Mutual Ins Co, 111 Mich App 617, 621; 314 NW2d 711 (1981):
"Extending the period of recovery up to one additional year by giving notice cannot be construed as extending the period for one contiguous year after giving notice. The language of the statute is clear and unambiguous. If notice has been given, an action may be commenced at any time within one year of the most recent allowable expense. However, that action cannot be used to recover for all previous expenses, rather it can be used to recover only those expenses incurred within one year prior to the commencement of the action.”
We must now determine when the permissible period of recovery begins to run. Under the plain language of the statute, recovery is limited to the expenses incurred within one year prior to the date suit was commenced. The statute makes no provision for tolling the period of limitation during the time while the insurer assesses the claim and makes a determination of its liability. As a result, the statute could reward insurance companies which do not act promptly on claims submitted to them.
In response to the problem, this Court in Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1979), held that the period of limitation is tolled from the date a claimant gives notice of loss until the date on which the insurance company formally denies liability.
The Court-imposed tolling period in Richards finds no support in the statute. Section 3145(1) is clear and unambiguous and is not subject to interpretation by the Court. We are in agreement with the more recent decisions from panels of this Court which have rejected the Richards analysis in favor of a literal reading of § 3145(1). Aldrich v Auto-Owners Ins Co, 106 Mich App 83; 307 NW2d 736 (1981); Allstate Ins Co v Frankenmuth Mutual Ins Co, supra; English v The Home Ins Co, 112 Mich App 468; 316 NW2d 463 (1982). See, also, Wolar v State Farm Mutual Automobile Ins Co, 111 Mich App 152; 314 NW2d 460 (1981).
The Supreme Court’s recent decision in Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22; 319 NW2d 320 (1982), does not alter our analysis of this issue. In Ford Motor Co, the Court interpreted a statutory standard form fire insurance policy which required that an action to recover benefits be commenced within 12 months following the inception of the loss. See MCL 500.2832; MSA 24.12832. As required by the statute, the insurance policy also contained proof-of-loss and payment clauses. The proof-of-loss provision required the claimant to submit a written proof of loss within 60 days after the loss occurred. The payment clause provided that the benefits for which the insurance company was liable were payable 60 days after the proof of loss was received by the company.
The Court found an inconsistency between the proof-of-loss and payment provisions and the limitations clause. Relying on The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976), the Court reconciled the inconsistency by permitting the 12-month limitation period to be tolled in order to allow the insured one full year in which to institute suit.
We believe Ford Motor Co is clearly distinguish able from the instant case. First, that case involved an interpretation of a standard form fire insurance policy rather than a provision of the automobile no-fault insurance law. Second, the period of limitation provision at issue in Ford Motor Co imposed an absolute bar on the commencement of suit more than 12 months following the loss. In contrast, § 3145(1) provides that upon the giving of timely notice, an action for PIP benefits may be commenced anytime within one year after the most recent allowable expense is incurred, but recovery is limited to losses incurred within one year immediately prior to commencement of the suit. Finally, and most importantly, the tolling provision in Ford Motor Co was based on a perceived inconsistency between the limitation provision and other provisions of the standard form policy which acted to shorten the 12-month period of limitation. The automobile no-fault insurance act contains no comparable provisions which would impair the insured’s legal ability to file suit for benefits under §3145(1). Cf. MCL 500.3142; MSA 24.13142.
In accord with Aldrich v Auto-Owners Ins Co, supra; Allstate Ins Co v Frankenmuth Mutual Ins Co, supra, and English v The Home Ins Co, supra, we hold that, where the insurance company is notified within one year of the claim, the claimant may bring an action for recovery of benefits at any time within one year after the most recent allowable expense was incurred but may not collect benefits for any expenses incurred more than one year prior to the date that suit was commenced.
Accordingly, the trial court erred in granting the entire relief requested by DAIIE in its motion for accelerated judgment. By notifying DAIIE of the accident, plaintiffs became eligible to file suit later than one year after the accident. Section 3145(1) bars plaintiffs from recovering personal injury protection benefits for expenses incurred more than one year prior to commencement of the suit on September 4, 1979. Thus, accelerated judgment should have been granted only with respect to those expenses incurred prior to September 4, 1978.
Affirmed in part; reversed in part. No costs. | [
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Quinn, P. J.
November 1, 1973, Norvil J. Raines was treated at defendant’s Hurley Hospital for a lacerated wrist received in an accident with a glass door. Particles of glass in the wound were not discovered and removed, which required further treatment and surgery.
May 14, 1974, plaintiffs filed their complaint in two counts, one of negligence and one of breach of contract. November 15, 1974, defendant moved for accelerated judgment on the basis of governmental immunity: The trial court held decision on the motion in abeyance pending decision by the Supreme Court on the constitutionality of governmental immunity. April 11, 1977, the trial court granted accelerated judgment and plaintiffs filed this appeal thereafter.
Governmental immunity is provided by MCLA 691.1407; MSA 3.996(107). We recognize that the doctrine has been and remains under attack and that its viability remains uncertain. However, it is not for us to attempt to forecast the ultimate resolution of the question. We are bound by existing precedent which sustains the grant of accelerated judgment on the negligence count, Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950).
Count II of plaintiffs’ complaint alleges:
"17. That, at the times alleged herein, when Plaintiff sought medical care with Defendant, said parties entered into a contract, the terms of which required the Defendant, for a pecuniary consideration, to examine, diagnose and treat the Plaintiff in an ordinarily skillful manner.
"18. That the Defendant failed to furnish the services required by the agreement.”
Count I of plaintiffs’ complaint alleges:
"14. That the Defendant hospital owed a duty to this Plaintiff to hire competent medical personnel and to properly train and supervise said personnel and, further, owed a duty, through its medical personnel to render to the Plaintiff skilled and expert medical care no less than that degree of skill and expertise that was commensurate with the standard of care existing in the community.
"15. That the Defendant did utterly fail to fulfill said duties and did, more specifically, fail to exercise that standard of care with respect to the examination, diagnosis and treatment of the Plaintiff which it was duty bound to render; and, failing to do so, neglected to discover, as it should have, the glass in the Plaintiff’s arm which led to the further disability of the Plaintiff.”
It is apparent that whether the action is negligence or contract, the claimed liability rests on the alleged failure of medical personnel to exercise due care. Under the reasoning of Howell v Outer Drive Hospital, 66 Mich App 142; 238 NW2d 553 (1975), Count II is redundant and does not qualify as an exception to the doctrine of governmental immunity.
Affirmed with costs to defendant. | [
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Beasley, P. J.
On August 9,1971, during construction of additional sites at a Sandusky trailer park, plaintiffs decedent, a courageous, 70-year-old retiree, was crushed to death when the wall of a trench, in which he was attaching a sewer pipe to an existing septic tank, collapsed.
Plaintiff seeks damages for wrongful death from defendant, the excavator who dug the trench which was more than nine feet deep, on the theory that defendant was an independent contractor and that he negligently failed to slope and shore the walls of the trench as required under accepted safety standards. Plaintiffs decedent, who resided in the trailer park, was employed on a part-time basis by the owner of the trailer park.
Defendant denied liability claiming that, as a co-employee of the trailer park owner, he was immune from liability to plaintiff by virtue of the provisions of the workmen’s compensation statute, and that, even if not immune, he was not negligent and that plaintiffs decedent was guilty of contributory negligence.
On November 10, 1972, shortly after suit was commenced, defendant moved for summary judgment, again claiming that he, defendant, was an employee of and under the control of the owner of the trailer park who acted through an "on-site” supervising manager, that he was hired to do some excavating on an hourly rate, that he was not and could not be liable for damages arising from the death of plaintiffs decedent because the provisions of the workmen’s compensation law precluded it, and that plaintiff should look to his employer for workmen’s compensation benefits.
Plaintiff answered defendant’s motion by claiming there were issues of fact which could not be decided by the trial judge, but which would have to go to the jury. Plaintiff filed a memorandum brief, in which the conclusion is:
"Inasmuch as there is a conflict in the evidence, as indicated by the affidavit and depositions and inasmuch as the conflict presents a question of fact for the jury, the issue of whether or not the arrangement between the Billot Excavating Company and Thomas Boyle was that of employer-employee, or of an independent contractor, cannot be determined by the Court on the Motion for Summary Judgment, and the Motion for Summary Judgment must, therefore, be denied.” (Emphasis added.) Plaintiff’s brief, dated January 2, 1974.
Eventually, on January 15, 1974, the then trial judge held with plaintiff and denied defendant’s motion for summary judgment, holding the issue of whether defendant was an independent contractor or an employee of the trailer park owner was one of fact, depending upon the degree of control that the manager of the trailer park exercised over defendant and, therefore, was for a jury and not a judge.
Subsequently, after completion of discovery and pre-trial conference, defendant filed another mo tion for summary judgment, which was also denied.
In a three-day trial in March, 1976, a jury received all the issues, including the independent contractor-co-employee one, and found no cause of action in favor of defendant.
On appeal, plaintiff raises various issues, the first of which is that it was error to deny plaintiff’s motion to strike defendant’s affirmative defense that plaintiffs claim was barred under the workmen’s compensation act because plaintiff’s decedent and defendant were co-employees of the trailer park owner.
Plaintiffs motion was made after all the proofs were in and both sides had rested. The motion rested upon the following assumptions:
1) that there were no issues of fact,
2) that the question was one of law for the judge to decide, and
3) that the "economic reality” test rather than the "control” test, was the correct measure to be applied in deciding the motion.
Defendant denied each assumption.
At this point, with respect to the first two assumptions, both sides had switched from their earlier positions taken in connection with defendant’s first motion for summary judgment.
Thus, on appeal, plaintiff takes an inconsistent position to that which he urged upon the trial court prior to trial. It can be argued that plaintiff has waived his alleged right to have the trial judge decide whether defendant was an employee of the trailer park owner by urging the trial judge to submit this question to the jury in his above quoted memorandum brief in response to defendant’s motion for summary judgment. It can also be argued that by waiting until all the proofs were introduced before switching positions and moving the trial judge to rule as a matter of law that defendant was such an employee and, thus, to strike that affirmative defense, that plaintiff waived his right by delaying too long.
However, apart from this matter of possible waiver, were there issues of fact to be decided preliminary to disposition of the question of whether defendant was an employee of the trailer park owner? Some indication that there were such issues is the fact that plaintiff and defendant adopt diametrically different versions of the alleged facts. For example, plaintiff claims that defendant was an independent contractor who had a duty to comply with the statutory safety standards, while defendant claims that the trailer park manager exercised complete control over both plaintiff’s decedent and defendant, including where the trench would be located, how defendant would dig, i.e., size of bucket, and the depth, size and width of the trench. Often such questions are mixed questions of law and fact. Here the record supports a finding that there were issues of fact. Therefore, we decline to find error in the trial judge’s conclusion that there were issues of fact involved in deciding whether defendant was an employee of the trailer park owner and that the mixed questions of law and fact could be submitted to the jury under proper instructions.
The next issue has to do with whether to apply the "control” test or the "economic reality” test in instructing the jury as to the correct measure for deciding whether defendant was an employee of the trailer park owner or an independent contractor. In Michigan tort cases, the traditional test for deciding whether an employer-employee relationship or an employer-independent contractor relationship existed in a particular situation is the extent of the employer’s right to control whether exercised or not.
Since 1959 in Michigan workmen’s compensation cases, the test of whether an employer-employee relationship exists is that of economic reality. This test includes some eight factors or guides, one of which is control.
By way of affirmative defense, defendant claims to be an employee of the trailer park owner under control of the on-the-job manager. Defendant claims that since this is a tort case, the control test applies. He concludes he is immune from claim by plaintiff under the co-employee exclusion of the workmen’s compensation statute.
Plaintiff says the trial court erred in looking to the control test. It is plaintiff’s position that since defendant seeks to avail himself of the protection of the workmen’s compensation statute, the economic reality test must and does apply.
We do not believe that the control test has been overruled and replaced in tort cases. This is a tort case. The mere fact that defendant seeks to avail himself of the co-employee immunity from suit provision of the workmen’s compensation statute does not mean that the economic reality test, whose purpose is to extend workmen’s compensation benefits to greater numbers, must be applied. Consequently, we decline to find error in the refusal to apply the economic reality test.
Plaintiff also challenges the jury instructions. Taken as a whole, the trial court’s instruction to the jury was not reversibly erroneous. There was sufficient evidence to justify instructing the jury regarding the possible contributory negligence of plaintiff’s decedent.
Plaintiff’s other claims of error are without merit.
Affirmed, with costs.
J. R. McDonald, J., concurred.
Plaiiitiif successfully claimed workmen’s compensation benefits for wrongful death from his employer who owned the trailer park and who had compensated plaintiffs decedent for work done by him by applying his wages against rent for space in the trailer park.
Now known as Worker’s Disability Compensation Act; see, MCLA 418.161(1) and 418.827(1); MSA 17.237(161X1) and 17.237(827X1).
The on-site supervising manager was the previous owner of the trailer park.
We point out that while a person may ordinarily hold himself out as an independent contractor, he may be an employee under all the circumstances of a particular job.
Bonin v Gralewicz, 378 Mich 521; 146 NW2d 647 (1966), Ray v Transamerica Insurance Co, 46 Mich App 647; 208 NW2d 610 (1973).
Dennis v Sinclair Lumber & Fuel Co, 242 Mich 89; 218 NW 781 (1928), Gall v Detroit Journal Co, 191 Mich 405; 158 NW 36 (1916),
Tata v Muskovitz, 354 Mich 695, 699; 94 NW2d 71 (1959):
"It is time now to complete the cycle of departure from and return to all of the measures by which, under the clear weight of authority in this country, the relationship of employer and employee is rightfully identified for compensatory purposes. I move, then, with sight aimed at definite settlement of the steadily recurring question the parties — in the light of the quoted and adopted finding of facts — have stated and counterstated, that we now establish Mr. Justice Smith’s dissenting opinion in Powell v Employment Security Commission, 345 Mich 455, 462 [75 NW2d 874 (1956)], as proper guide to relevant interpretation of the workmen’s compensation law.” (Emphasis in original.)
McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972), Powell v Employment Security Commission, supra, dissenting opinion cited in Tata, supra.
Sliter v Cobb, 388 Mich 202; 200 NW2d 67 (1972), reversing 36 Mich App 471; 194 NW2d 75 (1971).
Sliter v Cobb, supra; the Supreme Court did not overrule that part of the Court of Appeals decision which declined to replace the control test with the economic reality test in tort cases.
Funk v General Motors Corp, 392 Mich 91, 113; 220 NW2d 641 (1974). | [
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Per Curiam.
Defendant Michigan Property and Casualty Guaranty Association (hereafter, "the Association”) appeals an adverse summary judgment issued by the Ingham Circuit Court which held the Association liable for "covered claims” made against three "insolvent insurer[s]” (Consolidated Underwriters, Inc., St. Louis Fire and Marine Insurance Company and Medallion Insurance Company) under the property and casualty guaranty association act (hereafter, "the act”), MCLA 500.7901 et seq.; MSA 24.17901 et seq., and which permanently enjoined the Association from denying liability under the act.
In his complaint, the Attorney General, relying upon the act, charged the Association with liability for the payment of no less than 45 claims made by Michigan residents against three named "insolvent insurers”. The complaint further alleged that the named insurers were member insurers at the time of the Association’s inception and that the Michigan Insurance Commissioner had been appointed as the ancillary receiver for the surviving entities of the foregoing insurers in 1976.
Denying liability, the Association responded that the named insurers were neither "member insurers” nor "insolvent insurers” within the meaning of the act since they were not authorized to transact business in Michigan at the time the ancillary receiver had been appointed.
The record below (consisting of the pleadings, appendices and requests for admissions) reveals that the named insurers were once authorized to transact insurance business in Michigan; according to defendant, however, the Insurance Commissioner effectively terminated these certificates in the latter part of 1972. Hence, as noted, the surviving insurers did not possess subsisting certificates of authority upon the receiver’s appointment in 1976.
Pointing to various sections of the act, to its legislative history and to other provisions of the Insurance Code, the Association maintains that it must pay only the covered claims of insolvent insurers who are member insurers, that is, insurers who are authorized insurers for which a receiver has been appointed.
As this Court recently noted in Metry, Metry, Sanom & Ashare v Michigan Property & Casualty Guaranty Association, 79 Mich App 226, 227; 261 NW2d 267 (1977), the act is remedial legislation designed to protect Michigan "insureds and parties injured by insureds” against the "covered [but typically uncollectible] claims” of statutorily defined "insolvent insurers”.
In pertinent part, the act provides:
"To implement the provisions of this chapter, there shall be maintained within this state, by all insurers authorized to transact in this state any of the kinds of insurance specified in section 7925, but including the accident fund created by section 701 of Act No. 317 of the Public Acts of 1969, being section 418.701 of the Compiled Laws of 1948, an association of such insurers to be known as the property and casualty guaranty association, hereafter referred to as the 'association’. Every such insurer shall be a member of the association, as a condition of its authority to continue to transact insurance in this state.” MCLA 500.7911; MSA 24.17911.
"As used in this chápter:
"(a) 'Member insurer’ means an insurer required to be a member of the association in accordance with the provisions of section 7911.
"(b) 'Insolvent insurer’ means a member insurer for which a domiciliary or ancillary receiver has been appointed in this state after the effective date of this chapter.” MCLA 500.7921; MSA 24.17921.
In addition, the act envisages the imposition of assessments against the Association’s members "[t]o the extent necessary to secure funds for the association for payment of covered claims and also for payment of reasonable costs of administering the association”. MCLA 500.7941; MSA 24.17941.
As polestars for our decision, we shall employ certain settled principles of statutory construction. In Commissioner of Insurance v American Life Insurance Co, 290 Mich 33, 43; 287 NW 368 (1939), the Supreme Court recognized that the insurance business is one affected with a public interest. For this reason, the Court said, laws applicable to insurance are to be "liberally construed in favor of policyholders, creditors and the public”. It added:
"In Attorney General, ex rel. Common Council of the City of Detroit, v. Marx, 203 Mich. 331 [168 NW 1005 (1918)], we quoted the following from 2 Lewis’ Sutherland Statutory Construction (2d Ed.), § 490:
"' "Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience and to oppose all prejudice to public interests.” ’
"In Sibley v. Smith (syllabus), 2 Mich. 486 [(1853)], and again in Detroit Common Council v. Engel, 207 Mich 106 [173 NW 547 (1919)], we said:
" 'In construing statutes of doubtful meaning, courts are authorized to collect the intention of the legislature from the occasion and necessity of the law — from the mischief felt, and the objects and remedy in view — and the intention is to be taken, or presumed, according to what is consonant to reason and good discretion.’ ” Id. at 44-45.
Accord: Dearborn National Insurance Co v Commissioner of Insurance, 329 Mich 107; 44 NW2d 892 (1950), and Attorney General, ex rel Commissioner of Insurance v Michigan Surety Co, 364 Mich 299; 110 NW2d 677 (1961). See also State Farm Mutual Automobile Insurance Co v Kurylowicz, 67 Mich App 568, 578; 242 NW2d 530 (1976).
A statutory provision is to be given a reasonable construction looking to its purpose and the object it seeks to accomplish. It is to be considered with other sections appearing in the same act and interpreted so as to produce, with them, a total enactment that is harmonious and consistent. Royal Oak School District v Schulman, 68 Mich App 589, 593; 243 NW2d 673 (1976), Scholten v Rhoades, 67 Mich App 736, 745-746; 242 NW2d 509 (1976). Further, as this Court noted in Scholten:
"[W]here a statutory provision is clear and unambiguous, it is the court’s duty to enforce the provision as written. Ypsilanti Police Officers Association v Eastern Michigan University, 62 Mich App 87, 92-93; 233 NW2d 497 (1975). But a statute which is clear and unambiguous is nonetheless not to be given a construction which is absurd.” Id. at 744-745.
In the present suit, defendant cites in support of its interpretation the Insurance Code’s definition of " 'authorized’ insurer”, MCLA 500.108; MSA 24.1108, which, to be sure, requires possession of "a subsisting certificate of authority issued by the commissioner”. Defendant also takes note of MCLA 500.7833; MSA 24.17833, a provision (enacted contemporaneously with the act) which requires an appointed receiver "for any authorized insurer” to give prompt "notice of his appointment and a brief description of the contents of the property and casualty guaranty association act, if applicable” to specified parties by first class mail. Lastly, defendant apprises us of the act’s legislative history, namely, the rejection of original House Bill No. 3699 which would have required "[a]ll insurers licensed to write casualty, property and workmen’s compensation insurance * * * [to] assume all of the obligations * * * of any casualty, property or workmen’s compensation insurer which has been declared insolvent * * * (Emphasis supplied.) Thus, the Association asserts, the more restrictive language of the act as ultimately promulgated, requiring the Association’s payment solely of covered claims of insolvent, member insurers, evinces a legislative intent to satisfy the obligations of only those insolvent insurers which are authorized to transact business at the time of the receiver’s appointment.
The Association neglects, however, to note the concluding phrase of the provision defining "insolvent insurer”, and a pertinent portion of the definition of "covered claims”:
"(b) 'Insolvent insurer’ means a member insurer for which a domiciliary or ancillary receiver has been appointed in this state after the effective date of this chapter.” MCLA 500.7921(b); MSA 24.17921(b). (Emphasis added.)
"(1) 'Covered claims’ means obligations of an insolvent insurer which * * * (iv) were incurred or existed prior to, on, or within 30 days after the date the receiver was appointed." MCLA 500.7925(l)(iv); MSA 24.17925(l)(iv). (Emphasis added.)
Guided by our duty liberally to construe insurance laws "in favor of policyholders, creditors and the public”, Commissioner of Insurance v American Life Insurance Co, supra, we read the last cited provisions, taken together, to suggest that the significant temporal reference, for purposes of the present issue, is the effective date of the act. In other words, if, after the act’s inception, an insurer had ever been authorized to transact insurance business in Michigan and subsequently had a receiver appointed for it, the Association’s duty to pay covered claims (incurred or existing prior to, on, or within 30 days after the receiver’s appoint ment) is thus invoked. Hence, that such an insurer may have been stripped of its authority to transact business prior to the receiver’s appointment is of no moment.
As the Attorney General correctly notes, the Association’s contention, if applied, would have an enervating effect on the act: It would place the Commissioner in the untenable position of refraining from the use of his power to revoke a certificate of authority, see MCLA 500.434; MSA 24.1434, repealed by 1972 PA 360 and replaced by an expanded section, MCLA 500.436; MSA 24.1436, for fear that such revocation would relieve the Association of its obligation to pay covered claims and would thereby relegate the act’s intended beneficiaries to the status of general creditors of an insolvent insurer. Further, this enforced timidity on the part of the Commissioner would enhance the prospect that unsuspecting persons might purchase insurance, from an authorized but financially troubled insurer, only to learn on the insurer’s later insolvency that their claims, for all practical purposes, are uncollectible.
With regard to the act’s legislative history, we have noted in another context that it does not readily disclose the reason inspiring the changes in wording from the predecessor version to the act as promulgated. See Metry, supra, at 231. While defendant characterizes the changes as supportive of its contention, we agree with the Attorney General in reading the legislative changes as an attempt to exempt the Association from liability for claims of "surplus lines” insurers, that is, unauthorized, out-of-state insurers permitted to write policies for Michigan residents who are unable to obtain suitable coverage at reasonable rates from Michigan-authorized insurers. See MCLA 500.1840 et seq.; MSA 24.11840 et seq.
In our view, the argument advanced by the Attorney General is compelling:
"The * * * [Association] has attempted to create a third class of insurance company. That third class is a member insurer which has lost its certificate of authority at the time of the insolvency proceedings. Clearly, there is no excuse, other than saving money, for the insurance industry’s attempt to evade indemnifying policyholders and third party beneficiaries of a member insurer which is without a certificate of authority at the time of insolvency. There is no rational reason for differentiating between member insurers on the basis of whether they possess a certificate of authority at the time of the insolvency proceedings. The only rational determination of member insurer status is at the time that the insurance policy was issued.
" * * * The Michigan citizens who purchased their policies from companies which were licensed at * * * [that] time * * * should not lose their right to collect from the fund due to the regulatory activity of the Insurance Commissioner * * * . The rights of the policyholder and third party beneficiaries accrue at the time that the policy is purchased and their right to collect their claims from the guaranty fund is not diminished by actions taken by others outside their immediate control.
"The interpretation proposed by the * * * [Association] benefits the * * * [Association] to the detriment of all policyholders in the State of Michigan, because they can never know that the fund will be liable to pay a claim on their behalf in the event their company becomes insolvent. There was no intention on the part of the legislature to create this uncertainty. Instead, it was the intention of the legislature to remove for all time the risk of insolvency from the shoulders of the policyholders and third party beneficiaries. It is equally clear that the legislature did not set up three categories of insolvent insurers: members, surplus lines and members who no longer hold certificates. The legislature intended to create but two categories: member insurers and surplus lines companies that were not licensed to do business in Michigan at the time that the obligation to the policyholders and third party beneficiaries accrued.”
Accordingly, the lower court is affirmed.
No costs, a public question having been resolved.
MCLA 500.7941; MSA 24.17941 further provides that such "assessments shall be recognized in the rate-making procedures for insurance rates in the same manner that expenses and premium taxes are recognized.”
To the . extent it is impossible to harmonize our interpretation of the act with the notice requirements of MCLA 500.7833; MSA 24.17833, we believe the more salutary course is to preserve the act’s remedial design (viz., protecting an insolvent insurer’s policyholders and injured third-party claimants) and allow the instant decision to inform appointed receivers that the phrase "authorized insurer” in MCLA 500.7833; MSA 24.17833 comprehends, for purposes of the guaranty act, any member insurer which once had been authorized after the act’s effective date. | [
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D. E. Holbrook, P. J.
This is an appeal as of right from summary judgments granted in the instant two cases. The two cases were properly consolidated in the trial court.
Josephine Degen, plaintiff-appellee herein, in the first action filed suit on July 21, 1976, against the heirs and the administrator of the estate of Alma Degen to discharge the subject mortgage on certain property she then owned. The heirs of Alma Degen, individually and on behalf of her estate, plaintiffs-appellants herein, in the second action filed suit on July 21, 1976, against Josephine Degen and the Mount Clemens Dairy, Inc., a Michigan corporation, to foreclose the subject mortgage. These consolidated cases arose out of an August 28, 1957, mortgage on property of the Mount Clemens Dairy, a family corporation, given to Alma Degen pursuant to an agreement settling the debts of the dairy to the estate of Bernard J. Degen, her husband. The total mortgage amount was $20,000 which was to be paid in monthly installments of $150 to Alma Degen during her lifetime and to her heirs upon her death. The mortgage contained a power of sale, did not authorize acceleration of the remaining balance upon default and did not provide for interest. Alma Degen died June 8, 1968. One of the listed assets of her estate was this mortgage. No payments have been made on the mortgage since sometime in 1959 or 1960 and it is in dispute as to what was paid prior to 1960.
No action had been taken to enforce or foreclose the mortgage prior to the instant action.
Plaintiff Josephine Degen in cause one and de fendant Josephine Degen in cause two filed motions for summary judgment in both cases pursuant to GCR 1963, 117, claiming (1) that the mortgage debt had been forgiven by Alma Degen under a memorandum dated July 18, 1960, which stated: "I am forgiving Clayton Degen, Mt. Clemens Dairy of the balance of moneys on the second mortgage”, and (2) that more than 15 years have elapsed since the last payment was made on the mortgage, the subject of the two actions, and foreclosure is barred by the statute of limitations, MCLA 600.5803; MSA 27A.5803. Further, that in case number two the estate of Alma Degen is being probated and the mortgage is listed as an asset, therefore, the personal representative of the estate of Alma Degen is the proper party plaintiff in this action to foreclose the mortgage. An affidavit of Josephine B. Degen in support of the motion for summary judgment was filed with the motion.
The defendants in cause one and plaintiffs in cause two, Ruth Lesnick and Adell D. Jenner, answered said motions in part by stating that they denied that Alma Degen had forgiven the debt on the mortgage and further denied that the purported signature of Alma Degen on the supposed memorandum of discharge is the signature of Alma Degen. They further denied that the statute of limitations, MCLA 600.5803; MSA 27A.5803, bars this action of foreclosure because said statute has as yet not run against the mortgage. Further, that GCR 1963, 207 allows parties to be added or dropped by the court or by motion, and misjoinder or nonjoinder of parties is not grounds for dismissal. At the time of filing their answer to the motion for summary judgment they filed a memorandum of law in support of the answer, which stated in part:
"Movant in this action is also not entitled to Sum mary Judgment under this Section, since there is a material issue of fact in question. We have denied the authenticity of the signature of Alma Degen, thereby raising an issue as to its genuineness and further we deny the validity of the release due to lack of consideration. We have thus raised issues which must be adjudicated.”
On October 4, 1976, the trial judge granted the motions of summary judgment of Josephine Degen in both cases, discharging the mortgage and dismissing the action for foreclosure of the mortgage brought by Ruth Lesnick and Adell D. Jenner.
In the trial court’s opinion on the motions for summary judgment it is stated in part as follows:
"In action A, plaintiffs affidavit in support of the motion for summary judgment asserts payments upon the mortgage in issue were made regularly to Alma Degen from 1957 through 1959 by Mount Clemens Dairy. No further mortgage payment had been made since 1960, nor were any proceedings instituted to enforce or collect on said mortgage prior to the proceeding herein. Further plaintiffs contend the debt was forgiven on 7-18-60 by Alma H. Degen, which is denied.
"MCLA 600.3175 provides:
" 'Discharge of mortgage, land contract, tax lien; action; evidence of payment; judgment
" 'Sec. 3175. (1) Action by owner. When a recorded mortgage on real property, land contract, or tax lien (except tax liens held by the state or any political subdivision of the state) on lands or property has been paid or satisfied or when 15 years have elapsed since the debt or lien secured by the mortgage, land contract, or tax lien became due and payable or since the last payment made upon it, and no civil action or proceedings have been commenced to collect the same and in case of tax deeds when no service of notice to interested persons (of any kind) has been filed with the county clerk, the owner of the land or property may institute an action in the circuit courts to discharge the mortgage, land contract or tax lien.
" '(2) Evidence of payment, lapse of 15 years, judgment. If it appears to the court at the trial, either by the production in evidence of the original mortgage, land contract, tax lien, bond or bonds, promissory notes to secure the payment of which the mortgage was given, or by any other competent evidence, that the debt or lien secured by the mortgage, land contract, or tax lien has been fully paid both in principal and interest; or if it appears to the court by competent evidence that the debt or lien has been past due for 15 years, or that 15 years have elapsed since the last payment was made on the debt or lien and that no action or proceeding has been commenced to foreclose or perfect the mortgage, land contract, or tax lien the court shall enter judgment to that effect which contains within it the names of the witnesses and the nature of the evidence by which the facts have been made to appear. A minute of this shall be entered in the court’s journal. A copy of the judgment, signed by the judge of the court and attested by the clerk of the court under the seal of the court shall be delivered to the plaintiff and may be recorded in the office of the register of deeds for the county or counties in which the mortgage, land contract, or tax lien is recorded in the same manner and with the same effects in all respects as if it were a formal discharge of the mortgage, land contract, or tax lien duly executed by the mortgagee or owner of the land contract or tax lien.’
"Pursuant to MCLA 600.3175 the owner of property subject to the mortgage at issue in this action is entitled to have said mortgage discharged for the reason no payment has been made on said mortgage since 1960, more than 15 years having elapsed since the last payment on the mortgage. An order to deny the motion for reconsideration and the summary judgment may enter.”
The first issue is whether there is a material issue of fact present in the case, as to the authenticity of the purported signature of Alma H. Degen on the claimed memorandum of forgiveness of the debt owing under the subject second mortgage.
The trial court in its written opinion properly ruled that there was a material issue of fact present based upon the pleadings, where the court stated: "Further plaintiffs contend the debt was forgiven of 7-18-60 by Alma H. Degen, which is denied.” This finding is supported by the transcript of the hearing on the motion in which the attorney for the heirs of Mrs. Alma Degen stated:
"Now, what Mr. and Mrs., or Mrs. Lesnick and Mrs. Jenner did, they sent me some documents signed by Mrs. Degen, both the actual mortgage itself and further documents, your Honor, and I, after examination — they were sent by Mrs. Lesnick from Lincoln, Michigan, by certified mail to me, and after examining these various quit claim deeds, your Honor, it is obvious that we would deny and, in fact, would have testimony if the parties were here.
"Now, Mrs. Lesnick, as I said, lives in Lincoln and Mrs. Jenner lives outside the jurisdiction as well and it has been very difficult in communicating. They did, in fact, send me documents that had been recorded. Those documents would show that the signature is different than the one that purports to be the instrument.”
This ruling of the trial court which we agree with disposes of this part of the appeal.
The only issue remaining is to review the basis upon which the trial court granted summary judgment to plaintiffs in cause one and defendants in cause two, i.e., "Pursuant to MCLA 600.3175 the owner of property subject to the mortgage at issue in this action is entitled to have said mortgage discharged for the reason no payment has been made on said mortgage since 1960, more than 15 years having elapsed since the last payment on the mortgage.”
Appellee also contends that foreclosure is barred by the statute of limitations, MCLA 600.5803; MSA 27A.5803, which reads as follows:
"No person shall bring or maintain any action or proceeding to foreclose a mortgage on real estate unless he commences the action or proceeding within 15 years after the mortgage becomes due or within 15 years after the last payment was made on the mortgage. This section limits foreclosure by advertisement and any other entries under the mortgage as well as actions of foreclosure in the courts.”
Both the statute of limitations just stated and the discharge of mortgage statute, MCLA 600.3175; MSA 27A.3175, have similar language. Both statutes contain language in the alternative, to-wit, 15 years after the debt (mortgage) becomes due or within 15 years after the last payment was made on the mortgage. Both statutes concern the same subject matter and are to be read in pari materia and construed so as to render them harmonious wherever possible.
It was the clear intent of the Legislature, by the discharge statute, to provide a means whereby an owner of encumbered property after the limitation period for the foreclosure of the mortgage had run could formally remove the encumbrance and clear the title.
The instant mortgage was to be paid at the rate of $150 per month without interest, commencing in September of 1957. A computation has been made whereby the last monthly payment due would have been in 1968. The foreclosure suit was commenced July 21, 1976.
We must determine whether the trial judge correctly applied the statutes involved so that the mortgage could not be foreclosed 15 years after the last payment was made on the mortgage. This alternative adopted by the trial court provides for a shorter period in which to foreclose under the facts in this case. The other alternative, 15 years after the mortgage becomes due, provides for a longer period for the mortgage to be valid and to be foreclosed.
The case of Hiscock v Hiscock; 257 Mich 16, 24; 240 NW 50 (1932), directly rules on this issue: "The mortgage statute provides two periods of limitations, but in the alternative and not running concurrently, the latest in point of time to govern.”
Reading the two statutes together we rule that the latest period of time to run is the proper one to apply, i.e., the correct time to commence to run is from the due date provided in the mortgage.
Now we turn to the question of installment mortgages. The general rule as to installment mortgages is found in Anno: Statute of limitations as affecting suit to enforce mortgage or lien securing debt payable in installments, 153 ALR 785, 787, which states as follows:
"The majority doctrine, sometimes adopted by bare assumption, or without discussion of the various elements involved, is that in the case of an instalment mortgage or trust deed (where there is no self-operative acceleration provision — or, if an optional one, no exercise of the option) the statute of limitations runs against foreclosure as to each instalment from the time the instalment becomes due. Obviously such a conclusion may rest in part upon the peculiarities of local law with reference to foreclosures, including provisions governing instalment foreclosures. The following cases support the doctrine stated:
"Michigan. — Stringer v Gamble (1909) 155 Mich 295, 118 NW 979, 30 LRA (NS) 815 (doctrine stated).”
The case of Stringer v Gamble, 155 Mich 295, 300; 118 NW 979 (1909), is directly on point:
"I am of opinion that in this case the court should adopt the rule of the statute affecting the foreclosure of mortgage liens, and that a decree should pass for such sums only as were not 15 years past due at the time of filing the bill. No trust relation existed between the wife and the devisee of the land. The wife died February 28, 1897. As to each annual installment unpaid, the statute began to run during her life. Thomas Stephens died April 9, 1903. The bill was filed on or about February 26, 1907. All payments falling due prior to February 26, 1892, are barred.”
We follow Stringer v Gamble and rule that all payments due after July 21, 1961, are viable and may be foreclosed. All payments due on or before July 21, 1961, are barred.
MCLA 600.3204(4); MSA 27A.3204(4), pertaining to foreclosure by advertisement where the mortgage contains a power of sale, and providing that each installment be treated as a separate and independent mortgage and may be foreclosed separately, supports our ruling in these cases.
Reversed and remanded for further proceedings in accord with this opinion. Costs to appellants. | [
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Marston, J.
This is an action on the case brought to recover damages for being unlawfully ejected and put off a train of cars by the conductor of the train. The evidence on the part of the plaintiff tended to show that on the evening of January 29th, 1876, he went to the regular ticket office of the defendant at Ishpeming and asked for a ticket to Marquette, presenting to the agent in charge of the office one dollar from which to make payment there for; that the agent received the money, handed plaintiff a ticket and some change, retaining sixty-five cents for the ticket, the regular fare to Marquette; that plaintiff did not attempt to read what was on his ticket, nor did he count the change’ received back until next morning or notice it until then; that he went on board the train bound for Marquette, and after the train left the station the conductor took up the ticket, giving him no check to indicate his destination, but at the time telling him his ticket was only for Morgan; that when the train reached Morgan the conductor told the plaiutiff he must get' off there or pay more fare; that if he wanted to go to Marquette he must pay thirty-five cents more. Plaintiff insisted he had paid his fare and purchased his ticket to Marquette and refused to pay the additional fare, whereupon he was ejected from the train, etc. On the part of the defendant evidence was given tending to show that the ticket purchased and presented to the conductor was in fact a ticket for Morgan, and not for Marquette. Under the pleadings and charge of the court other evidence in the case and questions sought to be raised need not be referred to, and as the real gist of the action was for the expulsion from -the cars by the conductor, the above statement is deemed sufficient to a proper understanding of the case.
An erroneous impression seems to prevail with many that where the conductor of a passenger train ejects therefrom a passenger who has paid his fare to a point beyond, but has lost or mislaid his ticket, or whose ticket does not entitle him to proceed farther, or upon that train, that the company is liable in an action at law for all damages which the party may in any way have sustained in consequence of the delay, mortification, injury to his health or otherwise, and that the passenger is under no obligation to prevent or lessen the damages by payment of the necessary additional fare to entitle him to complete his journey without interruption. Although such damages were claimed in this case, under our present view it will be unnecessary to discuss this question any farther at present.
' What then is the duty of the conductor in a case like the present? and what are the passenger’s rights? In considering these questions we cannot shut our eyes to the manner and method which railroad companies and common' carriers generally have adopted in order to successfully carry on their business. The view to be taken of these questions must be a practical one, even although it may work, perhaps injustice in some special and particular cases, resulting however in great part if not wholly from other causes. In Day v. Owen, 5 Mich., 521, Mr. Justice Manning in speaking of the rules and regulations of common carriers, said “all rules and regulations must be reasonable, and to he so, they should have for their object the accommodation of the passengers. Under this head we include everything calculated to render the transportation most comfortable and least annoying to passengers generally ; not to one, or two, or any given number carried at a particular time, but to a large majority of the passengers ordinarily carried. Such rules and regulations should also be of a permanent nature,, and not be made for a particular occasion or emergency,”
It is within the common knowledge or experience of all travelers that the uniform and perhaps the universal practice is for railroad companies to issue tickets to passengers with the places designated thereon from whence and to which the passenger is to be carried; that these tickets are presented to the conductor or person in charge of the train and that he accepts unhesitatingly of such tickets as evidence of the contract entered into between the passenger and his principal. It is equally well known that the conductor has but seldom if ever any other means of ascertaining, within time to be of any avail, the terms of the contract, unless he relies upon the statement of the passenger, contradicted as it would be by the ticket produced, and that even in a very large majority of cases, owing to the amount of business done, the agent in charge of the office, and who sold the ticket, could give but very little if any information upon the subject. That this system of issuing tickets, in a very large majority of cases works well, causing but very little, if any annoyance to passengers generally, must be admitted. There of course will be cases, where a passenger who has lost his ticket, or where through mistake the wrong ticket has been delivered to him, will be obliged to ■pay his fare a second time in order to pursue his journey without delay, and if unable to do this, as will sometimes be the case, very great delay and injury may result therefrom. Such delay and injury would not be the natural esult of the loss of a ticket or breach of the contract, but would be, at least in part, in consequence of the pecuniary circumstances of the party. Such cases are exceptional, and however unfortunate the party may be who is so situate, yet we must remember that no human rule has ever yet been devised that would not at times injuriously affect those it was designed to accommodate. This method of purchasing tickets is also of decided advantage to the public in other respects; it enables them to purchase tickets at times and places deemed suitable, and to avoid thereby the crowds and delays they would otherwise be subject to. Were no tickets issued and each passenger compelled to pay his fare upon the cars, inconvenience and delay would result therefrom, or the officers in charge of the train to collect fares would be increased in numbers to an unreasonable extent, while at fairs and places of public amusement where tickets are issued and sold entitling the purchaser to admission and a seat, we can see and appreciate the confusion which would exist if no tickets were sold, or if the party presenting the ticket were not upon such occasions to be bound by its terms.
How, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company where a ticket is purchased and presented to him? Practically there are but two ways, — one, the evidence afforded by the ticket; the other, the statement of the passenger contradicted by the ticket. Which should govern ? In judicial investigations we appreciate the necessity of an obligation of some kind and the benefit of a cross-examination. At common law parties interested were not competent wit nesses, and even under our statute the witness is not permitted, in certain cases, to testify as to facts which, if true, were equally within the knowledge of the opposite party, and he cannot be procured. Yet here would be an investigation as to the terms of a contract, where no such safeguards could be thrown around it, and where the conductor, at his peril, would have to accept of the mere statement of the interested party. I seriously doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and I doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. There is but one rule which can safely be tolerated with any decent regard to the rights of railroad companies and passengers generally. As between the conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as the evidence of his right to the seat he claims. Where a passenger, has purchased a ticket and the conductor does not carry him according to its terms, or, if the company through the mistake of its agent, has given him the wrong ticket, so that he has been compelled to relinquish his seat, or pay his fare a second time in order to retain it, he would have a remedy against the company for a breach of the contract, but he would have to adopt a declaration differing essentially from the one resorted to in this case.
We have not thus far referred to any authorities to sustain the views herein taken. If any are needed the following, we think, will be found amply sufficient, and we do not consider it necessary to analyze or review them. Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y., 298; Hibbard v. N. Y. & E. R. R., 15 N. Y., 470; Bennett v. N. Y. C. & H. R. R., 5 Hun, 600; Downs v. N. Y. & N. H. R. R., 36 Conn., 287; C., B. & Q. R. R. v. Griffin, 68 Ill., 499; Pullman P. C. Co. v. Reed, 75 Ill., 125; Shelton v. Lake Shore etc. Ry. Co., 29 Ohio St.
I am of opinion that the judgment should be affirmed,, with costs.
Cooley, O. J., concurred.
Graves, J.
By mistake the company’s ticket agent issued, and plaintiff accepted a ticket covering a shorter distance than that bargained and paid for; and having ridden under it the distance which it authorized and refusing to repay for the space beyond, the plaintiff was removed from the cars.
This removal, may or may not have constituted a cause of action, but it is not the cause of action charged. The declaration sets up that plaintiff’s ticket was a proper one for the whole distance and that he was removed in violation of the right which the ticket made known to the conductor.
There was no proof of the case alleged, and I agree therefore in affirming the judgment.
Campbell, J.
The plaintiff’s cause of action in this case was for the failure of the company to carry him to a destination to which he had paid the passage money, and the immediate occasion for his removal from the cars was that he was given a wrong ticket, and was not furnished with such a one as the conductor was instructed to recognize as entitling him to the complete carriage. His declaration should have been framed on this theory. Had it been so framed I am not prepared to say that he may not have had a right of action for more than the difference in the passage money.
But as he counted on a failure of the conductor to respect a correct ticket, and it appears that the conductor gave him all the rights which the ticket produced called for, there was no cause of action made out under the declaration, and the rule of damages need not be considered. I concur in affirming the judgment. | [
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] |
Campbell, J.
This is a bill to redeem a mortgage. The facts are very simple, and involve no difficulties.
On the 27th of March, 1860, one George I. Parsons made a conveyance to Almond R. Dean of the land in contro versy “to secure the payment of four hundred and sixty-eight dollars to said Dean by Abner E. Richardson, on or before the first day of September [then] next.” In 1870 Dean conveyed the land to defendant Marble. In 1874 Parsons and Richardson, who had an equitable interest in the property, made sale and conveyances to complainant. On the 8th day of May, 1874, Cowles made a tender to Marble of $1,181.00, which was the full amount due on the mortgage, and demanded a release, but Marble refused to accept the money or discharge the mortgage.
The defense is that the instrument was a deed and not a mortgage, and that there was after its date a parol admission of the absolute title of the grantee and a renunciation of any rights in the land.
As this instrument purports on its face to be given to secure the payment of a certain sum of money, it is a mortgage, and nothing else. The omission of a power of sale would only serve to prevent a foreclosure by any other means than a bill in equity; and the doctrines applicable to such instruments are too familiar to bear discussion. There is nothing in the case to show any valid contract or any equitable reason for cutting off the redemption, which could only be done by a proper conveyance under the statute of frauds, and which was neither agreed to in that way nor based on any consideration if attempted to bo made verbally. The only facts bearing on such a theory seem to be that one of the parties interested was ignorant of his rights, and assumed they were forfeited, but never agreed to give them up.
The tender of the amount due authorized complainant to have a discharge, and the refusal of the discharge entitled him to the statutory penalty, which may be recovered in equity on a bill to redeem. Collar v. Harrison, 28 Mich., 518; Same v. Same, 30 Mich., 66; Barnard v. Harrison, 30 Mich., 8.
It is urged that the tender removed the lien, and that complainant is entitled to have the mortgage discharged without any further payment. If the mortgagee had sought to foreclose, we have held that a tender would be a good defense. Caruthers v. Humphrey, 12 Mich., 270; Van Husan v. Kanouse, 13 Mich., 303; Eslow v. Mitchell, 26 Mich., 500; Potts v. Plaisted, 30 Mich., 149; Flanders v. Chamberlain, 24 Mich., 305.
But a party seeking equitable relief as a complainant must be prepared to do equity. Equity requires that the mortgagee should have his money, and no redemption will be decreed on any other terms. A tender will stop interest, but it does not discharge a debt.
Complainant is entitled to redeem by paying the amount tendered, less the statutory penalty of $100 and the costs of this court and of the circuit court, and on such payment to have the mortgage discharged by proper deed of release. In case of non-payment of the money within three months from the entry of decree, the land must be sold in analogy to foreclosure sales.
The decree must be reversed, and a decree entered in this court in accordance Avith these directions, and remitted to the circuit court for execution if redemption is not made within three months as aforesaid.
The other Justices concurred. | [
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Cooley, C. J.
I. The Superior Court having held that the contract sued upon was within the statute of frauds, but having also submitted the case to the jury under instructions which permitted them to find that the cigars had been accepted, and the jury having found for the plaintiffs accordingly, it is now urged on behalf of the plaintiffs, that whatever errors the court may have committed in its instructions are immaterial, because in fact the contract was nob within the statute of frauds, and this court must so find from the record. In pressing this view upon our attention, counsel overlook the fact that the contract is to be arrived at as a deduction from oral evidence; and that this court is not at liberty to draw inferences of fact in cases at law, but must take the findings sent up from the court below as conclusive. This is always the case except where the evidence is all sent up on an exception that the finding has no evidence to support it. But as the plaintiffs are not the parties alleging error, they are not in position to raise any such question here, and if they were, it would be without avail as the defendant’s evidence went to a denidi of the contract the plaintiffs relied upon.
II. The principal question on this record is whether the judge was correct in leaving it to the jury to find an acceptance of the cigars from what took place at the time the witness Compt tools: to the place of business of defendants the 4000 cigars in a hand cart. From the evidence of this witness it appears that defendants did not take the cigars at that time, but Mr. Lowry, one of the defendants, told him he would take them as soon as he could; that defendants were then taking stock and had no time, but as soon as they would need them, would send for them right away; whereupon the witness took back the cigars to the plaintiffs. This transaction, it is claimed, was not only a clear manifestation of an intent on the part of defendants to take the 4000 cigars, but to take all the cigars they had ordered; and was sufficient within the former decisions of this court to pass the title. Whitcomb v. Whitney, 24 Mich., 486; First National Bank of Marquette v. Crowley, Id., 492. It is to be observed of this evidence that it does not indicate an understanding that the goods were then accepted and taken, and merely left in plaintiff’s hands for convenience, but rather a promise to send for thorn as the defendants should need them. Now if the first promise was invalid because not in writing, the second promise, which was also not in writing, could be no better; it would be invalid on the same grounds precisely as the first. It is also to be observed of Compt’s evidence, that it does not appear from it that he said any thing whatever about delivering the 4000 cigars on any contract; he only takes over that number of cigars and offers them to the defendants, who assign a reason for not then taking them, but are as silent as Compt is about any bargain for more. It would seem, therefore, that if what was done and said was equivalent to an acceptance of any cigars, it could only extend to the 4000 then offered; and the proofs of the plaintiffs show that more than this number were subsequently received by the defendants and paid for. It may therefore well be said by the defendants that they fully complied with and carried out any understanding which could justly be implied from what took place when Compt came to their place of business as stated.
The cases which are cited in support of the rulings below do not seem to us to warrant the deductions we ai'e asked to make from them. Elmore v. Stone, 1 Taunt., 458, was a sale of horses by a livery stable keeper to a person who ended the negotiations by saying that “the horses were his but that as he had neither servant nor stable, the plaintiff must keep them at livery for him.” There the property was fully identified, designated and set apart, and the vendor, it is evident, became in respect to them a bailee from the moment the transaction took place, and entitled as such to charge for services and expenses. Marvin v. Wallis, 6 El. & Bl., 726, does not differ from that case in any essential feature. Turley v. Bates, 2 H. & C., 200, was a sale of a heap of fire clay by the ton, and the question in dispute was, whether the title had passed before the clay was weighed out. It was held that it might if such was the intent of the parties. This case was cited' with approval in Lingham v. Eggleston, 27 Mich., 324, 329, with several others supporting the same doctrine, including Young v. Matthews, L. R. 2 C. P., 127, on which the plaintiffs also rely, arid which recognizes the same doctrine but goes im farther. The point of these cases is that actual delivery is not absolutely essential' to pass the title to goods sold, and it may pass even though something still remains to be done to determine the price to be paid, if such is the clear understanding of the parties. Rohde v. Thwaites, 6 B. & C., 388, is more like the present than is any of the other cases. The bargain there was for twenty hogsheads of sugar to be taken from a large quantity in bulk. Four hogsheads were filled up, delivered and accepted; the other sixteen were then filled up by the vendor, and the vendee notified and requested to take them aAvay, which he said he would do as soon as he could. It Avas held that the title to all of them had passed. 'The difference betAveen that case and the present is vital; for Avhile in that case the vendee recognized what Avas set apart for him as being his under his purchase, in this case there is no pretense of such a recognition, and had the plaintiffs sold off at any time all their stock of cigars, there Avould not have been, so far as AYe can see, the least plausibility in any claim on the part of the defendants that they might follow and reclaim any of them as their property, had they seen fit to make such a claim. But unless the title passed so as to take from the plaintiffs the authority to sell, it is manifest that this action cannot he supported. Goddard v. Binney, 115 Mass., 450, on which the plaintiffs rely with some confidence, lays down no doctrine important to this case which differs at all from the views of this court as expressed in Lingham v. Eggleston, supra, and in Hatch v. Fowler, 28 Mich., 205, and Wilkinson v. Holiday, 33 Mich., 386, which Holiday it. Neither these cases nor the one in Massachusetts afford as we think any support to the rulings below.
The judgment must be reversed Avith costs, and a nerv trial ordered.
Graves, and Campbell JJ., concurred.
Marston, J., did not sit in this case. | [
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Cooley, C. J.
Diamond brought replevin in justice’s court, but his suit was dismissed for defects in his affidavit for the writ. Having obtained the property in controversy on his writ, the defendent waived a return, and prayed judgment for its value. The justice, after taking time to consider the application, gave him judgment for six cents damages and the costs of suit. From this judgment defendant appealed, and on motion, the circuit court dismissed the appeal on the ground that the case was not appealable. Error is brought on this dismissal.
We have no doubt the case was appealable. The statute (Comp. L., § 5431) gives the right to appeal wherever final judgment has been rendered on an issue joined, and also where judgment of non-suit has been rendered. The judgment of dismissal was in legal effect one of non-suit, People v. Judge of Wayne Circuit Court, 30 Mich., 98; and on an assessment of damages in replevin there is always an issue between the parties, whether expressed in words or not. The value of the property was in issue, and the judgment of the court was demanded upon it. We have no doubt of the right to appeal.
It is insisted, however, that conceding this right, the plaintiff in error has mistaken his remedy; that he should have applied for a mandamus instead of suing out a writ of error; and the case above cited is relied upon as authority to that effect. That case is imperfectly reported, but it differs from this in the important fact that the ground for dismissing the appeal did not appear in the order there made, but does appear here. The difference is vital. A writ of error in that case would not have been the appropriate remedy, because the record did not disclose the error; affidavits were required to show it. Here the grounds of the dismissal appear in the order itself, and must therefore appear in the return to the writ.
The judgment of dismissal must be reversed with costs, and the cause remanded.
The other Justices concurred. | [
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] |
Campbell, J.
This is an action of replevin to recover certain horses seized by Merrick from Mayhue under claim that he had about two weeks before sold them as sheriff on execution, but that he had then been prevented from delivering them by the interference of the coroner and others acting under a writ of replevin. Snell was the execution creditor and alleged purchaser, and Winsor his attorney.
This alleged sale was made March 24, 1876, and Merrick claims the property was bid off to Snell. No money was paid, and no delivery then made of the property. The payment on the bids is claimed to have been made by endorsement on the writ.
The original levy was made in February, 1876, on an execution upon a transcript which is claimed to have been incorrect and void. Merrick seized a bull and the horses in question and left them with a receiptor. On the appointed day of sale Merrick came to the place of sale, and the receiptor desired him to take the property, but, according-to his own statement of the facts, he seems to have had an idea that by declining to do so he could evade the operation of a writ of replevin sued out by Mayhue and in the hands of the coroner. This writ was served on' Merrick personally, and the bull was taken on it, but the horses, according to Merrick’s story, were set up to sale immediately after being brought out by the receiptor, and were not in Merrick’s hands at the earlier hour when the writ was sued out and affidavit annexed, and he therefore claimed they were not covered by it. The coroner, however, as he shows, got control over them, so as to prevent their removal or delivery by Merrick. The horses when taken by the coroner were appraised and delivered over to Mayhue on his bond, and upon the issue and trial in that suit judgment went against Merrick, as unlawfully in possession, at the service of the writ, and as having been ousted by the writ.
Under these circumstances most of the points raised on the trial of this case become immaterial. The receiptor’s possession was the possession of Merrick as sheriff. Dillenback v. Jerome, 7 Cowen, 294. If this were not so, then delivering property to a receiptor would be a relinquishment •of a levy. Keplevin would properly lie, therefore, against the sheriff for the receiptor’s possession, and seizure from the receiptor would be seizure from the sheriff.
The attempt, therefore, to evade the operation of the writ, by leaving the horses until the last moment in the receiptor’s hands, was of no avail. When the writ was personally served on him it made the sheriff a wrong doer when he attempted to dispose of the property in violation of it; and the seizure by the coroner was valid whether his manual ■control of it was a few minutes before or a few minutes •after the unlawful sale.
The lawfulness of the seizure on execution was the precise matter in issue on the first replevin suit, and the judgment on that issue cannot be re-tried in this. The sheriff ■could not confer rights on any one by his subsequent seizure of the horses, in which he was no more nor less than .a trespasser.
There was, therefore, nothing to be left to the jury. 'The defendant’s own testimony coupled with the former replevin record destroyed the whole force of the defense, •and rendered it improper to re-open the questions connected with the transcript and execution. They had already been passed upon in the former suit, and if there were supposed ■errors in those proceedings they should have been corrected in an appellate court. That judgment cannot be assailed ■collaterally.
The court erred in leaving it to the jury to determine ■the validity of the coroner’s seizure on a false theory, and in treating the other questions disposed of in that suit as •open. The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Cooley, C. J.
The court below awarded to the complainant a divorce from the bonds of matrimony for the cause of extreme cruelty. Our examination of the record has satisfied us that though the case is not a remarkably strong one, the decree may be supported on the authority of Briggs v. Briggs, 20 Mich., 34, provided the testimony of the wife, on which to some extent the proof of cruelty depends, can be regarded as properly taken in the case. It appears from the record that when the wife was called to the stand as a witness by whom to prove the cruelty, her evidence was -objected to by the defense, but the circuit judge, remarking that he supposed it was competent for the court to order the parties sworn, overruled the-objection, and suffered the oath to be administered to her. No formal order for her examination was made, nor was: any action had which indicated more distinctly than the foregoing remark, that the court considered the testimony as being taken under his order.
It seems to be conceded that neither husband nor wife-can be a general witness on his or her own behalf in divorce cases without the consent of the other; and indeed the statute would seem to put this beyond controversy, for it expressly provides that neither husband nor wife shall be examined as a witness for or against the other without consent, except in certain specified cases, of which divorce is-not one. Comp. L., § 5969. Whether there may not be some implied exceptions which are not enumerated in this statute, we do not find it necessary in this case to determine. We think, however, and shall so hold, that any authority which had been previously conferred upon the courts, of their own motion and for the furtherance of justice, to put the parties upon the stand as witnesses, in cases where the general law did not permit their .being called on their own behalf, was not taken away by this statute. In other words, we think the statute established general rules of competency of which the parties may avail themselves, while it leaves untouched in the court any authority previously conferred to deal in the matter of evidence with special cases.
The statute of 1851 for the organization of the Supreme Court provided that the court “may at any time and in accordance with and for the speedy furtherance of justice in any suit, either at law or in equity, call upon the parties to such suit, or any witness thereto, to testify orally in open court; and said court may by rule provide for a similar practice in the circuit courts.” Comp. L., § 4927. Under the authority of this statute the Supreme Court, by chancery rule 99, provided that “In all chancery cases whatever, whether for divorce or otherwise, which are at issue on pleadings and proofs, the court may call upon the parties thereto, or any of them, or any witness thereto, to testify orally in open court.” We regard this rule as still in force, undisturbed and unimpaired by the subsequent statute first above referred to; and we are also satisfied from this record that though the circuit judge did not expressly call the complainant to the stand as a witness, yet that he understood he was proceeding under this rule, and was permitting her to be examined under his discretionary authority, and not because he considered her to be a general witness in the case under the statute. And this conclusion disposes of all question touching the competency of her evidence.
The only questions that remain relate to the allowance of alimony. This is objected to, first, because it is an allow anee in gross, instead of an annual allowance, and second, as being grossly excessive. The first ground is based upon a construction of the statute which, while leaving the subject of alimony very much in the discretion of the court, at the same time confers an authority to modify it from time to time as the circumstances shall seem to demand; an authority which it is urged with much reason is inconsistent with the authority to award a sum in gross, since such an award must generally, when once made, be beyond the control of the court, or at least may be put beyond control in anticipation of subsequent judicial interference. But whatever doubts may have existed of the power to make an award in gross previous to the amendment of the statute by the act of May 3, 1877, — Public Acts, 1877, p. 72,— there can be none now, for that statute expressly authorizes it; and though the decree now under review was entered before the passage of that act, the circumstance is not important, since if the decree were unwarranted at the time, and were to be set aside on that ground, the authority would be ample now to enter another like it. We therefore pass from this question to consider the other, namely, whether the 'allowance was excessive.
The allowance made was the sum of $8,500 payable in cash. The amount of defendant’s property as shown by the pleadings was $30,000. There is reason to think, however, that this has been considerably reduced by the expenses of this litigation. The circuit judge took some testimony on the subject which is very imperfectly reported, but as we understand it, the evidence showed the defendant to be then worth $17,000, all in real estate, — the personal estate being in value less than the amount of the debts owing by defendant. If the circuit judge intended to give as alimony one-half defendant’s property, making it payable in money, the allowance was not only excessive but ruinous. One-third the amount was an ample provision under the circumstances — say $5,666 — and as to this, it would have been reasonable to allow the defendant the option to have set off to complainant one-third his real estate in satisfaction of the allowance if he should elect so to do. We are therefore disposed now to reduce the allowance to the sum named, and to permit the defendant to elect to pay the amount Avith one-third of his lands by filing an election so to do within thirty days from this day. In case of such election, a reference should be ordered to a circuit court commissioner to set off to complainant the proportion of lands awarded to her, unless the parties can agree upon an apportionment, and the costs of the commissioner should be borne by the parties equally. The proceedings of the commissioner should be reported to and approved by the circuit court, and any costs in that court should be in the discretion of the court, so that neither party avíII be tempted to make costs by way of annoyance to the other, and Avithout sufficient grounds for it. The lands set off to complainant should be relieved from encumbrances, if any exist thereon, Avithin some reasonable time to be named by the court below to which the decree Avill be remitted for execution. In giving to the defendant the permission to make payment in lands, we assume that he still owns those which were held by him when the decree Avas made. If this proves to be an error, complainant will be at liberty to apply by petition to the court beloAV for such modification of the decree as the change in ownership of lands may seem to require. No costs are aAvarded. Should the defendant not elect to pay in lands, the allowance shall be payable as follows: $566, in three months from this day, and the balance in two equal annual payments from that date; and the whole alloAvance, by the recording in the office of the register of deeds of St. Joseph county, shall be made a lien on the defendant’s lands.
Campbell and Graves, JJ., concurred.
Marston, J., did not sit in this case. | [
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Campbell, J.
Plaintiff sued defendant for verbal slander, charging her with adultery and with being a woman, of gross unchastity. The defendant pleaded the general issue and gave notice of justification, which contains a number of charges against, plaintiff, none of which are specific; or issuable' allegations of misconduct such as was charged in the slanderous accusations. The notice undertakes to. set up a number of facts not amounting to criminality, but, claimed to be such as would warrant suspicions of it. The charges of actual misconduct are of a vague character and contain no element of certainty whatever.
Upon the trial several items of evidence were introduced against objection, and complaint is also made of some other-rulings of the circuit judge. Several of the items objected to may be classed together, and reference will be made to such as are important.
One William. Davis having been called for the single purpose of proving the speaking by defendant of slanderous ■words set forth in the declaration, was allowed and required ■on cross-examination to state a remark of plaintiff’s to the following effect: “God knows if Houghtaling beats me in 'this trial 1 am going to carry it up higher. I am going ■to beat him, and I hope I will; then he will have to move -out and I take possession of the premises.” Such a matter might perhaps have been proper cross-examination of the plaintiff, had she been a witness, but it had no relevancy whatever to the issue on either side, which involved only the slander, and its justification. We can imagine no ground for its admission at all, and especially on cross-examination of this witness.
A witness John Houck having proven the uttering of ■slanderous words declared on, alleging habitual adultery with one Tinklepaugh, was asked on cross-examination, “Have ;you heard the same remarks from others?” and answered, “I have heard a considerable number, extending over the last two years. The same and similar remarks.”
This was erroneously admitted. It was an attempt to prove by hearsay the facts in controversy. It was not confined to the time previous to the slander, and it was not sought in any way to be connected with the defendant .as having led to his belief in the charges he made, which was one of the grounds urged on the argument. Neither ■can the character of plaintiff for chastity be assailed by that class of testimony. Nothing but general reputation is allowable for such a purpose. It cannot be attacked by proof of particular acts or particular suspicions. This doctrine is elementary. There is therefore, no ground on which the reception of this testimony was justifiable.
In this connection it may be proper to refer to a large ■class of testimony of particular acts of plaintiff which were introduced to throw suspicion upon her. These consisted of plaintiff’s riding and visiting with various persons, and remarks made by plaintiff which were not proper, and acts of familiarity with different persons. The court admitted these things, and said “that evidence of previous familiarity or acts of illicit intercourse with individuals would be fairly admissible whether contained in the notice or not.”
Nothing can be clearer than that the office of a notice is-to present tangible issues, and not to introduce matters which form no part of the issue. Matters cannot be made relevant merely by insertion in a notice. That which would! be immaterial in a plea cannot be material under any form of issue. In an action of slander there can only be two issues, — one of its publication and the other of its justification. Upon the trial, where there is no justification, there may be matters in mitigation, but these are not put: in issue because they form no absolute defense.
It would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific-rumors, or charges against her not going to the direct issue-in the cause. She could have no means of defense against, malicious fabrications which are by no means unusual in such cases, and the reputation of the purest persons could easily be ruined or damaged by allowing free scope to such testimony. As has often been-remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent. A large mass of such rubbish has been introduced into this case, without any respectable authority to maintain its reception. The practice-is not to be commended.
We have also been unable to discover any relevancy in the testimony concerning a message sent by one of the witnesses to defendant, offering to clear him for two hundred dollars. While proper on the cross-examination of that witness it was a collateral inquiry on which no others-could be questioned.
The court being asked to charge in substance that a plea, of justification must be specific and must be clearly proved, qualified it by saying: “Still, if the evidence falls short of proving the commission of the crime, the jury may still consider the circumstances as tending to show that the defendant had probable cause to believe the charge to be true, and to- lessen the character of plaintiff, and reduce the amount of the damages.”
This language is misleading. Under our statute the mere failure to prove a justification is not sufficient to create an inference of malice from the plea or notice. If there is actual good faith in attempting to prove the justification, and the testimony fairly tends to proving the charge, the defendant is not now held culpable for the attempt, though it fails.
But no one can be justified in repeating a slander unless upon such evidence as legitimately tends to establish its truth, although it may be rebutted or fall short of absolute certainty. And if the justification is in fact only colorable, and the testimony is only introduced for the purpose of casting suspicions which it has no tendency to confirm, or which .could not establish the defense under color of which it is ■introduced, such a course would not be deserving of favor and might in some cases be found malicious. The language of the court, especially in view of the class of evidence received in this case, had some tendency to mislead the jury into supposing that all such testimony was of some legal force, whether connected or • not with such proofs as would ¡have made out a defense, and that they could lawfully act upon suspicions alone.
This certainly is not allowable. Such matters brought home to the defendant as a reasonable ground for his belief in the truth of his charges, would, if' believed, have force in mitigation. But where the charges are false, as they must be held when not proved, he cannot rely in mitigation on what had nothing to do with his original belief when he uttered the slander. And the character of the plaintiff cannot be affected properly by any proof of specific facts that does not clearly show that she has misconducted herself in some way analogous to the charges against her. While the statute was designed to prevent a party from being punished for attempting to justify what he has reason to believe was justifiable, it was not intended to allow actual malice to have full scope in retailing irrelevant slanders. .
We think the language of the court was not sufficiently guarded, and was evidently based on the idea set forth in previous rulings, that specific facts of a discreditable nature were of themselves legitimate evidence.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Campbell, J.
Cranson, who was a Iona fide holder of a promissory note given for the purchase of an interest in a patented invention, who had notice that such was the consideration, but who had no reason to believe there was any fraud in the transaction, brought suit on the note against the maker, and was defeated on the ground that the statute of this State, which requires such notes to show upon their face the fact that they were given for patent rights, had not been complied with.
The court below refused to charge that this statute was invalid, and directed the jury to follow its provisions.
The statute, approved April 13, 1871, is entitled as fol-' lows: “An act to regulate the execution and transfer of notes or other obligations given for patent rights.” It consists of two sections. The first section requires all notes and other negotiable or assignable instruments, the consideration of which, in whole or in part, consists of the right to make use of or vend any patent invention, to have prominently and legibly written or printed on its face the words “given for patent right.” Such notes are made subject to the same defenses in the hands of every holder as exist against the original holder; and notes without this inscription are equally subject to such defenses when the holder knows they were given for such a consideration.
The second section makes it a misdemeanor to take, purchase, sell or transfer any such note not so inscribed, knowing it to have been given on such a consideration.
The general laws of Michigan concerning negotiable paper correspond with the law merchant, and protect all bona fide holders for value from defenses of which they have no knowledge.
The plain and avowed purpose of the statute of 1871 is to impose conditions on the transfer of patent rights, which do not apply to any other kinds of property, thereby interfering with the value and enjoyment of such rights, and treating them as a species of interests- to be regarded with disfavor.
The subject of granting patents and regulating the rights of patentees has been placed by the constitution of the United States in the control of Congress. It is for that body alone to determine to whom and on what conditions they shall be granted and how the patented privileges are to be transferred or disposed of. Where any right or privilege is subject to the regulation of Congress it is not competent for State laws to impose conditions which shall interfere with the rights or diminish their value. In those cases where the congressional power is lawfully exercised, it is supreme. In the absence of any policy to the contrary the transfer of such rights may follow, as it usually does, the State rules applicable to similar property, as to sales or inheritances. But any attempt to discriminate against it is a direct invasion of the authority of the United States, and is invalid.
• This doctrine is. so elementary that reference to particular cases seems needless. It has been applied to interference with exports and imports, to navigation laws and the instruments of commerce, to the taxation of government instrumentalities, to discriminating privileges against persons or interests protected by the constitution and to numerous unclassified cases involving conflicts of authority. In many instances there may have been difficulties in determining whether any real conflict existed, but where it is recognized as existing there can be no doubt as to the immunity of the rights assured by the laws of the United States.
It is unfortunately true that many frauds are committed under color of patent rights, and that the patent laws are not so framed as to secure the public from being cheated by worthless inventions. The State may punish frauds upon its citizens committed by any manner of false pretenses. But it cannot lawfully assume that the rights granted by the United States are presumably fraudulent, nor can it punish frauds committed by persons holding those privileges on any different grounds from others. Such presumptions are in plain violation of every principle of justice' aud constitutional obligation. Miller v. Finley, 26 Mich., 249.
While we cannot but recognize the magnitude of an evil which has brought patents into popular discredit, and has provoked legislation in several states similar to that of Michigan, we cannot on the other hand fail to see in these laws a plain and clear purpose to check the evil by hindering parties owning patents from dealing with them as they may deal with their other possessions. The Constitution of the United States not only allows but favors the special protection of inventors. The measure of that protection, and its conditions, cannot be fixed by any power but Congress, and the remedy for abuses or defects in the legislation of that body must be found in its own revision of its own laws. It is not competent for state statutes to deal with them, or to revise the national policy.
We are compelled to hold the law of 1871 as a manifest violation of the Constitution of the United States, and as therefore void.
The court below erred in holding otherwise. The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Graves, J.
Mrs. Cleary sued the city for a personal injury she suffered from a fall caused by a step of six inches down from one sidewalk to another, and having recovered the city asks a review of the proceedings on writ of error and bill of exceptions. ~ >
As there is no appearance for defendant in error and no explanation has been offered on her part it is not considered expedient to discuss the case upon all the views of it which may suggest themselves to the mind, or to indicate an opinion upon questions not essential to a decision of the cause.
When the case went to issue the declaration contained four special counts, but on ,the trial the first and second were abandoned. The ground of action relied on must therefore be sought in the third and fourth counts or in one of them.
The essence of the charge preferred in these counts is ithat the city built the walk and in a manner so improper that it amounted to a dangerous obstruction of the street, and that Mrs. Cleary being entitled to use the street and proceeding to use it in a proper mode and with due care was injured by means of such dangerous obstruction. It is impossible to make a stronger case than this on the frame of these counts, and it may be that they are construed too favorably for defendant in error. Assuming a cause of action to be alleged against the city, but without deciding the point, it becomes a vital question whether there was any evidence the jury were entitled to consider conducing to support the charge as insisted on. At the trial the counsel for the city contended there was not, and requested a charge to that effect. The court refused the request and submitted the case upon the opposite theory.
The walk where the injury occurred was one which had been recently relaid on a new grade and it was along the front of premises owned by Mr. Harlow.
The duty to build, rebuild and repair sidewalks is upon the owners and occupants of adjoining lots and not upon the city. §§ 8, 9: ch. 5 of charter, Sess. L. 1871, Yol. 2, pp. 53, 54. The city may indeed provide for doing what is required and at the expense of the premises in case the parties upon whom the duty rests fail to complete what is required-within the time fixed by the common council. Id.
The duty to provide a walk at the time and place im question, if any such duty was resting on any body, was on Mr. Harlow as proprietor of the adjacent land, and in fact he caused the particular walk to be made there.
At the same time, however, he was one of the aldermen and also chairman of the committee of three on streets and bridges. But his occupancy of these positions did not make his putting down the walk to be an act of the city. The manner in which he acted and the other facts decide that such was not the character of the act. The duties of this committee were not meant to be left to conjecture or to the notions of individual members. The charter requires that they shall be prescribed by ordinance. § 4, ch. 10. No' such ordinance is shown or claimed to exist, and it cannot be presumed that Mr. Harlow had plenary power and in his individual person represented the common council in the matter. There is no evidence of any action, prior or subsequent, by the common council in regard to the walk or any walk on that site, nor any evidence that any one except Mr. Harlow in any city office or employment had any thing to do in connection with the putting down the walk. According to the case the act was his own voluntary act as owner of the adjoining premises, and not in any correct sense, either in fact or construction of law, an act of the city through him. There was hence no evidence to sustain the charge in the declaration that the city had wrongfully obstructed the street by building a walk in it in an improper manner. This is sufficient to dispose of the case, and it is not needful to notice other points presented in the brief of counsel for the city.
The jury should have been instructed in accordance with the first request on the part of the defense, and the refusal was error for which the judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Byrnes was prosecuted in the. Superior Court of Grand Rapids upon an information which charged him with breaking and entering by night the shop and office of one Murphy with intent to steal his goods and chattels, and with stealing goods of the value of nineteen dollars. This information was based on an examination upon a precisely similar charge, before the police 'justice of Grand Rapids. The terms feloniously and burglariously were applied in all these documents. The jury convicted the prisoner, and the court sentenced him for burglary to five years in the State Prison.
After the prosecution had closed their testimony the respondent rested his case without introducing any, and asked the court to direct the jury to acquit him as not charged with any crime known to the laws. The court thereupon, on motion of the prosecution, allowed the information to be amended so as to aver that the office and shop were not adjoining to or occupied with a dwelling house. With this amendment the case was submitted to the jury, who found respondent guilty.
The examination before the magistrate did not show either by the complaint or by the testimony anything about the situation of the building with reference to a dwelling.
It was held in Koster v. People, 8 Mich., 431, that breaking and entering such a building, not described as not adjoining to or occupied with a dwelling was no crime whatever known to our statutes. So much of the charge therefore was nugatory.
But the complaint did sliow a specific crime, namely, the stealing of goods of the value of nineteen dollars, which under our statutes is an offense subject to trial before a justice of the peace. Where the complaint shows such an offense a justice has no authority to hold an examination, but must try the case himself. 2 Comp. L., §§ 7844-7860.
An information only lies upon a legal examination and commitment. Comp. L., § 7944.
When the respondent was tried before the Superior Court it was upon a charge of petit larceny for which no information was allowable, and that was the only offense he was called to meet. He had a right to decline introducing evidence and to claim a discharge.
The amendment allowed by the court created a new i'ssue upon an entirely different crime, on which he had never been examined, and to meet which he had never been notified. We have no statute which would legalize any such change of accusation as this after the proofs are in on a trial. It was not the rectification of a formal defect, but a radical change of the information and its legal identity.
The judgment, being rendered on an information which in its only valid shape contained no charge of a State prison offense, nor of any offense whatever within the jurisdiction of the Superior Court, must be regarded as erroneous and invalid.
The defect is fatal to the entire proceedings as there is nothing to try over again, and as the sentence is not merely excessive but illegal.
The judgment must be reversed and the prisoner discharged.
Cooley, O. J., and Graves, J., concurred.
Marston, J., did not sit in this case. | [
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Graves, J.
The plaintiff in error is a son and the defendant in error a sister of the late Eber B. Ward, and the present controversy relates to a claim preferred by Miss Ward against her brother’s estate and which her nephew contests. The claim was originally heard before the commissioners appointed to adjudicate on such matters pursuant to the statute, and was allowed against the estate February 3d, 1876, at $31,798.88. The plaintiff in error took an appeal to the circuit court where an issue was framed and tried before a jury, and a verdict given and judgment entered for the claimant against the estate for $34,964.75.
The appellant has now brought error, and he states numerous objections. An outline of the chief transactions is needed to make the points intelligible, and it may be drawn mainly from the .brief of the learned counsel for the plaintiff in error.
June 1st, 1869, Henry N. Walker made his mortgage and accompanying promissory notes to the decedent Eber B. Ward to secure the payment of $22,500 and interest at seven per cent. The debt was cut up, into annual payments, one of which was to be made on the 15th day of October in each year from 1870 to 1878.
The interest was calculated and expressed as principal. But it was agreed that the mortgagor should be at liberty to pay sooner than the times fixed for payment and that in case of such prepayment there should be a corresponding abatement of interest. July 1st, 1869, $312 was paid to decedent.
Oa the 25th of September next thereafter Mr. Ward executed and acknowledged an assignment of the mortgage to his sister, the claimant, for an expressed consideration of $20,000. The assignment was placed on record on the day of its date. The notes were also duly endorsed over. Qn the 15th of October, 1869, or some twenty days only after the date of the assignment to Miss Ward, the mortgagor Mr. Walker made a payment of $625. He called at decedent’s office for that purpose and then and there found that the securities had been transferred to Miss Ward and that Mr. Bean, a book-keeper of decedent in the office, held a power of attorney from Miss Ward to receive the money and was acting as her attorney. Mr. Bean received the money and receipted it in the name of Miss Ward. He produced the mortgage from decedent’s safe. After several payments were thus made and received, Bean left and Mr. Lillibridge, another book-keeper in the employment of decedent, received payments but as money belonging to Miss Ward and not to decedent.
December 23d, 1873, the decedent loaned $10,000 of the Detroit Savings Bank and made his note to the bank therefor. At the same time he assigned the Walker mortgage to the bank. The assignment expressed a consideration of $10,000. It was acknowledged on the 24th of December, 1873, and recorded the same day. This assignment was by way of security for the loan and nothing more, and it is shown that in making it the decedent overlooked the previous assignment to his sister, the claimant.
April 16, 1874, the decedent sent his agent, Mr. Lillibridge, to claimant to obtain her assignment to the bank, and she complied with the request. The assignment was duly executed and acknowledged, and was recorded April 16, 1874. It recited a consideration of $10,000. But in fact she received no consideration whatever.
When Mr. Lillibridge called upon her as directed by decedent she was averse to making the assignment. He then explained to her that her brother had borrowed money of the bank, and having forgotten his transfer to her, had pledged the papers to the bank .by way of security for the loan; that having thus pledged the papers as his own after he had assigned them to her, he felt embarrassed and desired she would relieve him from his predicament by executing the assignment to the bank; that thereupon and out of regard for her brother and in order to extricate him and make good his assignment as collateral security she at length consented. On obtaining her assignment Mr. Lillibridge at once reported to decedent what had taken place.
In due season thereafter decedent paid up the loan to the bank and cancelled the condition under which the mortgage had been turned to special use as collateral security. The object of the pledge being performed, the pledge ceased to be operative and the whole beneficial interest became absolute in the true owner of the equity of redemption.
At this time, June 17, 1874, the Savings Bank executed an assignment of the securities to the decedent and in the ensuing September he conveyed them absolutely to the bank for $9,501.85, being $738.19 less than the true amount. This last sum was discount.
Excluding $312 paid before the assignment to claimant and the further sum of $625 which went to her credit, the decedent actually received upon the papers and appropriated $34,226.56, and if he had not submitted to the discount he would have received $34,964.75, the sum awarded by the jury-
The brief represents that defense has been made on the theory that the assignment from decedent to his sister was without consideration and a purely voluntary and barren act and that their mutual dealings in relation to the mortgage were gratuitous and unreal and not meant or expected to constitute any ground of claim by one against the other.
First. The first point noticed is the charge that the court erred in excluding evidence of what decedent said in favor of his ownership on the occasion of his assuming to sell the securities to the bank.
The claimant was not then present, and there is no room for saying she was privy to her brother’s statements or that she has at any time assented.
It is now contended that the claims he then made of ownership were competent evidence for the estate before the jury and against the claimant, that he was in fact owner.
That the real bearing of questions may not be lost sight of and rational distinctions be obscured, it is material to keep in mind that this contention is between the claimant and the estate of Eber B. Ward, and that the circumstance that the case happens to be entitled as one between the claimant and Charles H. Ward is of no importance. Her right and the principles governing the defense are just the same as they would be if Eber B. Ward were living and the controversy was going on between them.
His conduct and admissions must affect his estate as they would have affected him in that case (Swayze v. Swayze, 1 Stockton, 373, 383, 384), and his representations and declarations made in his own interest or on his own behalf, are in no manner more privileged or influential for his estate than they would have been for him.
The case affords no warrant whatever for any serious claim that the transactions between the decedent and his sister in relation to the ownership of the securities were mere acting and trifling and without designed meaning or natural operation. The express facts and all presumptions are repugnant to such an idea. The proceedings of decedent in transferring to his sister and in procuring her sanction to his pledge to the bank must be considered as intended to be efficacious according to their natural import, and the case shows nothing of later date of competence in law to cause any different condition. Whatever liability the mortgagor may have incurred to the claimant is of no moment now, and whatever rights third parties might have been able to acquire or may have acquired against the claimant by dealing with decedent on the faith of- his being owner of the papers, it is very clear he could not create any right in himself against her by claims and shifts she neither knew of nor authorized or assented to.
The ruling of the court was correct; decedent’s declarations were no more evidence for the defense here than they would have been for him in case he had lived and been the contestant, and surely he could not have proved his own mere declarations to third parties of his ownership in order to establish his title against the claimant. Wilson v. Wilson, 6 Mich., 9; Jones v. Tyler, Id., 364; Van Vleet v. Blackwood, 33 Mich., 334; Baxter v. Knowles, 12 Allen, 114; Downs v. N. Y. Cen. R. R. Co., 47 N. Y., 83; Marcy v. Barnes, 16 Gray, 161; Osgood v. Coates, 1 Allen, 77; Plumer v. French, 2 Foster, 450; Isles v. Tucker, 5 Duer, 393; 1 Cow. & H. Notes, 157; Glynn v. The Bank of England, 2 Ves. Sen., 39, 43; Rex v. Debenham, 2 B. & Ald., 187; Outram v. Morewood, 5 T. R., 121.
The refusal to admit decedent’s first assignment to the' bank- when offered for the same purpose, is sustained on the same ground. As his representation to the bank that he was owner, it was not evidence in his favor or in favor-of his estate against the claimant that in fact he was such owner. Besides, a few months later he admitted he was-not owner when he assigned to the bank. He did so when he procured her assignment to make his good.
Second, The claimant being on the stand, her counsel asked her, “What, if any thing, did you receive for the. assignment of the H. N. Walker mortgage to the Detroit Savings Bank?” The question was objected to as “incompetent, irrelevant and immaterial.” The court overruled the objection, and an exception was taken. The claimant then replied: “Nothing; I did not receive anything; I did not receive a cent.”
It is urged here on the part of the estate that the inquiry was not confined to the specific interview between the claimant and Lillibridge when he obtained the assignment, and when decedent was not present and others were, but was-general and applied to the whole space of time before and after that interview and reached far enough to call out a. statement from her of a fact equally within decedent’s, knowledge; and this, it is said, was contrary to the statute. Sess. L. 1875, p. 184.
We observe in the first place that we cannot concur in. the construction thus given to the record.
The questions immediately preceding the one objected to, and connected with it pretty plainly indicate that the latter did refer to the occasion when the assignment was obtained and was not indefinite in relation to time, and the last answers she made next before the question complained of, imply that she was under the impression that the examination related to that occasion. Her attention was distinctly drawn to it and she had just deposed that her brother was not present, but that Mr. Lillibridge, Mr. Mayhew and perhaps some other members of the family were present. The fair construction of the record is, that she was asked and so understood, about having received any thing at that time. Granting that the other view of the record would maintain error, still the court would not be inclined to favor it if only equally probable with the construction adopted. Assuming that the question applied to the occasion when decedent was not present and Lillibridge and Mayhew were, it then follows that the statute could not apply.
It may be further observed that the objection might be disposed of under a well settled rule of practice. The ground of the exception was not stated at all, and considering the circumstances, the point now urged was not so obvious as to probably occur to the judge’s mind on the tender of a general objection. The plaintiff in error is therefore not entitled to insist on the ground here taken. Morissey v. The People, 11 Mich., 327, 332; Hollister v. Brown, 19 Mich., 163; Gilbert v. Kennedy, 22 Mich., 117; Campbell v. The People, 34 Mich., 351; Lobdell v. Bank, 33 Id., 408; Elwood v. Deifendorf, 5 Barb., 398, 405, 406; Jackson v. Hobby, 20 Johns., 357; Murphy v. The People, 63 N. Y., 590; Nash v. Hunt, 116 Mass., 237; Burton v, Briggs, 20 Wall., 125; Bain v. Whitehaven & Furness Junction R. W. Co., 3 H. L. Cases, 1, 15, 16.
Third. The witness Lillibridge had sworn that he was in decedent’s service and went to the claimant to get her to assign to the bank. He had likewise testified as to what he had informed her the occasion was which made- her assignment to the bank desirable and as to what occurred- at the time. He was then asked, “under whose instruction he was acting in going to the claimant and transacting this business?” It was objected on the part of the estate that instructions to the witness to do what he did could not be proved in that general way. The court overruled the objection and the witness-answered, “Captain E. B. Ward.”
It will be observed that the objection was not that the question was leading, but that it was too general. . The force of the point is not perceived. If explanations were deemed of any importance, cross-examination might have secured them.
The conversation at the time the claimant assigned to the bank between her and decedent’s agent Lillibridge, as to the occasion for making the assignment, was admissible.
It was no more objectionable than if it had occurred between the claimant and decedent himself instead of between the claimant and decedent’s agent.
It concerned the act of transfer which was then arranged and completed and on which the estate founds its defense, at least mainly, to the demand of the claimant. Cliquot’s Champagne, 3 Wall., 114; Fairlie v. Hastings, 10 Ves. Jr., 123, and Sumner’s notes; 1 Greenl’f Ev., §§ 113, 114, and notes.
Fourth. The witness Mumford was allowed "to state the difference between the sum received by decedent from the bank at the time he assumed to sell the securities, and the amount the mortgage then called for, the claimant insisting upon her right to recover the latter.
It is contended for the estate that this was improper, and the position is taken that decedent was not, nor is his estate liable for any more than he chose to exact or obtain from the bank as the purchase price. The court think differently. For the purpose of the point the securities are to be taken to have been the property of the claimant and to have -been appropriated by decedent without any arrangement by her to accept from him whatever he might obtain and suffer any sacrifice his necessities might dictate to himself. There is no pretense they were not good for the amount claimed, and there would be no justice in compelling the claimant to accept what the decedent chose to be satisfied with. It did not lay with him to measure her rights by his necessities.
Fifth. All the propositions charged and all the refusals to charge were excepted to. We discover nothing in these rulings which would justify discussion. The instructions given were fair and suited to the requirements of the case, and those refused were objectionable in themselves. Moreover the case needed no further instructions.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Reid, J.
Harry E. Saier, son of the deceased Jessie E. Saier, appeals from an order of the circuit court made on an appeal by Harry E. Saier from an order of the Ingham county probate court dismissing Harry E. Saier’s contest and objections to the allowance of the will of his mother, the deceased. The probate court found that the contestant, Harry E. Saier, is not an interested party within the meaning of the statute, CL 1948, § 702.24 (.Stat Ann §.27.3178 [94]), and dismissed contestant’s contest in the probate court. On appeal the circuit court also granted proponent’s motion to dismiss Harry E. Saier’s ob jections to the will. The circuit court further remanded the matter to the prohate court for further administration according to law.
Both the probate judge and on appeal to the circuit court, the circuit judge, found that the contestant was not an interested party within the meaning of the státute because the contestant by contract had assigned, all interest he had in the estate of his mother to said estate, the contract being signed by several heirs and the testatrix herself.
The contract referred to was dated November 12, 1949, and is as follows:
“Agreement And Release
“Whereas the Parties Hereto Signing have heretofore had several discussions about rights, duties and obligations, and,
“Whereas it is their present desire to settle any and all property rights, actions, causes of actions, ■claims and demands, and
“Whereas, each has conferred at length with their respective attorneys and here and now admit that they are fully advised as to their rights and fully •cognizant -of the legal consequences of their actions heretofore,'. . •
“Now Thereeore This Agreement Witnesseth: “(i)-; The undersigned, Harry Saier - shall forthT with pay the sum of $800 cash to Ruth Keast.
“(2) The undersigned Harry Saier shall forthwith -pay the sum of $2,308 cash to Ed. Saier, the undersigned.. ■ • ' ■■
“(3) It is understood and agreed that the aforesaid-Harry Saier.hereby consents to and agrees to his mother, Jessie Saier transferring to Ed- Saier the sum of $5,460 or property worth that amount or mortgages worth that amount from- his possible share in .the estate of said Jessie • Saier. and agrees further that this agreement shall be considered as and be effective as an assignment of that amount.
“(4) Said Harry'Saier hereby agrees not to make any claim of any kind or nature against J essie Saier or the estate of Jessie Saier either as creditor, heir or legatee and hereby assigns any interest that he may have against said Jessie Saier to the estate of said Jessie Saier.
“(5) Said Ed Saier, undersigned agrees to forthwith procure from Ruth and Dorothy, the daughters of Harry Saier quitclaim deeds to the farm now occupied by Harry Saier and Hazel Saier, said quitclaims to be to Hazel Saier and Harry Saier, jointly.
“(6) It is understood and agreed that Harry Saier shall assume and pay the present mortgage against said property, said mortgage being in the approximate amount of $1,750.
“(7) Harry Saier is to forthwith give to Dorothy, his daughter a promissory note in the sum of $1,050 payable on. or before August, 1950.
“(8) In consideration of the above provisions and others, J essie Saier agrees that in addition to whatever share said Ed Saier has in her estate that she will deed or mortgage during her lifetime sufficient property to secure Ed Saier in the repayment to him of $5,460 which will come out of Harry’s share in the estate whatever said share is.
“(9) Each by signing this agreement acknowledge full accord and satisfaction of any and all claims of whatsoever kind or nature, whether liquidated or unliquidated and does hereby release the other from any and all actions, causes of action, claims and demands, whether known or unknown at this time.
“(■10) Said Harry Saier hereby releases any and all possible claims of any kind or nature which he might have under a will or by intestacy in the estate of Jessie Saier, the balance of said share to remain in tiie estate and to descend to Ruth and Dorothy to the residuary legatees in equal shares, share and share alike, i.e. the balance of except that Jessie may will the batanee ef Harry’s share in any way she sees fit.
“(11)' It is understood and agreed that no further suits of any kind or nature shall be started and that no further remarks of a derogatory nature shall he made by the one against the other, whether said derogatory remarks he true -or false and slanderous.
“(12) It is understood and agreed that every effort shall be made on the parts of all parties to avoid any further trouble and further that said Harry Saier will allow said Dorothy Saier to remove from their said farm such property as shall belong to said Dorothy Saier and likewise for Ruth Keast.
“(14) It is understood and agreed that this constitutes the full and complete agreement between the parties and that neither has any further claim or demand of any kind or nature, personal or real, wheresoever situated against the other, and that in signing this agreement each fully and completely releases the other from any and all liability of any kind or nature.
“In witness whereof we have hereunto set our hands and seals this......day of November, A.D. 1949
“H. E. Saier “Edward H. Saier “Hazel E. Saier “Jessie E. Saier
Under the will of October 27, 1948, Harry Saier was a coexecutor with his brother Ed Saier and was given 1/3 of his mother’s estate. The 2 wills of January 6,1950, and February 21,1950, are identical except that Mr. Hood, a witness for the administrator, testified that a copy of the agreement was attached to the February 21st will. If the'February 21, 1950 will was not admitted to probate for any reason then the next will would he that of January 6, 1950, which is identical to the February 21, 1950 will except that the contract was attached.
The contestant was represented by counsel before the time the contract was executed.
The objection filed by Harry E. Saier (hereafter referred to as contestant) charged that the making of the will “was induced by misrepresentation, fraud, undue influence and duress practiced upon said deceased,” and also, “That said instrument purports, in part, to be executed pursuant tó a certain contract,dated November 12, 1949, which contract was null, void and of no force for the reason that it was made without consideration, that it was illegal and contrary to public policy and was induced by' misrepresentation, fraud, deceit and undue influence practiced upon said deceased.” Contestant Harry E. Saier admits that “he did receive back his farm upon payment of $2,308 to Edward Saier, which the latter held under trust agreement and which he, had repeatedly refused to return to Harry Saier.”
It is the claim of contestant that the probate court was without authority to hold that he was not an interested party by reason of the agreement of November 12, 1949, because:
“1. The will had not been admitted to probate;
“2. No advancement was received from the ancestor under said agreement as to bring such an agreement within the term of the statute relating to advancements;
“3. The validity of the agreement, as well as the will itself, had been challenged by contestant.”
Upon the hearing of the matter in circuit court, witnesses were sworn and examined. Lloyd D. Parr, one of the executors, was sworn on behalf of the estate and cross-examined by contestant’s - counsel. Also, Oscar J. Hood was sworn on behalf of the proponents of the will and cross-examined by contestant Harry E. Saier. Herbert Saier was produced by contestant; his testimony was objected to by the estate as to matters equally within the knowledge of the deceased. The court permitted testimony to be taken subject to the objection on behalf of the estate. Harry E. Saier took the witness stand on his own behalf; also Christine Castle was produced by and examined on behalf of contestant and cross-examined by the attorney for the estate. It is conceded that Harry Saier has paid the sum of $800 cash to Ruth Keast and also that he has paid $2,308 cash to Ed Saier, his brother, and contestant Harry E. Saier admits that he has received a quitclaim deed to his farm as specified in the agreement, and that he has not returned the title to the farm to the grantors from whom he received the title, nor made any proffer of return of the title.
It is the claim of the contestant that the agreement hereinbefore set forth is an agreement for the conveyance of an expectancy and is enforceable only in a court of equity.
Among other things, the trial judge found as follows :
“As a general proposition, the law views with favor an agreement between prospective heirs relative to .the division of their expected inheritances, especially, where, as in the case at bar, the ancestor is a party to the agreement. 74 ALR 441, 442.
“The agreement in question is unambiguous, was entered into upon good consideration, performed fully by all parties except the contestant. It is also noteworthy that the contestant or any other person to the agreement raised no question concerning its validity until some time after the death of the testatrix, which occurred approximately 18 months after the ágreement was signed. This is important because it appears affirmatively that the contestant had knowledge of the terms of the will, which as before stated embodied the agreement.
“The contestant * * * [concedes] that he has. received the substantial consideration, a valuable farm, by virtue of compliance of the other parties, to the contract. Pie has not and he does not now-offer to return the consideration but wants to keep' the farm and also get a share of the estate, a share which he has waived, assigned and sold by virtue of the agreement of November 12, 1949. It further appears that the share of the estate which contestant would have received if the testatrix had died intestate is in fact going to his 2 daughters, the said Dorothy and Ruth.”
The contract having been fully performed on the part of the other parties to it, aside from contestant, and being also signed by the deceased, and the contestant still retaining the consideration, the farm, there seems to be no ground for holding that as things now stand, the contract should be enforceable only in equity. Contestant Harry E. Saier has not appealed to the equity court to exercise its jurisdiction over the contract which he signed, and there is no good reason for permitting him to drive the other parties to the agreement into a court of equity. No petition is involved for the granting of the peculiar relief which could be granted only by a chancery court. Nothing appears in the record to indicate a necessity for the exercise of equitable as distinguished from legal jurisdiction.
In Bean v. Bean, 144 Mich 599, we held that the proponent of the will was not obliged to bring suit in equity to enforce the agreement of the heirs that the later of 2 wills should be probated and the property distributed in accordance with the earlier will, but was entitled to have 'the validity of the agreement and the effect of it determined in the probate court and on appeal from the probate court, in the circuit court.
In In re Elliott’s Estate, 285 Mich 579, we say (syllabus 1):
“In a will contest the matter of a contestant’s lack of interest may be challenged by proponent’s motion to dismiss.”
The probate court in the first instance and on appeal, the circuit court, had jurisdictional authority to entertain the motion to dismiss contestant’s objections.
The order of the circuit court granted proponents’ motion to dismiss contestant’s objection. That order of the circuit court is affirmed. The matter is remanded to the circuit court for a remand to the probate court for further proceedings. Costs to the proponents.
Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred.
Carr, C. J., did not sit.
See CL 1948, §§ 702.87-702.92 (Stat Ann 1943 Rev §§27.3178 [1573—27.3X78[162]).—Reporter. ■ . . . . , .
See CL 1948, § 617.65 (Stat Ann § 27.914).—Reporter. | [
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Reid, J.
Plaintiffs petitioned the circuit court for a writ of mandamus to compel issuance of building permits to establish an additional trailer park in the township, which permits the defendant township had refused to issue because contrary to the zoning ordinance. After a hearing on the petition, the circuit court entered an order denying the application. Plaintiffs appeal.
The facts are not in great dispute. The township is located in Oakland county and was originally 36 square miles in area. By incorporations of cities and annexations to cities, it has been reduced to about 7-1/2 square miles, except for a small separated area. It is now bounded on the south by 10 Mile road; on the east by Dequindre road (the boundary line road between Oakland and Macomb counties); on the north by 14 Mile road and on the west by Campbell and Stephenson roads. The property in question lies on the west side of Dequindre, on the easterly edge of the township. It has a frontage of 600 feet on Dequindre and a depth of about 2,370 feet.
Because of great industrial activities in Warren township, Macomb county, which is adjacent to and east of Boyal Oak township, defendant township adopted a comprehensive zoning ordinance, April 29, 1948, in which ordinance the area in which plaintiffs! property is situate, was zoned for heavy industrial use. No industries became located within the area in the next 4 years; on the contrary, large tracts adjacent were developed for and occupied by single-family residences, in consequence of which and in order to conserve the residential use dictated by changed surroundings, the defendant township in October, 1950 and on June 6, 1952, amended the zoning ordinance and plaintiffs’ property was included in a rezoning restricting to 1-family residential use.
Plaintiffs bought the property for the agreed price of $32,700 five months after the adoption of the zoning ordinance of which plaintiffs now complain and have no greater right to use the property for a trailer park than their vendor had. Irma Killoran, who owned the property in question before selling it to plaintiffs, had signed a letter dated January 25, 1952, written by her son to the supervisor of the township requesting the rezoning of the property “from industrial to residential.”
There are now 4 trailer parks in the township. One is owned by one of plaintiffs, and is near the property in question. All 4 were in operation before the adoption of the present zoning ordinance, to which they are nonconforming in use. There are no sewers touching plaintiffs’ land. The State department of health approved the proposed use of septic tanks for disposal of unsanitary wastes.
The school district owns about 12 acres due west and adjoining the proposed trailer park in question in this case. The school has a capacity for 350 pupils, with attendance of 485 and the pupils are on half-day attendance due to lack of facilities of the district. The population of Royal Oak township was 6,000 in 1945, but now it is about 24,000. The township has difficult problems to solve in order to effectuate disposal of sewage and storm water.
Plaintiffs cite Richards v. City of Pontiac, 305 Mich 666, as authority for the proposition that a permit issued to plaintiffs for their proposed trailer park by the State health department precludes the township from invoking or enforcing its ordinance in opposition to the proposed trailer park in question. However, the State permit (issued June 29, 1953) contains the following:
“This permit in no way relieves the park owner of the responsibility for securing any or all other permits required by State law and local ordinances.”
The statute, CL 1948, § 125.755 (Stat Ann 1953 Cum Supp § 5.278[53), contains, among other things, the following:
“No approval of plans and specifications and the issuance of a permit to construct or make alterations upon a trailer coach park and the appurte nances thereto by the State health commissioner shall be construed as having been approved for other than sanitation. Such a permit does not relieve the .applicant from securing building permits in municipalities having a building code; or from complying with any other municipal ordinance or ordinances, applicable thereto, not in conflict with this statute.”
The statute gives the State health department (in •conjunction with local municipalities) the authority to intervene in trailer park matters for protection of the public health, but leaves entirely to the .township matters of safety, morals and general welfare in the operation of trailer parks in the townships. See CL 1948 and CLS 1952, § 125.271 et seq. (Stat Ann 1949 Bev and Stat Ann 1953 Cum Supp .§ 5.2963 [1] et seq.). Townships have the right to •exclude trailer parks from residential districts by seasonably adopted and reasonable zoning ordinances, notwithstanding any permit issued by the State health department.
Under the circumstances of this case, defendant township could well consider trailer parks objectionable in the residential neighborhood in question. 'The enactment of the trailer coach park act, hereinbefore quoted from, indicates that the legislature recognized the necessity for special regulation of trailer parks, especially from the standpoint of public health.
Plaintiffs produced testimony to the effect that the supervisor of the township said that the purpose •of adopting the ordinance in question, was to prevent an incinerator plant from being established in the township. There is no competent testimony that the other members considered the matter in the same light as the supervisor is claimed to have considered It. We must presume that all members of the board Nad in mind the general conditions of property in fhe township and in the absence of testimony to the contrary, acted within the limits that such knowledge would indicate, in forming their judgment and taking action.
There is not sufficient foundation for plaintiffs’ claim that the township hoard in the adoption of its amendment to the ordinance in question (requested by plaintiffs’ vendor), and in the refusal to grant plaintiffs the requested permits, acted otherwise than in accordance with a just appraisal of the circumstances, the needs and interests of the public, according to their honest and well-founded judgment. There is no ground shown on which the defendant township could properly be forbidden to enforce the ordinance in question. There is no sufficient showing that defendants violated any clear legal duty. There is, therefore, no fair ground for the issuance of the mandamus sought. The judgment of the circuit court in denying the application of plaintiffs for a writ of mandamus is affirmed. Costs to defendants.
Carr, C. J., and Buteel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred. | [
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Reid, J.
Plaintiff brought suit on a note signed ■by the defendants having conditions which plaintiff claims were not conditions precedent. The lawsuit was-tried before the circuit judge without a jury. The trial judge found that the conditions were precedent to liability on the part of defendants and were unfulfilled, and the trial judge rendered judgment for the defendants. Plaintiff appeals.
The matters in controversy have relation to th’e affairs of Norman-Ross, Inc., a Michigan corporation, the articles of which corporation were filed with the State commission, June 28, 1946. Norman-Ross, Inc., was engaged in the business of selling phonograph records, radios, and television sets, and had one store in Grand Haven, Michigan, later a branch office in Grand Rapids, Michigan.
Plaintiff was an incorporator, director and original stockholder, originally holding 1/3 of the outstanding stock. After the incorporation, he purchased additional stock. His son, Norman A. MacDonald, Jr., was also an incorporator and holder of at least 1/3 of the outstanding stock. Plaintiff was vice-president. He claims that on January 15,, 1950, he submitted his resignation by letter addressed to the company. Our attention is not directed to any showing in the record that the company accepted plaintiff’s resignation as vice-president. His said son was president from the beginning of the operations of the company until it went out of business and was at all times the managing officer of the company. Plaintiff was in frequent communication with his said son on the affairs of the company.
In September, 1948, defendant James F. Perry became an employee on salary basis. He never became an officer or stockholder. He once offered to bny some stock and tendered $2,500 bnt the stock was not issued to him. He acted as clerk, office manager, waited on customers, dressed windows, ordered music records but not other merchandise without direct order of the managing officer, took care of the furnace, swept floors, and acted as manager of the Grand Haven store during temporary absences of the president, but never acted as general" manager. He could not write checks on the company’s account. His wife, codefendant Virginia H: Perry, was never associated with the company in any capacity.
The company being in financial difficulties on April 26, 1949, executed with consent of the stockholders to W. Alex Kennedy as trustee, a chattel mortgage of all the assets of the company, including future-acquired assets,- to secure creditors having credits of a total approximate amount of $17,000. Plaintiff knew of the execution and existence of this-chattel mortgage.
March 11, 1950, a letter signed by defendant Virginia H. Perry, in the preparation of which defendant James F. Perry participated, wás sent to plaintiff and is as follows:
“1534 Clinton Street Muskegon, Michigan 11 March 1950 ■
“Mr. N. A. MacDonald
80 East Jackson Blvd.
Chicago, 111.
“Bear Mr. MaflDonalcl:
“As your son, Norman, has told you, I am one of the heirs of my aunt, Miss Helen Hume, Webster Avenue, Muskegon, Mich., who died several months ago. Her estate is being settled by the' Michigan Trust Company of Grands Rapids. Attached is copy of notice I received from the Trust Company, showing that probate proceedings are under way. How long it will take to settle the estate I have no way of knowing, nor do I know the exact amount I will receive, but Miss Hume’s brother (my father) who attended to some of her affairs, and who should know, made the announcement to the heirs' after the funeral and estimated that each share should run somewhat in excess of $20,000.
“After discussion with your son, N. A. MacDonald, Jr., and my husband, J. F. Perry, I have agreed to make a loan to the business of Norman-Ross, Inc., 201 Washington St., Grand Haven, Mich., in the amount of $8,500. As security, Norman-Ross, Inc., is to give me a note secured by first mortgage on all property and assets of the corporation, repayment to be made on a monthly basis over a 5-year period, with interest at 7% per annum.
“I cannot, of course, supply the money in question until after the estate has been settled. If you can arrange an interim financing for the $8,500, in order that the current trusteeship can be liquidated and the mortgage now held by the trustee relinquished, 1 will forward to you upon receipt by me of my share of the estate above mentioned and, the proper execution and delivery of the note and mortgage for my protection, the sum of $8,500. (Italics supplied.)
“Very truly yours,
“Virginia Hume, Perry
“(Mrs. James F. Perry)”
After the letter was sent to the plaintiff, plaintiff came (on or about March 14, 1950) to Grand Haven and had a talk with defendant James F. Perry and tendered to defendant James F. Perry “for execution,” an unconditional promissory note, which defendant James F. Perry refused to even consider and threw away. Subsequently there was a meet-in the office of Norman-Ross, Inc., in Grand Haven, of Mr. MacDonald, Sr., and his said son, with defendant James F. Perry, at which plaintiff MacDonald produced a check for $8,500 payable to defendant Virginia H. Perry, requesting-that that check be placed in a special account in the Grand Haven bank, saying that he did not want it to be put into the Norman-Ross account for fear the trustee would impound it and apply it on the chattel mortgage. Plaintiff added the name of defendant James P. Perry to the check for $8,500 with the disjunctive “or,” so that defendant James P. Perry could, indorse the check. Plaintiff and his son were very anxious to get a number of television and radio receivers out of the Michigan Express Company office that had been there a very considerable length of time. Plaintiff after adding the name of James F. Perry to the check, asked him to rush it over to the bank, open the account, and get a certified check for the amount necessary to get those instruments out of the Michigan Express Company—there was a “deadline” on them. Plaintiff instructed James P. Perry defendant to keep the $8,500 out of trustee Kennedy’s hands and in a special account to carry on the affairs of Norman-Ross, Inc., and eventually “get the trust chattel mortgage by bringing in the necessary merchandise to carry on.” A check for $2,700 dated March 17,1950 was drawn to the trustee Kennedy. The remainder of the deposit of $8,500 was paid out for the benefit of Norman-Ross, Inc., to keep the business in operation and to pay for merchandise and bills of the corporation. The indorsements of W. Alexander Kennedy (the trustee), N. A. MacDonald, Jr., and James P. Perry appear on the reverse side of the checks which with the check for $2,700 to the trustee, total the $8,500. After the placing of $8,500 to credit of defendant James P. Perry in a special account as aforesaid, and on or about March 14, 1950, defendants signed and delivered to plaintiff the note sued on which is as follows:
’“$8,500.00 14 March,_ 1950
Ninety days (90)......After date......promise to pay to the order of N. A. MacDonald eight thousand five hundred and no/100 Dollars at 80 East Jackson Blvd., Chicago, 111. Value received. Payment to be made in accordance with the terms of my letter to you dated March 11, 1950. It is understood and agreed that the maturity date of this note will be extended if necessary until such time as the estate in question has been settled and my share thereof received.
“(s) Virginia H. Perry “James F. Perry
“No........Due..........
“Interest 4-1/2% per annum.”
The note sued on has reference to the letter of March 11, .1950, and the letter by reference is part of the note.
Norman-Ross, Inc., went out of business about the latter part of February or first part of March, 1951. Neither of the defendants ever received any chattel mortgage. on the assets of Nornian-Ross, Inc. The estate of Helen, Hume was settled in the latter part of 'the summer of 1951 after Norman-Ross, Inc., had gone out of business. In addition to the lien of the trust chattel mortgage there were liens against the assets of the company held by the State of Michigan and,the Federal government for unpaid taxes. The company, Norman-Ross, Inc., made 2 interest payments of $85 each (one dated June 9, 1950 and the other, October 6, 1950) to plaintiff. This was interest on the $8,500.- The payments were directéd by plaintiff’s son who was the president of the company. , ' . ■ ■
The trial court concluded that at the time of the commitment by Virginia A. Perry of March 14, 1950, hereinbefore recited, plaintiff was vice-president of Norman-Ross, Inc. This conclusion is claimed by plaintiff to be erroneous. However, it is clear from the record that plaintiff at the time in question was ostensibly acting in a capacity as though he were still an officer of the company.
Plaintiff claims that the- conditional note in question was not subject to conditions precedent to be performed by plaintiff.
Among other things the trial court found,
“It seems to me, from the evidence in this case, that the defendants certainly must have intended, and the plaintiff also understood, that in performing the so-called ‘interim financing’ by the execution of this' note, the defendants would not become liable until the note and mortgage of Norman-Ross, Inc., had been duly executed and, of course, the trust, mortgage discharged.
“This is clearly stated in the letter where it is said, ‘I will forward to you upon receipt by me of my share of the estate above mentioned and the proper execution and delivery of tMe note and mortgage * * * [for] my protection, the sum of $8,500.’ ”
In the instant case, the defendants did not -owe plaintiff anything and the loan was only to be made to the Norman-Ross company if and when the company got out from under the trustee’s hands; the giving by the Norman-Ross company to defendants of a first mortgage, unquestionably was a condition precedent to defendants’ advancing to plaintiff any money.
Plaintiff claims that there are ambiguities in the hereinbefore quoted letter dated March 11, 1950 that should be construed and resolved against the defendants because of the preparation of that letter by defendant James F. Perry.
Plaintiff cited Knox v. Knox, 337 Mich 109, in favor of the proposition that it is the law of Michigan that where the language of the note is such that there is a doubt whether the condition expressed therein is a condition precedent, the presumption is that the condition is not a condition precedent. "We consider more complete and accurate statement to be that courts are disinclined to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed. The reason of this disinclination is that such a construction prevents the court from dealing out justice to the parties according to the equities of the case. See p 119 of the Knox Case.
In the Knox Case, we say (syllabus 11):
“A condition precedent is a fact or event which the parties intend to exist or take place before there is a right to performance.”
'Also (syllabus 14):
“Whether a provision in a contract is a condition the nonfulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they excuted the contract.”
We find there is no ambiguity in the words above italicized in the finding of the trial judge. The meaning is clear and unmistakable. The trial judge further found,
“It is my opinion that the conditions above quoted, that is, the discharge of the trust mortgage and the execution of a note and first mortgage by Norman-Ross, Inc., are conditions precedent of the liability of the defendants.”
This ruling we affirm in view of the plain wording of the letter, highlighted by the circumstances. The conditions precedent were never complied with.
The trial judge entered judgment in favor of the ■defendants of no cause of action. That judgment is affirmed. Costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred. | [
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‘Reid, J.
The above-captioned chancery cases have been consolidated for the purposes of hearing and determination'on appeal.
Some time in 1944 to 1946 the architectural firm of Black & Black was retained by the city of Lansing to prepare plans for a new city hall and police building. The plans were substantially revised from time' to time. The plans had been brought up to date, prior to September 13, 1954, and on that date, September 13th, the city council of Lansing authorized advertising for bids. The bids on being received were referred to the committee on buildings and properties, who then consulted the architects. There were 5 general contract bids, 4 or 5 mechanical bids,' and about, an equal number of electrical bids. The division of bids into partial bids seems to be referred to by architects as alternates.
■ The city over a period of years had accumulated for the contemplated construction $2,787,381.07. The lowest of the total bids that the committee and architects could procure was in the neighborhood of $4,500,000 for the total construction.
At an informal meeting of the city council on December 10, 1954, the architects prepared a proposed contract with the Christman Company, de-' fendant, calling for the expenditure of $2,577,368 on the proposed building, for which sum the building would be ■ complete as to exterior walls, floor construction, necessary masonry work, duct shafts, elevator shafts, et cetera, but the structure would be without heat, lights, water or elevator facilities and would not be ready to use. It would be without ceilings and floors and without the metal partitions, without jail equipment, but would include all of the windows, glass and glazing, so that the entire structure would be enclosed so far as the elements are' concerned. It could not be used for police purposes.
Part of the total sum heretofore spoken of, $2,787,-381.07, was funds made available by a bond issue for the construction of a police building in the amount of $500,000.
The first of the 2 abovc-captioned cases was begun on December 20, 1954, by the filing of the plaintiffs’ bill, and on the same day the circuit court, on motion, enjoined the city from entering into a proposed contract with the Christman Company as authorized by the city council of the city of Lansing on December 13, 1954. Henry J. Novakoski was party to the first bill but not to the second and, instead of Novakoski, Raynold P. Wall ivas plaintiff in the second bill. December 28, 1954, defendants’ answer and motion to dismiss were filed. February 1, 1955, the opinion of the circuit court to dismiss the bill of complaint was filed. The first above-entitled cause came on for hearing on plaintiffs’ order to show cause and defendants’ motion to' dismiss, at which hearing proofs were taken. Defendants’ motion to dismiss was granted by the trial court, February 1, 1955, and a decree entered the same day, which decree was vacated on February 19, 1955. The contract (with the Christman Company) was executed immediately following the decree of February 1, 1955, and prior to the vacation of that decree. On February 23, 1955, the plaintiffs began the second suit to enjoin performance under the contract and to obtain its cancellation. Defendant Christman Company’s answer to the second suit was filed February 25th and answer of the other defendants on? February 28th. On February 25, 1955, a decree dismissing the first suit was re-entered, and on the same day a hearing on the order' to show cause and’ on defendants’ motion to dismiss the second case was' held. The second suit was dismissed by circuit court decree on February 25,1955. Plaintiffs appeal from the entry of the decree of February 25, 1955, as to each of the 2 cases.
The first above-captioned bill of complaint set forth claimed illegality of action on the part of the defendant city as follows:
A. That the council improperly failed to re-advertise for and request re-submission of bids upon revised plans and specifications.
B. That the council was without authority to authorize contracts entailing the expenditure of more money than was contained in the fund for the new city hall and police building.
C. That the council committed future city councils to make appropriations for such amounts as would be necessary to complete the public buildings.
The second bill of complaint contains no claim of illegality for failure of the council to re-advertise or call for further bids prior to letting the contract. The defendant city asserts (neither bill of complaint makes any statement to the contrary thereof) that there is no requirement whatever in the Lansing city charter requiring that contracts for public works be submitted for competitive bidding, nor that changes in plans and specifications upon a public work which has already been open to public bidding must be re-advertised and rebid before the contract can be let.
The Lansing city charter does not impose a maximum debt limitation nor a requirement of prior appropriation as a condition to the creating of a valid indebtedness, in connection with which see the opinion of this Court in DiPonio v. City of Garden City, 320 Mich 230, 237, 238:
“Defendant’s charter is peculiar in that it contains no limitations on the city’s right to make contracts or increase its debts unless prior thereto appropriations and necessary funds and provision for raising these funds have been made. Under section 17 of chapter 30 of the fourth-class city act (CL 1929, § 2151 [Stat Ann § 5.1946]) and under many charters of other cities, there will be found provisions prohibiting the entering into contracts prior to a tax or assessment having been levied to pay the cost. Cases cited by defendant referring to such cities are not in point.”
The contract in question in this case required the ■city to pay the contractor the sum of $2,577,368 for •the work required of the contractor under the contract. The city had on hand available at the time of ■entering into the contract more than that sum of .money.
In order to complete the project, approximately '$1,250,000 of additional funds would be required. The additional sum of $1,250,000 represents the cost .of certain alternates, numbered 6 and 8. The city had the option of accepting or refusing one of these ■alternates prior to June 1, 1955, and the other alternate on or before June 1, 1956, according to plaintiffs’ first bill of complaint. The city is in no way bound by contract to accept either or both of the alternates in question. Hence, it is clear that by entering into the contract complained of by the plaintiffs, , for the partial completion of the building, the defendant city has mot bound its successors to the completion of the project, but only bound itself to the extent of $2,577,368, for which it has more than sufficient funds. For authority authorizing piecemeal construction of public works under such circumstances see Overall v. City of Madisonville, 125 Ky 684 (102 SW 278, 12 LRA NS 433). See, also, Falls City Construction Company v. Fiscal Court of Wolfe County, 160 Ky 623 (170 SW 26). See, also, Yaryan v. City of Toledo, 28 Ohio Cir Ct 259, affirmed, 76 Ohio St 584 (81 NE 1199).
In the Overall Case, the Kentucky court says (pp 696, 697):
“Appellant contends that the city could not legally contract for a light plant in piecemeal. The reason assigned is that no part of it is valuable as a public utility till all of it is assembled. The reason is not satisfying. If the plant was not run after it was bought, it would equally fail to meet the public requirement. Yet that fact ought not to avoid an otherwise perfctly valid contract for its construction. • In the matter of buying and installing such plant, the city is left wholly to the judgment of its council as to-the kind, the cost, when and where it shall buy, and how much at a time. There is only 1 limitation upon the city; that is, it shall not become indebted beyond the income and revenues of the year without the assent of 2/3 of the voters voting on the question.”
In the Yary an Case, the Ohio court approved of a contract for the partial erection of a water plant at a cost of $565,000, when the plant could not be completed for less than a total of $765,000. The court found that the ordinance did not fix the total project at $565,000 but only fixed the expenditure for the first stage thereof. The court affirmed piecemeal construction of public works, within then presently available funds. . .
Plaintiffs cite CL 1948, § 21.9 (Stat Ann § 3.289) as declaring the policy of-the State requiring that the entire amount of moneys necessary for the completion of the contemplated project, or a complete unit thereof, shall be available in cash in the general fund before any contract shall be let for such building. However, the cited statute is by its terms applicable to “All departments, institutions, boards, commissions, and offices of the State government except the university of Michigan and the Michigan State college of agriculture and applied science” which does not include city governments and cannot be said to lay down a rule of public policy as to them.
In the instant case, the city not being bound to accept or reject any alternate, we determine that the city council did not exceed its authority in executing the contract with the Christman Company for $2,-577,368, and that the defendants are not subject to being enjoined from proceeding with the construction contracted for in the contract in question.
The Lansing city council may to the extent which it has lawfully appropriated funds therefor, lawfully authorize a contract for the erection of part of a city hall and jail building, reserving to future councils decision as to the completion thereof.
The decrees dismissing the bills of complaint are' affirmed. Costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred.
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Carr, C. J.
This casé involves the construction of provisions of the will of Blanche A. Sewart who died September 3,1950. At the time of her death, and for many years prior thereto, Mrs. Sewart was a resident of St. Clair county, Michigan. The will in question was executed August 4, 1949. Her husband had previously passed away, and she left no ■descendants.
Among other provisions, the will, in the fourth paragraph thereof, set forth 11 legacies, all but 1 being to relatives of testatrix or of her deceased hus band. After listing tbe beneficiaries and tbe amount payable to each, testatrix inserted tbe following provision :
“If any of the above named persons, including the survivor of Anthony Burbot and Margaret Burbot, shall predecease me, the legacy herein provided for such person shall be distributed to such person or persons as by the duly probated will of said deceased person shall be designated to tabe such legacy, or if no such designation be made then to the person or persons designated to tabe the residue of the estate of such deceased person, and in case such deceased person shall have died intestate, the aforesaid legacy shall be distributed to the heirs-at-law of such deceased person in accordance with the laws of intestacy in force at the time of my death.”
By the eighth paragraph of the will testatrix devised and bequeathed any and all property, not otherwise disposed of, to the legatees mentioned in the fourth paragraph, said legatees to tabe proportionately. All of the beneficiaries under the fourth and eighth paragraphs were living at the time of the death of Mrs. Sewart with the exception of Dora Lamont, who was described by testatrix in the will as the sister of her late husband, and who was given a legacy of $4,000 in addition to what she might receive under the residuary clause. Mrs. Lamont died intestate several months prior to the death of Mrs. Sewart. She had for many years been domiciled in the State of Florida. She had no descendants living at her death but was survived by her husband. She also left several nieces and nephews who are the appellants in the instant case.
The question at issue is whether the language above quoted from the will of Mrs. Sewart is to be construed as evidencing an intention that the person or persons entitled to receive the legacies given to Mrs. Lamont, in the event of her death prior to that of testatrix, should be determined by reference to the statutes of Florida, the legatee’s domicile, or in accordance with the statutes of Michigan pertaining to the distribution of intestate property. It is conceded that if the term “heirs-at-law” was intended to be construed in accordance with the Florida statute the husband of the legatee was entitled to the proceeds of the legacies. On the other hand, if Mrs. Sewart intended a construction in accordance with the Michigan statute the husband took one half of said legacies and the nephews and nieces of Mrs. Lamont the remaining one half. That the intention of testatrix governs is not open to question. Obviously the person or persons entitled to receive the legacies do so by virtue of Mrs. Sewart’s will. Her intention is the controlling issue.
Ernest Lamont, the husband of Dora Lamont, died subsequently to the death of testatrix. His estate is represented in the instant proceeding by an administrator duly appointed by the Florida court in probate proceedings. The question as to the extent of the interest of said estate and the interests, if any, of the nephews and nieces of Mrs. Lamont was presented to the probate court of St. Clair county by the executor under the will of Mrs. Sewart in a petition seeking the approval of its final account and a determination as to the disposition of the Lamont legacies. An order was entered by the judge of probate in favor of the administrator. On appeal to the circuit court such order was affirmed. The nephews and nieces of Mrs. Lamont have appealed, asserting that the judgment of the circuit court was erroneous.
On behalf of appellants it is argued that the testatrix may be presumed to have been familiar with the statutes of Michigan relating to the descent and distribution of intestate property, that there is nothing to indicate knowledge on her part with reference to like statutes in force in other States, and that the language of her will, above quoted, may not properly be construed as indicating that she intended that the “heirs-at-law” of any legatee who predeceased her should be determined other than by reference to the statutes of Michigan. On behalf of appellee it is contended that testatrix must be assumed to have known, and to have had in mind, that the determination as to the party or parties entitled to receive intestate property from the estate of any legatee would be made in accordance with the law of the State of domicile of such legatee at the. time of death. It must be borne in mind, however, that we are not here concerned with the right of any person or persons to take property, either real or personal, which Mrs. Lamont owned. Rather, the matter at issue is the rights of the parties to this proceeding to claim the legacies to Mrs. Lamont under the will of testatrix.
It will be noted that Mrs. Sewart made no reference to the statutes of Florida, although it may be assumed that she was aware when she made her will that Mrs. Lamont was living in that State. Furthermore, had it been the intention of testatrix to give to the term “heirs-at-law” the meaning claimed by appellee, she doubtless would have referred to the laws of intestacy in force at the time of the death of any legatee designated in the fourth and eighth paragraphs of her will. This she did not do. Instead of such reference she stated specifically that the distribution of legacies given to a beneficiary predeceasing her, and failing to make designation by will, in the manner indicated by Mrs. Sewart, of a person or persons who should take such legacies, should be made “in accordance with the laws of intestacy in force at the time of my death.” This phrase is significant. It indicates that Mrs. Sewart had in mind the statutes that would govern the descent and distribution of any property of which she might be seised and possessed at the time of her death and which she did not dispose of by will. The conclusion is, we think, fully justified froxt the language of the will that Mrs. Sewart had in mind the statutes of Michigan.
As before noted, the basic question in construing the will is the intention of the testatrix. Such intention is to be determined, if possible, from the language of the instrument. In the instant case we find that such language is reasonably clear and explicit. In passing on controversies of this nature courts have repeatedly recognized that the maker of the will was presumably familiar with the laws of his own State and ordinarily without specific information as to statutes in force in other States. Such situation may not be ignored in the construction of the language of a will.
In Lincoln v. Perry, 149 Mass 368 (21 NE 671, 4 LEA 215), a will executed and probated in Massachusetts gave a life interest to a resident of New Hampshire and at her decease “to her heirs-at-law and their heirs and assigns forever.” The question arose -whether the term “heirs-at-law” should be construed with reference to the laws of Massachusetts or according to the laws of New Hampshire. In determining that the testator presumably had in mind the statutes of his own State, it was said in part (pp 273, 274):
“It has been argued, that the term ‘heirs-at-law’ should be held to mean those who would be the actual heirs of Judith upon her decease, this being deter mined by the place of her residence; and that therefore the determination who should take as her heirs should be made according to the laws of New Hampshire. But the question after all is, What is the meaning of the testator’s words? and we are brought to the conclusion that the true meaning is, to designate a set of persons who were to take the estate upon Judith’s death, and that those persons are styled her heirs-at-law. This set of persons would ifot fluctuate with any changes of residence that she might make. The testator would probably not be familiar with the laws of different States. He lived here, his will was drawn here by a Massachusetts lawyer, and it was executed here. The laws of Massachusetts are those with which presumably he would be best acquainted. The fact that he formerly lived in New Hampshire is immaterial. It is not disclosed how long he had lived in Massachusetts, nor is it necessary to go into an inquiry upon that subject. Under the circumstances stated, we must read his will as the will of a person settled and established in Massachusetts. In speaking of heirs-at-law, he probably meant those who would be heirs-at-law here.”
This decision has been cited with approval in later Massachusetts cases.
In Radford v. Fidelity & Columbia Trust Company, 185 Ky 453 (215 SW 285), there was involved the construction of a will made in Indiana by a married woman domiciled there at the time of the making of said will and likewise at the time of her death. Probate proceedings were had in Indiana. In commenting on the situation, it was said (pp 458, 459):
“It is contended, by appellants, that in ascertaining the intentions and meaning of the testatrix, as expressed in the instrument, and in construing it, in order to determine the rights of the parties under the will, we must be guided by the laws upon those subjects, which prevailed in the State of Indiana, at. the time of the execution of the will. This contention seems to be sound, as in accordance with the general rule of interpreting and ascertaining the meaning and intentions of a testator, as expressed in his will, reference must be had to the law of his domicile, at the time, the will was executed, and snch law will govern, unless it appears, from the will, that the testator had in mind and made his will with reference to the law prevailing in some other country or jurisdiction. By the same rule, if the property, in controversy, is personal property, the rights of the parties under the will are determined by the laws prevailing in the jurisdiction of the testator’s domicile, at the time of his death. (Citing cases.) There is nothing in the will of the testatrix to indicate, that in making her will, she had in contemplation, the laws prevailing in Kentucky.”
In Houghton v. Hughes, 108 Me 233 (79 A 909, Ann Cas 1913A, 1287), the court quoted with approval from Lincoln v. Perry, supra, holding (pp 235, 236) that as a general rule “a will is to be interpreted according to the laws of the country or State of the domicile of the testator, since he is supposed to have been conversant with those laws.” The court also quoted with approval from Harrison v. Nixon, 9 Pet (34 US) 483 (9 L ed 201), in which Justice Story, in discussing the meaning of the words “heir-at-law,” said (pp 503, 504):
“ ‘The language of wills is not of universal interpretation, having the same precise import in all countries and under all circumstances. They are supposed to speak the sense of the testator according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language which repels or controls such a conclusion.’ ”
A decision of the supreme court of Kansas in Keith v. Eaton, 58 Kan 732 (51 P 271), is also in point. There the court was concerned with the construction of a will executed in Missouri by a testator domiciled there, leaving a life estate, in lands in Kansas to his son with remainder to the “heirs of his body.” The question arose whether an illegitimate child of the son could take under the will. Under the law of Kansas he was an heir of his father, but not so under the statutes of Missouri in force and effect at the time of the execution of the will and of the death of the testator. In holding that the will must be construed in accordance with the law of the domicile of the testator, it was said (pp 735, 736):
“In the absence of a contrary meaning, to be gathered from the circumstances surrounding a testator or from the instrument as a whole, the sense of the words used by him is to be ascertained in the light of the law of his domicile. Presumptively, he is more familiar with that law than with the law of other jurisdictions. That is the law which is constantly with him, controlling his actions and defining his rights, and more naturally than any other law would be present to his mind in the drafting of an instrument dispository of his property.
“G-reenleaf, in his work on Evidence (Yol 2, 16th ed, §671, pp 615, 616), says:
“ ‘In the interpretation of wills, whether of movable or immovable property, where the object is merely to ascertain the meaning and intent of the testator, if the will is made at the place of his domicile, the general rule of common law is that it is to be interpreted by the law of that place at the time when the will was made. Thus, for example, if the question be, whether the terms of a foreign will include the “real estate” of the testator, or what he intended to give under those words; or whether he intended that the legatee would take an estate in fee or for life only; or who are the proper persons to take under the words “heirs-at-law” or other designatio per sonant,m, recourse is to be had to the law of the place where the will was made and the testator domiciled.’
“To the same effect are Story on Conflict of Laws (8th ed), §479h, p 671; 3 Am & Eng Eneyc of Law, pp 637-641; Guerard v. Guerard, 73 Gra 506; Ford v. Ford, 70 Wis 19 (33 NW 188, 5 Am St Rep 117); Lincoln v. Perry, 149 Mass 368 (21 NE 671, 4 LRA 215).”
Of like import is Rose v. Rambo, 120 Miss 305 (82 S 149).
While the factual situations involved in.the cases cited are not identical with that presented in the case at bar, we think the general principle recognized is applicable here. It may be assumed that Mrs. Sewart, having been a resident of Michigan for many years, was familiar with the laws of this State. There is nothing to indicate that she was advised with reference to the statutes of other States in which her beneficiaries might be living at the time she made her will. There is nothing in the instrument tending in any way to contradict the inference that in using the expression “heirs-at-law” she had in mind the Michigan statutes. Furthermore, the express reference to the laws of intestacy in force at the time of her own death suggests that she had in mind the Michigan statutes rather than those of any other State or States. The rule of interpretation recognized in the decisions above cited is in accord with the great weight of authority and is consistent with the holding of this Court in Ford v. Ford, 80 Mich 42. We conclude that the trial court was in error in entering judgment on the theory that testatrix intended “heirs-at-law,” as used, by her in the provision of her wall hereinbefore quoted, to be construed with reference to the statutes of Florida, insofar as the Lamont legacies were concerned.
On the trial of the ease in circuit court counsel representing the administrator of the estate of Ernest Lamont offered in evidence a copy of a will made by Mrs. Sewart in 1945, and also a copy of a will made by her husband at the same time. In making the offer counsel read a provision from the prior will of Mrs. Sewart to the effect that if she deceased or became mentally incapacitated within a period of 90 days following the death of her husband it was her direction that one-half of her estate should go to her legal heirs-at-law in accordance with the Michigan laws of descent and distribution of estates of persons dying intestate, and the other half to the legal heirs of her husband in accordance with said laws. It is claimed that the will of Mr. Sewart contained a like provision. On objection the exhibits were excluded.
Counsel also offered to prove by the oral testimony of a witness that while Mrs. Sewart was quite fond of one of the nieces and one of the nephews of Mrs. Lamont, said persons being appellants here, she did not like the other nephew and was not acquainted with appellant Margaret Sewart Mosure or with Mabel Sewart. This offer apparently rested on the theory that it tended to show that Mrs. Sewart wanted the legacies to go, in the event that Mrs. Lamont predeceased her and made no designation by will as to the recipient or recipients, to Ernest Lamont rather than to the blood relatives of Mrs. Lamont and Mr. Sewart. This testimony was also excluded, on objection.
Claiming that these rulings of the trial court in excluding the proofs offered were erroneous, the administrator of Mr. Lamont’s estate filed a cross appeal and now asks that, if the judgment entered in the circuit court is reversed, the cause be sent back to that court for a new trial on the theory that the refusal to receive the proofs in question was erroneous and sufficiently prejudicial to require a retrial of the controversy.
We think there is much force in the argument of appellants that the will of Mrs. Sewart fairly indicated her intention with reference to the matter in controversy here. However, if we assume that the provisions in question are ambiguous, the question arises as to the materiality of the evidence sought to be introduced by cross-appellant. Insofar as the prior wills of Mr. and Mrs. Sewart are concerned, the offer was based on the theory that the will in question here was ambiguous, that, in consequence, testimony of facts tending to show the situation existing at the time it was executed was competent as bearing on the intention of testatrix, and that the fact that the reference to the Michigan statutes was contained in the prior will and omitted from the later one indicated that testatrix did not intend, in referring to taking by the heirs-at-law of a legatee predeceasing testatrix, that the determination of such heirs-at-law should be made in accordance with the Michigan statute. We cannot agree, however, that such an inference follows. We think that if Mrs. Sewart had intended that the determination of the heirs of predeceased legatees should be made in any instance in accordance with the statutes of some State other than Michigan she would have expressed such intent in appropriate language. The fact that she omitted any reference to the Michigan statutes in specific terms is consistent with the theory that she concluded, or perhaps was advised by her attorney, that such reference was not necessary, particularly in view of the statement indicating that the laws of intestacy in force at the time of her death should control.
The offered testimony as to Mrs. Sewart’s attitude towards the nieces and nephews of her deceased husband is subject to similar comment. The fact that she had not personally met 2 of the nieces, and perhaps disliked 1 of the nephews, is offset, as a matter of argument, by her conceded fondness for 1 niece and her liking for 1 of the nephews. It must be borne in mind that these nephews and nieces were blood relatives of Mr. Sewart, and the terms of the will clearly indicate that in making disposition of her property testatrix wished to make provision for her deceased husband’s relatives as well as her own.
Had the evidence excluded by the trial court been received, it would have been insufficient to overcome the proofs as to Mrs. Sewart’s actual intention, supplied by the language of the instrument, the general purposes evidenced thereby, and the failure to indicate in any way that testatrix had in mind the statutes of descent and distribution other than those of Michigan that might be in force and effect at the time of her own death. The offered proofs, if received and considered, could not be given the effect of changing the result. We find no prejudicial error requii’ing the granting of a new trial.
The judgment of the trial court is reversed, and the cause is remanded with directions that it be returned to the probate court for further proceedings in accordance with this opinion and for the determination of such other questions as may be involved. Appellants may have costs.
Butzel, Sharpe, Boyles, Reid, Dethmer's, and Kelly, JJ., concurred.-
Smith, J., took no part in the decision of this case.
See Florida Statutes (1953) and Florida Stat Ann § 731.23.
See CL 1948, § 702.93, as amended by PA 1949, No 78 (Stat Ann 1949 Cum Supp § 27.3178 [163]). Amendments subsequent to the death of testatrix are not material in this case. | [
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] |
Kelly, J.
This is an appeal by the city of Dear-born from the State tax commission’s determination and order that the property of the Dearborn Medical Center Hospital (hereinafter referred to as the Hospital) is exempt from taxation.
The Hospital was incorporated in 1940 as a nonprofit corporation under PA 1931, No 327, as amended. The purposes of the corporation, as stated in the articles of incorporation, are as follows:
“To acquire, erect, 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 causes, nature, prevention and care 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.”
The articles of incorporation further provide that the corporation is to be financed by “the charging of fees to patients able to pay the same, and the acceptance of contributions from individual benefactors.”
This Hospital had been exempt from taxation for several years previous to the assessment by the city in 1954. At the same time the city made this assessment against the Hospital in 1954, it made a similar assessment against the Dearborn Clinic & Diagnostic Hospital. Both the appellant herein and the Dear-born Clinic & Diagnostic Hospital appealed to the State tax commission.
A public hearing was held before the commission an July 20, 1954. The city and the Hospital appeared at the hearing, both being represented by counsel. Testimony was not taken, but arguments were made by counsel for the Hospital and for the city, and briefs were requested by the commission. The city filed its brief on August 23, 1954, and the Hospital filed its brief on September 8, 1954.
On October 25, 1954, the commission notified the parties that'it had determined that the real property of the Hospital was exempt from taxation.
Both cases were appealed to this Court and the questions presented herein by the appellant city of Dearborn were also presented by the city of Dear-born in its appeal in In re Dearborn Clinic & Diagnostic Hospital (City of Dearborn v. State Tax Commission), ante, 673, handed down herewith.
The action of the commission in this appeal is affirmed for the same reasons as set forth in the companion case.
Affirmed, without costs, questions of statutory construction being involved.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
CL 1948, § 450.1 et seq. (Stat Ann § 21.1 et seq.).—Bepoktek. | [
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] |
Butzel, J.
Virginia Ann Scott, petitioner, seeks a writ of habeas corpus and the ancillary writ of certiorari to review what she claims was an illegal conviction of contempt of court by the Honorable Frank G. Schemanske, a judge of the recorder’s court of the city of Detroit, also referred to as respondent.
Petitioner and Haroldine Cucchi, both 18 years of age, were informed against for larceny of a wallet in the city of Detroit. Petitioner pleaded guilty to a lesser charge but later was called as a prosecution witness at the trial of her alleged accomplice. The record reveals that during the trial petitioner’s testimony was at times contradictory in nature regarding the complicity of Haroldine Cucchi. She initially testified that defendant Cucchi was not aware of the theft of the wallet. Later she stated that defendant Cucchi knew that petitioner had the wallet but asked her to return it. Petitioner further testified that Cucchi was not an accomplice as alleged and that neither of the two told a police officer and a matron that they were both involved and in fact had planned the crime together. This testimony contradicted that given by the officer and the matron who swore that the 2 girls had admitted to them their joint participation in the crime. After her testimony petitioner was ordered to be present in the court each day of the trial. Two days later, while the jury was considering its verdict, the court called petitioner before the bench and advised her that she was in contempt of court and summarily sentenced her to 15 days in jail. Though previously admonished to tell the truth, petitioner was not given a hearing on the charges nor properly advised of them prior to being sentenced, nor given the opportunity to obtain counsel in order to present a defense. Petitioner here seeks to review this summary conviction.
In reviewing these proceedings we are limited to a consideration of whether there is any testimony to support the finding and more particularly whether the court legally proceeded in the manner it did. In re Wood, 82 Mich 75; In re Gilliland, 284 Mich 604.
Does the record reveal facts sufficient to support a conviction? The conviction order states that petitioner :
“did give wilfully false and evasive testimony as follows: she denied that said Haroldine knew what she, Virginia, was going to do when Virginia went to Cora’s (complainant) purse; she denied that she had told detective Sopolinski that Haroldine knew this (Tr 4); she denied that she had told a police matron that Haroldine was also in on this; she denied that she had agreed to steal this money with the other girl (5); she denied that Haroldine knew what she was doing in the store; she denied that she and Haroldine planned this thing (larceny) before going into the store. She testified falsely, on cross-examination that Haroldine didn’t know at any time that she, Virginia, had taken the money (7) that she hadn’t planned it (8) all of which testimony was wilfully false and evasive and in contempt of this court and said Virginia Ann Scott is therefore adjudged guilty of criminal contempt.”
The partial transcript attached thereto contains excerpts of petitioner’s testimony and the testimony of both the police officer and police matron. Insofar as that part of the record is concerned it is evident that the conviction was based entirely upon the fact that petitioner’s testimony conflicted with that of these other witnesses. Respondent asks, and petitioner does not object, that we also look to his return, supported by a complete transcript, in order to find that the contempt conviction was based upon other conduct as well. As will be noted later in the opinion, it is important to determine the basis for the conviction. Respondent states in his return that:
“The attitude of petitioner on the stand, her evasive replies to prosecutor’s questions, her patent cooperation with defense counsel, her changing testimony in response to his leading questions, her contumacious and contemptuous attitude towards the court, and her own contradictory statements were evidence of her contempt of this court and her efforts to thwart public justice. These were substantiated by the testimony of the 3 witnesses mentioned.”
Apparently the jury believed petitioner because they acquitted Haroldine Cucchi. This, however, would not be decisive to the question. A review of the entire proceeding convinces us that there were sufficient facts upon which a contempt conviction might be sustained. It is further evident that the conviction was based primarily upon the fact that petitioner’s testimony conflicted with that of other witnesses, though her own contradictory statements and conduct contributed to the decision. That such demeanor can be contempt is well settled. CL 1948, § 605.1 (Stat Ann § 27.511); People v. Doe, 226 Mich 5; People v. Wolfson, 264 Mich 409; 11 ALR 342; 73 ALR 817. We find nothing evasive or contumacious in the testimony except insofar as it is in contradiction with that of the 2 witnesses for the people.
Petitioner, however, was convicted summarily. In view of the circumstances was she thus accorded due process of law, or was she entitled to a full hearing on the charges, with the right to obtain counsel, and time to present a defense? The statute authorizing summary contempt procedure, CL 1948, § 605.2 (Stat Ann § 27.512), provides:
“When any misconduct, punishable by fine and imprisonment as declared in the last section, shall be committed in the immediate view and presence of the court, it may be punished summarily, by fine or imprisonment, or both, as hereinafter prescribed.”
It should be here noted that statutes of the type enacted in Michigan are merely declaratory, and in affirmation, of the inherent common-law right of courts of record to determine contempt. Langdon v. Judges of the Wayne Circuit Court, 76 Mich 358; 17 CJS, Contempt, § 43, p 55. What occurred in this case, of course, took place in the physical “presence of the court.” However, in order to have a valid summary conviction, due process requires that the salient facts constituting the contempt be within the personal knowledge of the judge. In In re Wood, supra, this Court was considering a summary conviction for contempt arising out of statements written on the back of a check paid into court pur suant to an imposed fine. Discussing the meaning of “in the presence of the court,” the opinion states (P 82):
“The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such contempts as are committed in the face of the court. Of such contempts, he may take cognisance of Ms own knowledge, and, may proceed to punish summarily such contempts, basing his action entirely upon his own knowledge. All other alleged contempts depend solely upon evidence, and are inferences from fact, and the foundation for the proceedings to punish therefor must be laid by affidavit.” (Emphasis added.)
In a more recent case the Ohio court has held that personal judicial knowledge of the operative facts is necessary in a summary conviction, further saying of the testimony that a “well-founded belief of its untruthfulness is not sufficient.” Fawick Airflex Co., Inc., v. United Electrical, Radio & Machine Workers of America, Local 735 (1950), 87 Ohio App 371, 382 (92 NE2d 436, 442), appeal dismissed, 154 Ohio St 106 (93 NE2d 409). The court in that ease also held that where the alleged contempt is based upon conflicting evidence, the requisite personal knowledge is not present and a summary conviction of contempt thereon cannot be sustained. It is that issue which is the crux of the instant case.
There is weighty authority to the effect that the requisite judicial knowledge is absent when the determination of contempt is dependent upon the testimony of other parties.
In Cooke v. United States (1925), 267 US 517 (45 S Ct 390, 69 L ed 767), the petitioner had been summarily convicted of contempt of court because of a letter sent to the judge in chambers. Reversing the •conviction, the court (p 535) quoted with approval from Savin, Petitioner (1889), 131 US 267, 277 (9 S Ct 699, 33 L ed 150):
“Where the contempt is committed directly under the eye or within the view of the court, it may proceed ‘upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,’ Ex parte Terry, 128 US 289, 309 (9 S Ct 77, 32 L ed 405); whereas, in cases of misbehavior of which the judge can not have such personal knowledge, and is informed thereof only by confession of the party, or by testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Blackstone’s Commentaries 286.”
Recently in a case arising out of the Michigan one-man grand jury system, the supreme court of the United States in In re Oliver (1948), 333 US 257 (68 S Ct 499, 92 L ed 682), again dealt with this problem. The court ruled (p 273) “that failure to afford petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law.” In discussing the Cooke Case, supra, and others, the court stated (pp 274-276):
“There it was pointed out that for a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to be heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but that the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct. This court said that knowledge acquired from the testimony of others, or even from the confession of the accused, would not justify conviction without a trial in which there was an opportunity for defense. * * *
“If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires, according to the Cooke Case, that the accused be accorded notice and a fair hearing as above set out.” (Emphasis added.)
See, also, annotation at 57 ALE 545.
People v. Doe, supra, is cited for a contrary holding. That ease involved an appeal by way of certiorari of a contempt conviction, which an equally divided court affirmed. The 4 affirming judges said, in regard to the petitioner’s own contradictory statements which were the basis of his conviction (p 16):
“While his inconsistent testimony alone was not sufficient to convict for perjury * * * it was sufficient to authorize a finding that he had testified falsely * * and that such false testimony tended to the obstruction of the due administration of justice. If this was contempt, it was direct contempt, committed in the face of the court, to be dealt with summarily.”
Aside from the fact that only one-half of the court considered the issue and thus the ease made no law, the other 4 desiring to reverse on another ground, the case might be distinguished on the ground that here we are primarily concerned with petitioner’s testimony as it conflicted with that of other witnesses, whereas in the Poe Case the court had before it contradictory statements of the same witness. We need not discuss whether this is a distinction without a meaning. It may be said, however, that the cases cited also note that personal knowledge is also not present where the judge must depend upon a confession of the accused as the basis for the contempt. This would seem to apply equally in the case of contradictory statements.
Whatever the force or effect of the Doe Case, we are constrained to follow the pronouncements of the supreme court of the United States as concerns the' facts before us. Petitioner’s conviction depended largely upon the testimony of other witnesses, which under the cases cannot be said to have been within the personal knowledge of the judge.
Petitioner makes much of the fact that she was not punished until some 48 hours after the alleged contemptuous conduct took place. She was sentenced while the jury was considering its verdict. In view of our decision we need not discuss this aspect of her argument but need only state that in and of itself time apparently is of little importance. See Sacher v. United States (1952), 343 US 1 (72 S Ct 451, 96 L ed 717); cf., Summary Contempt: A Sword or a Shield?, 2 Stanford L Rev 763 (1950).
It is our considered opinion that petitioner’s conviction must be reversed and that any proceeding in which she might be held for contempt cannot be summary in nature but must conform to statutory and due process requirements.
Judgment reversed and petitioner discharged. No costs.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Kelly, J.
The main question presented in this appeal is whether the lower court erred in directing a verdict for defendant.
Plaintiff, Douglas Thompson, a boy of 3 years and 11 months, was struck by defendant’s car as he ran across Broadway street in the city of Muskegon Heights. Broadway is a through street extending in a general easterly and westerly direction, and is one of the 2 main arteries of travel of the city. Leahy street extends in a general northerly and southerly direction and comes to a dead end at its junction with Broadway. Broadway street is 40 feet wide; Leahy street is 38 feet wide, and both streets are paved. Vehicles proceeding in a northerly direction on Leahy street are required to come to a stop before entering Broadway. A crosswalk runs northerly and southerly on the east and west sides of Leahy street.
On the day of the accident the boy ran away from his home about 4 o’clock in the afternoon. The accident occurred about 5 p.m., when the boy, unattended, was approximately 1-1/2 miles from his home. The boy was running across Broadway from the northerly to the southerly side of the street. The defendant was driving east on Broadway. Plaintiff admits defendant’s “car made but slight contact with the little boy, her car coming to a stop at the moment it struck him.”
The police arrived at 5:15 p.m. Police officer Parkas testified:
“When I got there, I found the automobile in the street at the intersection of Leahy and Broadway and the child at the curb on the terrace. The automobile was facing in an easterly direction, approximately at the east crosswalk line on Broadway. The left side of the car was 8 feet from the center line of Broadway.
“There were skidmarks. The skidmarks started approximately in the center of the intersection of Leahy street and proceeded in an easterly direction, 31 feet and 2 inches from the center line of Leahy. * # #
“When I commenced my investigation there were cars parked on the northerly side. There were 3 cars facing west on Broadway on the north side within the immediate proximity of the accident scene, there were 2 east of the sidewalk line, the crosswalk, and 1 directly west. I am speaking of the easterly crosswalk going north and south across Broadway.”
In directing the jury to bring in a verdict of no cause for action the trial court said:
“The court has given very careful consideration to-this motion for a directed verdict and .the grounds on which it is based and the testimony that has been adduced here in. support of the plaintiff’s case, and has come to the conclusion that this very unfortunate accident occurred as a result of an emergency on the., highway which arose through no fault of the driver’ of the car; and that her conduct under the circumstances, disclosed by the evidence, raises' no inference of actionable negligence which makes out a case to go to the jury on the question of her negligence.”
Appellant contends appellee is guilty of negligence because:
(1) She saw, or should have seen, the boy in time to have avoided striking him;
(2) The defendant instead of maintaining her attention on her pathway ahead made a useless observation of an automobile approaching on a side street (Leahy); and :
(3) She was operating her automobile in excess of the statutory limit of 25 miles per hour.
Plaintiff was incapable of contributory negligence' as he was 3 years and 11 months of age. See Benedict v. Rinna, 257 Mich 349; In re Clark’s Estate, 318 Mich 92.
There were 3 eyewitnesses to the accident, namely, Mr. and Mrs. DeBrie, who were driving east and about 6 to 8 car lengths behind appellee, and Mr. De-Hoog, who was driving west on Broadway and whose car was alongside appellee when the accident occurred. Plaintiff called Mrs. DeBrie as a witness, ánd defendant called to the stand Mr. DeBrie and Mr. DeHoog.
Mrs. DeBrie noticed plaintiff on the north curb of Broadway bnt could not estimate how far she was from the intersection when she saw him. When she nest saw him he was in the middle of the street just east of the crosswalk and running east and south. She. testified:' “I did not keep the child in view from that point on. I watched the car ahead of me, and I-saw her go over to the south. * * * Mrs. Christian’s car at that time was off towards the the south curb. It had turned quite a ways from its original line of travel.”' Mrs. DeBrie nest saw the boy at the instant he was hit. ■ She said:. “It didn’t seem like the boy was dragged or pushed or anything after he was hit.”
Plaintiff was in the middle of the street running southwesterly when Mr. DeBrie first saw him. He testified :
“We weren’t going more than 15 miles per hour. The Christian car didn’t gain on us and we weren’t gaining on it. * * *
“I just got a glimpse of'the little boy in the middle of the street and at the same time I heard the brakes squeal and she came to a complete stop. I heard the brakes squeal and I saw her turn her car to the right.”
Mr. DeHoog was traveling west on Broadway. Two ears were parked on the north side of Broadway on each side of the crosswalk and when he first saw plaintiff “he was right in between the 2 cars there on the easterly edge of the crosswalk.” A car driving in front of Mr. DeHoog, and also traveling west, honked his horn and the boy “stepped back or stopped.” .Wben.his car was opposite the boy “the child started to dart again.. That is when I made a swerve to the center of the intersection to avoid hitting him. I looked back and I thought to. myself ‘I hit the child, that he hit the hack end of my car,’ and at that time Mrs. Christian’s car was skidding across the intersection, the center of Leahy street, approaching east. And I stopped my car immediately and went out and got hold of the child there and pulled him over to the curb.”
Mr. DeHoog further testified that appellee’s car was practically opposite from him. He said:
“I heard the brakes of her car. She swung toward the south a little bit. Her car came to a stop across the crosswalk. I saw the impact between the car and the boy as it bumped. Mrs. Christian’s car was almost stopped at the impact, I would say. I did not see the boy being drug by the ear.”
The only other testimony in the record as to how the accident occurred is the testimony of appellee, who was called for cross-examination under the statute by plaintiff. She testified that at the time of the accident she was traveling not more than 20 miles per hour. As she approached the intersection she noticed a car approaching on Leahy street as though it were going to slop. Two cars traveling-west were approaching the intersection at the same time she was. She heard the driver of one of these cars blow the horn and saw the driver of the other car swerve his car. Immediately thereafter she saw plaintiff in the center of the street. She testified:
“When I saw the little boy, I applied my brakes. At that time the front of my car was approximately in the center of Leahy street. The front of my car ended up straddling the sidewalk crosswalk. My left front bumper hit the little boy. My car did not move after it hit him, not an inch.”
In Braxton v. Gazdecki, 255 Mich 518, this Court passed upon a judgment for the defendant in an ae tion for injuries resulting in death of a 5-year-old hoy who was struck by defendant’s automobile when he ran across the street in front of the automobile. We held that defendant was not guilty of actionable negligence in not noticing the boy at the time he left the curb and darted across the street, as drivers must notice persons in the street but need not watch others unless they evidence intention to enter the street.
Gardiner v. Studebaker Corporation, 204 Mich 313, presented the question as to whether the Court erred in directing verdict for defendant in an action for personal injuries to a girl 4 years of age, resulting in her death. The driver of the truck was the only witness to the accident and was called by the plaintiff as an adverse witness under the statute. He testified that the little girl came out from behind a vehicle and ran into the side of his truck. After the accident the driver was taken before the prosecuting’ attorney and a statement taken in which the driver did not make any reference to the girl suddenly coming into the street from behind the vehicle. Plaintiff argued that therefore the credibility of this witness was for the jury, and consequently a question of fact was presented for the jury. This Court refused to accept plaintiff’s contention, and said (pp 316, 317):
“The plaintiff is bound to prove his cause of action. He must make a prima facie case of negligence of the defendant before he is entitled to take the judgment of the jury. In the instant case he failed to do this. The defendant’s truck was on the right side of the street; there is no evidence of any defect in the brake; no evidence that the driver was exceeding the limit of speed prescribed by the statute or by any ordinance of the city of Detroit; no evidence that the driver did or failed to do anything which produced or would have prevented the accident. The case is clearly distinguishable from Winckowski v. Dodge, 183 Mich 303, and quite like Barger v. Bissell, 188 Mich 366. We may well dispose of this case with the concluding portion of the opinion in that case.
“ ‘Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.
“‘A.careful consideration of the record in this case leads to the conclusion that this unfortunate accident occurred as the result of an emergency on the highway which arose through no fault of the driver, and that his conduct, under the circumstances disclosed by the evidence, raises no inference of actionable negligence which makes out a prima facie case.’ ”
In Colvaruso’s Guardian v. Stroll Brewery Co., 301 Mich 245, a 4-year-old boy was injured by defendant’s truck. Defendant’s driver testified that the child suddenly appeared on the street from behind parked cars, and this Court sustained judgment in favor of the defendant, stating (pp 254, 255):
“The verdict may not rest upon conjecture or a reconstruction of events which have no evidentiary foundation. The only evidence of the manner in which the accident occurred does not fix liability on defendant.”
The lower court did not err in directing a verdict for defendant. The only evidence of the manner in which the accident occurred does not fix liability on defendant and does not- support appellant’s contention that defendant saw or should have seen plaintiff on the north curb of Broadway before he started running across the street. Appellee’s observation of the car on Leahy and her failure to blow her horn did not constitute negligence.
We do not agree with appellant’s contention that the court committed reversible error in ruling upon an objection to appellee’s answer to a question on cross-examination that when the car approaching her swerved towards her, “that distracted my attention and I couldn’t see the little boy because of the cars.” The court allowed the answer to stand, stating : “I think it is a fair statement of her reason for whatever she did at that time. She is stating things as they appeared to her.”
Judgment affirmed, costs to defendant.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
PA 1949, No 300, § 627 (CLS 1954, § 257.627, Stat Ana 1952 Bev § 9.2327).—Beporter.
See CL 1948, § 617.66 (Stat Ana § 27.915).—Reporter. | [
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Carr, C.. J.
Plaintiff instituted this suit in equity in order to obtain a determination as to his rights and interests in certain real estate in Casco township, Allegan county. The parties, who are brothers, purchased the land in question in 1921 for the sum of $3,000. They paid $1,500 down, each contributing approximately 1/2 of that sum, and gave a mortgage to secure the payment of the balance. Shortly thereafter they conveyed an undivided 1/3 interest to their mother, Hattie B. McCormick, and in 1924 they executed to her a deed of their remaining interests. It is a fair inference from the proofs that she assisted them in paying off the mortgage.
The property in question is located between U. S. Highway No 31 and Lake Michigan. The parties acquired it with the intention of developing it for resort purposes. In 1922 they built a gasoline station thereon, doing the. work together and sharing the cost, which station they continued to operate until 1928 when it was destroyed by fire. In 1924 or 1925 the brothers erected a small cottage on the land, and shortly thereafter constructed a restaurant known as the “Dixie Inn.” The proceeds of insurance collected on the loss of the gasoline station were used to enlarge the restaurant. It further appears that at the time the property was purchased by the brothers they and their mother were engaged in operating a restaurant in South Haven, apparently as copartners. The profits from this business were used in the construction of the gasoline station and the Dixie Inn. The parties also engaged in other business enterprises in Allegan and in Chicago, conducting their operations together and sharing in the profits therefrom. The land here in question was used for the purposes of the businesses that the parties established and conducted thereon, and the conclusion is warranted that the parties considered that they owned it together, that they had equal rights therein, and that it was to be used for their business, operations.
In 1934 Mrs. McCormick executed to defendant a deed of the Casco township property, the instrument of conveyance containing the following clause:
“It is understood that the said grantor Hattie B.. McCormick, reserves a life lease and full control for herself and Clarence Louis McCormick.”
Plaintiff subsequently learned of the execution of said deed, but it does not appear that he questioned it at the time. The common use of the property was. not changed in any way, both plaintiff and defendant sharing rights of occupancy and likewise participating in profits. Such situation seems to have continued after the death of the mother in 1940, with the brothers recognizing mutual rights and obligations, but without operations being conducted under any definite system. Disagreements, however, arose in later years, and in 1950 defendant forcibly ejected plaintiff from the property, advancing the claim at that time that he (defendant) was the sole owner.. Such act resulted in the present suit being instituted on October 16,1950.
Plaintiff in his bill of complaint alleged the facts with reference to acquiring the property, the purpose of so doing, and the use to which it was put by the parties and their mother. The averments of fact suggest the claim that a partnership relation existed between the brothers and their mother with reference to the businesses conducted on the property, as well as other operations. However, relief was sought by the pleading as originally filed on the theory that the conveyance from the mother to defendant gave plaintiff a life estate and that, in consequence, he was entitled to exclusive possession as long as he might live. Defendant by answer denied plaintiff’s right to relief on such basis, and asserted sole ownership in himself.
Following trial of the issues in open court, the circuit judge came to the conclusion that plaintiff, defendant, and the mother were copartners, that the land in question was acquired as partnership property and was used as such, and that equitably each of the parties to the case was a tenant in common with an undivided 1/2 interest in the property. Thereupon plaintiff sought and obtained leave to amend his bill of complaint by withdrawing all claims asserting an alleged life estate and asking in lieu thereof that the parties be decreed to be tenants in common. The averments of fact in the pleading, which the trial judge found were, in the main, substantiated by the proofs, were not modified. A decree was entered in accordance with the court’s findings, and defendant has appealed.
We are in accord with the finding of the trial judge that plaintiff, defendant, and the mother were co-partners in conducting their business operations, including those involving the use of the land here in question. They worked together in the furtherance of their objectives, and shared the profits. The defendant in his testimony referred to the manner in which the property was used as a “cooperative living proposition.” He stated further that the gasoline station was his idea, that his mother and brother were running the restaurant, and that “It all supposedly went in the family pot.” He testified also that he felt free to take money out of the till. Apparently the actual situation was that each of the parties took from the businesses conducted such portion of the profits as he or she deemed proper, and without objection from the others. Under the testimony of plaintiff and defendant the conclusion is fully justified that the parties were carrying on lawful busi nesses together as co-owners for profit, and that they were sharing in the profits from each operation..
Whether the parties gave consideration to the precise nature of their business association does not appear. It was not essential that they should call themselves partners. It clearly appears that such was the situation. Runo v. Rothschild, 219 Mich 560. It is apparent that the parties concerned treated the land on which the filling station, the Dixie Inn, and the cottage were constructed as belonging to all of them, that is, as partnership property. It was not. essential that the record title should stand in the names of all partners. CL 1948, § 449.10 (Stat Ann § 20.10).
The legal principles applicable in a case of this character were considered by the Court at some length in Johnson v. Hogan, 158 Mich 635 (37 LRA NS 889), in which prior decisions were cited and the following conclusions reached:
“Whether lands held in the name of one partner or of all are to be deemed copartnership property is generally a question of intent, to be gathered from the manner in which the members of the firm have dealt with the property.” (Syllabus 1.)
“No express agreement is necessary to establish the equitable interest of a copartnership in property held for the benefit of the firm in the name of one of the partners, nor need the circumstances surrounding the ■ transaction or the dealings of the partners with the property be equivalent in weight to an express agreement, if the agreement may be implied from their purpose, business or their dealings with the real estate.” (Syllabus 2.)
See, also, Wiltse v. Schaeffer, 327 Mich 272, 280, 281; Swiathowshi v. Kroll, 331 Mich 179, 183. The fact that the legal title to the property in question here first stood in the names of plaintiff and defendant, then in the names of the 3 partners, was then conveyed to the mother, and subsequently by her to the defendant, did not deprive it of its character as a partnership asset. The parties obviously so regarded it. The conveyance by Mrs. McCormick to defendant in 1934 clearly recognized, in the proviso above quoted, that both she and plaintiff had rights in the property. It is in evidence also that the mother stated to defendant at the time of such transaction, or shortly thereafter, that she knew that he and plaintiff would get along together all right.
After the death of the mother, defendant, in conversation with plaintiff, made statements recognizing the rights of the latter, suggesting on one occasion, as it is claimed, that the property should be divided on the basis of 2/3 to himself and 1/3 to plaintiff because plaintiff had drawn larger amounts from the profits for his support and the support of his family than defendant had received. Further discussion of the testimony would serve no useful purpose. The trial judge correctly held that the land in question here belonged in equity to the partnership, and that plaintiff and defendant should be decreed tenants in common thereof.
On behalf of appellant it is contended that the trial court granted relief on a basis not asserted by plaintiff in his bill of complaint. As before stated, plaintiff did not at the outset of the case rest his cause of action on the theory of the copartnership relation, asserting, rather, that he was. entitled to a life estate by virtue of his mother’s deed to defendant in 1934. However, facts were alleged tending to show that plaintiff actually claimed that he, his brother, and his mother were carrying on business as copartners and using this land as an asset of their operations. The trial court, having found that the averments of fact were sustained by the proofs, concluded that because of the partnership relation that existed plaintiff and defendant were equitably tenants in common. There was no abuse of discretion in granting leave to amend by merely striking out the claim to relief based on the deed and asking for a decree in accordance with the facts averred in the original pleading. CL 1948, § 61.61 (Stat Ann § 27.838), provides as follows:
“The court in which any action or proceedings shall be pending, shall have power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment or decree rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings, which do not affect the substantial rights of the parties.”
See, also, Michigan Court Rule No 25 (1945). Obviously the trial court considered that the leave to amend should be granted in the “furtherance of justice.” In view of the situation presented we do not think there was any abuse of discretion in granting the motion. L. A. Young Spring & Wire Corp. v. Falls, 307 Mich 69, 91; Howard v. Burton, 338 Mich 178, 185.
The decree of the trial court is affirmed, with costs to appellee.
Btjtzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Btjtzel, • J.
Grand River avenue, immediately north of the campus of Michigan State College in' East Lansing, Michigan, is a divided boulevard, there being 2 paved roads* each 28 feet wide separated by a sodded and wooded island 32 feet in width. There are long rows of business buildings facing the northerly road which is used for traffic going west toward the city of Lansing. The southerly'road abuts the campus and is used for eastbound vehicles. On October 10, 1952, road resurfacing op-' erations were in progress.
Kenneth M. Smith, plaintiff, was a student at the college, roomed just east of the East Lansing city limits. On that particular morning he had occasion around 10 a.m. to drive west on the northerly road- of Grand River. Part of this road was then in use as apparently the contractors were resurfacing 1 lane at a time. After transacting his business plaintiff with 2 companions drove to a parking lot on the west side of Bailey street, which runs into Grand River from the north. This was about 11 a.m. For some reason he had to go to a building on the campus :so he left his companions in the car, crossed to the east side of Bailey street, and walked south to the intersection of Bailey and Grand River. It is a fair inference that he was in a hurry to get across Grand River to the campus.
At that hour the intersection of Bailey street with Grand River was closed, there being warning ■cones placed across it, presumably to prevent traffic on Bailey street from turning west onto the northerly road of Grand River. In addition, at that time the northerly road of Grand River was completely ■closed to traffic at some point east of the Bailey intersection, because of the paving operations. Westbound traffic had been diverted from the northerly road by a watchman, at times relieved by a policeman, who directed vehicles to use the northerly lane of the south road of Grand River, normally used ■exclusively by eastbound traffic. This road was wide •enough to accommodate 2 or possibly 3 cars abreast. Plence there existed a situation where a normally 1-way portion of a divided boulevard was temporarily being used for 2-way traffic.
At Grand River plaintiff crossed the northerly road, noticing at the time that a steam roller was parked nearby to the east. On reaching the island he ■continued across and at the curb of the southerly road he looked to the right for the usual eastbound traffic but did not look to the left for the oncoming • diverted westbound traffic. Just at the moment that he started to cross and took his first step he came in contact with defendants’ car which was traveling ■west some 15 miles per hour about 2 feet from the curb. The car was driven by Budy L. Whitehead and was owned by Laird Whitehead and Emma Whitehead, his parents, all defendants herein.
It is evident that he ran against the hood and fender of the slowly-moving car and was thrown back onto the grass of the boulevard island. He did not run in front of the car as the side of the hood was dented by the impact of the collision. Plaintiff was very severely injured. The tibia of his left leg was badly fractured, requiring considerable surgery and the use of a metal support to reset it. A re-frácture later on necessitated another operation. Although the trial took place a year and a half after the accident the leg had not fully healed and when it does plaintiff will be permanently incapacitated to a certain extent.
There is no claim whatsoever that the car was driven at an unlawful rate of speed. It had been diverted by the watchman to the northerly lane of the southerly road. Plaintiff did not look and it is quite evident that had he done so the serious accident would not have occurred. A police officer arrived immediately after the accident and talked to the- plaintiff. The officer testified that the gist of what plaintiff said was that he was running at the time and did not see the car at all and that he should have looked the other way, having forgotten' that the road was blocked off. At the trial plaintiff claimed that he did not know of the diversion of traffic because earlier in the morning he had used the northerly road which was not then closed. He further stated that during his attendance at the college for more than 3 years, he had never known traffic from the east to use the southerly road.
At the conclusion of the trial without a jury the judge who heard and carefully reviewed the testimony concluded that there was no negligence on the part of the defendant and, further, if there was any, the plaintiff was guilty of contributory negligence. Plaintiff has appealed and asks- that the judgment be reversed and the cause remanded.
Plaintiff argues that he was not contribuíorily negligent for failure to observe defendants’ car because it was on the wrong side of the road and he had a right to assume that vehicles would obey the rules of the road. See Dreyfus, v. Daronco, 253 Mich 235; Siegel v. Detroit Cab Co., 246 Mich 620. While defendant driver may have been on that portion of .the road normally used by traffic in the • opposite direction, he was justifiably there, having been., directed to use it because of construction and respsr,facing' operations. See CLS 1954, § 257.634 (Stat Ann 1952 Rev § 9.2334). Under such circumstances he was not violating the statutes or rules of the road. ,Cf., Warwick v. Blackney, 272 Mich 231, 237; Savas v. Beals, 304 Mich 84. Though apparently not directly aware of the diversion of traffic plaintiff knew .of the- resurfacing operations and admitted seeing the warning cones closing off Bailey street at Grand River. The evidence does not preponderate against a finding that plaintiff was contributorily negligent.
Even if plaintiff was not under a duty to observe or was not on notice, the evidence clearly supports a finding-that defendants were not negligent. Plaintiff claims the protection of section 83-A, traffic ordinance' No 26 of the city of East Lansing, then in force, which provided that pedestrians crossing an intersection at an unmarked crosswalk have the right-of-way over motor vehicles. Defendant, on the other hand, cites section 84-A, traffic ordinance No 26 of the city of East Lansing, which provided in substance that one crossing a street at any point other-than within a crosswalk shall yield the right-of-way to vehicles. At the trial there was considerable dispute about the location of the crosswalk, as well as whether or not plaintiff was in it at the time of the accident. For purposes of this case the location of the crosswalk is immaterial. Whatever its location there is ample testimony to support the conclusion that plaintiff did not start to cross within it, but east of it. However, even if he was within it, it does not mean that he had the right to lunge into the side of the car which had practically arrived at that spot. We agree with the trial judge when he stated:
“If plaintiff moved suddenly from the curb' as claimed by defendants, without warning, .or anything that could or should have caused deféndant driver to have anticipated his going into the street, even though he was on the projected crosswalk, anil even though defendant had been making close observation of him, that would not constitute negligence on the part of ■defendant driver.”
In cases tried before a judge, without a jury the judgment will not be reversed .unless the evidence preponderates against the findings of fact. Hall v. Horak, 329 Mich 16; C. E. Tackels, Inc., v. Fantin, 341 Mich 119.
Under the circumstances ’we shall not- disturb the judgment for defendants and we' affirm it; with costs to defendants.
Carr’, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Smith, J.
Defendants, city of Dearborn, et al., have appealed upon leave granted from a judgment of the circuit court of Wayne county granting plaintiff Anchor Steel & Conveyor Company a peremptory writ of mandamus ordering the issuance of building permits and certificates of compliance.
The plaintiff corporation is engaged in the manufacture and installation of conveyor systems for various industries. In 1948 it acquired, by purchase, an existing manufacturing building located in the city of Dearborn on the east side of Kingsley .avenue and bounded on the north by Blesser avenue.
Prior to the purchase of the property, the plaintiff '.corporation requested Dearborn city officials to examine its plant operations in Detroit to determine whether its manufacturing operations would be permitted, under the existing zoning ordinance, in the building it contemplated purchasing. The requested examination was made. Subsequent thereto plaintiff applied for a certificate of occupancy and simultaneously requested a building permit for the erection of a steel storage and a machinery storage building on the premises. On September 3, 1948, defendant city, through its department of public works, issued a certificate of occupancy to plaintiff certifying that the occupancy of the Kingsley avenue building for the manufacture of conveyors was in conformity with the zoning laws and issued permits for the construction of the storage buildings. It thereafter completed its purchase of the property.
On April 19, 1949, all of the industrial property in the defendant city was rezoned. Under the new ordinance the zoning of plaintiff’s property was changed from business C and industrial A to business C, industrial A, and industrial B. Under the present zoning ordinance plaintiff’s property was thus divided into 3 classifications: Business C at the corner of Kingsley and Blesser; a 100-foot-wide strip measured south from an alley running parallel with Blesser and a 133-foot strip along the east side of Kinglsey was classified industrial A, and the balance of plaintiff’s property comprising a rectangle at the southeasterly corner was designated industrial B. This classification divided the building in which plaintiff conducted its manufacturing operations into approximately 75% industrial A and 25% industrial B.
In February, 1953, plaintiff corporation applied to defendant city for a certificate of compliance and a building permit to construct a storage building north of and adjacent to its present building and to erect a drafting office, which would constitute a second story to an existing building. The permit was denied and on appeal to the defendant city zoning board of appeals was again denied.
• In May, 1953, plaintiff appealed its application for a certificate of compliance and a building permit for the addition of the drafting office alone as a second story on its present building to the zoning board of appeals of defendant city. This also was subsequently denied by the board on June 11, 1953. Plaintiff thereafter, on July 3, 1953, filed a petition for writ of mandamus, upon which an order to show cause issued. A hearing was had and on April 30, 1954, the court ordered the issuance of the writ. Leave to appeal was granted by this Court on June 18, 1954. Thus tbe outlines of tbe controversy.
Tbis Court, in numerous cases, has discussed the test to be applied in determining tbe validity of a zoning ordinance. A zoning ordinance must be reasonable and its reasonableness becomes tbe test of its legality. Moreland v. Armstrong, 297 Mich 32; Pere Marquette Railway Co. v. Muskegon Township Board, 298 Mich 31; Pringle v. Shevnock, 309 Mich 179; Hammond v. Bloomfield Hills Building Inspector, 331 Mich 551; and Fenner v. City of Muskegon, 331 Mich 732.
In Hammond v. Bloomfield Hills Building Inspector, supra, tbe applicable rules of construction were stated thus (p 555):
“The law is well settled that zoning ordinances are constitutional in principle as a valid exercise of tbe police power. Austin v. Older, 283 Mich 667; Village of Euclid v. Ambler Realty Co., 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR 1016). It is also settled law that a zoning ordinance must be reasonable and that its reasonableness becomes tbe test of its legality. Moreland v. Armstrong, 297 Mich 32; and Hitchman v. Township of Oakland, 329 Micb 331.
“Each zoning case must be determined upon its own facts and circumstances. Senefsky v. City of Huntington Woods, 307 Mich 728 (149 ALR 1433); and Hitchman v. Township of Oakland, supra. There is nevertheless a presumption in favor of tbe constitutionality of zoning regulations, and plaintiffs must sustain tbe burden of showing that such regulations have no real substantial relation to public health, morals, safety, or general welfare. Fass v. City of Highland, Park, 321 Mich 156; Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich 419; and Hitchman v. Township of Oakland, supra.”
See, also, Redford Moving & Storage Company v. City of Detroit, 336 Micb 702; Janesick v. City of Detroit, 337 Mich. 549; and Plum Hollow Golf & Country Club v. Township of Southfield, 341 Mich 84.
Plaintiff’s property, as above noted, was divided by the amended ordinance into 3 different zones, business C, industrial A and industrial B. In each of these areas different operations are carried on, as described by the plaintiff’s president. There was testimony, and the conclusion is permissible, that the so-called heavy operations are conducted in the area of the property zoned as industrial B and that all of the individual operations within the plant were substantially conforming rather than nonconforming with the requirements of the zone within which each was conducted. It is the contention of the appellants, however, both as to existing operations and as to the proposed additions to the plant, that we must look at the plant as a whole. This, it is clear, is devoted to the accomplishment of steel fabrication, which, under the amended ordinance, was put in an industrial B district. Appellants’ theory is made clear in the testimony of the plans examiner of the building department for the city of Dearborn:
“Q. Why did your department deny the building permit 1
“A. Steel fabrication was not a permitted use in an industrial A district.
“The Court: How about a drafting room added over another building ?
“A. It would still be part of a steel fabrication building.”
In and of themselves, such operations, it was testified, were permissible within the areas in which such contemplated structures were to be placed.
“Q. Mr. McEvilly, would you deny a permit to anybody who wanted to put a separate drafting room on, say the business C portion of this property, where there was somebody other than Anchor Steel & Conveyor, would they be granted a permit for a drafting-room?
“A. Por a drafting room in a business C district?
“Q. Yes.
“A. Provided they had the necessary off-street parking.
“Q. As such, the drafting room would not be objectionable?
“A. Under different circumstances, it wouldn’t be.
“Q. How about a steel-storage room on business C property?
“A. Steel storage is permitted in a business C district.
“Q. And, being permitted in a business C area, it would also be permitted in industrial A ?
“A. Yes.”
In the light of these disclosures we need not rule upon the constitutionality of the amended ordinance insofar as it affects the use of plaintiff’s property, although we think it proper to note that it would require considerable dexterity to sustain, as a reasonable exercise of the police power, the creation of a buffer strip of a fixed width which plunges directly through an existing plant. Janesick v. City of Detroit, supra. What we have here is a narrower question. Plaintiff’s relatively small piece of property has been split into 3 different zones. We start with the propositions, as expressed in Teglund v. East Lansing Building Inspector, 316 Mich 185, 189, that in the absence of a zoning ordinance an owner has the right to make any desired use of his premises not amounting to a nuisance, and that a board may not prohibit a use permissible in the absence of an ordinance and equally permissible under the terms of an ordinance. In the situation with which we are confronted, the structures which plaintiff contemplates erecting involve uses permissible in the ab sence of an ordinance and admittedly conforming with, the ordinance itself. That is to say, in and of themselves the business operations conducted in the storage room and in the drafting room would be in conformity with the present zoning restrictions. They do, however, contribute to the furtherance of an over-all enterprise, some parts of which could not (assuming the validity of the ordinance) be conducted in the zones in question. Are the structures,, then, violative of the ordinance? Neither diligence of counsel nor fruits of our own research disclose Michigan authority squarely in point. We turn,, then, for whatever guidance may be afforded, to the deliberations of sister jurisdictions. The case of Prospect Park Borough v. McClaskey, 151 Pa Super 467, 470 (30 A2d 179), is analogous in many respects. The defendant’s premises lay in 2 zones, one industrial, the other commercial, a driveway to the industrial zone being located in the commercial zone. The court stated the problem and its holding on the point, dismissing the complaint, in the following terms:
“It is appellant’s contention that the use of the driveway to take supplies into the yard of the brick manufactory and to haul bricks out is accessory to the industry of brick making and as such constitutes a violation of the existing ordinance. With this contention we cannot agree. The driveway is used merely for ingress and egress and for no other purposes. No part of the manufacturing process is carried out on the driveway or on any portion thereof located within the appellant borough.”
The result and the reasoning commend themselves to us. It is both unreasonable and arbitrary to deny plaintiff the use of its property in each zone to the full extent of its capabilities because such use either facilitates or hampers the operations in still another zone. Moreover, it does not follow that, because the product of the drafting room is to be used in connection with plaintiff’s manufacturing operations, such operations will be likewise performed in the drafting room or that the storage of steel in an adjacent building, to be used for storage only, will constitute fabrication of conveyors. In this instance plaintiff seeks merely to use his property for a use consistent with the restrictions imposed on each of the particular areas of that property by the zoning ordinance. The plaintiff had a clear legal right to have permits issued for such uses. Defendants’ action in withholding the granting of said permits was an arbitrary act. We so hold. There is no merit in the balance of contentions made, and we concur with the finding and result reached by the trial court.
Judgment is affirmed, with costs to appellee.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Dethmers, J.
Defendant was charged with 2 criminal offenses, allegedly committed on January 30, 1952, (1) that he unlawfully, without a license, possessed, as an unclassified acquirer, 279 cases of cigarettes of a wholesale price exceeding $50, and (2) that he unlawfully transported the same on a Michigan highway without having in his possession invoices or bills of lading therefor or a license for transporting the same, contrary to PA 1947, No 265, as amended (CL 1948, §205.501 et seq., as last amended by PA 1951, No 78 [Stat Ann 1950 Rev and Stat Ann 1951 Cum Supp § 7.411(1) et seg.]).
The people appeal from orders of the circuit court granting defendant’s motion to dismiss, suppress and quash on the grounds that the arrest and subsequent search and seizure were illegal and that the act, as sought to be enforced against defendant, was violative of the commerce clause of the Federal Constitution and unconstitutional.
The facts are largely undisputed.. Defendant did possess and was transporting the cigarettes in violation of statute in the respects and manner charged. While defendant was driving a truck a weighmaster of the State highway department saw that it bore no markings or information relative to weight and carrying capacity, the name and address of its registered owner, et cetera, as required by CLS 1952, § 257.723 (Stat Ann 1952 Rev § 9.2423), and consequently he became suspicious that the weight of the vehicle and load was unlawful. Under authority of PA 1949, No 300, § 724, as amended by PA 1951, No 233 (Stat Ann 1951 Cum Supp § 9.2424), he stopped defendant for the purpose of weighing the truck to determine whether it was in violation of statute. In response to inquiry the defendant thereupon told him that he was hauling cigarettes, offered to show them to him, and said, “Couldn’t we fix it up somehow” so that he could take the load on through. The weighmaster then ordered defendant to park the truck near the highway and to get into the former’s automobile with him, caused the State police to be called and detained defendant for them until they arrived some 20 minutes later. Upon their arrival one of the State troopers asked defendant what he was carrying and he replied, “Well, look for yourself.” The troopers accepted the invitation and saw the cigarettes. Thereafter they arrested defendant, searched him, took his papers, asked for the bill of sale, permits, et cetera, but he had none' of the papers required by statute. He told them that lie bad picked up tbe load in Akron, Ohio, and was taking it to Ypsilanti, Michigan. The State policemen bad received a report earlier that day “that a truckload of contraband cigarettes was coming in from out of tbe State.” Defendant bad never applied for nor been granted a license as an unclassified acquirer or transporter of cigarettes, no permit bad been issued for this load and no tax bad been paid on it.
The appearance of tbe truck, not marked with the information required by statute, afforded ample basis for reason to believe that the weight of the vehicle and load might be unlawful. Accordingly, tbe weighmaster was authorized by statute to stop defendant for the purpose of weighing tbe truck. Defendant’s volunteering of tbe information that be was carrying a load of cigarettes and offer to “fix it up” so that be could go on with the load, coupled with tbe lack of markings on tbe truck required by law, and followed by bis invitation to tbe State policemen to look into tbe truck where they saw tbe cigarettes sufficed to give rise to probable cause to believe that be was then and there committing a felony and justified a search of the truck without search warrant (People v. Chyc, 219 Mich 273; People v. Absher, 240 Mich 107; People v. Weaver, 241 Mich 616 [58 ALR 733]), as well as defendant’s arrest without a warrant. His subsequent admission to officers that be did not have the permit and papers required by law and bis lack of them established the felony and justified seizure of tbe cigarettes and their use in evidence. CL 1948, § 205.509, as amended by PA 1951, No 78 (Stat Ann 1951 Cum Supp §7.411 [9]); People v. Goss, 246 Mich 524. Tbe arrest, search and seizure were legal.
Tbe contention that tbe cigarette tax act, as here sought to be applied to defendant, runs afoul of tbe commerce clause of the Federal Constitution and is therefore unconstitutional is without foundation. We repeat here everything we said on that subject in People v. Asta, 337 Mich 590, which is controlling of decision that the act does not offend in the manner asserted.
The orders appealed from are reversed, vacated and set aside and defendant will be held for trial.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred.
Constitution of the United States, art 1, § 8.—Reporter. | [
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] |
Carr, C. J.
Plaintiff and defendant were married in 1938. They have 1 child a daughter now 9 years of age. In 1949 plaintiff brought suit for divorce, but the parties subsequently became reconciled and resumed marital relations. Following such reconciliation they divided their joint bank account, plaintiff receiving a substantial sum of money. Further difficulties arose, however, and the instant suit was brought by plaintiff in January, 1953. In her .bill of complaint she charged defendant with extreme and repeated cruelty. Defendant filed his answer denying the charges made against him, and also filed a cross bill claiming that plaintiff and cross defendant had been guilty of such conduct as entitled him to a decree of divorce. Cross defendant filed an answer denying most of the charges made against her. ■ .
On trial in circuit court both parties offered proofs to substantiate the claims made in their pleadings; In many- respects the testimony of defendant contradicted that of plaintiff. Each was corroborated, in part, by other witnesses.
After listening to the proofs the trial judge came to the conclusion that defendant and cross plaintiff was entitled to the relief sought by him, and a decree was entered accordingly. He was given the custody of the minor child and certain personal property, was required to pay plaintiff and cross defendant the sum of $1,000, and the question of alimony for the future support of cross defendant was held in abeyance. Appellant insists in this Court that the decree should have been granted to her, that the proofs did not support the-right of cross plaintiff to relief, that she was entitled to the custody of the child, and that the provisions of the decree with reference to property matters should be modified.
In her bill of complaint plaintiff alleged that defendant had been guilty of numerous acts of extreme and repeated cruelty, including the use of improper-language, intoxication, and physical violence. She also averred that he had been unduly friendly with women other than herself, and in general had failed to conduct himself in a proper manner. It was conceded by her that while the. parties were living together she charged him with wrongful associations with 2 or more women. The proofs' failed to substantiate such charges. The conclusion is unavoidable that plaintiff either gave credence to idle and malicious gossip or that the charges were the result of a tendency on her part to exaggerate inconsequential occurrences. It may he noted in this connection that the making of unfounded charges of immoral conduct by one spouse against the other may constitute extreme and. repeated cruelty justifying the granting of a decree' of divorce. Gilchrist v. Gilchrist, 333 Mich 275, and prior decisions there cited. .
Plaintiff’s charges .that defendant used improper language toward her and also resorted to physical violence are not supported by testimony other than her own. The same situation exists with reference to her- claim that' on numerous occasions he was intoxicated on his return to the home from his work. Defendant denied the charges of cruelty in such respects, and insofar as the use of intoxicating liquor is concerned, his testimony was, to a certain extent at least, corroborated. After listening to the proofs- and weighing the evidence before him the trial judge came to the conclusion that plaintiff had not established her right to a decree of divorce.
Defendant and cross plaintiff claimed in his pleadings and in his proofs that following their marriage the parties lived together without serious difficulties arising until plaintiff and cross defendant joined a religious sect in which she became very active and to which she devoted much time to the detriment of home conditions. It is not disputed that she was a somewhat zealous member of said sect, and that she endeavored to persuade defendant and cross plaintiff to accept her views. Such efforts were unsuccessful, and resulted in aggravating the unstable conditions existing in the home.
It further appears that in 1949 plaintiff developed a mental condition that led to her being placed for several weeks in a private sanatorium for rest and treatment. The expense thus entailed was borne by-defendant and cross plaintiff, benefits under a policy of insurance furnishing a partial contribution. The trial judge concluded from the proofs that plaintiff’s condition resulted from her devotion to her religious beliefs, her efforts in promoting the teachings of the sect in question, and a lack of proper rest. Her claim that the conduct of her husband toward her was responsible for her condition is contradicted by the fact that in 1953, at a time when she was not living with defendant and cross plaintiff, she had a similar attack which resulted in her being hospitalized in the city of Phladelphia. On the latter occasion it appears that the condition from which she then suffered became apparent while she was in an eastern State attending a convention of the followers of the sect to which she belonged.
Gross plaintiff claimed that because of plaintiff’s interest in matters outside the home she neglected her household duties, and that the well-being of the child of the parties was materially affected. The testimony in the case, including that of the child’s teachers in the school that she attended, fully justifies the conclusion that while in the custody of plaintiff said child was very nervous, appeared to be in fear of others, including children, and genérally did not act like a normal, healthy child.
It was the claim of defendant that plaintiff not only falsely accused him of improper conduct with other women but habitually assumed toward him a critical, fault-finding attitude, and that during a period of time immediately preceding their final separation she refused to cohabit with him in the marital relation. Defendant’s testimony indicated that such refusal was due to the fact that he declined to accept her religious views. Plaintiff conceded such refusal on her part, although for a lesser period than that claimed by defendant, assigning as the reason therefor that the defendant had not treated her in a proper manner. Without discussing the claims of the parties further, we are in accord with the conclusions of the trial judge as to the acts and conduct of the parties and the reasons therefor. Defendant and cross plaintiff was entitled to a decree.
On behalf of appellant it is insisted that the custody of the child of the parties should have been granted to her. Emphasis is placed on CL 1948, § 722.541 (Stat Ann § 25.311), the first part of which counsel for appellant quote in their brief, which reads in its entirety as follows:
“That in ease of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of 12 years, and the father of such children shall be entitled to the care and custody of all such children of the age of 12 years or over: Provided, That any probate court or any court of competent jurisdiction, may, on petition and hearing thereof, make and enforce such order or orders as it may deem just and proper as to the care and custody of such minor children, excepting in cases where an order or decree may have been made by any court in chancery, regarding such children; And provided further, That nothing in this act shall prevent any court of competent jurisdiction from making and enforcing any such order or orders as it may deem just and proper as to the care and custody of such minor children in the same manner- and with like effect as it could if this act had not been passed.”
It will be noted that under the concluding proviso of said section the trial court was given authority in the instant case to make such order as was deemed “just and proper,” with reference to the care, custody, and support of the minor child of the parties. On the record before us we are not impressed that there was any abuse of discretion in awarding such custody to the father on the ground that the best interests of the child would thereby be promoted. Since the hospitalization of plaintiff in 1953, on the occasion above mentioned, defendant and cross plaintiff has had the custody of the child. No claim is made that she is not being reared under proper home surroundings. The testimony is conclusive that she' was at the time of the trial in all respects a healthy, normal child of her age. The testimony of her teachers suggests a marked improvement in her general demeanor. Apparently she had lost her fear'of mingling with others, including children, and had come to enjoy usual childhood diversions.
In Foxall v. Foxall, 319 Mich 459, 464, it was said:
“We have repeatedly stated that in awarding the custody of the children, the paramount consideration is their welfare, Brookhouse v. Brookhouse, 286 Mich 151; Riede v. Riede, 300 Mich 300; Hornbeck v. Hornbeck, 316 Mich 208. The record indicates that both children are happy, well adjusted and receiving the best of care and training. A court of chancery is vested with a large measure of discretion in awarding the custody of children whose interests are before it. Mason v. Mason, 317 Mich 95, and the cases cited therein. Nor does the statute' restrict or qualify the discretion of the court in such matters unless there is an abuse thereof.”
The foregoing statement was quoted with approval in Brugel v. Hildebrant, 332 Mich 475, 481. Of like import are: Sawyer v. Sawyer, 312 Mich 524; Wells v. Wells, 330 Mich 448. Under tke facts in tke case at bar we tkink tkat tke trial judge was correct in concluding tkat tke welfare of tke ckild would be best served by giving ker custody to tke father.
Tke decree of tke trial court is affirmed. In view •of tke nature of tke case, no costs are allowed.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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6
] |
Btttzel, J.
Jay M. Dosker and Edward DeRuiter, respectively, register of deeds and deputy register of deeds for Kent county, Michigan, as plaintiffs, filed a petition for a declaration of rights against Leonard Andrus, et al., as members of the Kent county pension board, to determine whether the latter has a right to retire DeRuiter from his position as deputy register of deeds. DeRuiter was appointed in accordance with sections 91 and 92 of RS 1846, ch 14 (CL 1948, §'§ 53.91, 53.92 [Stat Ann §§.5.983, 5.984]), which state:
“The register of deeds shall appoint a deputy, to hold his office during the pleasure of the register; such appointment and the revocation thereof to be in writing, and filed in the office of the county clerk; and before such deputy shall enter upon the duties of his office, he shall take the oath prescribed by the twelfth article of the Constitution, and for the faithful performance of his duties by such deputy the register and his sureties shall be responsible.
“In case of a vacancy in the office of the register of deeds, or his absence or inability to perform the duties of his office, such deputy shall perform the duties of register during the continuance of such vacancy or disability.” (Emphasis supplied.)
Defendant members of Kent county pension board insist upon their right to retire him in accordance with their pension and retirement plan. DeRuiter, over 65 years of age when appointed, is not a member of the plan.-
The statute, CL 1948, § 46.12a (Stat Ann 1947 Cum Supp § 5.333[1]), pursuant to which the plan was adopted, was amended by PA 1949, No 201, to provide that :
' • “In any county pension or retirement plan adopted under the provisions of this section, the board of supervisors may require that all county employees, except elected or appointed officials, be retired from county service upon attaining an age designated in said plan which shall not be less than 65 years of age.”
Pursuant to this provision the Kent county board of supervisors enacted the following as part of their plan:
“Any eligible employee, except an elected or appointed official, who is not a member of this retirement plan will retire from county service on the first day of the month after reaching normal retirement age. Said retirement shall be without the benefits provided in this plan and said employee shall not become a pensioner.”
It will be noted that elected or appointed officials are distinctly excepted. The sole issue in this case is whether or not the deputy register of deeds is a public official. The 3 judges of the Kent county circuit court, sitting en banc, held that he was and decreed that he could not be retired by defendants.
The indicia of public office are set forth in People v. Freedland, 308 Mich 449, 457, 458, where we adopted and stated the following:
“After an exhaustive examination of the authorities, we hold that 5 elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (l)It must be ere ated by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, or not be only temporary or occasional. * * *
“In People, ex rel. Throop, v. Landon, 40 Mich 673, 682, Mr. Justice Cooley said :
“ ‘The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond.’ ”
See, also, 53 ALR 595; 93 ALR 333; 140 ALR 1076.
We find that the office of deputy register of deeds was thus created by the legislature; that in certain contingencies he is to act as register of deeds, which office is without question beneficial to the iiublic; that the duties and powers exercised are derived directly from legislative direction and not from the orders of the register; that it is a subordinate office created by the legislature; that while the tenure of the particular incumbent is at the pleasure of the register, the office cannot be abolished except by legislative action; and that he is required to take the constitutional oath. The deputy register of deeds is in the position of acting at times designated as the alter ego of the register of deeds. In addition, we have held that deputy officers may execute documents in their own names with the same official force and effect as if done in the name of the principal. See Westbrook v. Miller, 56 Mich 148; People v. Johr, 22 Mich 461. "We hold that the position of deputy-register of deeds meets the established criteria for a-public office.
In other jurisdictions under similar authorizing statutes deputies have been held to be public officials. Fuchs v. Weibert, 233 Ill App 536 (deputy county recorder); Wells v. State, ex rel. Peden, 175 Ind 380 (94 NE 321, Ann Cas 1913C, 86) (deputy county auditor); Southern Surety Co. v. Kinney, 74 Ind App 205 (127 NE 575) (deputy county treasurer); Donges v. Beall (Texas Civ App), 41 SW2d 531 (deputy-county clerk); Oklahoma City v. Century Indemnity Co., 178 Okla 212 (62 P2d 94) (deputy city clerk); see 43 Am Jur, Public Officers, § 462, p 220.
Appellants cite CL 1948, § 45.41 (Stat Ann § 5.1131), which provides:
“In all counties of this State having a population of more than 50,000 where it is provided by law that the county tréasurer, county clerk and register of deeds shall receive salaries in lieu of fees, each of said officers may appoint a deputy or deputies who may perform all the official acts which the officer making the appointment might legally do, and who shall be paid therefor from the general fund of the county, such salaries as the board of supervisors of the county shall determine.”
Prom this statute appellants argue that:
“This statute places the deputies appointed by the county treasurer, the county clerk and the register of deeds on a similar basis. * * * Defendants believe that the legislature would have all these ‘appointees’ subject to retirement, for to hold otherwise would place the legislature in the untenable position of authorizing a retirement plan for a group of employees of the county, most of whom would not be subject to retirement.”
"We cannot. agree. Appellants offer no facts in support of their contention. It should be noted that the statute is one of limited application and of its own terms applies to less than 1/4 of Michigan’s 83 counties. The statute is permissive whereas the one under which plaintiff was appointed is mandatory. There are also other specific provisions for the appointment of deputies by the other 2 officers named, the county clerk and the county treasurer. CL 1948, § 48.37 (Stat Ann § 5.683); CL 1948, § 50.63 (Stat Ann § 5.833). Apparently the purpose of this later statute was to provide for the appointment of additional deputies in areas where circumstances demanded it. "We do not pass upon whether those appointed under such statute may be considered public officials." We are here dealing with a single deputy appointed under the mandatory statute.
It will be noted that the enabling statute states that any plan adopted thereunder may require that all county employees, except elected or appointed officials, may be retired. Assuming this, to mean that a county employee who is not a member of the plan adopted may still b.e retired, the Kent county plan was amended to provide that an eligible employee, except an elected or appointed official, who is not a member of the plan, can be retired. It is stipulated that DeRuiter is not eligible' for the plan. Appellants argue that the provisions of the enabling statute allow them to retire DeRuiter, even though the provisions of their particular plan do not. However, even assuming that appellants are correct in their contention, and we do not here decide it, we are again faced with the issue of whether or not DeRuiter is an appointed official.
Unless and until there is a different expression by the legislature we believe that DeRuiter, deputy register of deeds for Kent county, is an appointed officer and that the lower court in so holding was correct.
Affirmed without costs, a public question being involved.
Cabe, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, J J., concurred.
This reference is to Const 1835, art 12, § 1. The comparable provision in the present Constitution is Const 1908, art 16, § 2.— Reporter. | [
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] |
Kelly, J.
Defendant and appellee George 'Wellington Smith, owned a large number of lots in- the vicinity of Franldin village, Oakland county, Michigan. Appellee Paul F. Schoeffel was Smith’s employee, and as such assisted him in. the sale of his property.
On July 28, 1952, defendant Schoeffel negotiated sale of 2 lots in Franklin Villas subdivision to appellant DePropris,' and 'on Behalf of his employer, •defendant Smith, entered into a written agreement ■of purchase and sale, representing said lots as being owned by defendant Smith.
When defendants endeavored to obtain title insurance they ascertained that one""of the 2 lots was owned by defendant Smith’s brother, Joseph Smith, and his wife. Defendant Smith notified the purchaser of this fact and terminated the- agreement to sell and returned the down payment to DePropris. DePropris refused to accept'the return of the down payment.
Plaintiff filed his declaration, in the circuit court of Oakland county seeking damages and alleging that defendants conspired to cheat, defraud and mislead by offering to sell property without being able to do so, or refusing to convey the property described in the purchase agreement. The case was tried before a jury and at the conclusion of the proofs the court directed a verdict for defendants.
The only question presented in this appeal is whether the court erred in construing the terms of the purchase agreement giving to defendants the right to terminate the agreement and return the down payment on the purchase price.
The testimony did not sustain appellant’s claim that appellees conspired to cheat and defraud him, but, to the contrary, sustains the conclusion that the agreement to purchase and sell was not carried forward to completion because after executing, same appellees discovered that George Wellington Smith did not have title to one of the lots.
The trial court correctly interpreted the clause in the purchase agreement entitled “Title Objections —Seller’s Default,” which reads as follows:
“If objection to the title is made, based upon a written opinion of purchaser’s attorney that the title is not in the condition as required for performance hereunder, the seller shall have 30 days from the date he is notified in writing of the particular defects claimed, either (1) to remedy the title, or (2) to obtain title insurance as required above, or (3) to refund the deposit in full termination of this agreement if unable to remedy the title or obtain title insurance. If the seller remedies the title or shall obtain such title'policy within the time specified, the purchaser agrees to complete the sale within 10 days of written notification thereof. If the seller fails to remedy the title or obtain such title insurance or to give the purchaser the above written notification within said 30 days, the deposit shall be refunded forthwith in full termination of this agreement.”
We cannot agree with plaintiff’s contention that defendants’ rights to terminate under this clause depended upon plaintiff’s objection in writing to the title. Plaintiff refused to pay the consideration provided- for in the agreement unless he obtained legal ..title to both lots.
Judgrpent affirmed. Costs to appellees.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, IReid, and Dethmers, JJ., concurred. | [
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Dethmers, J.
Defendants appeal in each of the 3 combined cases from decree adjudging void a special assessment levied against plaintiffs’ properties for proposed construction of curb and pavement and enjoining such construction and collection of the tax.
The street to be improved is that portion of Orchard View drive extending west for approximately 2,500 feet from its intersection with an improved street known as Main. Plaintiffs Foren and Boyd own, respectively, large corner plots on either side of Orchard View drive immediately west of and fronting on Main. Plaintiffs Barry own large plots on both sides of Orchard View drive immediately behind or to the west of the lands of the other plaintiffs. The curb and paving project was divided originally into 2 special assessment districts. One included the property of plaintiffs and the other consisted of all the lots to the west thereof abutting on the proposed improvement. Plaintiffs brought this suit, alleging irregularities in the proceedings for levying the assessment. Thereafter defendant city abandoned those proceedings and began anew, including both districts into 1 new assessment district in which the cost of the improvement was levied as a special tax against abutting properties equally on the basis of footage thereon. Adopting the theory of the plaintiffs’ supplemental bills of complaint which were then filed, upon hearing had thereon, the trial court held the assessment void as against plaintiffs’ properties on the ground that they would not be specially benefited by the' proposed improvement.
Plaintiffs built their homes bn their respective properties over 30 years ago. Until recently the area remained rustic in appearance and rural in character and the land west of plaintiffs was undeveloped. Orchard View drive was a gravel road, oiled by plaintiffs opposite their properties, and, in the past, generally adequate to needs, although occasionally impassable. Shortly before suit the lands to the west of plaintiffs’ properties abutting on Orchard View drive were subdivided and developed into 37 lots and 25 homes were built thereon. The court found and the record establishes that the type of proposed improvement is a necessity to make Orchard View drive a passable means of access to Main street, available to the increasing traffic occasioned by the mentioned new- development.
Plaintiffs called a realtor-appraiser as an expert witness. He testified that the properties of Boyd and the Forens would not be enhanced in value by the paving because their homes face on Main street, Orchard View being but a side street for them. He testified that the Barry property would not be enhanced in value by the improvement because the house thereon faces east and would naturally front on a street known as Washington, to the south, if it ever were extended to pass along the east side of Barrys’ property; and, further, that Barrys’ plot would be decreased in value to the extent of $1,600 by the paving because it would necessitate the removal of trees in the street and a stone wall oh it and the raising of the level of the street grade, with the result that a -fill would be necessary on the Barrys’ property to put it in the same relation to the new street-grade- level that it now has to the present street level, and because the paving would occasion heavier traffic on Orchard View drive, causing it to pass only slightly over 20 feet from the house. The trial court made a finding of facts with respect- to benefits and detriments strictly in accord with this testimony, despite the testimony of 2 other realtors to the effect that each of the properties would be enhanced in value by the paving in an amount equal to or greater than the resulting assessments against them. Persuasive to the trial court, also, appears to have been its finding of fact that:
“It is obvious from the facts and circumstances given in evidence as well as from the history of the formation of the present District No 1171, reflected by the pleadings and stipulation of facts, that all of this property of the plaintiffs is an entirety different category from that on the west end of Orchard View drive. This difference was recognized by the defendant city at first by having plaintiffs’ property in a special assessment district by itself. After the regularity and propriety of District No 1158 (see paragraph 8 of stipulation for extent of District No 1158) were questioned by plaintiffs their property was placed in a district with properties to the west, the owners of which greatly and understandably desired the paving of the street. Although the city’s technical right to abandon the ‘two sections’ or districts and to combine them into the one, District No 1171, is not open to question, this fact alone evidences the fact that properties on one end of the street were combined with properties on the other end so that one end might, independent of kindred facts, circumstances and benefits, carry the other end,”
We hear chancery cases de novo. Petz v. Gaines, 286 Mich 450. In so doing we recognize the advantages possessed by the trial court in seeing and hearing the witnesses and are aided by its conclusions as to the facts, but are not controlled thereby. Hawthorne v. Dunn, 210 Mich 176. On the record we are unable to agree with the trial court’s conclusion, evidently based on the appraiser’s opinion, that plaintiffs’ properties would not be specially benefited by the paving merely because 2 of them fronted on another- street and the third would front on a street which might some day be extended past it, or because it was not the plaintiffs, but the owners of lots to the west of them, who desired and needed the improvement in furtherance of their intended use of their properties. The Forens’ property runs-along Orchard View for 496 feet; Boyd’s 507 feet, and Barrys’ 680 feet. The fact, if it be a fact, that plaintiffs may not wish to subdivide their plots or to use Orchard View as a means of access thereto does not obviate the fact that the paving would make such action more convenient and possible and enhance the value of their properties accordingly. Pictures and testimony in the record establish that paving of the dirt road would definitely have that effect. The use to which plaintiffs may put their properties now or may wish to put them in the future is not controlling of the question of resulting benefits or validity of the assessment. Powers v. City of Grand Rapids, 98 Mich 393. Nor is the measure of special benefits to the properties solely that of the enhanced values thereof. Oakland County Drain Com’r v. City of Royal Oak, 325 Mich 298 (11 ALR2d 1122).
“This Court has uniformly sustained the validity of assessments for paving on the frontage basis. This has been upon the theory that such method treated all abutting owners alike and was an equitable distribution of the burden.” Auditor General v. Konwinski, 244 Mich 384, 386.
In hearing this case de novo the question confronting us on this record is not so much one of the credibility of witnesses or the truth of testimony as to facts, as determined by the trial court, but, rather, of the accuracy or soundness of the opinions of witnesses and conclusions of the trial court concerning the benefits to plaintiffs’ properties to result from the paving. The fact that the trial court deemed plaintiffs’ witness a more skillful appraiser than the 2 who testified for defendants and apparently adopted his opinion accordingly does not impel us to close our eyes to the obvious benefits to plaintiffs’ properties, as to which proofs scarcely needed to be adduced.
Reasons nowhere appear, either in the pleadings, testimony, trial court’s opinion, or plaintiffs’ brief, why construction of the curb and pavement should be enjoined. Plaintiffs have shown no vested or other right to the preservation of trees, walls or grade levels as they now exist in the right-of-way.
A decree may enter here dismissing plaintiffs’ bills of complaint. Costs to defendants.
Case, C. J., and Butzel, Smith, Shaepe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Btjtzel, J.
On May 9, 1952, plaintiff, Veri L. White, was an employee of the J. A. Utley Company, hereinafter referred to as Utley, who was general contractor for the construction of a plant for Buick division of General Motors Corporation. Utley had leased a crane and operator together as a unit from defendant W. C. Bye Excavating & Trucking Company, hereinafter referred to as Bye, for use in the large construction area where a number of other contractors were also working. Among the latter was Babcock & Wilcox Company, hereinafter referred to as Wilcox, which was engaged in erecting boilers in a powerhouse. In the construction industry it is a practice for one contractor who owns or has leased heavy equipment, such as cranes, to accommodate others on the - same project by allowing them the use of this equipment when it can be so spared. If the use involves a small job requiring a negligible amount of time, no charge is made. If, however, substantial use and time are involved a charge therefor is usually made. Here, Wilcox, an, independent contractor with Buick. and having no' formal relationship with Utley, borrowed the use of this crane and operator for a few moments to transfer a reel of cable to the partially-completed powerhouse. The operation consumed but a short period of time and apparently was one of those instances for which no charge was made. In the course of this operation plaintiff was injured and he brought suit, against Bye and Wilcox.
The crane, on being assigned to the job for Wilcox, was moved to a point north, of the partially-constructed powerhouse, and south of the small Wilcox office. The reel of cable was located northwest of the office and, being some distance from the crane, required the use of the jib boom of the crane, rather than the main boom. The up and down movements of the booms were controlled by the work lines, so-called, attached to the rear portion of the crane cab. The lines to which the objects áre attached were called the load lines. These ran through wheels on the ends, of the jib and main booms and were attached to revolving drums directly in front of the crane cab. There is a main boom load line and a jib boom load line. Since the jib boom load line was the one being used for this particular job, the hook end of the main boom load line was put out of the way by securing it to the base of the main boom and making it taut. The boom itself initially stayed at the same fixed angle.
Plaintiff, driving a bulldozer pursuant to instructions, had come around the east end of the powerhouse to a point southeast of the crane, well within and under the arc of the raised boom. At the time of the accident he was making adjustments on the bulldozer, having previously talked to the crane operator.
The crane, pointing north, picked up the cable on the jib boom load line and swung it clockwise toward the powerhouse where it was to be placed. Employees of Wilcox directed the movements of the crane by hand signals and directions. These were necessary to show where the crane was to go but had nothing to do with the operation or control of the crane. Plaintiff was under the boom as it passed over his head going in a southerly direction and within the arc described by the cable on the end of the line. The operator was about to set the cable down when instructions were changed. He reversed the movement of the crane to a northerly counterclockwise direction so that the crane came back again over the plaintiff’s head. The operator then began to lower the reel of cable to the deck of the powerhouse. In doing so he was obliged to lower the boom as well. However, on lowering the boom, he forgot to slacken sufficiently the main boom load line, which, as was stated, was tautly attached to the base of the boom. Lowering the boom without slackening this line caused the line with its large terminal hook to break loose from the point of attachment and swing outward thus striking plaintiff.
Upon completion of the testimony, Bye moved for a directed verdict on the grounds that (1) plaintiff was guilty of contributory negligence as a matter of law, and (2) the crane operator was no longer defendant’s servant at the time of the accident. These motions were denied. The judge also denied defendant Wilcox’s motions that there was no evidence of its negligence and that as a matter of law the crane operator was not its servant. The ease was submitted to the jury who returned a verdict for $20,000 against both defendants. In addition the jury answered 2 special questions submitted by Bye to the effect that the crane operator was not “under the exclusive control and direction of J. A. Utley Company” and that plaintiff was not guilty of negligence in “not paying attention to or observing the movement of the boom and load of the crane of W. C. Bye back and forth over him and the bulldozer.” Thereafter, the judge granted defendant Wilcox’s motion for judgment non obstante veredicto. Bye has appealed from the judgment against him and White, plaintiff, has cross-appealed from the judgment non obstante veredicto in favor of Wilcox. The negligence of the crane operator is unquestioned.
The disposition of this case depends primarily upon the answer to the query—whose servant was the crane operator at the time the accident occurred? Once answered, the principle of respondeat superior fixes liability. That a servant directed by his master to perform services for another may become the servant of such other in performing these services is well settled. There are many possible tests for the existence of the master-servant relationship in any one instance. See 1 Restatement, Agency, § 220 (2). However, in Michigan as in many jurisdictions, the most important and significant of these tests have been set forth in this manner:
“The ultimate test is: Whose is the work being done ? * * * In determining whose work is being done, the question of the power to control the work is of great importance.”
Allen v. Kendall Hardware Mill Supply Co., 305 Mich 163, 166; Buskirk v. Ide, 302 Mich 154, 165. See Rockwell v. Grand Trunk Western Railway Co., 253 Mich 144.
The facts pertinent to this issue are that: Bye owned the crane and hired the operator and paid his wages; the crane and operator were hired as a unit, with Bye paying the maintenance, insurance, et cetera; Bye was in the business of renting cranes with his own skilled employees to operate them; the operator was the only person who could operate the controls of the-crane; Utley or Wilcox could not'discharge the operator from Bye’s employ though, they could apparently force Bye to put another operator in his place; Wilcox gave hand signals and directions for moving the reel of cable to indicate to .the operator where the crane was to go; the operator could refuse to do any job which he felt would injure the crane; and it was customary on a building project of this kind for a lessee of a crane to accommodate other contractors by lending them his crane either for a charge or in .some cases for nothing. Bye. contends that the operator ceased being his servant because Wilcox or Utley “exercised detailed on-the-spot control of the actual operation” and it was their work that was being done at the time. We are convinced, however, that the directions and signals on the scene were, not sufficiently significant, in and of themselves, to establish the master-servant relationship. The noise and the nature of the work made the directions and signals from below necessary. In Rockwell v. Grand Trunk Western Railway Co., supra, the defendant maintained an electric crane for the unloading of heavy freight and the plaintiff trucker was unloading a car. In respect to defendant’s liability, as master, we stated (p 148):
“The plaintiff had no control over the crane or the operator except that by signals he could direct when and in what direction the beams should he hoisted. Beyond this he was not allowed to interfere with its operation.”
In the landmark and oft-quoted case of Standard-Oil Co. v. Anderson (1909), 212 US 215 (29 S Ct 252, 53 L ed 480), the court considered this problem as applied to the Standard Oil Company whose ship was being loaded by means of its own winch, operated by its own man, though the stevedoring company gave signals and directions and supplied the tackle. The court stated in holding the company liable (pp 222, 226) :
“Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking. # # *
“Much stress is laid upon the fact that the winch-man obeyed the signals of the gangman, who represented the master stevedore, in timing the raising and lowering of the cases of oil. But when one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be cooperation and, coordination, or there will be chaos. The giving of signals under the circumstances of this case was not the giving of orders, but of information, and the obedience to those signals showed cooperation rather than subordination, and is not enough to show that there has been a change of masters.”
We believe these words are equally, if not more, applicable to the instant case. The construction project herein involved was many times larger and more complicated, making cooperation much more of a necessity.
Nor can we conclude that it was the work Of Wilcox or Utley which was being done at the time of the accident, except in a broad sense. While we agree that:
“This test is practically valueless where, as in the instant case, the general employer’s business consists of furnishing men to perform work for the special employer, because by doing his job the worker is necessarily furthering and doing the business of both employers.” Nepstad v. Lambert, 235 Minn 1, 11 (50 NW2d 614, 620), affirmed in companion case, sub nom., Knutson v. Lambert, 235 Minn 328 (51 NW2d 580),
we also must subscribe to the words of the court in the Standard Oil Company Case, supra, that (pp 221, 225):
“he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still in its doing his own work. * * *
“The power, the winch, the drum, and the winch-man were its own. It did not furnish them but furnished the work they did to the stevedore.”
In the instant case, Bye furnished the crane, operator and the operator’s know-how as an entity. The operator was hired by and remained under Bye’s control. Bye was in the business of lifting and transporting of objects for other persons by means of cranes. He furnished these services and not the operator and crane individually. In the Rockwell Case, supra, we said (p 148):
“In the instant case the defendant furnished the crane to increase its business in the carrying of heavy weight. It selected a man who had been instructed in its use to care for and operate it. * * * While operating it, he was engaged in the furtherance of the defendant’s business. He did nothing that the plaintiff was required to do. He knew the safe way and the unsafe way to operate it. He was selected by the defendant, paid by the defendant, and could be discharged whenever it pleased the defendant.”
The ambiguity of the concepts of “control” and “whose business,” arising from the fact that they may be defined broadly or narrowly, has caused another test to be advocated—the scope of the business of the borrower test. See article entitled “Scope of the Business: The Borrowed Servant Problem,” by Talbot Smith in 38 Mich L Rev 1222 (1940). Considered in the light of the facts this test compels a conclusion similar to the one reached by way of the other tests. Wilcox was in the boiler business. It had undoubtedly installed boilers in projects similar to the one here involved, i.e., where the general or other contractor had cranes available. The record indicates that Wilcox’s use of the equipment was in some way anticipated by Utley and Buick. Undoubtedly there were also jobs which did not require the use of a crane. The lifting of the cable in this instance required but a few moments which probably constituted a small fraction of the time Wilcox expended in erecting the boilers. Under such circumstances we feel that the use of a crane for that purpose was not within the normal scope of Wilcox’s business. Its type of business dictated the apparent decision not to own and operate its own crane and not the fact that it wished to insulate itself from liability by farming out the crane operation.
Appellant has cited cases indicating a contrary result, particularly Nepstad v. Lambert, supra, and Kessler v. Bates & Rogers Construction Co., 155 Neb 40 (50 NW2d 553). The Kessler Case is distinguishable first, because the defendant was not in the business of renting cranes but rather was the general contractor on the project possessing its own, and second, because the actions of the “special” employer consisted of something more than the mere giving of directions. The Nepstad Case, as well as the Kes sler Case, did not involve, as here, a borrower from the lessee of the crane, both of whom were working on different phases of a construction project. ■ As shown by the annotation at 17 ALR2d 1442 et seq., where most of the equipment cases are noted, many of them are to a large degree irreconcilable and an attempt to distinguish and harmonize each of them would be fruitless. While probably not in accord with some, we prefer the reasoning herein adopted and generally approve of the comment in 1 Restatement, Agency, § 227, pp 501, 502:
“Comment e. A continuation of the general employment is indicated by the facts that the general employer may at any time substitute another servant, that the time of employment is short, and that the lent servant has the skill of a specialist.
“A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. * * *
“The fact that the general employer is in the business of renting machines and men is relevant, since in such case there is more likely to be an intent to retain control over the instrumentality.”
Another consideration is that on large construction projects of this type there is a considerable amount of accommodation of various contractors by others, for, in many cases, negligible amounts of time. We cannot conceive of a master-servant relationship so fluid in nature that it would attach to all of these users of equipment by the giving of a few hand signals and directions and virtually nothing more. The relationship is deeper rooted and more fundamental.
Wilcox can only be held liable if, (1) assuming the crane operator not to be its servant, its men negligently gave signals causing the accident, or (2) as suming the crane operator to be its servant by virtue of respondeat superior. As to (1) we agree with the judge below who granted a judgment non obstante veredicto in favor of Wilcox. If there was negligence in the giving of the signals, and the evidence of it is almost nonexistent, it ivas not the proximate cause of the accident. The proximate cause was the operator’s failure to loosen the main boom load line. As to (2) we have held that as a matter of law the crane operator was not its servant.
Bye contends that the plaintiff was guilty of contributory negligence as a matter of law, relying principally upon Troy v. Taylor & Gaskin, Inc., 282 Mich 327. Aside from the factual cause-of-accident difference, the Court there merely held that the judgment in favor of the defendant on grounds of plaintiff’s contributory negligence was supported by the evidence, and not that he was contributorily negligent as a matter of law. It is argued that the failure to observe certain safety instructions amounted to contributory negligence. The extent and substance of such instructions is far from clear and those revealed in the record are not so positive or pointed as would compel a conclusion that their disregard constituted contributory negligence as a matter of law. The jury answered “No” to the following special question submitted by Byé:
“2. Do you find that Veri L. White, the plaintiff herein, was guilty of negligence in not paying attention to or observing the movement of the boom and load of the crane of W. C. Bye back and forth over him and the bulldozer?”
Plaintiff’s contributory negligence was correctly considered a question of fact for the jury. Error in the charge to the effect that Wilcox was favored was nonprejudicial. The jury decided against Wilcox.
Other errors complained of are of insufficient merit or substance to warrant discussion. Tbe judgment non obstante veredicto in favor of Wilcox and tbe judgment on tbe verdict of tbe jury against Bye are hereby affirmed, with costs, except as to defendant Wilcox who neglected to file a timely brief.
Carr, C. J., and Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred with Butzel, J.
Smith, J., concurred in tbe result. | [
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Dethmers, J.
Plaintiffs appeal from decree.dismissing their bill of complaint which prayed that defendants be enjoined from erecting a gasoline station on 3 adjoining lots in violation of building restrictions of record covering the lots and subdivision in question.
i Defendant Wilson Oil Corporation, hereinafter called defendant, owns the 3 lots; they front' pn James Couzens Highway. Intersecting that highway and running along one side of defendant’s lots is Robson avenue. On it are a number of other lots, referred to in the'restrictions by lot number and so restricted t.o residential use. The restrictions permitted the erection of stores on all lots fronting on Couzens highway, but required that they should be not less than 2-story brick buildings with basements. Defendant’s projected building would not meet these requirements. The trial court found as a fact, however, and the proofs establish.that they never have been complied with from the very beginning insofar as building along Couzens highway in said subdivision is concerned. Testimony indicates that this was due in part to. the fact that shortly after platting the Couzens highway, was widened, leaving lots fronting thereon only 51 feet deep, materially changing the practical uses to which they could be put. The court found that'plaintiffs never had objected to the construction on Couzens highway of buildings in violation of restrictions, and that they are estopped to do so now, citing Cherry v. Board of Home Missions of Reformed Church in United States, 254 Mich 496. In this the trial court was correct.- See, also, Borgman v. Markland, 318 Mich 676: Abandonment of restrictions- by permitted violations and resultant change of character of the neighborhood amounts to a waiver. Windemere-Grand Improvement & Protective Ass’n v. American State Bank of Highland Park, 205 Mich 539. The fact that restrictions applicable to residential lots not fronting on Couzens highway have not been abandoned is not controlling. Those are not the restrictions here in issue. Rather, it is the restrictions applicable to the lots fronting on Couzens highway that are involved. They alone applied to defendant’s lots. To the extent that they have been abandoned, defendant’s lots may not he burdened thereby.
Plaintiffs say that defendant’s plans provide for a side-street entrance into the gasoline station from Robson avenue, as well as a Couzens highway exit. They contend that this violates the restrictions which make Robson avenue residential in character. Cited is Tear v. Mosconi, 239 Mich 242, in which restrictions limited building on a named street to residences. This Court held that the owner of a lot fronting on an intersecting street on which stores were permitted could not build a store thereon fronting on the street limited to residences. The case is. not in point because the restrictions here do not prohibit the' erection of stores on Robson avenue, but, rather, the restriction to -residential' use is made applicable to specific lots referred to by number. The fact that the lots so referred to include all those fronting on Robson avenue does not serve to limit to “residential” the use to -which defendant may put its lots inasmuch as the restrictions expressly permit the-use thereof for business purposes.' The restrictions contain no express prohibition against a side entrance to- defendant’s lots from Robson avenue/ None will be implied. In re Nordwood Estates Subd ivision, 291 Mich 563; Kime v. Dunitz, 249 Mich 588; Grant v. Craigie, 292 Mich 658.
Plaintiffs point to the fact that, in addition to the restrictions applicable to other lots fronting on Couzens highway, further provisions are made concerning 3 corner lots, including the lot of defendant at the corner of Couzens and Robson. These provisions are as follows:
“When any buildings are placed upon lots 1028, 1074, 1107 the rear of said lots abutting on Morton Court (now Robson avenue) or Avon or Beverly Crescent shall be built up with the same material and in such a manner as to make as presentable and pleasing an appearance as the front of said buildings on Northwestern highway (now James Couzens highway). If no buildings are erected on the rear of said lots, then a continuous wall, with gate or door if desired, shall be placed thereon, and shall be constructed of the same material as the front of said buildings or of such other material as shall first have been approved by said sellers.”
The back of defendant’s proposed building will extend to the rear of its lots but will not run all the way to Robson avenue. Plaintiffs construe the language of the restriction to mean that under such circumstances the wall mentioned therein must be constructed along Robson avenue for the entire length of defendant’s corner lot. The lot fronts on Couzens. Robson is the intersecting street which runs alongside that lot. Opposite the lot’s front line on Couzens is a line at the back dividing the lot from a rear alley. Webster defines “rear” to be the opposite of “front”. The rear line of the lot is the one opposite the front line on Couzens and not the line intersecting the front line of the lot and running as its side line along Robson. Webster also defines the word “abut” as meaning, among other things, to touch with a projecting point or to terminate at a point of contact. In that sense the line which is clearly the lot’s rear line, running along the alley, abuts Robson avenue which it intersects. To give the word “abutting” the meaning that it refers to the lot’s side line dividing it from Robson avenue, as plaintiffs urge, would render the word “rear” utterly meaningless and require reading into the language of the restrictions something which is not there.
Affirmed, with costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, J J., concurred. | [
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] |
Smith, J.
Plaintiff Brookdale Cemetery Association commenced an action at law on March 30, 1954, against defendants Daniel Lewis, Helen Lewis, his wife, Charlotte L. Kline, administratrix of the estate of Saul Lewis, deceased, George Lewis and Jean K. Lewis, jointly and severally. Writs of garnishment were issued against Irwin I. Cohn, Arthur M. Lang, Menorah Funeral Chapel, Inc., and various banks, garnisheeing funds of the principal defendants. On April 14, 1954, plaintiff filed a declaration and bill of particulars in assumpsit alleging damages under the common counts and a second count alleging a conspiracy by the defendants to defraud the plaintiff association of its property.
Disclosures were duly filed by the respective parties. Garnishee defendants Cohn and Lang, by their disclosures, denied liability to any of the principal defendants. The disclosure of the National Bank of Detroit disclosed, as far as pertinent here, that it was indebted to Daniel Lewis, George Lewis, and Jean K. Lewis, jointly, in the sum of $11,163.32. The Menorah Funeral Chapel, Inc., disclosed that it was indebted to the principal defendants upon a mortgage in the sum of $98,858.58 upon which there was then due and owing the sum of $5,000.
A motion to quash the garnishment proceedings was filed on April 30, 1954, by some of the defendants, and was subsequently denied by the trial court on May 11, 1954. On July 7, 1954, defendant Jean K. Lewis filed a motion to dismiss the garnishment proceedings for the following reasons:
“1. Because plaintiff’s declaration does not set forth a cause of action as to this defendant.
“2. Because said declaration fails to set forth any contract, express or implied, upon which this defendant is obligated.
“3. Because the issuance of said garnishment proceedings amount to an abuse of process.
“4. Because garnishment proceedings were improvidently issued.”-
An order was entered on July 14,1954, dismissing garnishment proceedings as to Jean K. Lewis and releasing the National Bank of Detroit and the Menorah Funeral Chapel, Inc., as garnishee defendants. On August 19, 1954, the trial court dictated reasons for the entry of the order of dismissal, stating:
“An order has heretofore been entered on July 14, 1954, granting a motion to dismiss the garnishment against the defendant, Jean K. Lewis, from which order an appeal to the Supreme Court has been taken. The court believes that it is proper to state the reasons for the entry of the order as a part of the record on appeal. The order was entered in the exercise of the discretion vested in the court by CL 1948, § 628.41, as amended by PA 1952, No 280 (CLS 1952, § 628.41, Stat Ann 1953 Cum Supp § 27.1895). The court being convinced from the showing made that there was no real reason for apprehending the loss of the plaintiff’s claim in the absence of the garnishment, and that the continuation of the garnishment would work undue and unnecessary hardship, and that for these reasons it should be dismissed with no resultant jeopardy to the plaintiff’s claim.
“(Plaintiff and appellant objects to its inclusion in settled record.) ”
The sole question for determination, as stated by the parties, is' whether the trial court had authority to dismiss the garnishment proceedings on the motion of defendant Jean K. Lewis, under PA 1915, No 314, ch 28, § 41, as amended by PA 1952, No 280 (CLS 1952, § 628.41, Stat Ann 1953 Cum Supp § 27.-1895). Chapter 28 of the act, as amended, provides that:
“Sec. 41. A failure to recover judgment against the principal defendant, or a satisfaction of such judgment, in any manner, shall be deemed a discontinuance of all proceedings against the garnishee, and the court may, at any time before judgment, for good cause shown, discontinue proceedings against the garnishee, or may make such other reasonable order as in its discretion seems advisable.”
The plaintiff does not question the constitutionality of the act in question, nor could plaintiff now raise such a contention, having failed to raise the issue before the trial court. In view of these circumstances the issue is not whether the trial court had “authority” to dismiss the garnishment proceedings but whether the trial court abused the discretion imposed in it by statute.
The rule is too well known to require extended citation that the Supreme Court ordinarily does not interfere with the trial court’s exercise of discretion. Detroit Trust Company v. Sosensky, 300 Mich 353, the term “discretion” as here employed, meaning a sound judicial discretion. However, where the exercise of such discretion is clearly abused, the Supreme Court will take appropriate action. Kellom v. City of Ecorse, 329 Mich 303.
In the instant case, upon the record before us, we find no showing, other than the unsupported motion (heretofore quoted) of defendant Jean K. Lewis for dismissal of garnishment proceedings, of the basis upon which the court acted. The motion itself was framed in terms of legal conclusions and the accompanying affidavit presented nothing factual as to the circumstances. We are unable to conclude, upon the record certified to us, that there is “no real reason for apprehending the loss of the plaintiff’s claim in the absence of garnishment, and that the continuation of garnishment would work undue and unnecessary hardship.”
We had recent occasion to pass upon the same question in Cortez v. International Union, United Automobile, Aircraft and Agricultural Workers of America (UAW-CIO), 339 Mich 446. In sustaining the trial court’s order quashing the writs of garnishment in the Cortes Case, the Court said at pages 452, 453:
“Plaintiffs urge that section 41 of the garnishment statute, as amended by Act No 280, PA 1952 (CLS 1952, § 628.41 [Stat Ann 1953 Cum Supp § 27.-1895]) did not empower the trial court to quash the writs of garnishment upon the grounds stated in its opinion. Prior to the enactment of the above act, affidavits in support of writs of garnishment could not be avoided on motions to quash, and release of impounded money could only be accomplished by filing a bond with 2 sureties in an amount twice the amount claimed by plaintiff in his affidavit for a writ of garnishment. It was recognized that garnishment was a harsh remedy, see Geistert v. Scheffler, 312 Mich 36, 40. Under the amended act the trial court is vested with discretionary powers to render such reasonable orders as may seem advisable under the circumstances. In the case at bar the trial court took into consideration the assets of the unions in granting the order to quash the writs of garnishment. The records show that the net worth of the International Union, as of November 30, 1953, exceeds $13,000,000. The net worth of Local 600, as of June 30,1953, exceeded $600,000. It clearly shows that the financial assets of both unions is sufficient in value to satisfy any judgment rendered against them. Under such circumstances there was no abuse of discretion in quashing the writs of garnishment.”
In the instant case there is no showing that the financial assets of the defendants is sufficient to satisfy any judgment rendered against them. Plaintiff alleges damages in the sum of $125,000, whereas the writs of garnishment reached the total sum of $16,163.32, in which defendant Jean K. Lewis was interested. Under such circumstances plaintiff was entitled to the protection afforded it by the garnishment proceedings.
This Court has recognized that garnishment is a harsh remedy, Geistert v. Scheffler, 312 Mich 36, 40, and Cortez v. International Union, supra, and recognizes that the amendatory act was enacted to permit the court, in its discretion, to relieve a defendant from undue hardship. However, we are constrained to hold that, so far as appears in the record before us, there was no sound reason for dismissing the garnishment suit as to defendant Jean K. Lewis.
The order of the circuit court dismissing the garnishment proceedings is reversed and the cause remanded for reinstatement of garnishment proceedings, with costs to plaintiff.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Carr, C. J.
These cases involve substantially identical issues. They were submitted to the trial court on motions for summary judgment, a judgment in favor of the plaintiff being entered in each case. On appeal the same method of procedure has been observed as in the circuit court, although separate records have been filed. No reason appears why they may not be considered and determined accordingly.
Plaintiff Hospital Authority was organized in 1945 under provisions of PA No 47 of that year, 3 villages and 6 townships becoming constituent members at that time. As originally enacted the statute permitted any 2 or more cities, incorporated villages or townships, or any combination thereof, by resolution of their respective legislative bodies, to join for the purpose of forming a hospital authority which should construct or acquire a community hospital. Any hospital authority so created was declared to be a body corporate with authority to contract. The legislature further specified that a hospital board, created in the manner outlined by the statute, should be selected to direct and govern the functions of an authority. Said board was directed to prepare a budget, not later than the 1st of April of each year, covering estimated current expenses and also expenses for capital outlay. The money necessary to be raised by the constituent members of the authority was required to be determined on the basis of ■equalized valuation of such members, subject to the provision, however, that in dividing the amount apportioned to any township between it and a village member located therein consideration should be given to the last assessed valuation as determined by the boards of review. The sum required of each constituent member, when determined as provided by the statute, was required to be certified thereto. The act further gave power to issue bonds and to purchase and acquire property.
The act as originally passed in 1945 was amended by PA 1949, No 62, and PA 1952, No 170 (CL 1948 and CLS 1954, § 331.1 et seq. [Stat Ann 1953 Cum Supp § 5.2456(1) et seq.]). An examination of the amendatory acts of 1949 and 1952 indicates that their general purpose was to clarify certain provisions of the original act, and to remedy possible defects in matters of procedure in the formation of community hospital authorities and in subsequent proceedings. A detailed discussion of the amendments is not required.
Ecorse and River Rouge did not become members of plaintiff Authority at the time of its formation in 1945. However, approximately 2 years later, the legislative body of each city adopted a resolution declaring the desire of such city to become a constituent member of the Authority, and the hospital board of the latter, by formal resolution, approved the request. Apparently some dissatisfaction arose later with reference to the operations of the Hospital Authority and in January, 1948, the common council of each of said cities adopted a resolution rescinding its prior request for admission as a constituent member. Recognition to the claimed right of withdrawal was refused. Thereafter each year the hospital board proceeded to determine the amount that each member of the Plospital Authority should raise for expenses and capita] outlay, and notices were given to said members, including the cities of Ecorse and River Rouge. Payments were not made by said cities in accordance with the notices given, and, in consequence, the present suits were started in March, 1954, to enforce payment of the proportionate shares claimed from defendants for the fiscal years 1948-1949 to and including 1953-1954. Defendant cities filed identical answers denying liability and raising certain affirmative defenses. Plaintiff filed its reply in each case, asserting that all material matters involved in said affirmative defenses had been determined adversely to defendants'by this Court in City of Ecorse v. Peoples Community Hospital Authority, 336 Mich 490.
On behalf of plaintiff motions for summary judgments were filed, supported by affidavits of merit. Each defendant filed answer thereto, with affidavits averring certain facts claimed by plaintiff to be immaterial and in effect asserting the affirmative defenses raised by the answers. Following a hearing in circuit court the trial judge came to the conclusion that all material matters raised by defendants had in fact been determined by this Court in the case cited, insofar as the contributions sought from the defendant cities for the fiscal years 1947-1948 to and including 1950-1951 were concerned. Inasmuch as action taken in subsequent years was not involved in the prior case, the Court suggested that the declarations be amended by limiting the claim under each to the 4 years specified. Such action was taken and judgments were entered accordingly.
As before noted, each defendant in its answer to plaintiff’s declaration raised certain affirmative defenses which were also relied on to defeat the motion for summary judgment. In substance it was claimed on behalf of each city that it never became affiliated with the plaintiff herein, that it was not a party to the formation of said Hospital Authority, that the ¡subsequent action taken in 1947 to become a constituent member was not authorized by the statute and was, therefore, a nullity, that the resolution .adopted in January, 1948, in terms rescinding its prior resolution, was effective to withdraw defendant from any affiliation, if there was such, with plaintiff, and that the city was entitled to withdraw because changing conditions indicated that membership thereby in the Hospital Authority would not be ■of benefit to the residents and property owners of said city. It was further asserted that PA 1945, No ■47, was fatally defective because of failure to impose ¡a limit on contributions that might be requested, and because of failure to provide means whereby defendant could raise money to meet its obligation, if a member. The claim was also advanced that the hospital board of plaintiff had failed to prepare its budgets in accordance with the statute, and had also failed to render to defendant the reports prescribed by the act of 1945.
The case above cited was instituted by bill of complaint filed March 1, 1951. Plaintiff therein, the city of Ecorse, sought injunctive relief and also a decree that PA 1945, No 47, and the act of 1949, amendatory thereto, were invalid. The court was further asked to decree that the Peoples Community Hospital Authority had not been legally established so as to make the city of Ecorse a member thereof, that the resolution of the council of the city request ing admission as a member of said Authority was not legal and binding' on the city, that the rescission or disclaimer of membership was binding, that the apportionments to the city of Ecorse for the fiscal years 1947-1948 to and including 1950-1951 were illegal and without authorization, that there was no contractual relation between Ecorse and the Hospital Authority, or the other defendants named in the case, whereby the plaintiff city was bound to participate in financing and operating the Hospital Authority, and that any affiliation between Ecorse and the other defendants named, if there had been such, was terminated. The bill of complaint further set forth the claim that representations had been made to it concerning the construction of a hospital in a location readily accessible to the people of Ecorse from funds made available by the Federal government and certain contributions, and that the funds to be contributed by the city of Ecorse would be used for operating deficits only.
The other members of the Authority were joined with the latter as parties defendant, some of them filing answers and others submitting pleadings in which affirmative relief analogous to that sought by the city of Ecorse was requested. It may be noted in this connection that River Rouge duly filed its answer and in substance asked that the relief sought by Ecorse should be granted to it. The trial court entered a decree in favor of the plaintiff and those defendants seeking affirmative relief, but this Court on appeal reversed for the reasons appearing in the opinion filed in the cause. The validity of the statute, as amended by the act of 1949, was upheld. Consideration was given to the other questions raised, and the conclusions reached as to the material issues in the cause were summarized in the decree of the Court as follows:
“1. That Act No 47 of the Public Acts of the State of Michigan for the year 1945 be, and the' same is hereby declared and determined to be constitutional.
“2. That Act No 62 of the Public Acts of the State of Michigan for the year 1949 be, and the same is hereby declared and determined to be constitutional.
“3. That the Peoples Community Hospital Authority is a State agency and that it is legally and lawfully constituted and has full power and authority to act as such.
“4. That the cities of Ecorse, Lincoln Park, Melvindale, River Rouge and Ypsilanti, the villages of Allen Park, Inkster, Plat Rock, Trenton and Wayne and the Townships of Dearborn, Ecorse, Huron, Nankin, Romulus, Sumpter and Taylor are all constituents and participating members of Peoples Community Hospital Authority which has full power and authority to plan its budget within the maximum tax rate provided by the legislature and apportion the proportionate shares thereof to the participating municipalities.
“5. It is further ordered, adjudged and decreed that plaintiff, city of Ecorse, cross plaintiff, township of Romulus, and other municinalities who sought affirmative relief, having failed to substantiate their claims and right to relief, the bill of complaint of the city of Ecorse, the cross bill of complaint of the village of Romulus, and the pleadings of the municipalities who sought affirmative relief be, and the same are hereby dismissed but without costs, a public question being involved.”
It will be noted that the decree through which this Court spoke affirmatively declared that Ecorse and River Rouge were constituent and participating members of the Hospital Authority, and that said authority was vested with the power to plan its budget within the maximum tax rate provided by the statute and to apportion the same among the participating municipalities. Such provision effectively answers the claim of the defendants in the cases now at bar that they never became members of the Authority, or if they did so that they ceased to be such on the adoption of the so-called rescinding resolutions, or that they were entitled to withdraw because of the alleged misstatements made to them. It may be noted in passing that such alleged misstatements were apparently promissory in character and did not relate to existing facts.
Of significance also is the provision of the decree that the plaintiff and other municipalities seeking affirmative relief had failed to substantiate their claims and that, in consequence, their pleadings were dismissed. As before noted, River Rouge by its pleading sought the same relief as did the city of Ecorse. The conclusion cannot be avoided that both of these municipalities are confronted in the present cases by the decree of this Court in the case cited that their claims there made, which are substantially identical with their present claims, were not substantiated. The decree in question was and is final, insofar as all parties to that case are concerned, as to matters submitted to the Court and determined. Washington-Detroit Theatre Co. v. Moore, 249 Mich 673 (68 ALR 105). No other matters of a material character are involved in the cases now before us.
Our examination of the records in these cases and of the.briefs of counsel, and of the record and briefs in City of Ecorse v. Peoples Community Hospital Authority, supra, brings us to the conclusion that the trial court was not in error in granting the motions for summary judgments. Said judgments are affirmed, with costs to appellee.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Smith, J.
The plaintiff and appellant was an employee of the Pere Marquette Railroad Company. The defendant is the Pere Marquette Employes’ Credit Union. The action is assumpsit, brought by plaintiff to recover his savings of many years. They had been deposited with defendant and disbursed by defendant to another without, plaintiff contends, his knowledge or consent.
Several years after the opening of the account, and in the year 1947, plaintiff Clinton LaValley changed it to a joint and survivor account with his son, Richard, both signing the instruments required. Plaintiff’s motive in so doing had to do with life insurance benefits from the account. It is clear from the record that the son, Richard, at no time made any deposits in the aceount. They were solely those of plaintiff, made in amounts ranging from $1 on up. By the year 1951 there was $2,750 in the account.
• At this juncture occurred the incidents giving rise to this action. Withdrawal slips purportedly executed by the father, plaintiff herein, were presented to the defendant which thereupon issued checks payable to the father. These were cashed, for the most part, in various bars and taverns. The fund so long in the building was thus dissipated in a matter of weeks. All payments (which included, in addition, •certain payments in cash) had in fact been made to the son, Richard, according to the information given plaintiff by defendant’s treasurer. The signatures on the withdrawal slips and the indorsements ■on the checks were forgeries. Plaintiff was ignorant of the withdrawals and did not discover his misfortune until, being of the age of 60 or thereabouts, he sought to make a down payment on a farm. He testified:
“I had made a deal for a farm at North Muskegon, and I relied a whole lot, I tell you, upon the money I had in the Credit Union.”
He was then informed of his loss. Richard’s whereabouts were unknown. This action against the •defendant Credit Union followed.
Defendant asserts that the action must fail for 2 reasons: First, that the recipient of the money was in truth the other joint owner of the account and, second, because such recipient was not (as joint obligee) joined in the action. The trial court granted •defendant’s motion to direct verdict upon these grounds and the case is here on a general appeal from the judgment entered thereon.
The matter of the mechanics of the deception will not long detain us. It is argued that payment to one of the co-owners of a joint account discharges the payor’s obligation. It is so provided by statute (CL 1948, §487.703 [Stat Ann 1943 Rev § 23.303]) and we reject plaintiff’s argument that the statute does not apply to defendant Credit Union. Such a union, with statutory sanction, has the right to receive deposits, make loans, and borrow money. (CL 1948, § 490.1 et seq. [Stat Ann 1943 Rev § 23.481 et seep].) Its activities come under the supervision of the commissioner of banking. For the purpose of receiving, safeguarding, and disbursing moneys intrusted to it the functions of such an institution so closely parallel those of a bank that we have no hesitation in holding that it is a “banking institution” within the intendment of the legislature as expressed in the statute above noted.
But is the statute, so interpreted, of assistance to defendant as respects the obligation to the father? Defendant here urges that all payments made to Richard were made to the other joint owner of the account and thus discharged defendant’s obligations. We may be permitted some doubts. The conclusion upon these facts is not so obvious. Insofar as payments were made upon Clinton LaValley’s purported authorization, the defendant made such payments without authorization in fact. It did not have Clinton LaValley’s authorization, nor did it make payment to him. While it is true that a banking institution may, under proper conditions, make payment of a joint account to one of the joint owners in complete discharge of its obligations, the payment in such case is made to the joint owner qua joint owner. In this case defendant paid out funds by checks payable to “Clinton LaValley,” in response to withdrawal slips so signed. It is, to say the least, arguable that this was not payment to Richard in his capacity as joint owner but rather payment to Richard impersonating his father, Clinton LaValley. So the pleadings assert and so the testimony construed most favorably to plaintiff indicates. In this view of the transactions, it would seem that even that modest degree of prudence required of and vouchsafed to the hypothetical reasonable man would have suggested a masquerade, a son passing himself off as his father, nearing retirement. We need not, however, resolve this conflict between the objective and the subjective, for the case tips on another fulcrum, the contractual obligations of the defendant. What was the contract between the parties?
The written instruments involved are clear and unequivocal. Both father and son, at the time the account was made joint, made “application for membership in and (agreed) to conform to the bylaws or any amendments thereof in the Pere Marquette Employes’ Credit Union.” It was thereupon “agreed and understood” that they were to be joint tenants in the account, that “the shares and deposits covered by this account shall be owned by the undersigned as joint tenants with right of survivorship and not as tenants in common. We elect to have coverage under the life savings plan on Clinton LaValley.” The signatures of both father and son appear hereunder.
The above-mentioned bylaws contain detailed provisions as to the functions of the passbook. Article 5 provides that money paid in shall be evidenced by such a book; that every entry therein shall be initialed by the person “receiving or paying out the money;” that no money shall be received from or paid to a member (loans excepted) “unless the passbook is presented for the proper entry to be made therein.” It is significant that the matter of discharge of the credit union was explicitly covered in the bylaws and framed in terms of, and with reference to, the' passbook. “In all eases,” reads section 2 of article 5 of the bylaws, “a payment upon presentation of a passbook shall be a discharge to the corporation for the amount so paid.” Finally, and necessarily in view of the above, provision was made for the issuance of duplicate books in event of loss or theft thereof, with provision for adjustment of rights with respect thereto.
There can be no doubt upon the record that appellant relied upon these provisions. He so testified and his testimony is substantiated by his act of renting a safe-deposit box for the keeping of the book. He testified: “Every time I wanted to deposit, I’d get the book, and then put it back for safekeeping.” He rested secure in his belief that with the passbook locked in his safe-deposit box his money was safe, joint tenant or not, simply because “you have to present that (passbook), if you don’t present that you can’t get the money.”
The defendant having thus assured plaintiff that his money could not be withdrawn unless the passbook was presented, and the passbook not having been presented, upon what possible theory can payment by defendant be justified? It argues that the case of Esling v. City National Bank & Trust Co. of Battle Creek, 278 Mich 571, is authority for the proposition that payment to one of the co-owners of the joint account without presentation'of the passbook is a complete discharge of its obligations with respect to the fund in question. The Esling Case is not so broad. In the Esling Case, we held merely that an “intended gift” in the form of a joint account might be revoked by the donor as long as control over the deposit had not been relinquished by her. Upon such facts it is obvious that the donee’s possession of the passbook was merely a detail of the gift mechanism, which in its entirety was revocable during the donor’s lifetime.
Ve should add that we have given consideration, also, to the proposition that a depositor and a bank ing institution may expressly or impliedly waive a provision requiring the production of a passbook. It must be observed, however, that in the case at bar we are not dealing simply with 1 obligee and his bank. These 2 parties may, of course, contract as they see fit. We are dealing with 3 persons. In such a situation, absent proof of agency, one party cannot “waive,” for the other, a contractual provision running to each and of equal benefit to both. The matter was squarely ruled upon in the case of Davis v. Chittenden County Trust Co., 115 Vt 349, 350 (61 A2d 553), which, like the case at bar, was an action “in general assumpsit (by which) the plaintiff, a co-owner of a joint savings account in defendant bank, seeks to recover for the alleged wrongful payment of the balance thereof to the other co-owner without presentation of the bank passbook or proof of its loss or destruction as required by the rules of the bank.” In holding for the plaintiff the court concluded with these words (p 354):
“We hold that the rules printed in the passbook became part of the contract of deposit; that such rules were for the benefit of the depositor or depositors as well as of the bank and they could not be waived by the bank alone. The result is not affected by the fact that this was a joint account and that the person who withdrew the money was one of the depositors. Each of the depositors was a party to the contract and the rule requiring production of the passbook could be waived only by the bank in concurrence with both of them.”
A like conclusion was reached in the case of Mercantile Savings Bank v. Appler, 151 Md 571, 575 (135 A 373), in which the court, in holding for a defrauded co-owner in an analogous situation, spoke as follows:
“The question at issue was not whether the hank ‘used reasonable care and prudence’ in disbursing the money, but whether it lived up to its contract obligations with the appellee. According to the rules and bylaws printed in the passbook, no money could be either deposited or withdrawn unless the passbook was presented, and according to these same-rules and bylaws this provision was made part of the contract between the bank and the depositor, and the latter’s acceptance of the book was made evidence of his consent to the terms of the contract. And it was further provided that the hank could pay the money out to anyone who presented the passbook, whether that person was the actual depositor or owner or not. This clearly established a contract between the hank and the depositor, and when the bank undertook to change the terms of this contract we think it did so at its own risk. When the appellee, accompanied by her husband, made her original deposit and received the passbook, she certainly had a right to rely on the express written terms which she found in the book.”
The pleading point remains. It is the defendant’s contention that the son, Richard, must be joined in the action, quoting 1 Callaghan’s Michigan Pleading and Practice, § 15.27, as follows :
“It is a rule of general application that actions on contracts and obligations running to 2 or more persons jointly can be enforced by action at law only if all those jointly interested in the enforcement thereof join as plaintiffs. The theory is that a defendant should not be harassed by more than 1 action where his only agreed liability is to more than 1 person jointly.”
We have no quarrel with the general statement made. Upon our view of the case, however, it has no application. Defendant makes a several promise to each of the co-owners of an account that it will not pay out on the account without the production of the passbook. Payment without production of the book is a breach of the contract made with each and the payment is no more effective to discharge the banking institution than payment to any other unauthorized drawer. The promise made is not a promise “running to 2 or more persons jointly” within the meaning of the above quotation or of the law with respect to joint obligations. The fact that we have a statutory joint and survivor account should not be construed as precluding concomitant several obligations. The statute itself makes this clear. Under certain circumstances, it provides, payments from such accounts may be made to “any 1 of said persons.” This being the case, individual obligations likewise may run to “any 1 of said persons,” and may be enforced by any 1 of said persons in his own name and right. The bylaws, in their contractual provisions, are fully consistent with this portion of the statute.
Reversed and remanded for new trial. Costs to appellant.
Carr, C. J., and Butzel, Sharpe, Boyles, and Kelly, JJ., concurred with Smith, J.
Reid and Dethmers, JJ., concurred in. the result. | [
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] |
Boyles, J.
Plaintiff, a building contractor, sued the defendants for the balance claimed to be due for work done and materials furnished in building a residence for the defendants at Clark lake in Jackson county. The case was heard by the circuit judge without a jury, resulting in a judgment for plaintiff for $5,733.40 from which the defendants appeal. The agreement between the parties was oral, and includes changes made by the parties during the course of construction. An oral contract was originally entered into by defendants with a partnership of which the plaintiff was a member, later assumed by the plaintiff after the partnership was dissolved. The dispute between the parties involves issues of fact.
There was no written contract. In 1950 the defendants negotiated with the copartnership for the construction of a dwelling house. Most of their discussions were had with a Mr. Bilsborrow, one of the partners, and with Mr. Holmes, an employee. Some preliminary sketches and plans were prepared, the number of which is in dispute. A schedule was also prepared as to the material and work to be subcontracted with others. Later in 1950 defendants notified the partnership that it should commence work upon the dwelling. The preliminary price agreed upon was to be the cost of labor and materials plus 10%, with a guarantee that in no event would the cost exceed $20,695. It was agreed that defendants would contract separately for certain items, at their own expense.
After work was commenced defendants from time to time requested changes to be made from the planned construction that had been agreed upon in their prior discussions. It was agreed that plaintiff should be paid additionally for the “extras” which were to be added to the original plans. Monthly bills were sent to defendants and payments were made by them from time to time, to the amount of $23,000. Plaintiff rendered a final statement to defendants in which he claimed a balance due him of $5,733.40. In arriving at this figure he totaled the cost of labor and materials furnished by him including the “extras,” added 10%, and deducted the payments made-by defendants together with certain other credits to which they were entitled.
This appeal involves questions as to what was the agreement between the parties, on which the parties do not agree or as to which they draw different conclusions ; and also involves a dispute as to what are, or are not, “extras.” Where a law case has been tried by the court without a jury this Court has repeatedly said that we do not reverse unless the evidence clearly preponderates in the direction opposite to the findings and conclusions of the trial court. Levenburg v. Merrill Lynch, Pierce, Fenner & Beane, 334 Mich 508; Spalding v. Pederson, 335 Mich 276; Ebert v. Prudential Insurance Company of America, 338 Mich 320; Hamilton v. Weber, 339 Mich 31; In re Linstead Estate, 340 Mich 653. The trial court did not agree with the defendants’ contention that the over-all cost of the construction was not to exceed $20,695, which was the original understanding of the parties. The court held that the defendants were to pay for the additional “extras,” on the “cost plus 10 %” basis. The plaintiff claims that he provided extra labor and materials as requested by the defendants and that the entire labor and material cost of construction plus 10% was $28,923.47.
We agree with the trial court in finding as a matter of fact that the original contract entered into had been modified or changed during construction, to cover cost price of labor and materials plus 10%, including “extras.” The court said:
“The court determines that this place was built practically from day to day according to the changes and ideas of the defendants. In other words, exhibit 3 would have been all right had there been no alterations or changes in the same. But the plaintiffs claim that it was to be labor and material plus 10%, and the court finds that this Apparently was the understanding of the parties because in the defendants’ answer they state, ‘cost plus 10%.’”
• The evidence does not clearly preponderate in the opposite direction.
Plaintiff’s schedule B attached to his amended declaration itemizes the “extras” which plaintiff claims he furnished. Defendants admit liability for some of them, but for others they claim that plaintiff was obligated to furnish them under the original maximum. This dispute requires a determination as to what items were originally to be included in the building-when the contract was made. The testimony was conflicting. An examination of the record shows that there is evidence to support the finding of the trial court with respect to most of the items which plaintiff claims- were “extrashowever, certain items were not supported by any evidence, or the evidence clearly preponderated to the contrary.
Plaintiff claimed $26.68 for temporary electrical sei'vice, but concedes that the electrical work had been subcontracted, whereby the subcontractor was required to furnish this service. Hence, this could hot be considered as an “extra.” The interior painting and finishing was to be done by a'subcontractor. Plaintiff claimed $175 for “sanding of interior woodwork” for the painting, although this was part of a subcontract, and should not have been included by the plaintiff as an “extra.” The same applies to the '$18.75 charged for removal of the septic tank, contracted as part of a plumber’s job. Plaintiff charged $110 for “flooring cost more than figured,” because the pxice of flooring increased after the job was started. Plaintiff, having guaranteed defendants the cost of flooring, should not charge an increase as an “extra.” Also, plaintiff charged $138.54 for “extra cost on" lumber purchased locally.” Defendants should not be charged extra because certain items of lumber had to be purchased locally by the plaintiff. The same reasoning applies to $16.80 claimed for “cedar lining figured at 2.25 per M cost 2.40 per M”— $23 for “sanding of base shoe and trim,” and $295.22 for “extra costs of tearing down.” As to these items, plaintiff is precluded by the agreement. These items may not be claimed as “extras,” there being no evidence in the record which will support the finding of the trial court that they were such. As originally planned, the house was to have rear cedar siding, for which plaintiff claims $351.60, but which was included in the guaranteed maximum construction price. Defendants purchased stone, which would have reduced the contract price by the amount of $351.60, and they should have been given credit for it. Plaintiff’s agent agreed there would be no charge for unloading the stone. This testimony was not rebutted, and credit should be given defendants for $147.25, the amount charged.
We must conclude that the trial court erred in considering the above items as “extras” to be paid for as such by the defendants. The evidence clearly preponderates to the contrary. They should have been figured in the guaranteed maximum for which the defendants were liable. These items, enumerated herein, amount to $1,302.84. The judgment in the amount of $5,733.40 entered for the plaintiff should be reduced by the total of the above amounts, $1,302.84, and judgment for $4,430.56 entered accordingly.
Finally, defendants claim that the trial court “erred in excluding testimony as to defective construction and defects in the roof.” The record does not support the claim. The court properly struck out the attempt by the defendants to introduce hearsay or opinion testimony, but allowed the only other testimony on that question offered by the defendants, which was:
“Q. What is the fact, that the roof has been leaking more or less continuously?
“A. It has been leaking badly. We have had it repaired on several occasions.”
No other proof was offered by the defendants as to defects in the roof. There is no merit in this claim of error.
In appellants’ brief, in the statement of questions involved, 10 questions are stated and relied on for reversal. Only 4 questions are argued .in the brief, and the topical subheadings do not conform to the statement of questions involved. No others will be considered. Court Rule No 67 (1945); Reed v. Secretary of State, 327 Mich 108; Grimshaw v. Ashe, 332 Mich 146.
The judgment is set aside and the case remanded for entry of judgment for $4,430.56 for plaintiff. No costs, each party having prevailed only in part.
Carr, C. J., and Biitzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
The schedule of labor and’materials prepared b.y plaintiff which called for a guaranteed contract price not to exceed $20,695. | [
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] |
Graves, J.
The plaintiff in error being sheriff of Wayne county received for service a writ of replevin out of the Superior Court of Detroit in favor of one Samuel Norclheimer and against one Sarah J. Hanlon for a piano. Mrs. Hanlon was staying in Detroit with, her daughter Mrs. MeDowd, the latter being absent from home. The piano was there and plaintiff in error took it on the writ. At that time it was not in Mrs. Hanlon’s possession. The fact was so found, as appears by the record. Mrs. MeDowd claiming to be owner brought this action of trover against him, and on the trial he contended that the writ of replevin in the ease of Nordheimer against Mrs. Hanlon afforded him complete protection against Mrs. McDowd’s charge of conversion founded on his acts in executing that writ. The court decided, that the writ was not a protection, and this is assigned as error. At the hearing Hallett v. Byrt, as reported in Carthew, Shipman v. Clark, 4 Denio, 447, Foster v. Pettibone, 20 Barb., 357, and King v. Orser, 4 Duer, 436, were cited as authority for the position of the plaintiff in error, while Stimpson v. Reynolds, 14 Barb., 506, Clark v. Parkinson, 10 Allen, 133, and Billings v. Thomas, 114 Mass., 570, were cited among other cases to support the ruling. Assuming the report in Carthew to be correct, it cannot afford any aid. The ancient action of replevin was a very different remedy from that marked out by our statute, and the distinctions go far enough to hinder the case in question from applying.
The cases from Denio and Barbour are contradictory, and settle nothing, and it is plain that the rule is not there regarded as determined. In Rogers v. Weir, 34 N. Y., 463, the subject was referred to in the court of appeals, and the question was treated as still open. The ease in Duer did not profess to decide the point. •
On the other hand, the Massachusetts cases cited to support the ruling were not intended to be so understood. This is distinctly shown by White v. Dolliver, 113 Mass., 400. The court there express this dictum: “While the property was in the hands of the sheriff, and he was actually engaged in transferring it to the possession of the defendant, it was in custodia legis, and the officer could not have been disturbed while making the transfer. Hallett v. Byrt, Carth. 380; Sanborn v. Leavitt, 43 N. H., 473; Willard v. Kimball, 10 Allen, 211.”
Before allowing decisions made elsewhere to have special influence in the case, wTe should be able to find a correspondence between the action of replevin there and here in respect to those features fitted to affect the judgments of the courts on the question, and we are of opinion that the general scheme and leading properties of the action as defined by statute in New York and Massachusetts permit, if they do not require, a view upon the point before us which is not admissible under our statute. Certainly the decisions in their courts produce that impression.
With us replevin is founded on an unlawful detention whether an unlawful taking has occurred or not, Hickey v. Hinsdale, 12 Mich., 99, and it proceeds upon the idea that the property is actually withheld by the defendant and is to be taken by the officer under his process from him, and in order to facilitate its actual subjection to the action the law requires that the process shall describe it. Still it is settled that this description need not be so explicit and exclusive as to supersede recourse to extrinsic help. If with such aid as the plaintiff usually affords, the officer can identify the property, it is sufficient. Farwell v. Fox, 18 Mich., 166. Indeed, it may be laid down that in the great majority of cases the designation in the writ must be supplemented by other means of identification, and the officer must use Ms intelligence in ascertaining assisting facts and in apply ihg the description to the property intended, and here-as well as in serving attachments and executions, where the direction is not to take specific chattels, but only leviable goods belonging to the defendant, there is room for error if not opportunity for abuse. In the case of replevin the wrong goods and of a third person may be taken, and in the other case goods of the leviable sort but belonging to a stranger to the proceeding. Again, in replevin the goods supposed to be indicated may be found in the actual possession and apparent ownership of a stranger to the writ who claims them, and the officer may nevertheless assume to seize them without having required indemnifying security, although the plaintiff, at least without giving such security if demanded, could not insist upon the execution of the writ against them as goods detained by the defendant. Now there must be difficulty in finding any practical ground for admitting that the writ shall protect the officer in the last case against the stranger’s action for conversion without admitting what all agree in denying, that it shall equally protect in the others.
The plaintiff in error admits there can be no protection in the cases first suggested, but still contends for it in the other. As already intimated, in cases at least where th¿ officer has no indemnifying security, there is no law in this State to entitle the plaintiff to insist that in executing the writ, property shall be taken which is in the actual possession and apparent ownership of a stranger to the process, and who claims the right to hold it, and if the officer is asked by the plaintiff to make the seizure under such circumstances he may prudently insist upon indemnity before proceeding. And whether the possession is actually in the defendant or a stranger will seldom be as difficult for the officer to decide as the question of identity of the goods in controversy, — or in the case of serving an attachment or execution, the fact of ownership by the defendant, — and accordingly no such diversity of duties, discretion or risks by the officer is perceived as would seem to authorize the distraction urged.
The statute takes pains to guard the defendant’s rights by a bond, but makes no provision to protect third persons against seizures of their property in the execution of the writ. On the contrary, it contemplates speedy delivery to the plaintiff of the property taken, and neither requires it to be held in legal custody during the litigation nor provides for any intervention and claim in the action by a third party. The form and nature of the remedy suppose a case where the defendant unlawfully detains the property from the plaintiff, and not a case where the defendant cannot surrender nor the plaintiff accept possession, and it requires that before the writ shall be executed an affidavit shall be attached showing, among other things, that the plaintiff is entitled to the possession of the property, and that the defendant, not a stranger, unlawfully detains it. The entire scheme of the action suggests that the seizure is to be made from the actual or constructive possession of the defendant, and hence that the attention of the officer must be distinctly applied to that condition.
In case the property is claimed, held and apparently owned by a third person, and hence is not detained by the defendant from the plaintiff, or so situated as to be subject to surrender, by the defendant, the process does not require the officer to seize it. If, however, he proceed to take it, though it be the very property described, his writ will not protect him if such third person is the bona fide owner and .holder.
The plaintiff in error following Stephenson v. Little, 10 Mich., 433, adduced evidence tending to show that at the time of the alleged conversion, namely, when he executed the writ of replevin in the suit brought by Nordheimer against Mrs. Hanlon, the property was owned by Nordheimer and held by a right which contradicted the claim of right made in this case by Mrs. McDowd. And. in order to rebut this defense and show that Nordheimer did not so own and hold, the defendant m error gave in evidence the special verdict returned in the replevin case.
No objection was offered to its introduction, but the judge was asked to charge that it was not entitled to any weight in the case, and that the jury should disregard it. This was not only refused, but the jury were told that Nordheimer’s right was adversely decided by the verdict and that they need not consequently consider certain evidence which had been adduced to make out the contrary. This ruling was improper and misleading.
So far as the special verdict may be supposed to have related to the merits, it is very blind and uncertain and quite too obscure and imperfect to be interpreted to the jury in this case as a finding that Nordheimer had no title. 3 Graham & Waterman on New Trials, 1418 et seq.
It is clear and explicit in finding that Mrs. Hanlon was not in possession when the article was demanded of her, or when the replevin suit Avas brought, and this was probably deemed sufficient to end the case, whatever was the fact as to other matters, and hence that it was not considered important to secure an intelligible finding on the merits.
Some other topics were noticed in connection with the use made of the proceedings in replevin, but they need no attention now.
On account of the ruling last noticed the judgment must be reversed with costs and a new trial granted.
Campbell, C. J., and Cooley, J., concurred. Marston, J., did not sit in this case. | [
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Per Curiam.
Breach of promise is sued for in assumpsit like any other agreement; and no statute has denied jurisdiction over such suits to justices of the peace, whose jurisdiction is exclusive in assumpsit to $100.
It was decided in Strong v. Daniels, 3 Mich., 466, that where the judgment is for an amount within the jurisdiction of a justice, and not reduced by set-off from a larger sum, or otherwise specially provided for in the statutes concerning costs, the defendant and not the plaintiff is entitled to costs. There is a clerical error in the recital of the statute in that case as reported.
The circuit judge was right in holding that on a judgment for $100, costs should go to defendant. | [
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] |
Per Curiam.
The decision in Brownbridge v. People, decided at this term, ante, p. 751, governs this. The alternative sentence was bad. Had Donnoly offered to pay the fine on the thirty-first day, he would not have .been allowed to do so, but must have remained in confinement until the year was completed. This was unwarranted.
The judgment must be reversed. | [
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Per Curiam.
Application for mandamus to compel the respondent to set aside proceedings under a capias as not having been returnable on the first day of term.
The revised statutes of 1838 expressly made a capias returnable the first day of term. Rev. Stat. of 1838, p. 418, § 2.
Under the revision of 1846 it was provided that writs of summons and capias should be in the form heretofore-used in this State, unless the form thereof shall be altered by rule of court. Comp. L., § 5727. The form includes the time of return.
Bule 13 of the circuit court rules provides that all writs except capias may be returnable on the first Tuesday of any month or on any day in term. This exception was made in view of the latter statute.- No other-provision has been made bearing on the subject of the return of a capias, which would change the former practice, and it must be regarded as still in force. This writ, therefore, was bad.
Mandamus granted. | [
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] |
Campbell, C. J.
Complainant filed a bill to correct and foreclose a mortgage for $5,000 and interest, dated on the 18th of March, 1871, and executed by her son and his wife, two of the defendants. The defendant Potter, who is made a party as a subsequent encumbrancer, set up in defense that this mortgage was extinguished and the debt merged in a new security for $8,080, given to him November 25, 1873, and including the amount due to complainant, as well as other sums belonging to himself. He claimed that complainant assented to the cancellation of her mortgage and the execution of the later mortgage in pursuance of certain arrangements intended to remove defects in her securities. The court below made a decree giving her an interest in the later mortgage commensurate in amount with her claim, under certain conditions and restrictions not necessary to be set forth at length. She appealed.
It is admitted on both sides that it was irregular to make such a decree on the pleadings as they stand. But as it is claimed she was not aggrieved by it, the merits of the case require some attention.1
It was discovered in 1873, in November, that the mortgage held by complainant did not contain certain property, including a mill, which it was understood should have been included. Defendant Potter also seems to have discovered certain defects in the title, whereby Edmund W. Hunt had only a perfect title to one-fourth, one-half being in complainant’s husband, and the remainder elsewhere. Complainant was alarmed by the omission of the land, and defendant Potter was authorized to negotiate with Edmund to have the mortgage corrected. This he seems to have undertaken, but it is claimed with such fraudulent designs and measures as were not calculated to place complainant where she desired to be. Upon this question of fraud, which is in issue elsewhere, it is not important to dwell now.
Defendant Potter got up certain outstanding titles, and among others obtained a quit-claim from complainant’s husband and herself of the undivided half interest, but expressly subject to her mortgage. There was a prior mortgage of $1,200, or thereabouts, held by one Smith, which was not taken up. He then made an arrangement whereby he conveyed to Edmund Hunt all the titles thus obtained and took back a mortgage for $8,080, which is claimed to include the amount of complainant’s mortgage and of the Smith mortgage, and his advances.
Complainant had entrusted him with her mortgage and her son’s note secured by it, and he canceled this note when he took the mortgage to himself.
Complainant knew nothing of the arrangements between Potter and Edmund until after they had been executed, and claims she never assented to become interested in them. Defendant claims she agreed to accept other mortgages in lieu of hers, and that at one time she agreed to take an interest of $5,000 in the $8,080 mortgage in lieu of her other security. She insists she never made such an arrangement.
There is considerable testimony which it would serve no useful purpose to discuss at length. We shall content ourselves with giving our conclusions from it.
We think the evidence is very clear that complainant never authorized either Potter or her brother Harlow Fellows to do anything beyond procuring the rectification of her mortgage, by negotiation or by proceedings in •equity, and that the course taken by Potter to buy up the ■outstanding titles and convey to Edmund and take back a mortgage to himself was never contemplated or done by her permission. She never authorized her note to be given up and never desired to enter upon new relations with other persons than her son until after this was done, if at all.
After Potter had made his arrangements with Edmund there were negotiations with him of various kinds for giving to her distinct and separate security by Potter himself, — and possibly (although we do not think it clearly made out), to accept the ^mortgages of other persons with his personal responsibility. She also took into consideration at one time his proposal to give her an interest in the large mortgage. But none of these propositions ever assumed any more definite form than proposals, and they were all finally rejected and the parties relegated to-their original position, except as to the note which had been canceled without her knowledge or consent.
We find nothing to induce us to believe that complainant has ever, either morally or legally, debarred herself of any of her interests in the original mortgage. •The mortgagee does not dispute it, and her rights, under any circumstances, must have priority over those of Potter.
For obvious reasons we do not care to discuss any questions of fact involved in the other litigation, which, are not necessary to be dealt with here.
We think complainant was entitled to a decree rectifying and foreclosing her mortgage for the full amount of principal and interest thereon, allowing $600 interest as paid thereon before November 25, 1873. The decree below must be reversed and a new decree entered in conformity with these views, with costs of both courts against Potter, and the case remanded for further proceedings.
The other Justices concurred. | [
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] |
Per Curiam.
When a contract is made to saw such logs as ■ are furnished for that purpose up to a certain amount, provided they are furnished by a fixed time, the party promising is not bound to saw any logs not furnished according to the contract, if he has not been in default, or in any way responsible for the delay of .the other party.
The case is within the principle of Fredenburg v. Turner, 37 Mich., 402.
Judgment affirmed with costs; | [
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Graves, J.
Mason sued Kellogg on the covenant for quiet enjoyment contained in Kellogg’s deed to Mason’s predecessor in title, Mary Ann Phillips, for lot sixteen of Sill’s addition to Kalamazoo. The circuit judge ordered a finding for the defendant and the jury so found. Mason then brought error.
In some of its aspects the case has an importance beyond its bearing upon the interests of the immediate litigants. Before proceeding to ascertain the state of the case in point of law, a reference is necessary to several of the main facts. March 17th, 1849, the property was owned by one Healey, and he then conveyed to John H. Campbell, and in the succeeding April Campbell died seized and intestate. He left a widow, Caroline Campbell, and two children, Franklin and Sabina Campbell, his only heirs at law. The widow subsequently married again, and has since died. Franklin, who is now thirty-seven, removed to California at nineteen, and Sabina intermarried with one Sterling. August 22d, 1853, the probate court of Kalamazoo county upon his petition-, appointed one William T. Campbell administrator on the estate of said John H. Campbell. September 22d, 1854, the administrator reported to the court that he had sold lot sixteen of Sill’s addition on the 18th of the same month under a license of July 24th, 1854, therefor, to George Thomas Clark for $200. September 25th, 1854, the court entered an order confirming the sale and directed a conveyance to Clark, and on the 8th of the following December a deed was given by William T. • Campbell as administrator to Clark, and apparently to complete the public sale. On the next day, namely, December 9th, 1854, Clark made a deed of the property, and purported to convey it to said William T. Campbell in his private character for $200. July 25th, 1855, William T. Campbell conveyed to Tobias Johnson for an expressed consideration of $3,050, and on March 19th, 1862, Johnson conveyed to the defendant Kellogg for $3,500 as stated in the deed.
May 7th, 1864, Kellogg conveyed to Mary Ann Phillips for the named consideration of $2,400. September 30th, 1865, Mary Ann Phillips conveyed to Calvin N. Mason for $3,000, and March 12th, 1866, Calvin N. Ma son and Ms wife Henrietta Mason united in a deed to their son the plaintiff, who was then a minor, for a recited consideration of $3,000. The deed from Kellogg to Mrs. Phillips and from Mrs. Phillips to Calvin N. Mason contained the usual short covenants ' of seizin, against incumbrance and for quiet enjoyment, and that from Calvin N. Mason to his son the plaintiff contained the covenants of seizin and against incumbrance, but in place of the covenant for quiet enjoyment it contained a covenant of warranty. It contained also immediately after the words describing the lot, this specific provision: “provided the right of possession to the whole of said premises is hereby reserved for the use as a homestead for the said Henrietta Mason and her children, Calvin C. and Emily Mason, until said Calvin C. Mason shall arrive at the age of twenty-one years, or until the death of said Henrietta Mason, within that period. Mrs. Mason appears to be living, Emily was of age September 3d, 1872, and the plaintiff Calvin C. August 9th, 1876. This suit was commenced September 9th, 1875.
December 12, 1871, Franklin Campbell conveyed whatever interest he had in the lot in question to his sister Sabina Sterling.
February, 1872, Mrs. Sterling brought ejectment against Henrietta Mason, Calvin C. Mason and Emily Mason. The same counsel who appear for the plaintiff here then represented the defendants. September 27th, 1872, a plea of the statutory general issue was filed accompanied by a notice of special matter. This was in place and by way of amendment of previous pleadings. The notice set up that defendants would prove and insist that the lot claimed was formerly owned and possessed by John H. Campbell; that he died leaving it a portion of his estate; that William T. Campbell was appointed administrator of such estate; that in the course of administration said administrator was duly licensed to sell the lot, and pursuant thereto and in accordance with the statute did sell and convey it to George Thomas Clark; that defendants claim title through such sale; that more than five years had elapsed since said sale to Clark at the commencement of the ejectment; that the plaintiff claimed title under said John H. Campbell, and that her cause of. action did not accrue within five years next before the commencement of suit. At the same time a claim for improvements was filed with a request for a finding of the addition to the value of the lot caused thereby. September 30th, 1872, the plaintiff in ejectment filed her request for a finding of value without improvements.
February, 1875, the cause was tried, and on the 24th “the jury found defendants guilty of unlawfully withholding possession from the plaintiff and that she was entitled to the property in fee.” They also found that the lot was enhanced in value by improvements $1,650, and that it would have been thus worth $1,200 without the improvements, and in answer to a specific question they found in effect that the purchase apparently made by Clark at the administrator’s sale was actually a purchase by the administrator himself in his individual behalf.
February 26, 1875, the court entered judgment on the verdict. It recited all the findings except the answer to the specific qitestion, and adjudged that the plaintiff recover possession of the defendants on her paying into court $1,650, the amount of the improvements with interest thereon, at any time within a year from the date of the judgment and that she thereupon have a writ of possession according to the form and effect of the recovery. And further that if she should at the same or the next term elect on record to abandon the lot to the defendants at its value as found, that in that event she recover against the defendants $1,200 with her costs and charges to be taxed, and that the judgment be and continue a lien on the lot according to the statute. The costs were taxed at $131.57.
May 20th, 1875, the plaintiff filed her election to aban don the lot at the value found by the jury, $1,200. August 2d, 1875, execution was issued on the judgment and was levied on the lot August 24th, 1875. The record discloses that the lot was sold on the execution to Emily Mason for $1,425.50 October 16th, 1875, but this was more than a month after this suit was commenced.
In view of the peculiarities of the case it is deemed advisable to notice several questions brought-under discussion although they are not material to the result reached.
A point is made by defendant that the plaintiff is not in a situation to complain of any rulings adverse to him, because, as is said, it appears affirmatively he had no right of action when the suit was commenced, and he grounds this claim on the force and effect which he ascribes to the particular provision in the plaintiff’s deed concerning the temporary right of possession of the lot.
He contends that this provision created a distinct right of possession and enjoyment, which had not expired, and hence the plaintiff had not come into any right liable to disturbance within the protective scope of the covenant. The point is confined to the right of action and does not apply to the measure of recovery.
We shall not refine on the clause in question in the deed. We think the plaintiff immediately acquired an interest through the deed to which the old covenant applied.
The grantors do not appear to have retained any thing. The grant was to the plaintiff in fee with, a qualified use to him and his mother and sister for a term limited to a few months, and which might be cut short by the occurrence of his mother’s death sooner. Let it be admitted that plaintiff and his mother and sister were vested with a right to the land itself under this clause. Shep. Touch., 93; Co. Litt., 4 b.; Green v. Biddle, 8 Wheat., 1, 76. Let it be conceded that in virtue of being entitled to the described special kind of use and enjoyment for the time limited, they were by force of the deed and the statute (Comp. L., §§ 4116, 4118) vested for such time with a legal estate of the 'same quality and duration and subject to the same conditions as the beneficial interest as meant by the grantor; and still the plaintiff had all the estate and right not embraced by the clause in question and likewise the right under that clause to present possession and enjoyment in common with his mother and sister. His interest was severable from theirs. It was much more extensive. It covered every thing except the trifling matter of their right to use and enjoy with him in the special mode limited up to August 9th, 1876. That he had an interest and present right capable of being so disturbed and infringed as to give him an immediate right of action upon the covenant cannot be doubted. And the nature of his right and interest entitled him to sue alone. Eawle on Covenants, 599; Barbour on Parties, 33.
The plaintiff’s counsel argues that the court erred in ruling out his efforts to show by Mr. Turner who aided in trying the ejectment suit on the part of Mrs. Sterling, that she made claim of title paramount to that derived from Kellogg.
The first question put to Mr. Turner was held improper, but simply on account of its form. An> exception was taken. It is not certain that the court was mistaken in thinking the question was not in proper form, but it is certain that in judging of the form only, the court exercised a discretion vested by law in the trial judge, and does not appear to have prejudiced the plaintiff. Immediately after this ruling the counsel, intending apparently to conform to it, varied the form of the question and then, upon objection by opposing counsel, the court ruled that it was premature, and suggested the necessity of first establishing another fact. Other testimony was then introduced bearing on the fact mentioned by the court and the subject was again brought up by a question and thereupon the court at once observed in terms, “That question is passed upon.” The matter was immediately dropped. No explanation was offered or any thing further insisted on and no exception was taken to either of the latter rulings. The plaintiff’s counsel acquiesced in both. We see nothing in these proceedings we have any right to revise.
Where a title guarded by covenant is assailed by action upon a ground which, if adjudged valid, would involve infringement of the covenant, the holder of such title on being so sued may give proper notice to the covenantor and require him to defend; and having done this, if the ease in which notice is given results adversely to him, and he thereupon sues on the covenant he will be relieved from making proof, except by the judgment itself, of the truth and force of what was there adjudged. But the giving of notice is no part of his ground of action; neither is it a necessary prerequisite to his recovery on the covenant. He may still maintain his action, but without the advantage secured by notice, the effect of that proceeding being not to create or help create a cause of action or supply any preliminary in law to the right to institute suit on the covenant, but to place the covenantor in such relation to the ejectment case or primary action as that the judgment in it, if adverse, will conclusively bind him in the suit on the covenant.
If, as supposed in the view now being taken, the thing determined in the prior case is the same thing which works the breach of covenant complained of, then, whether the covenantor was well warned or not, the judgment is a piece of lawful evidence in the action upon the covenant, the difference being that if it turn out that the covenantor was not adequately warned, — was not in substance a party, — the judgment, instead of being final as against him, is merely prima facie evidence of the validity of the title it purports to validate, and is disputable.
But another consideration occurs in this connection. When the judgment in the prior case is brought forward in the action on the covenant, it is under an assumption ■ that it actually adjudged that to be true, which being so, is the breach of covenant sued for. Because if it did not it would not be pertinent. Hence, unless the record shows affirmatively, which can rarely happen with us, that such was the case, the point must be shown by other proof. Without such proof the relevancy and force of the judgment in the pending controversy could not appear. Moore v. Bostwick, 23 Mich., 507; Lyman v. Becannon, 29 Mich., 466; Johnson v. Morse, 11 Allen, 540; Sawyer v. Woodbury, 7 Gray, 499; Miles v. Caldwell, 2 Wall., 35; Davis v. Brown, 94 U. S., 423; Burt v. Sternburgh, 4 Cow., 559; Doty v. Brown, 4 Comst., 71; Dunckle v. Wiles, 5 Denio, 296; Kelly v. Dutch Church, 2 Hill, 105.
The plaintiff claimed below that immediately upon the commencement of the ejectment suit he and his co-defendants therein notified Kellogg thereof and requested him to assume defense, and that he actually took part in defending. These claims the defendant controverted.
That no notice was given in writing was conceded, and it was virtually admitted at the 'same time that soon after the ejectment was commenced, and at various times during the progress of the cause, Kellogg conversed with the attorneys of the defendants therein as to the course to be pursued, and took an interest in the defense. Considerable testimony was given by each side on this branch of the case and it was quite conflicting. It was offered upon the point of his having been distinctly and explicitly notified in the sense in which that proceeding is now understood, and it was also offered in regard to the nature and extent of his connection with the conduct and management of the defense.
The counsel for the defendant insisted below and insists here that parol notice is not good. The point has not been adjudged in this State, and the proper practice in this particular is to be now settled. On looking abroad we find precedents on both sides. We allude to proceedings in regard to real estate and not to cases concerning personal property. There are ample grounds for making a distinction between these classes. Upon full consideration we think the dictates of policy, the force of analogy and weight of reason require the notice to be in writing. Our policy has always favored written memorials of titles to real estate, and in view of the effect which the law attributes to this proceeding it is sufficiently near being a fact of title to be within the policy. It bears a striking analogy to the ancient process of voucher and summons, and similar proceedings in some of our states (Stone on Real Actions, 136 to 138, and form of summons in appendix, being No. 44), and of course such proceedings could not be verbal. Then the giving notice is virtually a step, and an important step, in the cause. It contemplates the introduction of the covenantor and the entire prosecution of the defense in complete accordance with his views and under his direction. It is essentially a legal proceeding and it is a well recognized general rule that every notice of that character must be in writing. Gilbert v. Columbia Turnpike Co., 3 Johns. Cas., 107; Lane v. Cary, 19 Barb., 537; McEwen v. Montgomery County Mut. Ins. Co., 5 Hill, 101.
Every reason proper to be urged for this rule must apply with great force to the notice in question. If a mere verbal notice is allowed to answer, a wide door is opened to mistake, misapprehension and misunderstanding and all manner of uncertainty, and the practice does little less than invite expensive and perplexing contests about a matter which ought to be as simple and certain as the service of a declaration. The controversy which has appeared in this case may be expected to be repeated frequently, and important interests connected with the title to real property be made to turn on the uncertain issue of such dubious disputes.
The dissenting opinion of Judge Bronson in Miner v. Clark, 15 Wend., 425, is replete with strong sense, and it shows in a few words the propriety of the practice we approve.
Had due notice been given in writing in the suit brought by Mrs. Sterling, all the contention, confusion and uncertainty which have arisen, not only concerning the fact of notice and its aptness to make known distinctly all the particulars proper for it, but concerning also Kellogg’s actual connection with the defense and his influence upon it, would have been entirely avoided.
But his true position as an actor about the case could possess no importance whatever except upon the assumption that he was not duly notified, and the controversy about it with all its uncertainty has arisen only as a natural consequence of the reliance placed upon conversation as a medium of notice, and is one of the very mischiefs which go to prove the unsoundness of the practice which gives sanction to such a notice. The reason which requires the rejection of the one applies to the other. We are therefore of opinion that the want of proper notice is not obviated by a case made up of indeterminate and conflicting showings in regard to Kellogg’s actual connection with the defense and the extent of it.
Had it appeared beyond fair controversy that Kellogg was reasonably apprised that it was in his power to assume the entire defense and exercise complete control of it, and that not protesting want of due notice he actually accepted the opportunity and did what he chose, then I should say he waived formal notice and subjected himself to the same extent that he would have done if properly notified., Taylor v. Clemson, 11 Clark & Fin., 610; Parish v. Gilmanton, 11 N. H., 293.
In this, however, I assume to express only my own opinion. It is sufficient that the record before us presents no such case. We cannot agree with defendant’s counsel that the ejectment proceedings were intrinsically inappropriate to denote a breach of the covenant.
The findings and judgment pursued the general law as modified by tbe provisions for the benefit of occupying claimants. The incidents of the main determination, no less than that determination itself, were in accordance with law, and surely the Legislature in devising those proceedings for the benefit of grantees did not intend to diminish their security under their covenants for quiet enjoyment, and yet such would be the consequence of the position of defendant’s counsel. The judgment constituted a recovery against the title Mason held, and it established a right he could not resist. It was the assertion by law of an overbearing hostile claim, and was a disturbance of his right of enjoyment. He did not walk off of the lot; neither was he taken off. Under the remedial provisions before mentioned he continued in the same place. He was, nevertheless, immediately and expressly ousted by force of the judgment, of a large part of the estate.
The separation, it is true, was not by metes and bounds or by fractional distinctions, but by valuation. Mrs. Sterling» succeeded in getting all but the improvements. If a conflagration had swept them away, nothing would have been left.
The principle is clear enough. Physical expulsion from the lot or some part of it was not necessary. Compulsory surrender of a part of the value must surely be enough, and so much the judgment accomplished. Less has been deemed sufficient in well considered cases. McGary v. Hastings, 39 Cal., 360: 2 Amer., 456; Drew v. Towle, 30 N. H., 537; Poyntell v. Spencer, 6 Penn. St., 254; Sterling v. Peet, 14 Conn., 254; Hamilton v. Cutts, 4 Mass., 350; Woodward v. Allan, 3 Dana, 164; Home Life Ins. Co. v. Sherman, 46 N. Y., 370; Cowdrey v. Coit, 44 N. Y., 382. See also Loomis v. Bedel, 11 N. H., 74; Turner v. Goodrich, 26 Vt., 709; Brown v. Dickerson, 12 Penn. St., 372; Hanson v. Buckner, 4 Dana, 254; Whitney v. Dinsmore, 6 Cush., 124; King v. Kerr, 5 Ohio, 155.
We may assume for the purpose of this case that the proceedings and judgment in the ejectment suit afforded prima facie evidence in the suit at bar that Mrs. Sterling held by descent and deed the entire title of which .her father John H. Campbell died seized, and also afforded prima facie evidence that such title was superior and paramount to that of the Masons which took its rise in the sale made by the administrator of John H. Campbell to George Thomas Clark, and passed through Kellogg in its course to them. No greater force and scope than this could be given to the ejectment case against Kellogg under the circumstances, and we do not say it is proof to that extent. But considering it, its weight in the scale was subject to be neutralized and to be overcome by proper opposing proof. As matter of evidence to help the plaintiff’s case it was liable to contradiction. Kellogg had not been brought into such relation to it as to prevent him from assailing it.
It was hence competent for him to show that the title derived from the sale by the administrator of John H. Campbell, and being the title he had covenanted for, was valid notwithstanding the case of Mrs. Sterling, and as both sides traced title to John H. Campbell, it was not necessary to show the origin of John“H. Campbell’s title as a foundation for proof by Kellogg that the sale by John H. Campbell’s administrator was valid. The defendant pursued this line of defense, and in doing so gave in evidence the proceedings before mentioned connected with the administration of John H. Campbell’s estate and the sale to Clark, and also the bond given by the administrator on his appointment. He also showed the transmission of this title as we have seen through different conveyances from Clark to Kellogg.
In the course of the introduction of this proof the plaintiff’s counsel made several objections which the court overruled. They do not require to be separately noticed. The views hereafter stated will dispose of them.
It may be assumed, perhaps, that it would be claimed by counsel that the second section of the act of 1867, Comp. L., § 4255, was intended to affect only future trans actions. But however this may be, the proviso added in 1869 to Comp. L., § 4596, applied to defendant’s proof. It is there enacted “that-in all cases where any person, or those under whom he holds, has been in actual possession of any lands or premises for the period of ten years, holding and claiming under and by virtue of a deed executed by any executor, administrator, or guardian, such deed shall be prima facie evidence of the regularity of all the proceedings from and including the application to sell such lands or premises, to the date and execution of the deed inclusive.”
It appeared that at the time when the ejectment suit was brought there had been such holding and possession as here specified. The deed by the administrator was henee prima facie evidence by force of the statute, of the regularity of the title passed to Clark, and that title seems to have been regularly transmitted to Kellogg without intervening defect.
The result at the least was therefore in this state of things that the plaintiff’s evidence of the failure of Kellogg’s title was neutralized; the prima facie evidence conceded to the proceedings in the ejectment being met by the prima facie evidence afforded by the administrator’s deed; and the plaintiff as holder of the affirmative, and bound to support it by a preponderance of proof, failed to do so.
No stress is here placed upon the other probate matters adduced in alleged compliance with the requisites of the previous part of the section referred to, since there are questions of some difficulty which would have to be settled before admitting the correctness of the defendant’s view of that feature of the case.
The plaintiff sought to rebut the ground of defense, based on the administrator’s deed by showing that the sale by the administrator was a collusive transaction between him and Clark, and was in fact a sale to him and not to Clark; and to establish this he offered Clark’s testimony given on the trial in the ejectment ease, the witness having died since that trial. The court excluded it on objection. This was not error. The action was not between the same parties or their representatives in interest.
In case due notice had been given to Kellogg in the ejectment and he had been given opportunity to exercise complete control and accordingly to cross-examine Clark, the objection probably would have been invalid. Doe ex dem. Foster v. Earl of Derby, 1 Adol. & Ell., 783. But if that practice had been pursued it is not perceived that there could have been any cause for requiring Clark’s testimony for the purpose for which it was proposed. The force of the judgment would have saved any occasion.
In the view of some members of the court the offer made was subject to the further difficulty that it did not appear and was not proposed to be shown that Kellogg had any notice or means of knowledge of the alleged secret and collusive arrangement between the administrator and Clark, or that he was not in the most absolute sense a purchaser in good faith.
Finally giving to the record the most favorable construction for the plaintiff, and it leads to the conclusion that the evidence was evenly balanced and hence that the result reached cannot be questioned. 2 Best’s Ev. (Wood’s ed.), 364, marg.; 2 Evans’ Poth., No. 16, §§ 2, 14: 1 Cow. & Hill’s Notes, 306; Bogert v. Morse, 1 Comst., 377; Heinemann v. Heard, 62 N. Y., 448; Smith v. First Nat. Bk. etc. 99 Mass., 605; Jackson v. Metropolitan Rw. Co., L. R. 2 C. P. Div., 125. We have no means of knowing, except by what appears, whether the proceedings in the probate court are subject to any radical defect.
As the question of damages was somewhat discussed, and the proceedings under the statute for the protection of occupying claimants were supposed to cause difficulties, a few words upon the exact question presented by the facts here may be pardoned.
Kellogg bound himself by his covenant of 1864 to make up in money for whatever of the estate, according to its then value, should be lost by failure of his title, the consideration he received to be taken as the measure of the full value of the whole.
He received $2,400. But as there were improvements upon the land, this value applied to both lot and improvements, and it did not by itself afford any criterion for getting their respective values. At the trial of the ¡ejectment in February, 1875, Mrs. Sterling recovered as for the naked lot; such recovery being for a part of the property on the basis of its true value at that time. The residue of the property represented by the value of all the improvements, including such as were on the lot when Kellogg deeded, was not recovered, but was left as it stood and as it was held under the Kellogg title. The loss, then, within the legal operation of Kellogg’s covenant, could not exceed the value of the naked lot at the date cf the covenant, and in view of the legal sense of the covenant, that could be ascertained by deducting a sum equal to the value borne by the improvements at its date, from the value of the whole, or $2,400. The amount left would be equal to the value borne by the naked lot at the proper time. This, of course, would involve an inquiry as to the value of the improvements at the time the covenant was made. If the plaintiff had prevailed it may be that it would have been needful to have deducted from the value of the naked lot enough to cover its use in common with him by his mother and sister from the time of the judgment in ejectment until his coming of age.
As the plaintiff failed to show any .breach of the covenant, and was not hindered from doing so by any error of the court, the judgment must be affirmed with costs.
Campbell, C. J., and Cooley, J., concurred. Marston, J., did not sit in this case. | [
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] |
Cooley, J.
The facts in this case are somewhat complicated, and without attempting to set them out in detail, we prefer to give in brief so much thereof as shall be sufficient to present the only question of law upon which it seems important to express an opinion.
The action is in trover for the conversion of a quantity of logs cut in the years 1867 and 1868 by the copartnership of Dickinson, Rogers & Co. on certain lands in Yan Burén county. The copartnership was composed of the defendants, one Samuel Rogers, and three other persons, and seems to have been formed in contemplation of lumbering operations upon these lands and others which were owned by the partners individually. The lands in question were claimed by these defendants; but it after-wards appeared that they had no title, and whether they really believed they had any, the record does not disclose. The defect in title being discovered, Rogers bought the lands of the plaintiffs, who were the real owners, and took from them an assignment of the right of action for the timber' which unlawfully had been cut on the land before the purchase. To recover the value of this timber, the present suit is instituted and carried on by Rogers in the name of his grantors, but for his own benefit.
This statement is made as full as possible in the interest of the real plaintiff, that he may have the full benefit of any question of fact which might be open to' dispute. The fact nakedly stated is, that the suit is by one joint wrongdoer, who having satisfied the parties injured, now seeks to recover from his associates, not the sum paid, nor their proportionate part of it, but the amount of the injury suffered. Such a recovery, it is said, would be equitable, because the defendants wrongfully pretended to own the lands when the trespasses were committed, and but for this wrongful pretense, which deceived their associates, no liability would have been incurred.
Had this suit been brought in the name of Rogers himself, „ as it might have been under our statute {Final v. Backus, 18 Mich., 218; Grant v. Smith, 26 Mich., 201), the questions made would have been more directly presented, but they would in substance have been the same as now. The real plaintiff seeks to place himself in the shoes of his assignors, and to recover in their right, and not otherwise. It is admitted that it is a general rule of law, based upon considerations of public policy, that the law will refuse its remedies to joint wrong-doers to enable them to adjust equities between themselves, or to alleviate hardships growing out of their trespasses upon the rights of others. Merryweather v. Nixan, 8 T. R., 186; Lingard v. Bromley, 1 Ves. & B., 117; Thweatt’s Admr. v. Jones, 1 Rand., 328, 332; Peck v. Ellis, 2 Johns. Ch., 131; Acheson v. Miller, 18 Ohio, 1. The rule is supposed to have an important purpose in keeping parties within the limits of caution and prudence, and making them careful to observe the obligations the law imposes upon them. It is not perceived that there can be any ground for giving such aid indirectly when it would be refused if the demand were presented directly and in the name of the party himself. *
It is said, however, that some exceptions have been recognized, and that this ease is within them. The case of Low v. Blodgett, 21 N. H., 121, is referred to. That was a case in which a surety on a note purchased it, and had it transferred to a third person in trust for himself. His right to do this was sustained; but we do not perceive that the case has any bearing upon the question at issue here. It shows, indeed, that a party may in some cases satisfy a demand and still keep it alive for the purposes of a remedy against others; but the case was not one of tort, and the principle involved was a familiar and very salutary one in the law of contracts. As the court say in their decision, the suit merely avoided circuity of action and maintained the just rights of the parties. Rindge v. Coleraine, 11 Gray, 157, is also brought to our attention. In that case property in the hands of a bailee suffered an injury by reason of a negligence for which the town was responsible. The bailee settled with the owner, taking from him at the time an agreement that he might pursue his remedy in the owner’s name. On this statement it is seen that the wrongdoer was the town, and there was no question of joint participation in the wrong by the bailee. In McCrillis v. Hawes, 38 Me., 566, which is also cited, the party wronged by two joint trespassers had settled with one of them for one-half his injury, and was held entitled to pursue the other for the remaining half. The court rely upon Benbridge v. Bay, 1 Salk., 218, but admit that if the satisfaction had been in full, the subsequent action could not have been maintained. Gilpatrick v. Hunter, 24 Me., 18. Indeed an express agreement between the party making satisfaction and the party wronged, that the right of action should be kept alive for his benefit, could not have had that effect. Gunther v. Lee, 45 Md., 60.
It seems, then, to be clear that this action cannot be supported. The demand of the plaintiffs has been satisfied, and thereby extinguished. Had Bogers brought the amount paid into the partnership accounting, the question would have been altogether different; but the question then would have been not what damages these plaintiffs had sustained, but what one of the partners had paid to satisfy a partnership liability. Bogers could not buy up the claim to speculate from his associates upon it; he could claim no more than it had cost him. And if this wfere a suit at law by Bogers for contribution or for indemnity, the questions would also have been different. There are undoubtedly some cases in which parties are technically wrongdoers in which the claim of one who has satisfied their liability to contribution from the others is not only equitable, but contravenes no rule of public policy. Such would be a case where partners who are not personally in the wrong, are made liable to a third person by reason of the negligence of one of their servants. Wooley v. Batte, 2 C. & P., 417; Bailey v. Bussing, 28 Conn., 455. There are also some cases in which full indemnity might be recovered; as where any auctioneer has been compelled to pay for property sold for one who did not own it, Adamson v. Jarvis, 4 Bing., 66, or any other agent, employed to do an act not manifestly wrong, and which he supposed the principal had a right to do, is rendered liable to a third person. Moore v. Appleton, 26 Ala., 633. Or a master has been compelled to respond for the negligence of his servant. Green v. New River Co., 4 T. R., 589; Pritchard v. Hitchcock, 6 M. & G., 151; Ashley v. Root, 4 Allen, 504; Grand Trunk Railway v. Latham, 63 Me., 177. Possibly as between partners a similar action might be maintained under some circumstances. See Devall v. Burbridge, 6 W. & S., 529. But as this is not a suit either for contribution or for indemnity, we need not pursue this suggestion. The circuit judge held the action not maintainable, and we agree with him.
The judgment will be affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
Plaintiffs in error were sued as sureties on Averill’s bond as administrator of the estate of William H. Gage, deceased; and the breach alleged was the failure to account for the purchase price of lands sold’ for the estate. The undisputed facts showed that the sale was made to Daniel W. Green, the surviving partner of Gage, and .the theory of the defense below was that the object of the sale was to transfer to him the legal title of lands which equitably belonged to the partnership, to be used in settling the business.
The case rests on facts entirely undisputed, and shows that the only property inventoried, both real and personal, was partnership property of Gage and Green, consisting of some personal property in stock, and business accounts, and a mill and other real estate, all used in the business, and all purchased with partnership assets and regarded as firm property. The inventory also showed partnership debts amounting to $46,429.32.
. This inventory, on which a warrant of appraisal was issued in May, 1871, was filed with the appraisers’ and administrator’s oaths on the 20th of November, 1871. The appraisers’ oaths of the truth of their appraisal were taken on the 18th of September.
On the 18th of October, 1871, the administrator filed his petition for leave to sell real estate, showing the only-personalty to consist of Gage’s half of the partnership accounts and personal property, which amounted in the aggregate to $14,967.06, and the debts amounting to $46,-429.32, and praying a sale of the undivided half of the land, all of which was described as used in connection with the mill.
On the 20th of November, 1871, a license was issued, which, after reciting the insufficiency of the personalty, and the existence of debts to the amount of $23,214.66, which was just half of the entire partnership liabilities, authorized the sale of the undivided half of all the real estate, which appeared in the license as in the petition to belong to and be used with the mill, and some of it to consist of the incorporeal right of boomage, and rights in streets.
This was duly advertised and sold as one interest to Green, the surviving partner, described as the undivided half of the property set forth, for $15,000, and this sale was confirmed and conveyance made as an undivided half. No money was paid by Green to the administrator.
It appeared, then, upon the face of the proceedings, that there was no property except partnership property, and no debts but partnership debts, and that a sale of the land was necessary to pay these partnership debts. It also appears that the sale licensed and made-was not a sale of the interest Gage had in the partnership property as a partner, but of the absolute undivided half of the legal title, which, according to the claim of the plaintiffs in error, was a trust estate held for the firm benefit. And it appears further that the price bid on the sale was less than the half of the indebtedness which Gage’s estate was found liable to pay.
The legal effect of these proceedings was to put the assets of the firm under the control of the surviving:partner for the purpose of settling the partnership debts, which exceeded the value of the assets, assuming, as this prosecution must assume, the value of one-half of the realty and its appurtenances at $15,000. By this conveyance, if regular, which is not denied, the legal title to the land became vested in Green, so that he could transfer the whole estate to a bona fide purchaser.
No question is made but that the estate of Gage had apparently, and at law the title to one-half of the lands by tenancy in common. Whether the boomage and other incorporeal rights were so held or not does not appear by the record.
It is not disputed, .and cannot be, under any ground that maintains the legal validity of the probate sale, that the property in question was to be regarded as a single estate," all belonging to a single mill property, and not properly divisible into parcels. The sale at any rate was a single one in which the whole body of lands and easements made up a single parcel.
The facts, therefore, upon which all parties relied in the court below present a condition of things free from most of the difficulties which have led to such differences as are found among courts and writers who have discussed the rights of partners concerning real estate
The law has always been settled in this State that real property which actually was designed to be, and which was m fact treated during the existence of the firm as partnership assets, must be so regarded in equity, and the legal estate must be held by the heirs of a deceased partner as trustees for the equitable purposes of the firm. In Thayer v. Lane, Walk. Ch. 200, where the legal title was an equal tenancy in common, the court established the rights of the deceased partner as amounting only to one-third, instead of one-half, and prevented an administrator’s sale, which would have misrepresented the real interests. In that case there were no debts and no other property to hinder, and a partition was decreed according to the equitable proportions established.
In Connor v. Allen, Har. Ch., 371, it was held concerning realty as it was by this court subsequently con cerning assets ■ generally in Barry v. Briggs, 22 Mich., 201, that the surviving partner was entitled to possession, and could not be dispossessed unless for misconduct.
In Moran v. Palmer, 13 Mich., 367, a sale made by a portion of the firm of the entirety of a lot which was partnership property, for partnership purposes, was maintained in equity against the heirs of a deceased partner upon facts showing the injustice of any other holding.
The facts admitted in the present case show very clearly that the sale of the land and appurtenances was necessary to close up the partnership business, and a court of equity would have been bound to interfere and enforce the disposition at the instance of the survivor, who would unquestionably have been entitled to'possess and apply the assets. The interest sold in the present case was not the possible interest of Gage’s estate, but the legal interest which the heirs only held in trust. We can see no reason why the simpler method of disposing of the land in probate instead of in chancery, can make any difference in the equitable result. If any one but Green had purchased the property the proceeds would-have been subject to his right of management. Being bid off in his name, he has simply become as to the land what he would have become as to the proceeds if it had been sold to a Iona fide purchaser, a trustee for the common interest of the partnership as surviving partner, and liable to account for its honest management.
It would be unjust and inequitable to hold the administrator liable for not going through the form of receiving and refunding the same money. Gage’s estate and his heirs are entitled to nothing beyond such residuum as may be found due by the surviving partner when he has fairly closed the concern. That business belongs to him and not to the administrator. The latter may be bound to inquire into the conduct of the survivor and protect the estate from mismanagement if any should appear. But he cannot interfere with the partnership assets while they are in their proper custody. . . .
The rulings below to tbe contrary were erroneous. The judgment must be reversed with costs and a new trial granted.
Graves and Cooley, JJ., concurred.
Marston, J., did not sit in this case. | [
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Per Curiam.
The statute which makes the State liable for costs “in any civil suit or proceeding instituted by any officer duly authorized for that purpose” (Comp. L., § 6173) does not make the State liable in suits for penalties brought by supervisors for obstructing highways. These are purely local matters, and the statute of costs excludes State liability for costs on penal statutes. § 7407.
Mandamus refused. | [
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] |
Graves, J.
This action, was brought by William Burtnett in his life-time to recover a little over a thousand dollars claimed to have been received by the bank upon a bond issued by the city of Corunna and by him owned. In the progress of the cause he died and his administrator was allowed to assume the further direction of proceedings.
Upon the trial the jury found for the bank and the case has been removed to this court in order to obtain a review of particular rulings made in the circuit court.
The plaintiff in error has been fully heard but we have not been favored with either argument or brief on the part of the bank.
As the hearing has consequently been wholly ex parte. it is not considered prudent to go further than is actually necessary to dispose of the case.
The bond was issued by the city January 31st, 1870, to the decedent. It was made payable in three years with semi-annual interest at ten per cent, at defendant’s banking house and was there lodged.
At the time of its issue or just before that, decedent commenced doing business at the bank, and Spencer B. Baynale was then cashier and continued so until the ■ following January, and the evidence tended to show that he obtained the bond of the city for Mr. Burtnett and acted for him thereafter in other transactions and made several loans to parties for him and received payments upon certain of his demands.
About the .first of January, 1871, Mr. Baynale ceased being an officer of the bank and employed himself in law business. He kept an account at the bank and appears to have had the confidence of its managers. He left papers in its vault for safe keeping, and the evidence tended to show that decedent’s bond was with them.
March 24, 1874, and when the bond was past due and still owned by decedent, the city arranged with Mr. Eaynale to pay it and take it up. Decedent had no knowledge of the transaction. Mr. Eaynale sent an order to the bank for the bond and it was handed out accordingly. There was then due of principal and interest,’ the sum of $1015, and the city gave him in payment a check for $1000 and $15 in money and he surrendered the bond. Soon after and on the same day, he deposited the $15 and the check for $1000 with the defendant bank and requested that it might be credited to his account and it was done. The check was immediately collected. He soon afterwards checked out $229.29, and becoming too unwell to do business he went to his father’s in Oakland county, where he died in September of the same year. The evidence tended to show that he was indebted to the bank in a sum greater than the amount left of the sum paid on the bond, and was insolvent. The bank assuming the right to apply what remained in its possession of the proceeds of the bond on Eaynale’s debt, proceeded to effect that result by entries in its books.
The evidence conduces to show that decedent Burt-nett had no knowledge of the payment and surrender of his bond or of the conversion of the proceeds to the payment of Jtaynale’s debt to the bank until long after the transactions and after the death of Eaynale, and on the other hand there is no evidence fairly tending to prove that he authorized Eaynale to transact this business or contemplated that he should collect the principal of the bond and lodge it in the bank. Neither is there any evidence fairly tending to prove that Burtnett ever in fact parted with any right or interest he was entitled to as owner. And the case is clear that all the bank did was to receive from Eaynale the proceeds of Burt-nett’s bond and then to appropriate all, except the small amount checked out, to the payment of its debt against Eaynale. This outline is sufficient to present the main point and the only one to be noticed now. It is gathered from the case that no recovery was claimed for the $229.29 paid out on Eaynale’s checks and hence that portion and the questions which a controversy about it might cause, are not involved. The subject of contention is the balance not taken out of the bank. And in regard to that the circuit judge was of opinion that conceding decedent’s ownership of the bond and of the proceeds in Eaynale’s hands, and that his ownership continued down to the time of Eaynale’s deposit in the bank, and that he did not entrust the check and money to Eaynale nor authorize the deposit, and conceding further that the balance in question of the proceeds remained in the bank when the action was commenced, — that still the plaintiff would not be entitled to recover unless the jury were satisfied of the further fact that the bank officers knew decedent was owner of the check and currency when Eaynale placed them in the bank on the 24th of March. This knowledge of decedent’s ownership by the bank officers was thought by the circuit judge to be indispensable to a recovery. He said: “Now, gentlemen of the jury, if you should be satisfied from the evidence in this case that the officers of the bank at the time Mr. Eaynale made this deposit of this thousand dollar check ■ and this fifteen dollars in currency, knew that it belonged to the plaintiff, then the plaintiff is entitled to recover. If you are not satified of that fact from the evidence, then your verdict will be for the defendant. That, in my view of the case, is the important question to be determined by the jury.”
We cannot concur with the circuit judge. If decedent owned the proceeds of the bond on the 24th of March when Eaynale made the deposit, the mere fact, if it is a fact, that the bank officers were ignorant of such ownership or the mere fact of their formal transfer on the bank books of such proceeds to satisfy the debt due the bank from Eaynale, if there was such a debt, or both facts together could, not extinguish Burtnett’s right, or bar recovery as to the fund left in the bank if capable of being traced. Had it been satisfactorily shown that Eaynale actually participated in and assented to the appropriation attempted by the bank, the latter being ignorant and without any reasonable notice of decedent’s rights, there might be room for other considerations. But we are not aware of any principle which- will enable a depositary who has received from a trustee or agent a fund belonging in fact to the principal or beneficiary, to appropriate it by his sole act to his own debt held against the trustee or agent and thereupon to insist that his want of knowledge of the true ownership is sufficient to guard such inequitable appropriation and bar the real owner from pursuing the fund.
On the contrary the doctrine is well settled that the principal or beneficiary may in such cases follow and claim his own. The following cases are sufficient to illustrate it: Pennell v. Deffell, 4 De G., M. & G., 372: 23 E. L. & E., 460; Van Alen v. American National Bank, 52 N. Y., 1; Butler v. Sprague, 66 N. Y., 392; Atlantic Bank v. Merchants’ Bank, 10 Gray, 532; Skinner v. The Merchants’ Bank, 4 Allen, 290; Broderick v. Waltham Savings Bank, 109 Mass., 149; Cook v. Tullis, 18 Wall., 332; Clark v. Iselin, 21 Wall., 360; Merrill v. Bank of Norfolk, 19 Pick., 32; Haddow v. Lundy, 59 N. Y., 320; Wood v. Stafford, 50 Miss., 370; Gray v. Perry, 51 Ga., 181; Brockville v. Sherwood, 7 Grant’s (U. C.) Ch., 297; Sheridan v. Joyce, 1 Jones & La Touche, 401; Bodenham v. Hoskyns, 2 De G., M. & G., 903; Arnold v. Cheque Bank, 1 Com. P. Div., 578; Overseers of the Poor v. Bank of Va., 2 Gratt., 544; Frith v. Castland, 2 Hem. & Mil., 417.
For the error noticed the judgment must be reversed with costs and a new trial ordered. '
The other Justices concurred.
After this opinion had been prepared a brief was received by the judges from counsel for the banlc. It has been examined, but the court thinks- it contains nothing which ought to vary the result reached. | [
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Marston, J.
We think the court erred in permitting a second jury to be empaneled for the assessment of damages in this case. The statute referred to, and under which this action was taken, would not authorize such a course. In providing that when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon or special property or part ownership in the goods and chattels described in the writ, and is not the general owner thereof, that fact might be proved on the trial, or on the assessment of value, or on the assessment of damages, the Legislature did not thereby intend that the action should .be tried and determined by piecemeal,— that the cause might be tried upon the merits by one jury who might find a general verdict, and afterwards another be called to assess the damages.
The object and purpose of this legislation was to permit such special property or part ownership to be proved and determined upon the trial of the case, and by the same jury, if a jury trial were had, or on the assessment of value, where a demurrer had been interposed, or on the assessment of damages, in cases of judgment by default and other like cases.
The judgment must be reversed with costs, and a new trial ordered.
The other Justices concurred. | [
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Campbell, C. J.
This is a certiorari to review the proceedings had to lay out an alleged private road over the property of the relators. Various objections are made, and reference will be had to such as are important.
Delators owned and occupied certain premises in the township of Port Austin. On the 13th of April, 1877, Thomas Winsor and Philip Winsor presented to respondent as highway commissioner an unsworn petition requesting him to lay out a private road as therein designated. The application contained no averment of its necessity and no statement of facts indicating any reason why the applicants desired or needed it.
On that day, which was Friday, the commissioner served notice upon Frederick and James Ayres (Ebenezer being in Ohio) that on Monday morning (the 16th), at ten o’clock, they should attend at his office for the purpose of striking a jury to determine as to the “necessity or propriety” of such road.
At the time and place appointed, the commissioner designated the sheriff as a disinterested person to write down the names of eighteen disinterested freeholders. James S.' Ayres was present at the hour appointed, but left and returned in about an hour and a half. The sheriff made out a list and after waiting about an hour, the applicants were allowed to strike off three names, and the commissioner struck off three for the land owners. The jurors were sworn to examine into the “necessity and propriety ” of the proposed road, and in case of a decision that the road was necessary, to appraise the damages.
When the jury had appeared, and before they were sworn, relators appeared by attorney and made objections and asked to have a new jury, which was refused. He asked an adjournment or to have the proceedings stand open, which was also refused.
The jury, as appears from the return, proceeded to view the premises. It does not appear distinctly that any legal evidence was before the jury. Upon this the return — though perhaps not intentionally — is evasive, as the question was distinctly raised by the petition; it states simply that such evidence as was offered was received. The commissioner himself makes return of some facts, which are not stated to have been proven before the jury, and which he of course has no authority to determine. But such as they are they show the man•ifest impropriety of some of the transactions and partially corroborate the complaints of relators. The only reasons which .he mentions as existing for the road are that it is important as a means of access to a village plat. It appears also that at the time of these proceedings the proposed road ran over a grave yard, which is unlawful (Comp. L., § 7713). The return says that “the evidence of any graves over the line of the road applied for was about obliterated. But the applicant had obtained permission from the friends and relatives of the deceased to remove the three graves referred to, and did so remove to the new township grave yard.” This finding of permission and subsequent removal is not one which can be proved by the commissioner’s statement, but it shows plainly enough that at the time of the action of the jury they depended on the promise of the applicants, and that there was then a grave yard on the premises.
It appears to be imagined by the parties interested that the laying out of a private road is not a matter of much consequence, and is merely a matter of convenience. The peculiar statute under which the action was taken (chapter 31 of the Compiled Laws) was evidently framed on that notion, and uses the terms necessity and propriety as substantially synonymous, and so is the form of the juror’s oath.
It is hardly needful for us to say that nothing but a clear practical necessity can, under our constitution, justify the taking of private property of one person to be used as a private road by another. It is not to be taken for mere convenience. The taking is only justifiable where no other way of access to the lands of the applicant can be found. And both constitution and statute require that its use shall- be only commensurate with the necessity of the applicants, and confined to them and the owner. It is absurd to speak of any such private necessity to get access to a village plat, to accommodate lot-owners.
We have referred to these matters to correct a misapprehension which has apparently led to annoying if not oppressive measures dictated by no necessity.
But the case is one which as it stands, indicates still more plain violations of law. The statute in question does not provide any particular time of notice of these proceedings. If it is possible (which we do not decide) to maintain such a law at all, it can only be by assuming that the time of notice is to be governed by the analogies of similar cases. Notices under the highway laws are notices of ten days. Such a notice as the present is no notice whatever for any valuable purpose. Notice on Friday that summary and final proceedings will be had on Monday to divest the title to lands is entirely inadequate and unreasonable. It gives no time for the summoning of witnesses or for such examination and legal counsel as are necessary to enable the parties to defend their rights. The indecent haste and arbitrary course shown by the return itself exemplify the mischief as plainly as any imaginary example could.
In 1861, the Legislature, probably regarding the existing law as open to abuse or misconstruction, attempted to put the laying out of private roads and highways on the same footing, so far as practicable. Sess. L., 1861, p. 256 -8. That law is defective in not providing for juries,— which the constitution renders indispensable in cases of private roads. Const., Art. XVIII., § 14. There may be some difficulty in maintaining it as an entire substitute for the old law, and possibly it may not be so drawn as to supply the defects of the former statute, which are certainly of a very grave character. But we are entirely satisfied that if any discretion can be given to the commissioner to fix a minimum time of notice, it cannot be any less notice than that which the laws have prescribed for all similar proceedings, and that such a notice as was given here is illusory and legally insufficient. See McCaslin v. Camp, 26 Mich., 390.
Where proceedings are to be had in courts, they can usually provide adequately for matters of practice so as to prevent injustice; yet even there it is not common to leave to such tribunals entire control of the time of notice in special proceedings of a raordinary character. Where such proceedings are had before officers not having any judicial powers, it would be extremely dangerous to allow them to fix the conditions of their own jurisdiction. This would deprive parties of any adequate safeguard against the arbitrary destruction of their vested rights. "Unless a notice can be saved by bringing it within some known legal analogy, it is impossible to hold it sufficient to confer jurisdiction. Assuming that such a conformity might save it, — which we certainly are not prepared to affirm without further consideration,— the notice before us cannot possibly be upheld on any principle of reason or justice.
The proceedings must be quashed.
The other Justices concurred. | [
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Marston, J.
Plaintiff in error brought assumpsit against defendants in error for the recovery of money paid out, materials furnished and work and labor done by the plaintiff for the defendants, amounting in all to about the sum of seven hundred and fifty dollars.
The defendants pleaded the general issue, with a notice of set-off; they also gave notice that they would show and insist in their defense, that if any such promises were made as plaintiff in his declaration alleged, they were made by the defendant Nelson Tupper, in consideration that plaintiff would at his own cost and expense furnish certain mill irons, gearing and machinery for a mill that defendant Nelson then contemplated building, and also that plaintiff would at his own expense and labor put the same up and set them in good running order; that plaintiff so agreed and warranted the same to be good, all right and perfect, and that the mill would do good work and be satisfactory to defendant Nelson; that in consideration thereof, Nelson agreed to pay therefor the sum of eleven hundred dollars and secure the same by mortgage on real estate, which he had done. The notice farther set up a breach of the agreement and warranty on the part of the plaintiff, damages resulting therefrom, and that the same would be recouped, etc.
The plaintiff to maintain the issue, introduced testimony tending to prove that he had paid out money, furnished mill irons and other things, and performed labor for defendants jointly under and in accordance with the terms of an express contract made with them, and that no part thereof was included in the amount for which the mortgage was given. He also introduced evidence tending to show that defendants owned and operated the mill as copartners, and also evidence tending to show that they had held themselves out to the world as owning and running the mill as copartners.
This, with the statement already made as to the notice attached to defendant’s plea, will be sufficient, with what may hereafter be stated, to enable us to understand the questions raised, and which we deem of sufficient importance to notice.
I. Plaintiff offered evidence tending to show that defendants were generally reputed in the neighborhood where they resided as doing business together as copartners. This was offered for the “purpose of proving the relation these defendants occupied to each other in doing business.”
The proposed evidence was properly excluded by the court. General reputation is not admissible for the purpose of establishing a copartnership relation between two or more persons, and it would be dangerous to permit the introduction of such evidence to establish such a relation.
II. Charles Saulsbury was introduced as a witness on the part of the plaintiff, and amongst other things testified to a conversation he had with the defendants, when they told him they were doing business as partners. This the court of ita, own motion struck out, because it did not refer to a time included in the plaintiff’s account stated. It was in fact claimed that a part of the plaintiff’s account accrued subsequent to the time of the conversation. Whether this was so or not, we think the evidence was admissible. The fair tendency of these admissions was not to prove the'creation of a copartnership at or about that time, but rather had reference to a relationship which at that time and previous thereto, existed between them. At all events, these admissions were admissible, and should have been submitted to the jury.
III. The deposition of Darius Ingersoll was offered in evidence to show that a few days before plaintiff sold the mill irons to defendant, Ingersoll had a talk with him about purchasing them, and that Nelson Tupper was present and took part in the negotiations between plaintiff and Ingersoll; that in this conversation plaintiff offered to sell certain mill property to Ingersoll for $1,200, — said that he would have it put in good running order, and furnish any irons that might be missing, and perform certain other services, and that if such repairs exceeded the sum of fifty dollars, he would pay such excess; that in the same conversation he made the same offer to defendant Nelson Tupper for $100 less; that such offer was repeated the next and following days and resulted in an agreement. There being evidence tending to show that the offer made to Ingersoll and the one made to and accepted by defendant Nelson were alike, except the reduction of $100 in the consideration to be paid, and there being a dispute as to the articles sold to defendant, we are of opinion that under such circumstances .it was competent to show the offer made to Ingersoll for the purpose of identifying or fixing the specific articles included in the offer made to defendant and accepted by him.
IV. William Harrison was examined as a witness on the part of the defendants. On cross-examination, for the purpose of affecting his credibility, it was sought to show that he was interested in the result of this controversy; that he had purchased the mill property from defendants subject to these claims. He testified that he had at one time agreed to purchase it, but that the sale was never completed or carried out. He was then asked to go on and state why he did not complete that sale. This was objected to, and the objection sustained. In this the court was correct. If the sale was abandoned, his reasons for not completing it were of no consequence in this case.- If counsel claimed that an answer to this question would show that the witness was still interested, or that the answer would show facts affecting his credibility, he .should have so stated to the court, or pursued his investigation by other questions. No objection was made to showing that the witness was interested. As the evidence stood, it does not appear that the question or an answer thereto would have been admissible.
V. As already said, defendants claimed that Nelson Tupper had purchased all the mill irons, belting and everything necessary to put the mill in complete running order for the sum of $1,100, and had given a mortgage to secure payment of this amount, while the plaintiff claimed that the belting and certain other property was not included in such purchase, but was sold and furnished subsequent thereto. And as evidence tending to show that it was not included in the first sale made, he offered to prove that the articles he claimed were not included in the first sale, alone were worth $1,200. This was objected to and excluded. In this the court erred. The evidence was admissible as tending to show the improbability of a person selling twenty-three hundred dollars’ worth of property for eleven hundred dollars, without any special reason being shown requiring such a sacrifice. Where a dispute arises between parties as to the specific articles included in the terms of an oral agreement of sale, the value of such articles may have a very material bearing in the determination of the question. Property may be, and undoubtedly is, often sold for much less than its actual market value, and good and sufficient reasons may have existed therefor. In the absence of such, and where the value far exceeds the contract price as claimed, we think the value may well be shown and considered, not to change or vary a contract actually entered into, but as an aid to the jury in determining what the agreement actually included. Waterman v. Waterman, 34 Mich., 490.
VI. The plaintiff sought to recover the sum of $174.35 as the amount he had paid for a belt he purchased for defendants. A bill for this belting had been made out in which the price appeared to be $174.35. There also appeared upon this bill the words and figures "less expense account $47.46,” and this amount was claimed to be a discount from the regular price list. One of the witnesses called by defendants was asked, after testifying that he had purchased leather belting, the custom relative to selling belting at a discount from the price list. This was objected to as irrelevant and immaterial, but the court permitted the question. This was correct. The evidence was admissible in connection with other evidence that might be offered as tending to fix the value of the belting furnished. Whether such other evidence was offered or introduced, or whether the witness was shown to have sufficient knowledge to enable him to give evidence upon this subject, might perhaps admit of some doubt, but no objection was made upon such grounds. De Armond v. Neasmith, 32 Mich., 233; Sisson v. Cleveland etc. R. R., 14 Mich., 497.
YII. Many exceptions were taken to the charge of the court. Defendants’ second request as given, that the plaintiff in order to recover must prove a “joint contract and promise ” was not, we think, intended as an instruction that something more than a joint contract must be proved. It evidently was intended as an instruction that a joint contract or joint promise must be found to have existed, either express or implied. In this view it would be correct. The court in giving defendants’ eleventh request as to what was necessary in order to find that defendants sustained the relation of partners to each other and were liable as such, went too far.
To constitute one a partner as to third persons, it is not at all necessary that he should agree to share in the losses of the business. If he shares in the profits, he thereby deprives creditors of part of the means of payment, and this is sufficient. Hinman v. Littell, 23 Mich., 484; Manhattan Brass & Mfg. Co. v. Sears, 45 N. Y., 797.
"VIII. There is nothing special or complicated in this ease that should create any serious difficulty on the trial. It is an ordinary case of an attempt to create or prove a joint liability which was denied. The plaintiff must either prove a joint liability or fail in the action. If he succeeded in proving such a claim, the defendants would have a right to set off any claim they jointly held against him for sawing or otherwise, while individual claims for sawing could not be. If there was an express agreement that any sawing done for plaintiff should be by him applied as a payment upon this indebtedness, then it would have been proper to prove what sawing was done and the value thereof, irrespective of the question whether the mill was owned and operated by one or both defendants.
The plaintiff having introduced evidence '.tending to ehow that Edwin Tupper assumed to and did give direc tions in and about the mill, it was proper to show that others also gave like directions to rebut any inference that might otherwise be drawn as to Edwin’s interest as a copartner or otherwise; but it was not competent to prove statements made by Edwin disclaiming any interest therein.
We do not consider any of the other questions raised of sufficient importance to require a distinct ruling thereon.
It is proper, however, to say in conclusion that we think the record in this case “is so prolix as to cause vexation by reason of the multiplicity of frivolous assignments,” and by incorporating into the bill of exceptions so much of the testimony given on the trial as taken from the stenographer’s minutes. We have had occasion heretofore to condemn this practice. It largely and needlessly increases the costs in the case; it causes the opposite counsel much unnecessary trouble in preparing to meet each error assigned, whether important apparently or unimportant, and afterwards finding many of them abandoned on argument, and it occupies much of the time of the court in an investigation of a voluminous record to ascertain the tendency of the evidence, which could be more advantageously devoted to other purposes. There are in this case sixty-six errors assigned; very many of them we can- consider in no other light than as being frivolous.
We consider this case therefore a proper one for the exercise of our discretion in the granting of costs to the prevailing party under Eule 59.
We are of opinion that the plaintiff in error should bear the expense of printing the record in this case, and that no part thereof should be included or allowed in the taxation of costs.
The judgment will be reversed with costs, except as indicated, and a new trial ordered.
The other Justices concurred. | [
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] |
Per Curiam.
There is no reason why the board of supervisors of a county may not allow the compensation to the treasurer to include the amount received for office charges on payments under the tax laws. Those charges are declared to belong to the county and are payable into the treasury. Comp. L,, § 1037. But when there they are like any other moneys, and an allowance of their value may be as well. added to the other allowances of the treasurer as a similar allowance not referring to any such fund. The board are allowed to fix the treasurer’s compensation at such amount as they “deem reasonable.” Comp. L., § 519.
Belator is entitled to an order upon the county treasury as prayed. | [
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] |
Graves, J.
The plaintiff in certiorari maintains that the residuum of the personalty of the estate of William Stead is not appropriated by his. will and belongs, consequently, by force of the Statute of Distributions to the estate of plaintiff’s intestate, who was sole heir-at-law of defendant’s testator, the said William Stead, and this view has been strongly -and ingeniously supported by counsel.
The essence of the proposition is found in the assumption that William Stead, notwithstanding he left a will, actually died intestate as to this residuum, and this claim is made not on account of the want of expressions in the will showing an intelligent attempt .there to make a testamentary disposal, but upon the ground that the framework and terms of the will which concern the subject are too inaccurate and imperfect to be regarded as a valid testamentary disposition.
A careful scrutiny of the whole will is sufficient to show that Mr. Stead did not intend to die intestate as to any of his property, but contemplated that all his personal estate left after the payment of legacies, debts, expenses of administration and authorized expenses in the maintenance and education of his grandson, the plaintiff’s intestate, would be consumed in putting up the buildings on lot twenty-seven. Not only so, but he also contemplated that it might be necessary to resort to a parcel of his real estate in order to swell the building fund sufficiently to carry out his purpose.
Now all admit that the real estate was actually dis posed of by the will and that in virtue of that disposition the city lot twenty-seven is now possessed by Eobert Stead, brother of the testator, and defendant in this case, and my brethren think that the residuum of personalty in controversy was intended by the testator to go with that lot and must be held to do so; and that the technical considerations so ably pressed by counsel, even if conceded to be valid and efficacious in other ways cannot have the effect to disappoint the testator’s obvious wish and design that these two portions of his fortune should certainly go into the same hands.
Under no circumstances did be intend that bis grandson should take tbe lot as devisee under tbe will and then bide bis cbance for this personalty as distributee under tbe statute. On tbe contrary be made it a marked and emphatic object of tbe will to render it certain that both should vest in tbe grandson in case of bis attaining tbe prescribed age, ■ and there appears to have been no idea of making any provision to allow tbe two interests to pursue separate channels of transmission or to fall eventually into separate bands.
Whether under the rules of law the bounty thus intended to accompany the lot should be regarded as land or as personalty, it was certainly property and property capable of being given by means of any terms clearly evincing that tbe testator so willed. And in the opinion of tbe court tbe terms here were sufficient to 1 establish that it was tbe testator’s will that bis grandson should have tbe disputed property on reaching the specified age.
Tbe provision for tbe testator’s brother, Bobert Stead, as to this question, does not appear to be distinguishable. The two descriptions of property are kept together as before, and no ground for supposing the testator intended separate destinations for them, is more apparent in the one case than in the other.
The only legitimate conclusion to be drawn is that he willed that the given personal interest should go where he willed the lot should go, and that the recipient of the one should be the recipient of the other.
The claim that some part of this fund came from an ■independent source and not from those securities the "^proceeds whereof the testator provided should accompany lot twenty-seven, and hence that such part at least is distinguishable and covered by the right the plaintiff insists on, is sufficiently answered at this time by the circumstance that the assumed conditions of fact are not found.
We do not know that what remains exceeds the amount which the fund from the mortgages, would be entitled to after a marshalling of the assets. As the decision below is not shown to be erroneous it is affirmed with costs.
The other Justices concurred.
THE WILL.
In the name of God, Amen.
I, William Stead, of the city of Detroit,' in the county of Wayne, Michigan, do make and publish this my last will and testament, hereby revoking all former wills by me made.
And I do hereby appoint my brother, Kobert Stead, and my friends A. Smith Bagg and Edward Chope, all of Detroit, executors of this my last will and testament.
I give- and bequeath unto my brother, Kobert Stead, for and during the term of his natural life, park lot number twenty-three (23), on the east side of Woodward avenue, in the city of Detroit, now occupied by-him, till the said park lot is wanted for sale to raise money to build stores on lot twenty-seven (27), sec. eight (8). Then my brother, Kobert Stead, shall receive, for relinquishing the right to said lot, two thousand dollars, one thousand dollars at the time of is removal, and one thousand dollars in one year thereafter, without interest.
I give and bequeath unto my brother Kobert Stead’s daughters, Sarah, Harriet, Alice and Mary, the sum of six thousand dollars ($6000) to be equally divided between them at the rate of five hundred dollars yearly, in semi-annual payments of two hundred and fifty dollars every six months, commencing on the first day of July after my decease till the full sum of six thousand dollars without interest is paid them. If at any time either of the daughters should have died before receiving the full amount of their legacy the remainder shall go to their offspring if any and no one else. Should my brother, Kobert Stead, wish to relinquish the said park lot, No. 23, and give up possession I give unto Mrs. Kobert Stead during her natural life, the house and lot, they now occupy, from Woodward avenue to the east of the barn on the west of the alley, as a homestead, my executors to pay all taxes on said lot so long has she shall occupy it as a dwelling for herself; should she rent it she shall then pay all taxes. My executors shall build on lot twenty-seven (27), section eight (8), of the Governor and Judges of the city of Detroit, corner of Woodward avenue and Clifford street, three good and substantial brick stores. If not built upon, and should it become necessary to sell real estate for the purpose of building, they may sell park lot twenty-three, and the undivided half of the north half of lot thirty-five, sec. seven (lot 35, sec. 7), Gov. and Judges east of Woodward avenue, reserving from sale the house and lot that I have made a gift to Mrs. Kobert Stead during her natural life. After the payment of the foregoing legacies and of all of my just debts, funeral expenses, and all sums of money necessary for the building of said stores on lot 27, sec. 8, I give unto my grandson, William Stead Smith, all my real estate to do has he may please with excepting lot twenty-seven, sec. 8 (lot 27, see. 8) Gov. and Judges. This lot I give to him, the said William Stead Smith, during his natural life, and at his death shall descend to his heirs, if any, and if not, and should live till he becomes eighteen years of age, he shall have the power and right to will all the property given to him in this will, even to lot twenty-seven, section eight, of the Gov. and Judges of the city of Detroit, if there is any apprehension of his death, and I wish him to do so, and to leave to his uncle, Bobert Stead all sufficient to keep him comfortable so long as he should live. I also wish that my executors will preserve for my said grandson, William Stead Smith, all of his' mother’s silver, and also my silver pitcher and the two silver goblets, the piano, my gold watch, anything in fact that he should wish to possess. My own furniture I give to my nieces, Sarah, Hattie, Alice and Mary, in value same alike. My executors shall provide for the support of my grandson’s schooling, and my desire is that as soon as he shall be of a suitable he shall be sent to one of the best schools boarding schools to be found, and be educated sufficient for mercantile life, and until he shall be sent away to school he shall board and be taken care of by Mrs. Bose Aspinall, providing she should be in a situation sufficiently able to take care of him, or Mrs. Mary Bagg, wife of A. Smith Bagg, Esq. I have no one in. particular, wherever he is most happy there let him board, at the same time I do not wish him to be taken care of by any one of his relatives. X have sufficient reasons for so wishing, trusting my executors will so arrange matters in this particular, and whoever, shall be appointed guardian, shall receive for his care and board a sum sufficient, has my executors may deem proper. My executors shall have the power at any time to substitute any other lady than the one he may be with, providing every thing is not agreeable to. their wishes.
. I would also wish that if the stores is not built on lot 27, sec. 8, Gov. and Judges, at my death that my executors would so 'arrange matters with the mortgages and the real estate by converting thém into money, and have the stores built as soon as possible, providing they can be rented at a fair rent. I should wish such stores to be erected as those of Mr. Chapoton on the corner of Grand Biver and Woodward avenues, or as much better has my estate will afford at the time, with columns in the brick between the stores, somewhat equal to the Webber’s or Ereedman’s stores; then they can be converted into one or three stores has is wanted.
Should my grandson, William Stead Smith, be removed by death before he is eighteen years of age all my real estate shall then descend into tlie possession of my brother, Bobert Stead, but I again assert if my grandson, William Stead Smith should arrive at the age of eighteen years he shall have the right and power to will the said real "estate in this will to whom he pleases. My dearly beloved wife before her death requested me to leave a few legacies her relativos and friends, providing that William Stead Smith died before he arrived at the age of eighteen years, that he could will his property to whom he pleases. I shall now give those legacies has she wished me to do. I give unto my wife’s sister, Jerusha Goodrich, of Cleveland, that was, five hundred dollars; also I give unto Lucy Spade, my niece, daughter of Mrs. Goodrich, five hundred dollars; she now resides in Columbus; also my nephew, William Stead Goodrich, of Cleveland, two hundred and fifty dollars; also I give unto Mrs. Eose Aspinall five hundred dollars. Should she become his guardian, appointed and approved by the executors, she then does not get the above legacy. I give unto Mrs. McWillisjms two hundred and fifty dollars; also I give unto Mrs. Lizzie Fesby five hundred dollars. Such was the wish of my dearly beloved. These legacies is- to be paid, if paid at all, one year after my grandson, Wm. Stead Smith, if he should leave this world before he ■makes his will. If Bishop McCoskry is living I should wish him to attend my funeral, for which I bequeath to him one hundred dollars for his services. Dated- at Detroit this May sixth, A. D. 1870.
(Signed) Wm. Stead.
Signed by the said testator William Stead for his last will and testament, in the present of us, who at his request, in his sight and presence, and in the presence of each other, havo subscribed our names hereto as attesting witnesses.
(Signed) . Aeonzo Eaton, Detroit, Michigan.
Henby Campau, Detroit, Michigan. | [
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Cooley, J.
The plea puis darrein continuance offered an immaterial issue, and was properly disregarded. If plaintiffs had sold their demand, — whether before suit brought or afterwards — the purchaser was still entitled to pursue his remedy in the name of the original contracting party.
The court did not err in holding the plaintiff entitled to recover on the common counts in assumpsit, for what had been done by him on the special contract as modified. The case is governed by Allen v. McKibbin, 5 Mich., 449. Nor can we say the court erred, as matter of law, in being guided by the contract in determining the quantum meruit. The circumstances — upon which we cannot pass — might or might not render it proper to be governed by it. Nor do we think any error in the allowances made to the parties respectively is shown by the record.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
Defendant in error brought assumpsit against plaintiffs in error, declaring specially and also upon the common counts. Attached to the declaration was a copy of a draft purporting to be drawn in the name of McDonough & Stevens by D. M. Brock, payable to the order of Heyman and endorsed by him.
It appeared upon the trial that the draft was drawn by Daniel W. Brock, claiming to act as the agent of McDonough & Stevens, and it was claimed that this was a variance, in that the initial of the middle name was "W. and not M. Admitting as claimed that there was a variance in this respect, yet it was one that could not have misled the defendants nor injured them in any way. Whether the initial letter of Brock’s middle name was M. or not, was a matter of but little if any consequence, and in no way affected the parties to their prejudice.
The material question was as to the authority of Brock to bind the defendants in this manner. It appeared that he had previously drawn a similar draft payable to the order of Heyman which had been paid. And in connection with proof of this fact, Heyman was asked what Brock said to him at the time this first draft was drawn and endorsed by Heyman as to his [Brock’s] authority to draw in the name of defendants. This was objected to for the reason that Brock’s agency or authority to draw could not thus be proven by his own statements. This question was not admissible for such a purpose, but to show that in the drawing of that draft and the one in question he assumed to act in the same capacity, for unless such was the case there would be no significance in the mere fact that a draft had been drawn by him upon defendants and paid. It was the fact that he then claimed to act as their agent, and the payment of the draft he had then drawn, which gave color to his assumption of authority to draw the draft relied upon in this case..
An objection was made to a question asked plaintiff as to what he did after receiving notice of the dishonor of this draft, upon the ground that this was an attempt to prove a contract different from that set up in the declaration. There is no force in the objection. Under the pleadings the plaintiff had a right to show that as an endorser he had paid the draft.
A letter had been offered in evidence by the plaintiff from defendants to Brock as tending to show that the-latter was acting as their agent. In reply to this, defendants offered to show by parol that the letter was but a circular and similar to what they had sent to each of the parties who had dealings with them. It did not appear, however, that this letter was similar to those usually sent, and for this reason, if none other, the court properly excluded the evidence.
An exception was taken to that portion of the charge in which the court instructed the jury in substance that in case they found Brock had no authority to bind the defendants in this manner, yet if they should find that McDonough & Stevens appropriated, enjoyed and received. the proceeds of the draft with full knowledge of the facts as to the manner in which it was obtained, and of the whole transaction, under such circumstances they could not enjoy the fruits of the transaction without adopting the acts of their agent in obtaining the same, and that under such a state of facts plaintiff would be entitled to recover. In this we discover no error. It is but the statement and application of a well settled principle to the facts in this case. We can discover nothing in this or in the charge taken as a whole, of which plaintiff in error can complain.
The judgment must be affirmed with costs.
Campbell, C. J., and Graves, J., concurred.
Cooley, J. I agree in the main in the opinion of my brother Marston. I am not quite satisfied, however, that evidence of the making of the prior draft by Brock ought to have been received. The record, however, is too uncertain and indefinite in its references to that draft to enable us to decide satisfactorily the question raised. My brethren think the record shows that the former draft was drawn in the form of the one in suit, and was signed by Brock as agent. I do not so understand it, but understand it to have been drawn by Brock on McDonough & Stevens. The inferences from the payment of the draft would have been quite different in the two cases.
I can see no objection to the evidence that Heyman took up the draft after having negotiated it by endorsement. It is suggested that the evidence of that fact changes the character in which he sues; that he brings suit as payee of the draft, and then, through this evidence, seeks to recover as endorser. But I think this is erroneous. Suing as payee on a draft which had been negotiated, he was under the necessity of producing it, and there could be no harm, even if there was no necessity, in showing that he took up the draft by paying the amount to the holder to whom he was responsible as endorser. | [
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Graves, J.
This is a case made after judgment. The proceeding was commenced by Mrs. Newton before a circuit court commissioner to recover of Doyle the possession of a farm of a hundred and twenty acres. She alleged in her complaint that on the 27th of March, 1877, she was in the quiet and peaceable possession of the farm and was well entitled to it; but that Doyle at that time unlawfully and with force and violence entered and ejected and expelled her therefrom and thereafter kept possession.
The commissioner gave judgment in her favor and Doyle appealed to the circuit court. The cause was then heard without a jury and judgment again passed for Mrs. Newton. The defendant contends- that the facts do not sustain the judgment. It allowed recovery of the whole farm and ordered restitution. It appears that Doyle owned and lived on an adjoining farm and that the premises in question were occupied for several years -before June, 1876, by one Saul and his wife who claimed to own them; that about the ninth of that month Saul and wife gave Mrs. • Newton a quit claim deed of the place. It recited a consideration of $2800 as follows: “Five hundred dollars down, and whatever balance there may be after satisfying the following described mortgages, viz.: one mortgage given to Martin Doyle of the township of Grattan, of three hundred dollars to the date of this instrument, and one mortgage in favor of one Pomeroy of the State of New York for about fifteen hundred and fifty dollars.” It also appears that some time in the same month plaintiff’s husband went upon the premises as her agent and “did some picking up of log heaps and stones and cutting or pulling weeds and afterwards sent his hired man and plowed some two or three acres on said premises.” The land plowed was not used, but a plow and some other implements remained there until the next fall and after Doyle commenced improvements.
In the latter part of July, 1876, Doyle bought the premises of Luther Pomeroy. He had never been in possession but claimed title under a mortgage foreclosure. Doyle paid him $2500 and received a quit claim deed and this deed saved to Saul his crops then on the place and also the right for him to go on and harvest them.
Doyle notified Saul of his purchase and that he desired to occupy a part' of the pasture land on the farm, and Saul consented thereto and assisted Doyle in .putting up the fence between his growing crops and the pasture, and Doyle put his horses there. He also opened the fences between this and the adjoining place where he lived and turned in his stock and continued to use the place for pasturage until Saul’s crops were harvested and when that occurred he pastured the whole. An old log house stood upon the place in which Saul lived and early in November, 1876, Saul moved out, and at that time defendant’s wife bought of Mrs. Saul an old stove, and a table and bedstead of but little value were left with it in the old house. These articles had been previously given by Doyle to Saúl.
Doyle set this stove up in the log house and upon his request and that of Mrs. Saul, his daughter cleaned the house after Saul and his wife moved out. After this Doyle closed the door and left the house with the old stove, together with the table and bedstead therein. The door was not fastened, there being no means to do so. The house was no further occupied until March 27, 1877, and there was no other building upon the place except a “ruined log barn.”
In September, 1876, Doyle went on and cleared a portion of the premises of trees and brush to fit it for a crop of wheat the next season, and continued his improvements until stopped by snow. At that time he had cleared about twenty acres at a cost of some eight dollars per acre. This work was distributed in different places where it was needed. During the winter the fence between the two places continued open, and Doyle’s sheep and other stock roamed at will over the premises in question and grazed there when the ground was sufficiently exposed to allow it. During all this time the plaintiff lived on a farm separated from that in question by a piece of land eighty rods wide, and from her house saw the work going on. In the fore part of March she consulted counsel in regard to her right's in the premises and as to whether she might take possession, and acting upon the advice received, she together with her family in the morning of March 27, 1877, proceeded to the old log house before mentioned with two loads of household goods and placed them in the house. The last load reached the house at the early hour of five o’clock in the morning, and the distance by the road from plaintiff’s previous abode was about three-quarters of a mile. Plaintiff and her husband at once proceeded to arrange things for a permanent occupation. They had been in the house about three hours when they were interrupted by defendant. He found out about eight o’clock what had occurred and he immediately repaired with his sons to the log house and ordered plaintiff and her husband to leave the premises. They refused, and defendant and his sons carried plaintiff’s gbods out of the house, and by threats of violence accompanied with the use of some slight degree of force, expelled plaintiff and her husband and family from the house, and plaintiff and her husband then removed their goods from the •premises and left defendant in possession. The foregoing are the facts, and nearly in the language of the record, and they show the whole ground on which the court adjudged that plaintiff was in the quiet and peaceable possession of the entire farm and entitled thereto, and that defendant unlawfully expelled her. The case does not involve inquiry as to who had the better title. It concerns only actual possessory rights and the charge of unlawful disturbance. And for the purpose of this case the acts of defendant in depriving plaintiff on the 27th of March are not material unless she was at that time in actual peaceable possession. It appears that some months prior to her entry defendant took possession under a claim of right and with the express consent of the actual occupant who surrendered to him, and that he continued in possession down to the time of her entry. His occupation was evidenced by many visible facts and was unequivocal. It was not confined to any specific portion, but embraced the whole farm, including the old log house. It could not have been more distinct unless he had actually shifted- his house to it from the place with which he in fact connected it for farm purposes. She knew all about the occupation by defendant, and must have known that it was under a claim of right. . Under these circumstances and after advice, she resolved to get into possession. She accordingly made the night or very early morning entry into the log house and remained there until defendant was apprised that she had got in, when he proceeded to remove her without any delay. She succeeded in staying about three hours.
The construction due to the facts is that defendant was in possession, and that in going to the log hilase the plaintiff sought to dispossess him. The proceeding amounted to an attempt to disseize defendant and was in no just sense the acquisition of a peaceable possession even of the old log house, much less of the entire farm. No.doubt when there is no occupation — when the possession is really vacant — a party making a bona Jlcle claim to the right of possession may enter if the same can be done without disturbance, and very speedily found a possession entitled to recognition under this statute. But this is not such a case. Plaintiff was an intruder upon defendant’s possession, and she never held a quiet and peaceable possession within the sense of this remedy.
The facts, therefore, do not sustain the judgment, and there must be a reversal and judgment here for the defendant with the costs of all the courts.
The other Justices concurred. | [
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Potter, J.
(dissenting). Plaintiffs recovered judgment against defendant in the circuit court of Huron county for destroying their barns and personal property, by fire claimed to have been communicated thereto by sparks emitted from defendant’s locomotive, by reason of its negligence. Defendant brings error.
It is claimed the circuit court of Huron county had no jurisdiction to try the case. This contention is answered by Olshove v. Huron Circuit Judge, 240 Mich. 46.
Defendant pleaded the general issue and gave notice of settlement. Plaintiffs claimed the alleged settlement was fraudulently procured, and promptly repudiated. The case was at issue upon the filing of the plea and notice. No replication was necessary or permissible. The question of fraud was one of fact, and the burden of proof was on plaintiffs to show it. A wide range of testimony was admissible.
Plaintiffs claimed and testified they, and defendant, represented by its claim agent, Gillette, after negotiating, compromised and agreed upon the terms and conditions of a settlement by which defendant was to repay to the insurance company which had a policy of insurance covering the property destroyed, $1,100 paid by it under its contract of insurance to plaintiffs, and pay plaintiffs $500 in addition. Mr. Sauer, prosecuting attorney of Huron county, acted as scrivener to prepare the writing embodying the terms of the settlement. Sparling says he told the scrivener what he wanted. Gillette dictated a written memorandum of settlement. It did not, plaintiffs testify, embody the terms and conditions of the settlement agreed upon.
It is immaterial whether Gillette negligently or purposely omitted the real terms of the agreement of settlement from this memorandum, if he did so, if Sparling was misled and signed the agreement believing it embodied those terms. Sparling says he discovered it said nothing about the insurance company and went back to Gillette and by consent the agreement was modified by making an addition thereto. This is undisputed. Later Sparling found the agreement contained nothing about defendant repaying the $1,100 to the insurance company. Sparling then refused to accept the $500 tendered by defendant in settlement of plaintiffs’ claim and sent it back to defendant, though the scrivener -to whom the check had been tendered, signed a receipt for the same. Plaintiffs claim the substitution by Gillette of another and different contract of settlement than was agreed upon by the parties, operated as a fraud upon them, and they are not bound by the agreement for settlement signed under the circumstances. There was sufficient testimony to take this question to the jury. It found in favor of plaintiffs upon this proposition. There was no error in so doing.
It is claimed the court erred in the admission of testimony as to the value of the property destroyed, and in his charge to the jury on the measure of damages. The measure of damages was the value of the property destroyed. Close v. Railroad Co., 169 Mich. 392; Roach & Co. v. Blair, 190 Mich. 11. Though the court excluded testimony of the estimated cost of reproduction new, on defendant’s objection, such testimony was admissible (Ruppel v. Manufacturing Co., 96 Mich. 455; Leder v. Insurance Co., 175 Mich. 470; Union Ice Co. v. Railway Co., 178 Mich. 346; Adams v. Railway Co., 240 Mich. 300), though it did not constitute the measure of value (Hillsdale Light & Fuel Co. v. Utilities Commission, 220 Mich. 101).
The court charged the jury:
“There was some testimony crept into the record as to what it would cost to replace the buildings with new buildings. That is not a proper measure of damages in the case. It is what the buildings were reasonably worth, taking into consideration their condition, the time they had been built, the state of their repair, and all those things.”
There was no error in this charge.
Defendant alleges the court erred in not charging, as requested, that plaintiffs had not made a prima facie case of defendant’s negligence. The court’s charge, on the subject of defendant’s negligence, fully protected its rights. There was evidence to go to the jury on defendant’s negligence. It was properly submitted. The jury found against de fendant on the disputed facts. There was ample proof to sustain the verdict. We ought not to disturb it for this reason.
Defendant brought out on cross-examination of plaintiffs ’ witnesses that the insurance company had insured the property destroyed and paid plaintiffs a sum of money. Having gone into this subject evidently to show all the real parties in interest did not appear as parties plaintiff as required by statute, it cannot complain that plaintiff in reply showed the real parties in interest were plaintiffs. Defendant cannot play both fast and loose. It could not go into this subject and then complain that it did not pan out as expected. Defendant was not injured (Union Ice Co. v. Railway Co., 178 Mich. 346), and cannot, under the facts, justly complain.
Judgment should be affirmed, with costs to plaintiffs.
Wiest, J.
I am not content with the opinion of Mr. Justice Potter.
Plaintiff Olshove holds the equitable title to the farm under contract of purchase. Plaintiff Sparling holds the legal title. The barns were insured by the State Mutual Eodded Fire Insurance Company for the sum of $1,000, with loss, if any, payable to Mr. Sparling as his interest appeared. The barns burned August 1, 1923. The insurance company, under the policy and an order given by Mr. Olshove, paid Mr. Sparling $1,100, for loss of the barns and some personal property, and this sum was credited to Mr. Olshove upon the land contract. October 12, 1923, Mr. Olshove, in writing, assigned to Mr. Sparling “all claims, demands, rights of action and the proceeds thereof,” which he had against defendant on account of the fire, and notice of the assignment was sent defendant by mail, October 18, 1923, by Mr. Sparling’s attorney. An adjuster for defendant called upon plaintiffs, and they were willing to accept $500 in settlement; but whether defendant was also to pay $1,100 to the insurance company or leave that subject an open one was in dispute at the trial. September 25, 1925, Mr. Sparling, then holding the assignment from Olshove, went with defendant’s adjuster to the office of Alfred H. Sauer, an attorney at Bad AlX6, and Sparling employed the attorney to prepare an offer of compromise, to be executed by him, and the attorney prepared and Sparling signed the offer to accept $500, “as full payment and restitution for damages caused by fire to two barns, ’ ’ if paid within ten days, and “to release and discharge the said Pere Marquette Railway Company of and from all liability for said fire damage.” On his way home Mr. Sparling looked again at his copy of the offer and noticed that nothing was said about the rights of the insurance company, and at once he turned back, found the adjuster and they returned to the attorney’s office and there the attorney, -with consent of the parties, added the words making the offer read:
“I agree to release and discharge the said Pere Marquette Railway Company of and from all liability for said fire damage, in'-excess of sums previously received, from insurance companies.”
This offer, if accepted by defendant and satisfied, saved to the insurance company its right of action, if any, against defendant, but eliminated Sparling and Olshove as parties to any such litigation. Defendant accepted the offer as amended, and September 29, 1925, delivered to Mr. Sparling’s attorney its voucher for $500, but stated therein that it was “in full compromise, satisfaction and discharge of all liability, if any, of the Pere Marquette Rail way Company to said William T. Sparling, assignee of Egnatz Olshove, arising out of the disputed claim,” etc. This voucher, if accepted, did not affect the right of the insurance company to prosecute its right of action, if any, under right of subrogation on account of insurance paid. Plaintiff’s attorney, to be on the safe side, however, wrote, signed, and delivered to defendant’s attorney, at the time the voucher was tendered, a statement that:
“In accepting voucher * * * it is understood that such acceptance and payment shall not affect the rights or claims of any fire insurance companies whatsoever.”
This was agreed to by defendant’s attorney in writing. This conference between the attorneys was in the evening, and the next morning Mr. Sparling, when informed of what had been done, refused the voucher, claimed that, under the compromise agreement, the defendant was not only to pay-him $500 but to reimburse the insurance company, and told his attorney to send the voucher back. This the attorney declined to do, on the ground that no such agreement had been mentioned to him and the payment was in accord with Mr. Sparling’s offer, and he handed the, voucher to Sparling to send it back if he wanted to do so. Mr. Sparling returned the voucher to defendant by registered letter.
September 30th, or the very next day after the settlement voucher was given to Mr. Sparling’s attorney, there was written upon the back of the assignment of October 12, 1923, from Olshove to Sparling, a statement signed by Sparling and Olshove, declaring that the assignment by Olshove to Sparling did not express the true intent of the parties and,
“So far as the said writing assumes to be an assignment and transfer by the said Olshove to said Sparling of all of said Olshove’s claims, demands, and especially of his right of action against said Pere Marquette Railroad Company, on account of said fire, the same is hereby reassigned and retransferred to said Olshove by said Sparling, and the said writings are hereby so corrected.”
July 2, 1926, the State Mutual Rodded Fire Insurance Company assigned its right of action, if any, against defendant to plaintiffs herein, and August 4, 1926, they brought this action and obtained judgment for $3,700.
Mr. Sparling had an undoubted right to make the offer of compromise. The written offer, signed by him, and prepared by his attorney under his immediate direction, accepted by defendant and paid by voucher delivered to the attorney, ended all rights of Sparling and Olshove at that time, unless procured by fraud perpetrated by defendant. The only claim of fraud was that the writing signed by Sparling did not express the previous oral agreement by defendant to also pay the insurance company. Plaintiffs’ attorney, who drew the offer, and later included the clause saving to the insurance company its right of action, and accepted defendant’s payment voucher, and there again reserved such right of the insurance company, testified that he prepared the offer according to the direction given him by Mr. Sparling, and nothing was said about paying the insurance company. There was no mutual mistake and no fraud established, and the settlement was binding upon plaintiffs herein. If there was any mistake in drawing the offer of compromise it was that of the attorney employed by Sparling. The attorney testified there was no mistake. At any rate, there was no mutual mistake. It is no fraud, vitiating a signed agreement, to show that by inadvertence the attorney employed by the signer failed to make it speak all previous oral agreements.
It is inferable from the testimony that the insurance company learned of the offer to compromise, found the offer left it to prosecute its action against the railroad company without Sparling and Olshove as parties, and such was not the wish of the insurance company.
Upon this record, the court was in error in permitting the jury to find the offer, made by Sparling, accepted by the railroad company, and payment made in accord therewith, was void for fraud. Plaintiffs now' hold, by assignment, the claim of the insurance company against defendant, and, under such claim, can in no event recover more than the loss paid by the insurance conlpany;
Sparling alone is entitled to the $500 under the settlement.
Judgment reversed and new trial granted, with costs to defendant.
North, C. J., and Fead, Fellows, McDonald, and Sharpe, JJ., concurred with Wiest, J. Clark, J., did not sit. | [
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Wiest, J.
This is a bill in equity, in aid of execution, to reach the interest of defendant Georgia L. Kane in certain real estate. Georgia L. Kane and Catherine Kane are sisters, of mature years, own a duplex apartment building as tenants in common, reside in one apartment and rent the other. Defendant Frank W. Atkinson holds a mortgage for $2,000 on Georgia L. Kane’s undivided one-half interest, given for professional services of himself and an associate, and to pay charges of an accountant in a suit by a copartnership, of which plaintiff herein is the surviving member, wherein a money decree was rendered against Georgia L. Kane for $9,593.71, for collection of which the execution here involved was issued. In the circuit, decree was entered in the suit at bar allowing sale of the undivided one-half interest of Georgia L. Kane in the property, subject, however, to her homestead right and the Atkinson mortgage, the amount of which was reduced by consent, in open court, to $1,700. Plaintiff appealed and claims the mortgage should be set aside because given after judicial finding of the liability of the mortgagor and also for lack of proof showing consideration.
At the hearing Mr. Atkinson reduced the mortgage claim to $1,700, and that accounts for both sides not-going into an issue of the consideration.
Testimony of Georgia L. Kane shows that the mortgage was given for services rendered by her attorneys and by an accountant, and, in the absence of evidence to the contrary, plaintiff is in no position to now urge failure of, consideration- or to ash us to measure or limit compensation of the attorneys to actual time spent in court upon the hearing of the accounting suit.
• At the time the mortgage was executed a decree had been pronounced and signed in the accounting suit, fixing Georgia L. Kane’s liability and dissolving a temporary injunction restraining her from incumbering her property, but the decree was not filed until the day following the giving of the mortgage, and the execution was not issued until later. The injunction, having been dissolved by decree signed, did not impose restraint until the decree was filed. We think the mortgage valid, but limited in amount to $1,700 principal.
We find in the record the following statement of the attorney for plaintiff at the time the decree in the case at bar was signed:
•“In this case, at the time of the hearing in court on the bill in aid of execution, the only issue before the court at that time was the interest of Georgia L. Kane in the property, and no question as to her homestead interest was raised by the pleadings. At the time the decree came on for settlement, the issue was raised as to the homestead interest, by defendant’s counsel, and the court then decided to permit the defendant to make such amendment as would bring before the court the homestead interest, and said that he would dispose of the matter at that time. At the conclusion of the hearing on the original issue, it was agreed by defendant Frank Atkinson, to reduce the first mortgage by the sum of $300. If the record in any way shows that the plaintiff agreed to this arrangement, plaintiff did so on the theory that this settled the whole issue, and there would be no further controversy on the facts, but since the homestead issue was raised after that time, in the event that we appeal, we do not want to be bound by anything that might show in the record on the other issue.”
We quote this for its bearing upon the state of the record relative to the consideration for the Atkinson mortgage and also upon the subject of homestead right of defendant Georgia L. Kane, which we will now take up.
Counsel for plaintiff contend:
“That said Georgia L. Kane, in not having asserted this claim in her pleadings, nor at the trial of said case, has waived the same, the bill having been filed in this case to determine what interest Georgia L. Kane had in said premises, subject to sale on execution.”
We think the latter part of this states the very reason why the circuit judge was bound to consider the homestead right, brought to his attention before decree. The bill in this case seeks to subject the land of Georgia L. Kane to sale under execution, and the proofs disclosed that she occupied the premises as her home. If the owner of property makes such property his home in fact it is his homestead, needs no formal declaration as such, and judgment creditors must recognize its character and respect its extent. See Riggs v. Sterling, 60 Mich. 643, 650 (1 Am. St. Rep. 554). The fact that she occupied the premises as her home constituted notice to plaintiff of the homestead character, and was evidence in and of itself of election to have homestead rights. Riggs v. Sterling, supra. Under a bill in aid of execution, the court has power and the duty to protect the homestead right, even if the subject-matter is not presented until the decree is being reduced to form. If there is a disputed question of fact bearing upon the question the creditor should ask for leave to reopen the proofs.
Counsel for plaintiff seem to be of the opinion that there can be no homestead right, except the one claiming the right has a family.
The Constitution of this State (Art. 14, § 2), secures to residents of the State homestead rights in property owned and occupied by them. The statute (3 Comp. Laws 1915, § 12888), of course, does the same thing. Homestead right in this State is not restricted to married men or heads of families as it is in many jurisdictions. If one, entitled to a homestead, has a wife or children, then certain statutory provisions intended to protect the family come into play.
“Where the exemption is given to ‘residents’ of the State without limitation, no family or dependents are necessary.” 29 C. J. p. 801.
See, also, Myers v. Ford, 22 Wis. 139.
Georgia L. Kane, as a tenant in common, could claim right of homestead. A tenant in common may acquire a homestead. Shepard v. Cross, 33 Mich. 96; Lozo v. Sutherland, 38 Mich. 168; Sherrid v. Southwick, 43 Mich. 515; Tharp v. Allen, 46 Mich. 389; Cleaver v. Bigelow, 61 Mich. 47; Kruger v. LeBlanc, 75 Mich. 424; King v. Welborn, 83 Mich. 195 (9 L. R. A. 803). This is conceded by counsel for plaintiff, but it is insisted that the proof does not bring her claim within the purview of the homestead exemption. This is based on the claim that there can be no homestead exemption except there exist a family relationship. The premise is without support under the law of' exemption in this State, so the point has no merit.
The decree is affirmed, with costs to defendants.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
Plaintiff was employed by defendant as a coal passer on its car ferry No. 18, plying between Ludington, Michigan, and Manitowoc and Milwaukee, Wisconsin. While on duty on May 26,1923, he fell and suffered serious injury. He brought this suit under the Federal employers ’ liability act, made applicable to seamen by the Jones act, section 33 of the act of June 5, 1920, chap. 250, 41 U. S. Stat. p. 1007 (U. S. C. A. tit. 46, § 688), and had verdict and judgment. Defendant brings error.
On the main or car deck are four tracks, used to carry freight cars. The boat when loaded has four strings of cars on the deck, two on the right of the center of the deck, and two on the left. The cars must be fastened to prevent damage or loss at sea. On each side of each track is a dead rail, set nearly three feet from the track rail. To hold rigid the bodies of the ears, jackscrews are set between the dead rails and the sills of the cars, ordinarily four jackscrews to each car, although more are set if seas become unusually rough. The jackscrews are inclined from the dead rails toward the cars at an angle of nearly 45 degrees. When the .ship is nearing dock in calm weather, or when in harbor or at dock in rough weather, the jacks are unscrewed, and, according to some witnesses, are permitted to lie on deck where they fall so that they will be convenient for use when another deck load of cars is taken on. A jackscrew weighs nearly 150 pounds, and is three feet long. Between the first dead rail on the right of the center line of the main deck and the first dead rail on the left is a way, spoken of by some witnesses as a passageway, commonly used as such by the crew. It is nearly six feet wide, and extends from the stern of the ship nearly to the bow. In it are hatches for passing to and from the deck below the main deck and a stairway to go to the upper or cabin deck. The mess rooms are on the cabin deck. The sleeping quarters of the coal passers and firemen are below the main deck on the flicker deck, in what is called the flicker hole. The flicker hatch is close to 20 feet from the foot of the stairway leading to the cabin deck. At the time in question, the ship was at dock in Ludington, and was being loaded. Two strings of cars had been placed on the inner tracks. Plaintiff was called at 2:45 a. m. to go on duty at 3:15. To get his morning meal in the mess room, he left the flicker hole, came up the flicker hatch, started toward the stairway leading to the cabin deck, stumbled over .a jackscrew lying in the passageway, and fell. He fell either close to the flicker hatch or nearly 9 or 10 feet away from it, according to the varying testimony of witnesses. He testified that during the period of his employment, April 4, 1923, to May 26, 1923, he had walked in the passageway several times daily, and had never before seen a jackscrew lying in it; that during that time the jackscrews, when not in use, lay between the dead rails and the track rails on either side of the passageway.
There is no evidence of rule in this regard except the captain testified that he had given verbal orders against leaving jackscrews within some 2 or 3 or 4 feet of the foot of the stairway and of the hatch.
Defendant’s contentions are:
1. That there is against it no evidence of negligence. Plaintiff’s testimony is to the effect that it was the unvarying practice on that ship, during the period of his employment, nearly two months, not to leave jackscrews in the passageway. If that is true, the act of the employee or employees in leaving the jackscrew in question in the passageway was negligent, for which, under the law, the defendant is liable. Chapman v. Express Co., 192 Mich. 654, controls this question.
2. That plaintiff assumed the risk of injury in coming in contact with a jackscrew on the car deck. That would be true probably if the facts are as contended by defendant, that during all the period of plaintiff’s employment jackscrews, when not in use, did lie in the passageway, and not so if the facts are as contended by plaintiff. Of this it is said in the Chapman Case:
“The Federal authorities seem to hold that in order to make the negligence of the fellow-servant one of the assumed risks under this act, the injured employee must actually know of the fact of the negli gen.ce of his fellow-servant, or that such negligence was so customary that he would be charged with knowledge thereof.”
3. That plaintiff’s injury was the result of his own negligence. Plaintiff’s testimony, read in its entirety, is to the effect that he saw the jackscrew too late to avoid stumbling, although he attempted to avoid it. The question of his negligence was- for the jury. There was some testimony, not much, of lack of light, due chiefly to location of electric lights; that cars and parts of the ship itself produced shadows in the passageway. The jury was not permitted to consider this as regards negligence of defendant, on the theory that if there was any negligence in this respect plaintiff assumed the risk, but the jury was instructed that it might consider such testimony with reference to contributory negligence of plaintiff. The court was not in error. The jury was instructed, correctly, in substance, that if plaintiff was guilty of contributory negligence, then his damages should be diminished in proportion to the amount of negligence attributable to him. Sumner v. Railroad Co., 235 Mich. 293.
4. That the verdict is against the great weight of the evidence. There is no question that plaintiff stumbled over the jackscrew, fell, and suffered serious injury. The important question of fact is whether or not it was the practice to leave jack-screws in the passageway. Plaintiff’s testimony that jackscrews had not been left or placed in the passageway during his employment, except on the occasion of his fall, finds support in other testimony to the effect that when the jackscrews were released they were permitted to fall and to lie where they fell. Inclined, as has been stated, they would fall away from the passageway, and between the track and the dead rail. The trial court was right in holding the verdict to be not against the great weight of the evidence.
5. That defendant’s motion for mistrial ought to have been granted because of misconduct of a juror. Toward the close of taking testimony, counsel for defendant made the motion, supported by an affidavit, that on that day in a railway waiting room at Birch Run, in the county, one of the jurors returning to court in the presence of four or five persons, quoting:
‘ ‘ This man then began talking about sitting on the jury in Saginaw, and various cases he had heard, and among them was the case on which he was sitting at present. This case involved injury to a Pere Marquette employee on a car ferry. He stated that it had been his opinion when the case started that this employee was trying to put something over on the company, but from the contradictory testimony of the doctors and testimony of the various employees on the boat, that he thought there was something to it, but he thought that there would be a disagreement of the jury because of a woman juror. This woman juror having had a great deal to do with the doctors and would accept the testimony of a doctor against the opinion of every other juror. ’ ’
In denying the motion, the trial judge said:
“The most that can be said is that the juror indulged in a short conversation with some persons during the trial at a place where he happened to be waiting for a street car, which was casual and indefinite in character, and in no way prejudiced .the defendant, or committed the juror to any particular verdict in the»case.
“It is the opinion of the court that litigation in process of trial should not be abandoned for slight reasons, and that the verdict of the jury should not be upset upon alleged misconduct of a juror during tbe trial, except where it clearly appears that there was such a prejudice as would cause an injustice to be done. The motion is therefore denied, for this cause.”
It does not appear that any one talked to the juror. He did all the talking. Nor was either party to this suit concerned in it. The juror was guilty of misconduct. But, as stated in Abbott’s Civil Jury Trials (4th Ed.), 788:
“Not every irregularity which would subject a juror to censure should overturn the verdict. In order to authorize the setting aside of a verdict on account of misconduct of the jury, it must appear that such misconduct may have had an influence upon the final result, and caused injury to the complaining party.”
And in 29 Cyc. p. 800:
“While the fact that a juror made remarks about the case to persons not jurors may properly be considered in connection with any other evidence of misconduct, it is not of itself ground for a new trial, where such remarks did not indicate bias or corruption and the person addressed said nothing prejudicial in reply.”
And in 16 R. C. L. p. 312:
“Misconduct must, however, be such as to warrant the belief that the fairness and propriety of the trial have been impaired; that injury has resulted therefrom; and generally, where prejudice has resulted to an unsuccessful party from the misconduct of the jury, it must appear that he was not concerned in such misconduct. Impliedly, a verdict should not be set aside for every trifling error of law by the court, or for every trifling misconduct of a juror, which occurs without the fault of the pro vailing' party; but it should be whenever the error or misconduct renders it reasonably doubtful whether the verdict has been legitimately procured.”
See Cooper v. Carr, 161 Mich. 405. Stockwell v. Railway Co., 43 Iowa, 470, is closely in point.
It does not appear that defendant suffered injury by the misconduct, that it influenced the final result. Bias or prejudice ag’ainst defendant on the part of the juror is not indicated. The trial judge thought the misconduct not sufficient to vitiate the verdict. We are constrained to agree with him.
This opinion must come to an end. Several other assignments are discussed by counsel, but, fully considered, present no reversible error.
Judgment affirmed.
North, C. J., and Fead, Fellows, McDonald, Potter, and Sharpe, JJ., concurred.
Wiest, J.
(for affirmance conditionally). Considering the age of plaintiff, his expectancy of life, former occupation and earnings, the nature and extent of his injuries and lessened ability to work, I think the verdict for $7,000 excessive, and unless reduced by remittitur within 20 days to $5,000 the judgment should be reversed and a new trial granted, with costs to defendant. | [
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] |
Potteb, J.
Plaintiff was the owner of a house and lot in Dearborn, Wayne county, Michigan. There was a first mortgage thereon upon which there was an unpaid balance of $2,868.04 and a second mortgage in litigation as to the amount due, subsequently determined by suit to be $1,038.89 and costs of suit, amounting in all to $1,188. Defendants Mack were the owners of the contract of purchase of a farm in Livingston county, Michigan, the holder of the fee being defendant Emma J. Funsch. The parties were brought together by a real estate broker and it was mutually agreed to exchange equities in the respective properties. When the parties came together to make the formal agreement of exchange, the existence of the second mortgage on the Dearborn property was first made known to defendant Mack. He insisted this mortgage be paid or satisfied before he would proceed. As a result of further negotiations a separate contract was drawn and signed by plaintiff and defendants Mack, and annexed to the contract of sale of the Dearborn property as a separate covenant thereto, reciting the pendency of litigation over the second mortgage, and providing plaintiff should pay this mortgage, and the amount due on the Mack land contract should, in event of its payment, be reduced $1,000, leaving a balance due defendants Mack on the contract of $2,150. The defendants Mack desired to occupy the Dearborn property, and insisted on having a provision in the contract stipulating the time which plaintiff was to have t'o take care of the second mortgage on the Dearborn property. October 25, 1926, the contracts providing for the exchange of equities were made. Plaintiff agreed to sell defendants Mack the Dear-born property in consideration of $4,500 paid down and the payment of the additional sum of $4,041 with interest—
“all of which purchase money and interest shall be paid in instalments of not less than forty-three ($43) dollars each, payable November 25,1926, next and not less than the last named sum thereafter; said payments to be applied (first upon interest and the balance on principal): Provided, the entire pur chase money and interest shall be fully paid within sixty (60) days from the date hereof cmything herein to the contrary notwithstanding.”
This contract provided the defendants Mack were to convey to plaintiff, on the carrying out of the contract, by warranty deed, a marketable title of the farm. The contract contained the usual clauses, that vendee should pay the taxes and insurance, and provided :
“When the sum owing, hereon is reduced to the amount owing upon such contract or mortgage or owing to any mortgage executed under either of the powers in this contract contained, a conveyance shall be made in the form above provided with a covenant by the grantee to assume and pay the same.”
It contained a clause providing for forfeiture of the premises and all amounts paid on the contract and all improvements if the purchaser failed to perform the contract or any part thereof. The contract executed by the Macks to plaintiff, recited the payment of $5,000 by the purchaser to the vendor, stipulating the balance to be paid as $3,150; provided for its payment with interest in instalments of not less than $100 each, payable December 1, 1926, and a like sum on each December 1st thereafter, and—
“provided the entire purchase money and interest thereon shall be paid within sixty days from date hereof, anything hereinbefore to the contrary notivithstanding.
“It is understood that there is a certain agreement about a certain credit of certain amounts, to be credited on this contract and also about the certain credits to be given on contract to the vendor herein on property they are purchasing from vendee.”
There was, in this contract, covenants for the payment by the vendee of the insurance, taxes, and assessment, and providing:
“4. If default is made in the payment of any tax, assessment or insurance premium, or in the procuring and delivery of any insurance policy, the vendor may pay such tax, assessment or premium, or procure such insurance, and all sums paid therefor shall be a further lien on the premises payable by the purchaser to the vendor forthwith with interest at the rate of seven per cent, per annum.”
The contract also provided:
* * * “When the amount owing upon this contract shall be reduced to the amount owing by the vendor upon any mortgage or mortgages or contract on the premises, a conveyance shall be made in the manner above provided with a covenant by the grantee to assume and pay the same. * * * If purchaser shall fail to perform this contract or any part thereof the vendor immediately after such default shall have the right to declare the same void and retain whatever may have been paid hereon and all improvements that may have been made upon the premises and consider and treat the purchaser as his tenant holding over without permission, and may take immediate possession of the premises and the purchaser and each and every other occupant remove and put out. ’ ’
There were several minor matters involved. Defendants Mack were paid $100 prior to the execution of the written contracts. They were to be paid $400 more. This sum of $500 represented the agreed difference in the value of the equities of the respective parties. It is claimed a commission of $159 was paid for the benefit of defendants Mack by plaintiff. Plaintiff did not procure a settlement of the second mortgage on the Dearborn property until after Oc tober 15, 1927, when the decree was signed, filed, and entered in the suit in chancery relating thereto, and it had not therefore been settled when this suit was commenced. Plaintiff failed to pay the taxes on the farm, and Mrs. Funsch began foreclosure of the land contract for nonpayment of taxes, and defendants Mack were compelled, to save their equity therein, to pay $160.24 taxes and costs of litigation.
Defendants Mack claimed plaintiff was in default in not carrying out the agreement to take care of the second mortgage on the Dearborn property within 60 days, and in not paying the taxes on the farm, which, upon payment by defendants Mack, became payable forthwith by plaintiff with interest, and, under the forfeiture clause in the contract, defendants Mack gave plaintiff notice of forfeiture and instituted summary proceedings before the defendant Munsell, a circuit court commissioner of Livingston county, to recover possession of the farm, whereupon plaintiff filed the bill in this case in the circuit court for Livingston: county, in chancery, to restrain defendants from, proceeding further therein and to specifically perform the contract. Defendants Mack filed an answer in the nature of a cross-bill asking for dismissal of plaintiff’s bill, a cancellation of the contracts, and for possession of the farm. They admit in their cross-bill the receipt of the payment of $100 and offer to return it if right and equitable so to do. There was a decree for defendants on the cross-bill which provided for the return by defendants to plaintiff of $259, and plaintiff appeals.
Other questions are involved besides those stated above, which would not change the decree arrived at by the trial court which is
Affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Potter, J.
Defendant was convicted of a violation of the liquor law and sentenced to imprisonment in the Michigan reformatory at Ionia for from six months to one year. He seeks to review by writ of error the judgment of the trial court. The search warrant by which the principal evidence was procured does not purport to have been issued on positive proof. There is no claim it was so issued. It was executed about midnight. Motion was made by defendant to suppress the testimony obtained by the execution of this search warrant. This motion was overruled. The sole question is the regularity of the issuance and service of the search warrant herein.
The people claim the criminal code is a general act and not intended to amend or repeal the provisions of the liquor law relating to search warrants. This would be so but for the specific language of the criminal code which makes it applicable to search warrants issued under any other law. The liquor law is within the plain meaning of the statutory language, and the provisions of the criminal code relative to search warrants must be held applicable. Act No. 175, Pub. Acts 1927, applies to all cases in which a search warrant may issue “under any other law of this State providing for the same.” There is no exception of the liquor law, which is clearly included in the language ‘ ‘ any other law of this State. ’ ’ Section 2, subd. 5, chap. 16, Act No. 175,* Pub. Acts 1927. All search warrants, according to the criminal code, must command the officer to search the premises in the daytime (§3), except if there is positive proof that the thing to be searched for is in the place to be searched, a search warrant may be issued authorizing its execution in the nighttime (§4).- It follows that the execution of the search warrant in question in the nighttime was illegal and defendant’s motion to suppress the evidence thus obtained should have been granted.
Judgment, is reversed and the cause remanded for a new trial.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Fellows, J.
This case was tried by the court without a jury. No findings of fact or conclusions of law were filed, and not until over two and one-half months after the entry of judgment was there any request made that they be filed. The trial judge then declined to make and file them. Under the repeated' decisions of this court, the defendants have not made a record which enables us to consider the principal questions raised. Defendants insist that such questions are preserved by their motion for a directed verdict, although there was no jury there to direct, and cite Gervickes v. Assurance Co., 222 Mich. 103. But in that case there were specific findings of fact filed, and we held that under the motion for a directed verdict, we could consider whether the facts found were supported by any testimony. But here no facts have been found, and in the ab'sence of such findings it is difficult to perceive how we can decide whether the proofs support nonexistent findings. An examination of the entire record satisfies us that no injustice is done defendants by sustaining this question o.f practice which is urged upon us by plaintiff’s counsel.
There'are assignments of error relating to rulings on the admissibility of testimony, hut they are without merit
The judgment will he affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, 'and Sharpe, JJ., concurred. | [
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Fellows, J.
Plaintiff is the widow of Hyman Elson; defendants are the executors named in his will together with his children, who with plaintiff are devisees and legatees under the will. Plaintiff and her husband held title by entireties to real estate in Detroit. Morris and Samuel Pelavin were friends of theirs engaged in building operations. The Pelavin Brothers were sued and their funds'in the bank were tied up by writs of garnishment. One of them applied to Elson to become surety on release bonds. This he could not do without having title to the real estate put in him alone. Plaintiff readily consented to this, for she said: “We know him for a long time and we ought to do it for him.” The parol testimony as to the transaction, which was received over objection, tends To establish that Mr. Elson agreed to place the title to the property back as it was after the bond had been released; it also negatives fraud, accident, or mistake. Before the Pelavin lawsuit ended Mr. Elson died with the title standing in his name. By this bill plaintiff seeks to have the deed set aside and defendants held to be holding as trustees for her.
There is no fraud, accident, or mistake in the case, none is claimed, and no proof tending to establish any or either of them. Under such circumstances parol testimony is inadmissible to establish a trust in real estate. 3 Comp. Laws 1915, § 11975; Longe v. Kinney, 171 Mich. 312; Funk v. Engel, 235 Mich. 195.
In the main, plaintiff’s brief deals with the question of the validity of the deed of plaintiff to her husband. The cases cited are those familiar to the profession in which this court has uniformly held that neither the husband nor wife alone may- sell, incumber, or in any way defeat an estate by .the entireties. All of the cases cited by plaintiff’s counsel deal with attempted conveyances to strangers, none of them deal with deeds inter se, and the language used in them, of course, has reference to case then before the court. These cases proceed on the theory that one of the parties may not defeat the estate by his or her single act, that the concurrence of both is required. Where one spouse deeds directly to the other, both do act, one by giving and the other by accepting the deed. The diligence of defendants’ counsel has produced but one case from this court, although numerous cases from other jurisdictions are cited, where the question was squarely decided, and we have not been able to find any other. In Wilkinson v. Kneeland, 125 Mich. 261, it was held (quoting from the syllabus):
“Defendant deeded land to complainant and wife, in which he owned only a half interest, and complainant alleged that he accepted the deed without knowledge of the fraud, and that his wife had deeded her interest to him. Held, that the contention that complainant was not entitled to maintain a bill for specific performance, because he and his wife were tenants by the entirety,. was without merit, since that fact would not prevent her from releasing her interest to the husband.”
Plaintiff’s counsel insists that this holding was dictum. Not so. We have examined the record and briefs, and the question of the validity of a deed from a wife to a husband of lands held by the entire-ties was necessarily involved, and in fact was the only question briefed at length.
While this seems to be the only case in this court where the question was squarely presentéd, we have on numerous occasions had the analogous question presented as to whether a wife may release her inchoate right of dower by deed directly to the hus band, and have uniformly held that such deed was valid. Randall v. Randall, 37 Mich. 563; Rhoades v. Davis, 51 Mich. 306; Wright v. Wright, 79 Mich. 527; Dakin v. Dakin, 97 Mich. 284; Chittock v. Chittock, 101 Mich. 367; Bechtel v. Barton, 147 Mich. 318; LaPlant v. Lester, 150 Mich. 336. ¥e shall not consider the cases from other jurisdictions, as the Wilkinson Case is controlling, and we have no disposition to overrule it at this time.
The decree will be reversed and plaintiff’s bill dismissed, with costs.
Fead, C. J., and North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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Sharpe, J.
Plaintiff’s action was brought to recover on a promissory note given her by defendant. Defendant’s plea was accompanied by a notice of set-off. On plaintiff’s demand it filed a bill of particulars on August 18, 1925, in which it claimed in specific items that plaintiff was indebted to it for moneys which had come into her hands as bookkeeper and auditor for defendant, and which she had failed to account for, in the sum of $2,405,83. The execution of the note was not denied. On October 1, 1925, plaintiff moved for a summary judgment. Defendant filed an affidavit of merits and with it a supplemental bill of particulars, in which the money claimed to be due under its set-off, amounting to $2,168.09, was more particularly itemized. The record fails to disclose any action taken on this motion, but it is said to have been denied. On January 3, 1926, plaintiff filed a motion to advance the caus'e for hearing, filing affidavits in support thereof. This motion was denied. On April 4, 1928, she filed a motion for summary judgment, accompanied by an affidavit in support thereof, in which she averred “that she believes that the plea heretofore filed by said defendant was solely for the purpose of delaying this action.” Defendant filed three affidavits iu opposition thereto. The assistant treasurer of defendant deposed in part:
“That the plaintiff was formerly employed as bookkeeper of said corporation, and upon an audit of the plaintiff’s books and accounts it was found that the entire daily receipts were not deposited in the bank used for that purpose and that the discrepancies in the bank deposits and cash sheets amount to two thousand three hundred and seventy ($2,370.22) dollars and 22/100 and upwards cover-' ing the seven months’ period. * * *
“Deponent further states that plaintiff has knowledge of these discrepancies and has made no reply thereto or explanation thereof.”
The affidavit of defendant’s president stated that he hired plaintiff “as bookkeeper, cashier and auditor;” that she had “sole charge of the books, records and invoices of the corporation;” that it was her duty “to deposit the daily receipts in the bank account kept for that purpose to the credit of the corporátion,” and “to balance tbe books and accounts and make daily reports of the business of the corporation;” that she was dismissed from such employment “owing to the many infractions of the duties which devolved upon her;” that he employed the services of an auditor, and from his report it was found “that there existed discrepancies in the daily bank deposits not in harmony with the cash book entries.” The amounts thereof for several months were then stated. He also deposed that when plaintiff left defendant’s employ she owed it $58 for restaurant charges and $450 for room rent.
The affidavit of the auditor stated that from an examination of the books of defendant kept by plaintiff he found shortages in the moneys deposited by plaintiff in excess of $4,000, and listed the amount thereof for each month.
The motion for summary judgment was granted and judgment entered for plaintiff for the amount of the note and interest thereon. Defendant thereupon moved to set it aside and for a new trial. This motion was denied. It here seeks review by writ of error.
Section 12581, 3 Comp. Laws 1915, provides that at any time after a cause arising upon contract, judgment, or statute shall be at issue, the plaintiff may move for a summary judgment unless the defendant shall file an affidavit of merits. The question here presented is whether the affidavits filed by defendant are sufficient under the requirements of Circuit Court Rule No. 34, as amended to take effect September 1, 1926 (233 Mich, xxxiii). The amendment added the following:
“The facts so stated shall be the personal knowledge of the affiant, shall be set forth in the affidavit with particularity, and the affidavit shall show af firmatively that the affiant, if sworn as a witness, can testify competently thereto.
“If all facts relied upon as tending to establish such meritorious defense are not within the personal knowledge of one person, then such as are not within the knowledge of the person making the affidavit of merits shall be supported by the affidavit of persons qualified as above, and said supporting affidavits shall be drawn with like particularity.”
Each of the affidavits contained an averment that the affiant had knowledge of the facts therein stated, and, if sworn as a witness, could testify thereto. Had the books kept by plaintiff been produced in court, and the affiants as witnesses testified to the facts stated in their affidavits, it seems clear that, in the absence of a satisfactory explanation by plaintiff, an issue would be presented for the jury to determine. It cannot be said as a matter of law from a consideration of the affidavits that defendant has not a “real defense to the action.” Webster & Co. v. Pelavin, 241 Mich. 19. See, also, Barsky v. Katz, 241 Mich. 63, and Smith v. Applebaum, 241 Mich. 493.
The judgment is reversed and set aside and a new trial granted, with costs to appellant.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Potter, J.
Plaintiff'brings habeas corpus against defendant to obtain discharge from the Michigan State prison. July 31, 1917, plaintiff was convicted of murder and sentenced to Michigan State prison for life. December 31,1926, the governor commuted his sentence “so that the same will expire 15 years from date of sentence.”
Section 1732, 1 Comp. Laws 1915, as amended by Act No. 256, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 1732) provides that prisoners who conform to prison discipline and against whom no infraction of the rules shall he recorded ‘‘ shall be entitled to a reduction from his minimum sentence as follows: * * * up to and including the period fixed for the expiration of the sentence.” When plaintiff was sentenced, section 1732, 1 Comp. Laws 1915, was in force. It provides that those who do not offend against the rules of prison discipline and who have no infractions of the rules of the prison or the laws of the State recorded against them, “shall be entitled to a reduction from his sentence as follows: * * * up to and including the period fixed for the expiration of the sentence.”
Obviously, the question of good time applies only to those where the date of expiration of sentence is fixed. Plaintiff was sentenced to imprisonment for life. The period of his imprisonment was not fixed. There is no provision in the statute whereby a prisoner sentenced to imprisonment for life, without parole or commutation of sentence at an earlier period, may be discharged. Commutation of sentence is a matter of executive clemency. When the governor exercised that clemency he commuted the sentence of plaintiff “so that the same will expire 15 years from date of sentence.” The meaning of this language is plain and unambiguous. In re Hall, 34 Neb. 206 (51 N. W. 750). To construe the commutation in accordance with the contention of counsel for the plaintiff, would be a palpable violation of that elementary rule of construction, namely, — that effect will be given, when possible, to all the terms and conditions of the instrument in question. The date of expiration of plaintiff’s sentence is fixed by executive order at 15 years from date of sentence. Plaintiff, if he accepts the benefit of the commutation granted, must accept it in accordance with the terms imposed by tbe executive authority granting it.
Petition is denied.
North, C. J., and Fead, Fellows, Clark, McDonald, and Sharpe, JJ., concurred. Wiest, J., concurred in tbe result. | [
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McDonald, J.
This is an appeal from a decree of the circuit court of Gogebic county, Michigan, granting the defendant a divorce. The parties were married on January 12, 1892, and lived together in the city of Ironwood, Michigan, until June 18, 1926. One child, a daughter, now 34 years of age, was born of the marriage. The plaintiff is 54 years old and the defendant 59. She filed her bill on August 12, 1926, charging cruelty consisting of intoxication, remaining out nights, consorting with lewd women, personal violence, improper language, and nonsupport. The defendant filed a cross-bill, in which he alleged cruelty consisting of nagging, fault finding, refusal to cohabit, accusing him of consorting with lewd women, intoxication, and personal violence. The court granted the defendant a decree on his cross-bill. The plaintiff has appealed.
We have carefully read the record and the .briefs of counsel. Our conclusion is that neither of these parties is entitled to a decree for a divorce. For several years during their married life, the plaintiff conducted a gift shop in her home, in which business she was very successful. The defendant had quit the barber business, in which he was engaged at the time of their marriage, and had become a salesman. He was not successful. His failure and her success seems to have developed in the plaintiff a superior ity complex. She was not backward in reminding him of it. She testified:
“Yes, I did say that my husband didn’t have any backbone; that I was his backbone, and that he didn’t do anything without me, and that he was a failure. I perhaps said that on many occasions.”
Undoubtedly the defendant was hurt by these, frequent reminders that he was a failure. At least such statements did not tend to peace and harmony in the home.
Another incident indicating cruel treatment on the part of the plaintiff was the destruction- of pictures of the defendant’s family. Of this she testified:
“Q. What did you do with the picture of Mr. Cook’s father?
“A. I threw all pictures of the family out.
“Q. Where did you throw them?
“A. Out on the garbage.
“Q. In the garbage can?
“A. Yes.
‘ ‘ Q. Did you take pains to destroy the pictures or did you put then! in a position in the garbage can so that every one passing by could see them?
“A. Well, they couldn’t very well crowd in.
“Q. They were very large pictures?
“A. .Well, they happened to be large pictures.
“Q. How large would you say?
“A. Well, I don’t know; about two feet square.”
There is also testimony that she threatened to shoot the defendant. He told the sheriff, who went to the home and found an unloaded gun under the mattress of the plaintiff’s bed. She testified: '
“In June, 1926, I told Mr. Cook that I would put a bullet through him. I reproved him about going out, but there was no heated discussion when I went down stairs the evening before from the second to the first floor with a flashlight. I might have struck him on the head with the flashlight. I wouldn’t say I didn’t. It was a little thirty cent flashlight, about five or six inches long.”
This incident evinces a warlike disposition in her attitude toward her husband. He was no pacifist either, but his conduct on the occasion in question did not justify a resort to arms on her part.
We have quoted sufficient from the testimony to show that the plaintiff is not entitled to a decree. What of the defendant? We are satisfied that' much of the discord in this home was caused by the defendant coming in at late hours intoxicated. The plaintiff so charges and the charge is supported by her testimony and that of her daughter. He denies . it, and on the hearing called witnesses from among his neighbors and friends to disprove it. One of these, John B. Chappell, testified:
“During the time that I have known him I have never seen him under the influence of liquor to such an extent that he did not know what he was doing or was unable to take care of his business. * * * I never saw a man drunk to the extent that he was unable to take care of his business. I have seen Bill Cook take a drink. As to his taking lots of them, it all depends on what you consider lots. Everybody hasn’t the same capacity. I have been out on two parties that I know of with Mr. Cook. No, they weren’t good ones. I didn’t have plenty to drink; I didn’t have enough to drink. Bill Cook didn’t have all he could drink. * * * I have played cards with Mr. Cook at the Masonic club probably about 50 times, sometimes until 1 or 1: 30 in the morning.”
Mr. Cain, the defendant’s business partner, testified:
“I have never seen Mr. Cook so drunk that he was unable to take care of his work, except possibly once in 1917. Not during the years 1924 and 1925. I was with him on that occasion and got pretty near drunk myself.”
To the same effect is the testimony of the other witnesses. It differs only in degree from that of the plaintiff and her daughter.
Another subject of discord in the family was the defendant’s visits to Hurley, Wisconsin. They all say that Hurley is a city notorious for vice. It is claimed that the defendant’s visits there were in “the nature of slumming parties.” We very much doubt it, but, assuming that they were, his wife had a right to insist that he refrain from making such visits. They gave her some ground for believing that he was consorting with lewd women; and it was quite natural that she should make a vigorous protest. For whatever domestic trouble arose over his conduct in this respect, the defendant was wholly to blame.
It is not necessary to comment further on the troubles which arose to mar the marital happiness of these parties. Both have contributed to the cause of estrangement that now exists. Neither is entitled to relief in a court of equity. Legatski v. Legatski, 230 Mich. 186, and cases cited.
The decree of the circuit court is reversed. The bill and cross-bill will be dismissed. The plaintiff will have costs.-
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
(after stating the facts). In view of the fact that each party seems to insist that if its motion for a directed verdict was refused, it should have been permitted to go to the jury, attention should be called to the rule that where both parties without reservation move for a directed verdict, neither can in this court insist that the case should have gone to the jury. If the court’s decision is right in law and supported by substantial evidence, the judgment must be affirmed. Hemphill v. Orloff, 238 Mich. 508.
In the recent case of American Surety Co. v. Savings Bank, 242 Mich. 581, after a full examination of the authorities, we concluded that the great majority of the American courts had adopted the doctrine of the early English case of Price v. Neal, 3 Burr. 1355, that the drawee bank was bound to know the signatures of its customers and could not recover the money it had paid to a bona fide holder of the check who had indorsed it. That case was decided after plaintiff’s brief was filed in this court. If this were the case of a forged check purporting to be drawn by Hunehik on plaintiff bank and cashed by the Kalamazoo bank and defendant bank and indorsed by both of them, that case would require the affirmance of this judgment because on this record both banks were bona fide holders of the paper. Plaintiff’s counsel evidently had the rule announced'in that case in mind when they prepared their brief. They call attention to cases where that rule is recognized as applicable to checks drawn by the customer, but in which it is held to be inapplicable to cases where the indorsement of the customer is forged, as was the case with the manager’s check in the case before us. Defendant’s counsel counters with the citation of numerous cases sustaining its claim,* indeed, the case has been well briefed by both sides. As we are satisfied that it is clearly established by this record that plaintiff is estopped from asserting the claim here made, we shall rest decision on that ground. The loss which occurred cannot be charged to any negligence on the part of the officers of the Kalamazoo bank. A stranger came to that bank as a prospective customer. He bore a letter written by plaintiff, sent by registered mail, and delivered to him as the true addressee by the post office officials. He had the manager’s check issued by plaintiff, which he desired to deposit. The Kalamazoo bank paid him no money but took the check and forwarded it to Detroit for collection, for payment. When he again appeared at the hank and desired to withdraw most of the money, the officer in charge of the matter declined to pay him until he first called up plaintiff’s manager who issued the check, told him the party desired' to withdraw the money, and inquired if the check had been honored, and, being informed that it had, paid out the money. Plaintiff had before it three signatures purporting to be the signatures of Paul Hunchik, but which, if plaintiff’s handwriting expert is to be believed, were not even good imitations of his handwriting as appeared on the signature card in possession of plaintiff. Had the two signatures first sent to plaintiff bank, the signature to the letter and the one to the withdrawal receipt, been given careful comparison with the signature card, it is quite likely that the fraudulent scheme would have been nipped in the bud and no one would have suffered loss. Again, when the manager’s check came in, and before any money had been paid out, had there been a careful comparison, it is quite likely plaintiff would have discovered the forgery and there would have been no loss. The language of the supreme court of Utah in Heavy v. National Bank, 27 Utah, 222 (75 Pac. 727), is quite applicable. It was there said:
“Therefore, it is manifest that, if appellant had exercised ordinary care and prudence at the time it received the order from James Malloy, of Denver, for the draft, it would not have been possible for him to have perpetrated the fraud and procured' the draft. Not only did appellant fail to exercise ordinary business care on this occasion, but accompanied the draft with a letter which was sufficient to enable Malloy to dispel every doubt that the ordinary business man might entertain as to the regularity of the transaction that put him in possession of the instrument. The rule is tersely, and, we think, correctly, stated in the case of Crippen v. National Bank, 51 Mo. App. 508, as follows: ‘That when both parties to a transaction are innocent, and the loss must fall upon one, it should be upon the one who in law most facilitated the fraud. ’ Appellant, having issued and placed in the hands of an imposter its draft, a negotiable instrument that is accepted and exchanged with almost the same degree of confidence in commercial centers as are national bank notes, ought not to be permitted to repudiate it, and compel respondent, who honestly and in good faith became an indorser, to stand the loss, which the record shows was made possible by appellant failing to observe the usual and customary business rules followed by banking houses and other commercial institutions in issuing this class of paper. * * *
“We are of the opinion, and so hold, that appellant, by its own carelessness having furnished Malloy the means by which he perpetrated the fraud, ought to stand the loss occasioned thereby.”
Attention is called to the rules of the clearing house association. We do not understand it to be claimed that they confer rights not accorded by the rules of law applicable to the case in hand. We discover nothing in their provisions which prevents the application by this court of the doctrine of estoppel.
There are assignments of error bearing on the admissibility of testimony. A.s both parties, by unconditionally moving for a directed verdict, treated the case as presenting questions of law only, rulings on admissibility of testimony which only tended to strengthen or weaken the case already made became unimportant.
The judgment will b¿ affirmed.
North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. Fead, C. J., did not sit. | [
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Potter, J.
Plaintiffs sued defendants on a breach of covenant against incumbrances. They recovered judgment for '$3,229 and costs. Defendants bring error. Defendants were the owners of lot 8 of block 136 of the city of Lansing. They sold and conveyed it to plaintiffs by warranty deed, free from all incumbrances. There was a right of way across the premises granted by the prior owners thereof, described in the following language:
“Said first parties hereby grant to said second parties, the use of an alley on the north side of lot 8, of block 136, said city of Lansing, to be used for driveway only, the said second parties thereby agreeing with said first parties that they will not in any way disturb or interfere with the gas pipes or sewerage now on said lot 5 so as to in any way interfere with the proper use of the same on lot 8 of said block. ’ ’
Defendants filed a plea of the general issue and gave notice that the easement referred to in plaintiffs’ declaration was no impairment of the title; that plaintiffs purchased the premises with full knowledge of the facts in relation to such easement; that the legal effect of the deed by defendants to plaintiffs was the same as though the easement was referred to therein; that the facts set forth in the declaration did not warrant the claim for damages; that plaintiffs were guilty of laches; that the language created reciprocal easement rights; and that the value of plaintiffs ’ premises were increased over and above what it otherwise would have been by reason of such reciprocal easement rights; that plaintiffs were precluded from claiming damages by reason of the easement complained of to lot 8; and that these reciprocal easement rights were fully-known to plaintiffs. After verdict, a motion for a new trial was made, alleging the verdict and judgment were grossly excessive. This motion was denied. Defendants assign many errors, grouped under the following heads: The trial court erred in excluding proof offered tending to show all of the facts and circumstances surrounding (a) the purchase by plaintiffs of lot 8 as bearing upon the question of damages; (b) the knowledge of plaintiffs as to their reciprocal easement rights; (c) the full use to which the property was put by plaintiffs between the time of purchase and the commencement of suit; and (d) that the damages were grossly excessive.
The deed given by defendants to plaintiffs described the premises and covenanted “that they are free from all incumbrances whatever and that they will and their heirs, executors, and administrators, shall warrant and defend the same against all lawful claims whatsoever.” The existence of the right of way was an easement and an incumbrance upon the premises in question.
In Post v. Campau, 42 Mich. 90, it is said:
“Anything is an incumbrance-which constitutes a burden upon the title; a right of way, Clark v. Swift, 3 Metc. (Mass.) 392; a condition which may work a forfeiture of the estate, Jenks v. Ward, 4 Metc. (Mass.) 412; a right to take off timber, Cathcart v. Bowman, 5 Pa. St. 317; a right of dower, whether assigned or unassigned, Runnells v. Webber, 59 Me. 488. In short, ‘ every right to, or interest in the land, to the diminution of the value of the land, but consistent with the passage of the fee by the conveyance.’ Prescott v. Trueman, 4 Mass. 627, 630 (3 Am. Dec. 246).”
A right to an easement of any kind is an incumbrance. 20 C. J. p. 1252. That plaintiffs knew of the existence of this easement as an incumbrance upon the premises is entirely immaterial. Plaintiffs had a right to insist that defendants covenant against known as well as unknown incumbrances. It is the rule that knowledge of the existence of an outstanding incumbrance may be the very reason for insisting upon a covenant against it.
In Edwards v. Clark, 83 Mich. 246 (10 L. R. A. 659), it is said:
“In this State no parol proof is admissible in an action upon covenants to show that an existing incumbrance was to be regarded in fact as no incumbrance. ‘It is as usual, and certainly as competent, to covenant against known as unknown incumbrances or defects of title;’ and, with a covenant of this kind, the purchaser is not called upon for the exercise of any diligence. Smith v. Lloyd, 29 Mich. 382, 389. And it is said that the fact of the purchaser having notice of an incumbrance is the very reason for his taking a covenant within whose scope it is included. Rawle, Cov. (5th Ed.), pp. 112-115, and cases cited in notes.”
The covenant in the deed from defendants to plaintiffs was broken when made by the existence of the outstanding easement and incumbrance on the premises, and plaintiffs were entitled to recover.
A number of witnesses were sworn and testified as to the value of the premises with and without the incumbrance. The court charged the jury that the measure of damages was the difference between the actual or fair market value of the lot in' question on July 15, 1921 (that being the date of the deed from defendants to plaintiffs), with the easement across it, and what that actual fair market value would have been on that date had there been no easement there. When the jury arrived at that difference they were to add to it interest at the rate of 5% per annum from July 15,1921, to the date of trial. The verdict was within the range of the testimony. We find no error in the trial below, and the judgment is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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On Rehearing. .
Fead, J.
This is rehearing of the appeal of Byron J. Oades in the case reported in 240 Mich. 413, in which it was held that appellate jurisdiction had not been acquired by this court because of Oades’ failure to file claim of appeal within the required 20-day period after entry of decree. The ruling was made under misapprehension of the facts, because of incompleteness of the printed record. The decree appealed from was entered July 31, 1926. Oades filed claim of appeal and paid the fee on August 24th, and gave notice to the other parties on August 25th. The printed record did not disclose the fact, which is shown by the original files, that defendants de Vos filed claim of appeal and paid the fee on August 18th, within the 20-day period. Under Supreme Court Rule No. 61 (208 Mich, xxxvii), this action by defendants de Vos entitled Oades to appeal within 20 days after receiving notice of their appeal.
No ease was settled, and plaintiff contends that Oades’ appeal was not perfected. Where it is not necessary to settle a case, the appeal is perfected upon filing claim of appeal and payment of the fee. 3 Comp. Laws 1915, § 13759. Counsel disagree as to whether any testimony was taken upon the hearing. Upon the issue raised by Oades, that the circuit court had no jurisdiction to enter the decree of July 31, 1926, it was not necessary to settle a case. If the court had jurisdiction, the decree is unassailable on this record whether testimony was or was not taken. If want of jurisdiction affirmatively appears by the files, it would not be cured by testimony on a hearing. Plaintiff has suggested no amendments to the record which would affect the jurisdiction of the court as disclosed by the files.
Cades’ appeal was properly taken and is here for determination upon the question of jurisdiction of the circuit court to enter the decree.
The original case came to this court on appeal from decree of the circuit court entered March 25, 1925, and is reported in 233 Mich. 288. This decree determined the rights and liabilities of plaintiff and Oades as to each other and to the property involved, and left nothing for further determination except in connection with closing the receivership. It awarded no personal decree against Oades except for costs. Neither plaintiff nor Oades appealed from the decree. On January 12, 1926, this court entered a'decree, reversing the decree of the circuit court only as to defendants de Vos. The decree of July 31, 1926, imposed on Oades a personal liability to plaintiff not included in, reserved, nor suggested by the decree of March 25, 1925.
An appeal brings a chancery case to this court for hearing de novo, and, whether the decree of the circuit court be affirmed, reversed, or modified, the decree in the case becomes the decree of this court, and the circuit court has no jurisdiction to change it without leave of this court first obtained. Thompson v. Hurson, 206 Mich. 139. The language of Mr. Justice Fellows in White v. Wadhams, 206 Mich. 608, is applicable:
“May the trial court to which a chancery case has been remanded by this court after final decree here, without leave of this court having been obtained, reopen a case and change and modify, enlarge or detract from the decree of this court? We think not. This court hears chancery cases de novo, and the decree of this court is a finality. The recent case of Thompson v. Hurson, 206 Mich. 139, is in point. By the provisions of the statute (3 Comp. Laws 1915, § 13761), upon the final determination of a chancery case by this court, it is remitted to the circuit court to be there enforced. But it is not for that court to determine whether it shall be enforced, changed, added to, or taken from.”
In so far as the decree of July 31, 1926, provided personal liability and judgment against Oades in favor of plaintiff, it is reversed. Because of the condition of the printed record, no costs will be awarded.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
This case involves the construction of the following paragraph of the will of Hiram Lambertson, deceased:
“I will and bequeath to my beloved wife, Jane Lambertson, the undivided one-half of the following piece or parcel of land (description), she to have the proceeds of the one-half of the farm for her own private use as long as she lives, and when she gets through with it it shall go to Norma Lambertson if she is living, if not to J. V. Lambertson, he to look after and have charge of her interest therein as long as he lives.”
Hiram Lambertson left no children. His wife, Jane, survived him, and had the use of the property which was held by defendant Case, as trustee, until her death in 1921. John Y. Lambertson, named in the will as “J. Y. Lambertson,” was a brother of Hiram, and they owned this land together. Norma Lambertson was a daughter of John Y. She died in 1908; plaintiff is her mother, and, claiming that under the paragraph above quoted the prop erty vested in Norma on the death of testator, insists that it now belongs to her as heir-at-law of Norma. Defendants by cross-bills also sought construction of the will, insisting that the title did not vest in Norma at the death of Hiram, but, if it did, such title was subject to be divested by the happening of the event named, i. e.,.her death before that of the life tenant. From a decree sustaining defendants’ contention, plaintiff appeals,
•Plaintiff relies on that class of cases of which the following are illustrative: Rood v. Hovey, 50 Mich. 395; Porter v. Porter, 50 Mich. 456; In re Patterson’s Estate, 227 Mich. 486; Sturgis v. Sturgis, 242 Mich. 52. These cases" involved in the mainvQLpvises or bequests to a class, and the words “survivor” or “surviving” were before the court for construction. Where construction is necessary, there are certain well-known rules of construction which of necessity are brought into play; one of these rules is that the law favors the vesting of estates at the earliest possible moment. In each of these cases this rule of construction is recognized, and correctly so. These cases are correctly decided. They establish a rule of property and we have no disposition to deviate from them. But we do not find that the instant case falls within that class of cases. This case belongs to that class of cases where, taking the will alone, and from its four corners, the intent of the testator is so clearly apparent that resort to rules of construction is unnecessary. One of the earlier of the cases of the class last referred to is Plant v. Weeks, 39 Mich. 117, and it is quite impossible to distinguish the will in the instant case from the one there involved and which there is found in the margin. Mr. Justice Cooley, who there wrote for the court, said:
• “The intent to make a gift of this conditional nature is so plain that no argument can make it plainer. And this of course is an end of the plaintiff’s claim; for if the gift by will was conditional, it could not be a gift of the same interest which the daughter would have taken under the statute of descents, or under that and the statute of distributions. We1 think the title to neither the real nor the personal estate ever vested in Clara Belle, because by her death during minority and.childless, the condition was never performed.”
See, also, Fitzhugh v. Townsend, 59 Mich. 427; L’Etourneau v. Henquenet, 89 Mich. 428 (28 Am. St. Rep. 310); In re Lamb’s Estate, 122 Mich. 239; Garman v. Hawley, 132 Mich. 321; Hunter v. Hunter, 160 Mich. 218; McInerny v. Haase, 163 Mich. 364; In re Blodgett’s Estate, 197 Mich. 455.
We agree with the conclusion reached by the trial court, and affirm the decree, with costs of this court.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
The Bank of Detroit brought suit against the Standard Accident Insurance Company and the Fidelity & Deposit Company of Maryland. The defendants executed to plaintiff a bond in the amount of $250,000 indemnifying the Bank of Detroit against—
“any loss through the payment, whether received over the counter or through the clearing house or by mail, of forged or raised checks, or (genuine) checks bearing forged indorsements, or the establishment of any credit to any customer on the faith of such checks.”
The Strathmoor Lumber, Coal & Supply Company obtained a certified check payable to the order of the American Investment Company in the amount of $1,000. This check was indorsed “American Investment Company, by J. P. Lynch, ’ ’ and deposited to the personal credit of J. P. Lynch, who subsequently withdrew the money from the plaintiff bank. Plaintiff was compelled to refund the $1,000 to the American State Bank, drawee, and, defendants refusing to pay, this suit was instituted' to recover the $1,000. There was judgment for defendants and plaintiff brings error. The sole question in the case is whether this indorsement was a forgery or a false and fraudulent assumption of authority.
In Regina v. White, 2 Car. & Kir. 404, the prisoner was indicted for forging an indorsement on a bill of exchange with intent to defraud. . It was signed “Per procuration, Thomas Tomlinson, Emanuel White.” Defendant was convicted. The case was afterwards considered by the 15 judges, who held the conviction wrong. Indorsing a bill of exchange under a false assumption of authority to indorse it “Per procuration” is not forgery, there being no false making.
In the case of In re Windsor, 6 Best & S. 522, Windsor was charged with forgery. He was the paying teller of the Mercantile Bank of New York and made false and fraudulent entries upon his books to conceal his crimes and embezzled upwards of $200,000. Chief Justice Cockburn said:
“No doubt this was a false entry, and made for fraudulent purposes; but it is clear that the offense did not amount to forgery. We must take the term ‘forgery’ in the extradition act to mean that which by universal acceptation it is understood to mean, namely, the making or altering a writing so as to make the writing or alteration purport to be the act of some other person, which it is not.”
. In Rex v. Arscott, 6 Car. & P. 408, the defendant was indicted for forging and uttering, knowing it to be forged, an indorsement on a bill of exchange. He indorsed “Received for R. Aickman, Gr. Arscott.” It is said:
“The words are — ‘Received for R. Aickman, Gr. Arscott.’ I take it, that, to forge a receipt for money, is writing the name of the person for whom it is received. But, in this case, the acts done by the prisoner were, receiving for another person, and signing his own name. Under these circumstances the prisoner must be acquitted upon this indictment. ’ ’
In Re Tully, 20 Fed. 812, the only question presented was whether the offense with which the defendant was charged Constituted forgery. He was-a submanager of the Preston Banking Company, Limited, and had general authority from the bank to draw checks and he was charged with drawing a check for £1,000 signed per pro. the Preston Bank Company, G-. T. Tully, snbmanager. He received the money in person and rendered to the accountant’s bureau of the bank the slip signed “P,” converted the money to his own use, and absconded. It is said:
“If a check delivered in payment of goods purchased be drawn fraudulently against a bank where the drawer has no funds, and has no reason to expect payment, such a check is not forgery, since it binds nobody but 'the drawer, and is precisely such as he made it and intended it to be; but if the holder fraudulently increase the amount payable after the check has been signed, that is forgery on his part, because the check is evidence and apparent authority for drawing an amount of money which the maker never authorized. In all .these cases the distinction seems to me to turn upon the question whether the instrument has, or can be made to have, any legal force or effect, in itself considered, against any other person than him who makes the false statement or alteration. If it has, and is designed and calculated to deceive, it is forgery; otherwise not.”
In State v. Willson, 28 Minn. 52 (9 N. W. 28), defendant was convictód of uttering a false deed knowing the same to be false. The deed purported to be a deed of land by one James D. Hoitt to Joseph Pi Miller, signed by H. H. Willson, per procuration of said Hoitt, the form of the signature being “James D. Hoitt, by II. H. Willson, his attorney in fact.” Defendant signed the deed claiming the authority to do so under the power, of attorney. It is said:
“The real question, therefore, is whether an instrument, which appears on its face to have been executed by an agent authorized, while in truth he was not so, is a false instrument; or, to state the proposition in another form, when an instrument is really, in all its parts, written or signed by the individual by whom it purports to be written and signed, and the falsity, consists, not in the simulation or counterfeiting of the act of another, hut in the false assertion which the instrument contains that he, the writer and signer thereof, is authorized so to make and sign if in behalf of another, as it purports to be, is it a false instrument, within the meaning of the statute, and, upon negotiation of such instrument by the person who has so prepared it, is that person guilty of uttering a false instrument? * * *
‘ ‘ The instrument, on its face, purports to be def end-ant’s own act, but one which he was authorized to do for and in the name of Hoitt. The reader of the deed could npt misunderstand it. By its terms, the defendant declares that he made the writing, but that he so made it for Hoitt and by authority from Hoitt. The falsity, if any, consists in the claim of authority from Hoitt. The law, as we have seen, is well settled that if a person sign an instrument with his own name per procuration of the party whom he intends or pretends to represent, it is no forgery, it is no false making of the instrument, but merely a false assumption of.authority.”
In Barron v. State, 12 Ga. App. 342 (77 S. E. 214), defendant was indicted for forgery. He signed a draft “W. R. Amason, W. H. B.” The question was whether or not in signing Amason’s name he was guilty of forgery. It is said:
“In our view of the case the defendant may be guilty of cheating and swindling, or of obtaining money under false pretenses, but under the evidence in the record he cannot be convicted of the offense of forgery. There is some conflict in the authorities upon this subject, but the sounder view seems to be that forgery cannot be predicated of a writing which is not in itself false, — is not intended to be a semblance of something other than what it purports to be; and the mere fact that a paper is issued with fraudulent intent is not of itself sufficient to constitute the crime of forgery, if the paper purports to be executed by an agent, although, in truth and in fact, there may have been no agency at all. The reason is plain; for, in the latter case, the fraud, if perpetrated at all, is effected by inducing confidence in the validity of the agency alleged to exist, whereas in the case of real forgery the fraud is committed by inducing the belief that the paper was executed or signed by him who purported to have signed it, when in truth and in fact such was not the case. In forgery the false instrument must carry on its face the semblance of that for which it is counterfeited, although it is not necessary that the semblance be exact. * * * In our judgment, the true rule is stated in 5 Encyclopedia of Evidence, 860: ‘Evidence .showing that the defendant did the acts for another, though the authority was falsely and fraudulently assumed, will not sustain a prosecution for forgery.’ ”
In Mann v. People, 15 Hun (N. Y.), 155, the prisoner was indicted for making a note for $10,000. It was signed by Henry A. Mann, treasurer. It purported to be drawn in pursuance of a resolution of the board of supervisors of Saratoga county. The court said its legal character was the same as if it had been signed ‘ ‘ County of Saratoga, by Henry A. Mann, treasurer.” It is said:
“Assuming this to be correct, we first have to inquire whether the making of such an instrument would have been forgery at common law, or without reference to the phraseology of our statute. That is, when one executes an instrument purporting on. its face to be executed by him as agent for a principal named therein, and when he has in fact no authority from such principal, is he guilty of forgery? The English cases prior to chap. 28 of 24 and 25 Viet, hold that he is not.
“In Rex v. Arscott, 6 Car. & P. 408, the prisoner had indorsed on a bill of exchange ‘Received for R. Aickman, G-. Arscott.’ Littledale, J., said: ‘To forge a receipt for money is writing the name of the person for whom it is received. But in this case the acts done by the prisoner were the receiving for another person and signing “his own name.” ’ It was held that the offense was not forgery. The leading case of Regina v. White is reported in 2 Car. & Kir. 404, and much more fully in 2 Coxe C. C., 210. In that case a bill of exchange payable to the order of Thomas Tomlinson was indorsed by the prisoner: ‘Per procuration Thomas Tomlinson, Emanuel White.’ He had no authority whatever from Tomlinson. It was held by the twelve judges, before whom the case was argued, that this was not a forgery. On the argument of the present case, the counsel for the people urged that the act of White could not have been forgery at common law, because it was the writing merely of a name; citing to that point Regina v. Close, 7 Coxe C. C., 494. That was a case where, with fraudulent intent, a person had marked .a painting with the name of a celebrated artist; and the court held that the act was not forgery. This was entirely different from the case of an indorsement of a note. In the one, the name, if genuine, has a legal effect and forms a contract. In •the other it does not. The counsel for the people also cited 3 Coke, Inst., 169, where Lord Coke, speaking of the words ‘ or make, ’ in 5 Eliz. Ch., 14, says: ‘These be larger words than to forge, for one may make a false writing within this act, though it be not forged in the name of another, nor his seal nor hand counterfeited. ’ But the meaning of that language is explained by Lord Coke in the next sentence, where he gives, as an illustration, that if A execute a deed of land in the manor of Dale to B, and if a person erase from the deed the letter D, and insert the letter S in its place, so that the deed shall read lands in the manor of Sale, this will be :a forgery, or a false writing under seal, although it is not forged in the name of another, nor his seal nor hand counterfeited. There is nothing, then, in this passage of Lord Coke which weakens the force of the decision in Regina v. White. It was in fact .cited by the counsel for the prisoner in that case. The decision there seems to be on the very point involved in this present case, that an instrument thus made was not a forgery, although its statements were untrue.
“This question came up in this State under the extradition treaty with England. A bill of exchange had been made payable to the order of Charles Macintosh & Co. It was indorsed by the prisoner, Heilbonn, as follows: ‘Received for Chas. Macintosh & Co., Alex. Heilbonn, No. 9 Vine street, Regent street, No. 73 Aldermanbury. ’ The prisoner had no authority to make the indorsement. He was arrested under the provisions of that treaty, and was afterwards brought up on habeas corpus and discharged. The court said: ‘It is the essence of forgery that one signs the name of another to pass it off as the signature or counterfeit of that other. This cannot be when the party openly and on the face of the paper declares that he signs it for the other.’ (Heilbonn’s Case, 1 Parker Crim. Cas. 429; see, also, 2 Bish. Crim. L., § 582; 2 Wharton Crim. Law, § 1432; 2 Arch. Crim. Pr. and PL, 819.)
“To the same effect is the case of Commonwealth v. Baldwin, 11 Gray (Mass.), 197 (71 Am. Dec. 703). The prisoner made and delivered a note signed ‘Schouler, Baldwin & Co.,’ stating at the same time that he and one Schouler composed the firm. There was no such partnership. It was held not to be a forgery. The court say: ‘As a general rule, however, to constitute forgery, the writing falsely made must purport to be the writing of another party than the person making it. The mere false statement or implication of a fact not having reference to the person by whom the instrument is executed, will not constitute the crime.’
“So, also, in State v. Young, 46 N. H. 266 (88 Am. Dec. 212), the court say: ‘The term falsely * * * has reference, not to the contents or tenor of the writing, or to the fact stated in the writing, * * * but it implies that the paper or writing is false, not genuine; fictitious, not a true writing; without regard to the truth or falsehood of the statement it contains.’
“The case of Commonwealth v. Baldwin (ut supra) is referred to in a recent case in the same State. Commonwealth v. Foster, 114 Mass. 311 (19 Am. Rep. 353). The court there say:
“ ‘The distinction is plainly drawn between one who assumes to bind another, either jointly with himself, or by procuration, however groundless and false may be the pretense of authority so to do, -and one who signs in such a manner that the instrument may purport to bear the actual signature of another party having the same name.’
“And the court speak of ‘the essential element of an intent, when making a signature, or procuring it to be made, to pass it oft fraudulently as the signature of another party than the one who made it.’
“It seems to us that these authorities, in the absence of anything to the contrary, are sufficient to show that, aside from our statute at common law, such an offense is not a forgery. ’ ’
In State v. Taylor, 46 La. Ann. 1332 (16 South. 190, 25 L. R. A. 591, 49 Am. St. Rep. 351), defendant E. R. Taylor was indicted for forgery. He signed a note by the names of several parties and added “I was authorized to sign the above names, I secured the order. E. R. Taylor.” It is said:
“Assuming that the facts are correctly charged, forgery is not the crime the defendant has committed. Forgery is defined as the making or altering of a writing so as to make the alteration purport to be the act of another person. This definition does not embrace the making of a note per procuration of the party whom he intends to represent. The false assumption of authority is not the forgery denounced by the statute, and falsely assuming to act as agent of the maker of the instrument does not make the alteration purport to be the act of another, It is Ms own unauthorized and wrongful act, and not the fraudulently falsifying of another’s name, as in forgery. It was not a false making of another’s signature. It did not purport to he the signatures of the drawers personally, but their signatures as written by the defendant acting as an agent. He did not personate others, and fraudulently write their names, but stated on the face of the instrument that he was an authorized agent. This did not constitute forgery, though he may have had no authority in fact. The agency expressed takes the instrument out of the category of false making in the sense of forgery. ’ ’
In People v. Bendit, 111 Cal. 274 (43 Pac. 901, 31 L. R. A. 831, 52 Am. St. Rep. 186), the defendant was indicted and convicted of forgery, he having signed the instrument with his iMtials. It is said:
“By these acts he may have committed some other crime, but he did not commit forgery. We have been referred to no authorities to the point that the signing of another’s name as his agent is forgery, while there is a multitude of authorities to the contrary in text-books and adjudicated cases. Hf a man accept or indorse a bill of exchange in the name of another, without his authority, it is a forgery. But if he sign it with his own name, per procuration of the party whom he intends to represent, it is no forgery; it is no false making of the instrument, but merely a false assumption of authority.’ ”
Annexed to this case in 31 L. R. A. 831, is a note which reviews the authorities.
In England, parliament has passed a statute covering questions of this kind. Section 24, chap. 98, 24 & 25 Victoria. There is no such statute here. In the absence of a statute the common law prevails.
Judgment affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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